STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELITA K. COLEY DAVIS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4381

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on August 30, 1991 in Tampa, Florida.

APPEARANCES

For Petitioner: Angelita K. Coley Davis, Pro se

5919 S. Dale Mabry Apt. A

Tampa, Florida 33611

For Respondent: Charles G. Gardner, Esquire

Department of Transportation 605 Suwanee Street, MS-58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

1. Whether the Petitioner timely filed her petition for hearing in response to the Respondent's letter of March 28, 1991 alleging that Petitioner had abandoned her career service position with Respondent.

   
   

2. Whether Petitioner abandoned her career service position with Respondent as alleged in the Respondent's letter of March 28, 1991.

PRELIMINARY STATEMENT

On March 28, 1991 the Respondent, Department of Transportation (Department) advised the Petitioner that having been absent from work for three consecutive days without authorized leave of absence it was assumed that the Petitioner had abandoned her position and to have resigned from the career service.

Additionally, this letter advised the Petitioner of her right to appeal this decision to the Secretary of the Department of Administration. By letter dated May 24, 1991 the Petitioner advised the Department of Administration (DOA) of her desire to "get her story on file". The Secretary of DOA accepted Petitioner's letter as a request for a hearing, and on June 12, 1991 entered an Order On Receipt Of Petition And Notice Of Intended Disposition wherein the Petitioner was allowed to submit written objections and show good cause why the

matter should not be dismissed for failure to timely file a petition with DOA. By letter dated June 28, 1991, Josephine Hubbard, Director, Family Support Center, Department of the Air Force, MacDill Air Force Base, interceded on behalf of the Petitioner explaining why the Petitioner had failed to timely file a petition in response to the Department's letter of March 28, 1991.

Subsequently, on July 12, 1991 the Secretary of DOA entered an Order Accepting Petition and Assignment To The Division of Administrative Hearings and forwarded the petition to the Division of Administrative Hearings for a hearing to determine whether the Petitioner's petition was timely filed and whether the Petitioner had abandoned her position and resigned from career service. Neither party responded to the initial order. The matter was then scheduled for hearing on August 30, 1991.

At the hearing, the Department presented the testimony of Peter A. Bond and Delene Wilson. The Department's exhibits 1 through 18 were received into evidence. The Petitioner testified in her own behalf and presented the testimony of Brian Davis and Delene Wilson. There was no documentary evidence presented by Petitioner. Official Recognition was taken of the entire file transferred from Department of Administration to the Division of Administrative Hearings.

A transcript of this proceeding was filed with the Division of Administrative Hearings on September 23, 1991. At the hearing, the Department requested that it be allowed until October 15, 1991 to submit its proposed recommended order. Without objection from Petitioner the request was granted with the understanding that the time frame imposed by Rule 28-5.402, Florida Administrative Code, was waived pursuant to Rule 22I-6.031(2), Florida Administrative Code. The Petitioner did not submit any proposed findings of fact and conclusions of law. The Department timely submitted proposed findings of fact and conclusions of law within the extended time frame. A ruling on each proposed finding of fact submitted by the Department has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, the Petitioner was an employee of the state of Florida employed by the Department.

   
   

   Findings of Fact As To The Timeliness of the Petition

   
   

2. On March 28, 1991 the Department advised the Petitioner that having been absent from work for three consecutive days without authorized leave of absence the Department assumed that the Petitioner had abandoned her position and resigned from career service. Additionally this letter advised Petitioner that she had twenty calendar days from receipt of the notice to petition the Secretary of DOA for a review of the facts to determine if the circumstances constituted abandonment of position.

   
   

3. The letter was sent certified mail and the Petitioner signed for, and received, the letter on April 4, 1991.

   
   

4. The Petitioner opened and read the letter sometime around April 6, 1991. At that time, Petitioner read that portion of the letter which allowed her twenty days within which to file a petition with the Secretary of DOA for a

   review of the facts. Later, Petitioner contacted a Ms. McGowan of the Family Support Center at MacDill Air Force Base, and was advised to write a letter requesting a review of the facts. Petitioner wrote such letter on May 24, 1991 after talking to "someone" with DOA in Tallahassee, Florida.

   
   

5. By letter dated May 24, 1991, postmarked that same day, the Petitioner filed a petition with the Secretary of DOA. This petition was filed some fifty days after Petitioner received the Department's letter on April 4, 1991.

   
   

6. During the period from April 6, 1991 to May 24, 1991 the Petitioner's husband was in the U.S. Air Force and in the Middle East. This left Petitioner with full responsibility for the home and the children. However, there was insufficient evidence to show that Petitioner lacked sufficient time (since there was no evidence that she was working) to address these responsibilities as well as the responsibility of addressing the question of filing a petition with the Secretary of DOA. Additionally, there was no evidence that Petitioner lacked the mental capacity to address the problem of timely filing the petition.

   
   

   FINDINGS OF FACT CONCERNING THE QUESTION OF ABANDONMENT

   
   

7. On February 4, 1991 the Petitioner met with Peter Bond the Department's Regional Toll Manager for the Tampa Bay Region and Delene Wilson the Department's Toll Facility Supervisor at the Sunshine Skyway Bridge concerning a transfer to the Tampa Bay Region from her then present position as a Toll Collector in Miramar, Florida.

   
   

8. As a result of these meetings with Bond and Wilson, Petitioner was offered a position as Toll Collector on the Sunshine Skyway Bridge.

   
   

9. The Petitioner preferred the first shift in order to be available to see about her children when they got out of the day care center. Wilson advised the Petitioner that there may be a first shift opening but that unless that worked out there was only a second shift available. Petitioner understood this when she accepted the position and started the process of transferring. As it turned out, the first shift did not become available and Petitioner was placed on the second shift. Additionally, Wilson was able to transfer another Toll Collector from the north end of the bridge to the south end of the bridge so that Petitioner could work the north end which was closer to her home.

   
   

10. With everyone thinking that Petitioner's transfer would be effectuated by February 15, 1991, the Petitioner was placed on the work scheduled for February 15, 1991 through February 28, 1991. As it turned out, Petitioner's last day at Miramar was February 26, 1991. As a result, Petitioner was placed on a new work schedule of March 1, 1991 through March 14, 1991. However, because Petitioner had just moved and needed to get things straightened out, Wilson placed Petitioner on authorized leave without pay (Petitioner had no leave time accumulated) for March 1-2, 1991. Petitioner's regular days off would have been March 3-4, 1991 which required her to report for work on March 5, 1991. The Petitioner did not report for work on March 5, 1991 or at any time during the two week work schedule of March 1 through March 14, 1991. Wilson covered the Petitioner's shift on a day to day basis which did cause the other employees some hardship.

    
    

11. From March 7, 1991 Wilson called Petitioner on a daily basis but was unable to reach anyone until March 12, 1991 when she talked to Petitioner's husband, Brian and ask that he have Petitioner call Wilson as Wilson needed her

    to work. Petitioner did not return this call notwithstanding that her husband gave her that message on March 12, 1991.

    
    

12. On March 14, 1991, while Bond was in Wilson's office, Wilson called Petitioner and Petitioner answered the phone. When asked why she had not reported to work the Petitioner explained that she was attending school to better herself and that she could not work the second shift because she had no one to take care of her children after they got out of the day care center.

    
    

13. During this telephone conversation on March 14, 1991 Petitioner requested a six month leave of absence without pay, Petitioner was advised by Bond, through Wilson, that Petitioner could file for a leave of absence without pay but she must report for work that day or otherwise she would be considered as having abandoned her position and resigned from career service which would result in her termination. Petitioner did not report for work that day, March 14, 1991 and even though she was on work schedule through March 28, 1991 did not report for work any day thereafter through March 28, 1991 when she was advised by Bond of her termination by letter referred to in Finding of Fact 2 above.

    
    

14. Petitioner understood that her transfer would not cause a break in service and that any time off had to be on her regular days off or by authorized leave of absence. Petitioner also understood that since she had no accumulated annual leave any leave time would have to be sick leave or authorized leave of absence without pay. Except for March 3-4, 1991, Petitioner neither applied for, nor was granted, any sick leave or unauthorized leave of absence without pay between March 1, 1991 and March 28, 1991.

    
    

15. Between March 1, 1991 and March 28, 1991 the Petitioner was attending school and working on jobs other than with the Department that allowed her to work the first shift.

    
    

16. There is sufficient competent substantial evidence to establish that Petitioner intended to abandon her position with the Department.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

18. Rule 22A-7.010(2)(a) and (b), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. Abandonment of Position.

       1. An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service. An employee who has Career Service status and separates under such circumstances shall not have the right of appeal to the Public Employees Relations Commission; however, any such employee shall have the right to petition the department for

          a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

       2. Each employee separated under conditions of abandonment of position shall be notified in writing by the agency head or the agency head's designee. Notification shall be given by delivering a copy to the employee or by mailing a copy by certified mail, return receipt requested, to the employee's last-known address. Such notification shall inform the employee of the rights to petition for review of the agency's action as provided in this rule.

          . . . .

          When written notification of the agency's action is given by use of certified mail, notification is effectuated on the date that the employee receives the notification as indicated on the return receipt . . . .

          The employee may petition the department for review of the action taken by the employing agency only within 20 calendar days after the date that written notification is effectuated.

          A petition is timely made under this rule if postmarked within the 20-day period or if physically received in the Office of the Secretary of the department within the 20-day period.

          . . . .

          
          

19. The failure to timely comply with the requirement that a petition for review of an agency's action must be filed with the Secretary of Department of Administration within twenty calendar days after the date that written notification is effectuated is not an absolute bar to relief provided there are equitable circumstances which may have prevented timely filing, and thereby invoking the doctrine of equitable tolling. Machules v. Department of Administration, 523 So.2d 1132 (Fla. 1988). The evidence in this case clearly establishes the lack of equitable circumstances which would have prevented the Petitioner from timely filing a petition. Since the petition was untimely filed some 50 days after the date notification was effectuated the petition should be dismissed.

    
    

20. However, assuming arguendo that the doctrine of equitable tolling would apply under these circumstances, the evidence clearly establishes that the Petitioner was absent from work without any authorized leave of absence for three consecutive workdays creating the presumption that she had abandoned her position with the Department and to have resigned from career service. This presumption, however, is a rebuttable, not a conclusive, one, which may be overcome by proof that the Petitioner did not intend by her conduct to relinquish her career service position. Department of Corrections v. Doub, 571 So.2d 535 (1 DCA Fla. 1990); DeSilva v. Department of Transportation, 564 So.2d

    216 (Fla. 4th DCA 1990); Tomlinson v. Department of Health and Rehabilitative Services, 558 So.2d 62 (Fla. 2d DCA 1990).

    
    

21. Petitioner failed to present such proof in the instant case. It is evident from an examination of the circumstances surrounding her absence from work, including attending school, working other jobs and refusing to make arrangements to work the second shift, that Petitioner did not intend to return

to work with the Department. Inasmuch as the greater weight of the evidence demonstrates that the Petitioner did not intend to return to work with the Department, the Department of Administration should uphold the Department's determination that Petitioner abandoned her position and resigned from career service.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is accordingly,

RECOMMENDED:

That the Department of Administration enter a Final Order (1) finding that Petitioner did abandon her position with the Department and resigned from career service, and (2) denying the Petitioner any relief.

DONE and ENTERED this 18th day of October, 1991, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case.

Rulings on Proposed Finding of Fact Submitted by the Petitioner

Petitioner did not submit any proposed findings of fact.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Finding of Fact 2.

   
   

2. As to the receipt of letter it is adopted in Finding of Fact 3. As to reading the letter the date was sometime around April 6, 1991 and in that regard proposed finding of fact 2 is rejected. See Finding of Fact 4.

   
   

3. Not material or relevant since the date letter is postmarked controls and that was earlier than May 30, 1991.

   
   

4. Covered in Preliminary Statement.

5. - 7. Not material or relevant.

1. Adopted in substance as modified in Finding of Fact 8.

   
   

2. - 14. Adopted in substance as modified in Findings of Fact 9, 7, 7, 9, 10, and 9, respectively.

1. Not material or relevant since Wilson had placed Petitioner on authorized leave of absence without pay on March 1-2, 1991. See Finding of Fact 10.

   
   

2. - 17. Adopted in substance as modified in Findings of Fact 11 and 12, respectively.

1. Not material or relevant.

   
   

2. The first phrase of proposed finding of fact 19 is adopted in substance as modified in Finding of Fact 12. The second phrase of proposed finding of fact 19 is not supported by the record but see Finding of Fact 12.

   
   

3. While the record reflects that Petitioner may have been pregnant, the record does not reflect that her pregnancy would have prevented her from returning to work.

   
   

4. - 23. Adopted in substance as modified in Findings of Fact 13, 16 and 12, respectively.

1. Not supported by substantial competent evidence in the record.

   
   

2. Adopted in substance as modified in Finding of Fact 13.

   
   

3. Goes to credibility and not a finding of fact.

27.-28. Adopted in substance as modified in Finding of Fact 14.

COPIES FURNISHED:

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwanee Street

Tallahassee, FL 32399-0458

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0458

Angelita K. Coley Davis 5919 S. Dale Mabry

Apt. A

Tampa, FL 33611

Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-004381

Orders for Case No: 91-004381