The Issue The issue is whether Charles C. Burlingame's request to purchase and upgrade prior regular service with the City of Panama City under the Senior Management Service Class should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this retirement dispute, Petitioner, Charles C. Burlingame (Burlingame), seeks to have certain prior service with Petitioner, City of Panama City (City), upgraded under the Senior Management Service Class (SMSC) so that his retirement benefits will vest at an earlier date. Respondent, Department of Management Services, Division of Retirement (Division), has denied the request on the ground that "the duties of [Burlingame's former] position were different from the duties of [his] current position," and that under these circumstances, Section 121.055(1)(i), Florida Statutes (1997), required that the request be denied. Burlingame was first hired by the City on February 14, 1994, as Human Resources Director/Safety. As such, he was one of approximately 16 City department directors. At that time, Burlingame was enrolled in the "regular" class of the Florida Retirement System (FRS). In 1998, the Legislature authorized local governments (as well as state agencies) who employed at least 200 individuals to designate an additional employee under the SMSC. Because the City employed that number of individuals, it was allowed to designate another employee for SMSC. Burlingame was selected as the employee, and he was promoted to a new position with the title Assistant City Manager/Human Resources/Safety Director. At the same time, his old position was abolished. In conjunction with his promotion, Burlingame prepared a job description for his new position. The old and new duties are described in the documents attached to Respondent's Exhibit 2. They reflect, at least on paper, that the functions and illustrative duties of the two positions are not identical. For example, in his new position, Burlingame is now in charge when the City Manager is absent from the City. He also assists the City Manager "in directing the overall operations of the City," as well as performing his former duties. According to Burlingame, however, these new duties account for no more than five percent of his total duties. The remainder coincide with the duties performed under his old position. Under the terms of the City's retirement system, the retirement benefits for a SMSC employee vest after 7 years of service, while a regular employee does not vest until after 10 years of service. Therefore, Burlingame wished to upgrade his prior service between February 14, 1994, and September 29, 1998, when he was changed to SMSC, since this would allow him to vest in fewer years. It would also allow him to accumulate more retirement points (2 per year) under the FRS for each year of service than he would have earned as a regular employee (1.6 per year). When Burlingame was approved for membership in the SMSC in October 1998, the City began processing an application with the Division on his behalf for the purpose of determining the "cost to upgrade past service to [SMSC] to 2-14-94." Because of a large backlog of work caused by Deferred Retirement Option Program applications, the Division was unable to act on Burlingame's request until the early fall of 1999. After the City made several inquiries concerning its pending request, a Division Benefits Administrator, David W. Ragsdale, wrote the City on September 15, 1999, and advised that "[s]ince the position Mr. Burlingame filled as Human Resources/Safety Director had different duties than the Assistant Manager/Human Resources/Safety Director, he is ineligible to upgrade because the position of Human Resources/Safety Director no longer exists." This was followed by another letter on November 4, 1999, which reconfirmed the earlier finding and offered Petitioners a point of entry to contest the proposed action. Petitioners then initiated this proceeding. There is no rule or statute which provides that if the job duties of a position upgraded from regular to SMSC do not remain the same, prior regular service cannot be upgraded. However, since the inception of the SMSC in 1987, the Division has consistently ascribed that meaning to the words "within the purview of the [SMSC]" in Section 121.055(1)(i), Florida Statutes (1997), and Rule 60S-2.013(2), Florida Administrative Code. Thus, if the new duties are "not within the purview" of the past regular service class, that is, they are different in any respect, the employee cannot purchase and upgrade the prior service. This interpretation of the statute and rule was not shown to be clearly erroneous or outside the range of possible interpretations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioners' request for an upgrade of Charles C. Burlingame's service under the Senior Management Service Class. DONE AND ENTERED this 21st day of March, 2000, in Tallahassee, Leon County, Florida. COPIES FURNISHED: DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2000. A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Cecilia Redding Boyd Bryant & Higby, Chartered Post Office Box 860 Panama City, Florida 32402-0860 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact The State of Florida, acting through Petitioner, certified Respondent as a correctional officer and, on February 17, 1988, issued to her Certificate number 03-87-502-08. On September 21, 1987, Respondent began employment with the Florida Department of Corrections as a correctional officer at Broward Correctional Institution (BCI). On May 16, 1988, Respondent's employment with BCI was terminated. Since Respondent was still in the probationary period with BCI, it was not necessary for BCI to provide an official reason for the termination of Respondent's employment. The unofficial reason for the termination was that Respondent had failed to report to work. BCI routinely uses an attendance and leave report form covering two calendar weeks as the basis for the issuance of salary warrants and for the accruement of leave and other benefits associated with state employment. These Attendance and Leave forms have a space for the hours worked during each day of the two week period, a space for the number of hours of authorized leave taken for each scheduled work day of the two week period, a space for scheduled days off, and a place to insert the code number for the type of leave taken. Among the several types of leave available to an employee (assuming that the employee had accrued leave available) were "annual leave", "family sick leave", "sick leave", and "unauthorized leave without pay." These leave forms are usually kept in the Lieutenants' complex in books according to shifts. Each correctional officer normally completes his or her form at the end of the pay period. It is not unusual for a correctional officer to sign and to postdate the leave form if the officer does not anticipate being at work on the last day of the pay period. Thursday, April 14, 1988, was the end of a two week pay period. On April 14, 1988, Respondent received a telephone call from her husband and was told by her husband that their two year old child, who had a history of extended illnesses, was sick and would require hospitalization. Respondent informed her supervisor, Lieutenant Bernstein of her child's illness. At that time, Respondent did not know how much time she would miss because of the child's illness. Lieutenant Bernstein told Respondent to be sure to sign her Attendance and Leave Form before she left. The form Lieutenant Bernstein referred to was for the period that ended April 14, 1988. Respondent misunderstood his instructions and thought he meant that she should sign the form for the upcoming two week pay period. For the two week period beginning Friday, April 15, 1988, Respondent was scheduled to work an 8-hour shift at BCI on each of the following days April 15, 16, 17, 18, 21, 22, 23, 24, 25, and 28, and was scheduled to be off April 19, 20, 26, and 27. Respondent did not report for work at BCI at any time during this two week period. On April 14, 1988, Respondent partially completed and signed an attendance and leave form covering the period April 15-28, 1988. She signed the form on April 14, 1988, but she wrote the date April 28, 1988, next to her signature. Her signature was directly underneath the following declaration: I HEREBY CERTIFY THAT I HAVE REVIEWED THIS REPORT AND THAT IT REPRESENTS A TRUE AND CORRECT RECORD OF THE REGULAR HOURS WORKED, AUTHORIZED OVERTIME AND AUTHORIZED LEAVE. Respondent left the form she had signed April 14, 1988, and dated April 28, 1988, in the book in the Lieutenants' complex. After Respondent completed her full shift on April 14, 1988, she left work and she did not again have access to her work area or to the leave form. Respondent partially completed the form before she left work on April She filled out the portions of the form that identified the form as being her form for the period April 15-28, she marked the days she was scheduled to be off, and she marked on the form the notation "4/15 - 4/28 Baby in Hospital" as the reason for the requested leave. There were three areas of dispute between the parties relating to the completion of the leave form. First, Petitioner contends that Respondent wrote on the form the notation "4/15 - 4/28 Baby in Hospital" in the space reserved for the insertion of the reason for the administrative leave. Respondent denies making that insertion. This dispute is resolved by finding, as contended by Petitioner, that Respondent did make that insertion on the form. The testimony of Petitioner's handwriting expert, who positively identified the handwriting "4/15 - 4/28 Baby in Hospital" as being the handwriting of Petitioner is found to be more credible than the denial by Respondent that she did not make that insertion. Consequently, the testimony of Petitioner's expert is accepted and the testimony of Respondent, on this matter, is rejected. Next, Respondent disputes Petitioner's contention that she inserted on the leave form the request for either family sick leave or sick leave for each of her scheduled work days during the two week period. Finally, Respondent disputes Petitioner's contention that she inserted on the form the number of hours of leave requested for each scheduled work day. These last two areas of dispute are resolved by finding that someone other than Respondent completed these portions of the form. Petitioner's handwriting expert did not refute Respondent's denial that she completed these portions of the form. Additionally, Respondent knew at the time that she signed the leave form on April 14, 1988, and dated it April 28, 1988, that she had only six hours of sick leave available for her use and that she had 40 hours of accrued annual leave. Respondent would have had no reason to fill out the forms so as to claim some 80 hours of sick leave when she knew that she had such a limited amount of sick leave. Upon termination, correctional officers are entitled to accrued annual leave, but not for accrued sick leave. Respondent's child was not hospitalized between April 15-18, but Respondent was home attending to her sick child on those days. Respondent spoke with Lieutenant Bernstein or Lieutenant Jackson, another supervisor, to keep them advised of her situation during these four days. April 19 and 20 were her regularly scheduled days off, so she made no effort to contact BCI. On April 20, 1988, Respondent was contacted by Metro Dade Corrections and Rehabilitation (MDC) about a job for which she had applied prior to her employment with BCI. Respondent was excited about this job opportunity because she had wanted to work for MDC for a long time. She reported to the MDC personnel office as instructed late on the afternoon of April 20, 1988. On April 21, Respondent began full-time employment with MDC and began orientation and training with MDC as a correctional officer. The reason for the short notice to Respondent was that there had been an unexpected vacancy in the MDC training class. Respondent's full-time employment with MDC continued until May 16, 1988. Respondent told MDC at some undetermined point in time that she had terminated her employment with BCI by the time she was hired by MDC on April 21. Respondent attempted to contact Lieutenant Bernstein on April 21 to advise him of her change in employment, but she was unable to reach him. The representation made by Respondent to MDC that she had in fact resigned her position at BCI by the time she was hired by MDC was false. On April 22, 1988, Respondent wrote a letter of resignation to BCI, had the letter notarized, and mailed the letter to BCI. BCI did not receive this letter and was not aware that Respondent was employed at MDC until an investigator with MDC contacted the BCI personnel office during the course of a routine background investigation of Respondent. On Saturday, April 23, Respondent attempted to return her uniform to BCI, but the booth officer told her that uniforms could only be returned to the personnel office between 8:00 A.M. and 4:00 P.M., Monday through Friday. Following the close of the April 15-28, 1988, period, Lt. Jackson, another of Respondent's supervisors, reviewed the form that Respondent had left in the book in the Lieutenant's complex and affixed his initials to the form to indicate his approval of the requested leave. Lt. Jackson later changed the leave from authorized sick leave to unauthorized leave without pay after it was determined that Respondent had failed to submit a doctor's certificate following three days of sick leave as was required by BCI's personnel rules. Respondent did not receive compensation for her employment with BCI after she became employed by MDC. On April 28, 1990, Respondent talked by telephone with Joan McKinley, a personnel technician at BCI, and discussed with her overtime pay for a prior pay period. During the conversation, Respondent stated that she was out of town for two or three weeks. Respondent did not state the reasons she was out of town, and the record is not clear that Respondent made that statement to justify her absence from BCI. Respondent did not discuss her new job at MDC, nor did she ask whether her letter of resignation had been received. Respondent assumed that her letter of resignation had been received. On or about May 9, 1989, Respondent talked by telephone with Paula Bussier, the personnel manager at BCI. Respondent told Ms. Bussier that she was looking forward to returning to work soon and that her child's health had improved. Respondent did not discuss her new job at MDC, nor did she ask whether her letter of resignation had been received. Officials at BCI learned of Respondent's new job when a MDC background investigator appeared at BCI to check Respondent's work record there. On May 16, 1989, Respondent's employment was terminated by BCI and by MDC. On August 29, 1988, Respondent was rehired by MDC. Since that time her job performance evaluations have been satisfactory or better and she has earned a reputation for honesty and integrity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which dismisses the Administrative Complaint filed against Respondent. DONE AND ENTERED this 1st day of June, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2771 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact submitted by Petitioner in Paragraph 5 are rejected to the extent the findings conflict with the findings made in Paragraphs 6-9 of the Recommended Order. The proposed findings of fact submitted by Petitioner in the first sentence of Paragraph 6 are rejected as being contrary to the findings made in Paragraph 9 of the Recommended Order. All other proposed findings of fact submitted by Petitioner are adopted in material part. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact submitted by Respondent in Paragraphs 13- 15 are rejected as being subordinate to the findings made in Paragraphs 6-9 of the Recommended Order. The proposed findings of fact submitted by Respondent in Paragraph 16 are rejected as being subordinate to the findings made in Paragraph 14 of the Recommended Order. The proposed findings of fact submitted by Respondent in Paragraph 23 are rejected as being subordinate to the findings made in Paragraph 11-12 of the Recommended Order. The proposed findings of fact submitted by Respondent in Paragraphs 24, 25, 29, and 33 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact submitted by Respondent in Paragraphs 37- 45 are rejected as being subordinate to the findings made in Paragraph 19 of the Recommended Order. All other proposed findings of fact submitted by Respondent are accepted in material part. Copies furnished: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Richard E. Lober, Esquire 10680 N.W. 25th Street Suite 202 Miami, Florida 33172 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Criminal Justice Standards Training Commssion Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner was formerly employed by Respondent as a Human Services Worker assigned to the Landmark Learning Center, a residential facility located in Dade County. She began her employment on May 10, 1985. On January 13, 1989, Petitioner received the following memorandum from the Residential Services Director of Facility I at Landmark: In reviewing your time and attendance record from August, 1988, I have observed that you are exhibiting excessive absences and/or tardiness. These frequent absences place an unfair burden on your coworkers and interfere with the operations of this center. Therefore they will no longer be tolerated. Effective on the date you receive this communication, the following restrictions will be in effect: As always, you are expected to have all leave time approved in advance by your immediate supervisor. You are expected to submit a doctor's statement justifying your absence prior to the approval of any sick leave, annual-sick leave, or family-sick leave. You will not be allowed to substitute any other type of leave for these absences. Failure to comply with the above restrictions will result in disapproved leave without pay for the dates in question, and a recommendation for disciplinary action based on absence without authorized leave. In addition a continued pattern of excessive absence could result in disciplinary action for excessive absence/tardiness. All disciplinary [action] will be in accordance with HRS-P-60-1, Employee's handbook. I am confident that you will correct this situation in a satisfactory manner. At no time prior to the termination of Petitioner's employment with Respondent were the "restrictions" imposed by this memorandum lifted. In early 1990, Petitioner sustained an on-the-job injury. As a result of the injury, Petitioner was on authorized leave from February 25, 1990, until April 4, 1990. When she returned to work on April 5, 1990, Petitioner was assigned to "light duty" in the field office of which Sylvia Davis, a Senior Residential Unit Supervisor, was in charge. Petitioner's working hours were 6:00 a.m. to 2:30 p.m. Petitioner was advised that Roberta Barnes would be her immediate supervisor during her "light duty" assignment. On April 5, 1990, Petitioner worked six and a half hours. She was on authorized leave the remainder of her shift. On April 6 and 7, 1990, she worked her full shift. On April 8 and 9, 1990, Petitioner did not report to work. She telephoned the field office before the beginning of her shift on each of these days and left word that she would not be at work because she was experiencing pain in her lower back and right leg; however, she never received supervisory authorization to be absent from work on these days. April 10 and 11, 1990, were scheduled days off for Petitioner. At approximately 11:00 p.m. on April 11, 1990, Petitioner telephoned the field office and gave notice that, inasmuch as her physical condition remained unchanged, she would not be at work the following day. Petitioner did not report to work on April 12, 1990. Although she had telephoned the field office the night before to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on April 12, 1990. On April 13, 14, 15 and 16, 1990, Petitioner did not report to work because she was still not feeling well. She neither telephoned the field office to give advance notice of her absences, nor obtained supervisory authorization to be absent on these days. April 17 and 18, 1990, were scheduled days off for Petitioner. Prior to the scheduled commencement of her shift on April 19, 1990, Petitioner telephoned the field office to indicate that she would not be at work that day because she had a doctor's appointment, but that she hoped to return to work on April 20, 1990. Petitioner did not report to work on April 19, 1990. Although she had telephoned the field office to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on that day. On April 19, 1990, Petitioner was sent the following letter by the Superintendent of Landmark: You have not called in or reported to work since April 12, 1990 and therefore you have abandoned your position as a Human Services Worker II and are deemed to have resigned from the Career Service according to Chapter 22A-7.010(2)(a) of Personnel Rules and Regulations of the Career Service System. Your resignation will be effective on the date that you receive this letter or on the date we receive the undelivered letter advising you of your abandonment. You have the right to petition the State Personnel Director, 530 Carlton Building, Tallahassee, Florida 32304 for review of the facts. Such petition must be filed within twenty (20) calendar days after receipt of this letter. At approximately 12:40 a.m. on Friday, April 20, 1990, unaware that she had been deemed to have resigned her position, Petitioner telephoned the field office to give notice that she would be out of work until after her doctor's appointment on Monday, April 23, 1990. On April 23, 1990, Petitioner again telephoned the field office to advise that she had to undergo further medical testing and therefore would remain out of work until the required tests were performed. Petitioner's call was transferred to Elaine Olsen, a Personnel Technician II at Landmark, who told Petitioner about the letter the Superintendent had sent to Petitioner the previous Thursday. Petitioner received the letter on April 30, 1990. Petitioner did not report to work during the period referenced in the Superintendent's letter because she was not feeling well. She did not intend, by not reporting to work on these days, to resign or abandon her position. It was her intention to return to work when she felt well enough to do so.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order (1) finding that Petitioner did not abandon her career service position, and (2) directing Respondent to reinstate Petitioner with back pay. DONE and ORDERED in Tallahassee, Leon County, Florida, this 16th day of May, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1991.
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is Leatharine Leon. She has been employed by Respondent, the Florida Department of Law Enforcement, for more than 13 years. In the fall of 1988, Petitioner was employed in the position of Criminal Justice Administrator. Petitioner supervised a section within the Crime Information Bureau. In October, 1988, Martha Wright, a white female, became the Bureau Chief of the Crime Information Bureau. After evaluating the needs and personnel of the Bureau, Wright consulted with other Respondent management personnel and began the implementation of organizational changes within the Bureau. On or about November 22, 1988, Wright notified Petitioner that she was to be reassigned to duties as an Administrative Assistant II. The position was specifically created to provide administrative support to the Bureau. Wright wanted Petitioner to accept the transfer voluntarily. After thinking overnight about the matter, Petitioner refused and the reassignment was made on an involuntary basis. Upon the expiration of a required 14 day notice period to Petitioner, Respondent effectuated the reassignment of Petitioner in the early part of December, 1988, to the administrative assistant position. Petitioner continued to enjoy her same salary and pay grade. As established by the Final Order of the PERC Commission in Case No. CS-89-238, Respondent's transfer to the Administrative Assistant II position was warranted, comported with procedural requirements and served a legitimate governmental interest. At the time of Wright's action transferring Petitioner, Wright had already determined to make other organizational changes to the Bureau. Subsequently, implementation of those changes resulted in the merger of two sections of the Bureau; the criminal history input section formerly headed by Petitioner, a black female, and the criminal history bureau section headed by a white female. The white female head of the criminal history bureau section, Judi Croney, became a unit supervisor within the new section and was given additional special projects. Iris Morgan, a senior management analyst employed in a position with a higher pay grade than that held by Petitioner, assumed Petitioner's previous supervisory duties. Further, Morgan assumed additional duties and responsibilities associated with determining the viability of the merger of the two bureau sections and then supervising the merger. Respondent's management wanted to continue a higher level manager position over the enlarged section resulting from the merger action. Wright envisioned that the new section supervisor position would require an individual adept at conceptual work, as opposed to operational management. Since she met all minimum qualifications for the position, Morgan was selected to continue as the new section head. Petitioner did not adapt well to her position as the Administrative Assistant II. She was unable to perform duties of the position in an independent fashion. Consequently, she received below satisfactory performance evaluations on March 28, 1989, May 2, 1989, June 1, 1989, and July 28, 1989. After the last unsatisfactory performance evaluation, Petitioner was demoted from the Administrative Assistant II position, a pay grade 18 position, to a technician position with a pay grade of 14. However, Petitioner's salary was not reduced and has not been reduced to date. After Petitioner was removed from the Administrative Assistant II position in July or August of 1989, the position was filled by Jerrie Bell, a black female, who is still employed in that position. Bell has performed satisfactorily in the position and has the ability to work independently without constant instruction and supervision. As a result of reorganization, supervisory positions were reduced from ten to seven positions within the Bureau. All other affected supervisors, a total of five individuals, were white. All but one of them voiced objection to Respondent's actions; however, none of the objections varied or prevented implementation of Respondent's proposed changes. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's race. Further, Petitioner has not been subjected to such discrimination by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this day of January, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 7th day of January, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4270 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-45. Adopted in substance, but not verbatim. 46.-48. Rejected as unnecessary to result. 49. Adopted by reference. PETITIONER'S PROPOSED FINDINGS None submitted. COPIES FURNISHED: Dana Baird, Esq.. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Leatharine Leon 1751 Centerville Road Tallahassee, FL 32317 Elsa Lopez Whitehurst, Esq. P.O. Box 1489 Tallahassee, FL 32302 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
Findings Of Fact Respondent Jerry O. Bryan began working for the State Road Department in 1968. In 1983, he started his most recent assignment with the agency, now called the Florida Department of Transportation, as an engineering technician III, in a career service position. An employee handbook respondent was furnished in 1983 had this to say about "JOB ABANDONMENT": After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. Petitioner's Exhibit No. 1, at page 43. Perhaps with this in mind, respondent requested leave without pay when he learned he faced six months' incarceration, as a result of his criminal conviction for cultivating marijuana on federal property. Respondent's supervisor, Robert Edward Minchin, Jr. denied his request for leave without pay, in accordance with a DOT policy against granting leave to DOT employees who are incarcerated. Mr. Bryan did not request annual leave, although some 220 hours' entitlement had accumulated. Asked whether he would have granted Mr. Bryan's leave request absent "a policy of not authorizing leave while someone was incarcerated," Mr. Minchin answered in the negative, saying Mr. Bryan "was going to be needed during ... [the time] he would be out. T.22. At no time did petitioner ever take disciplinary action against respondent, who received satisfactory or higher job performance ratings, the whole time he worked for petitioner. Aware that Mr. Bryan did not desire or intend to resign, relinquish or abandon his career service position, Mr. Minchin took steps to remove him from the payroll solely on grounds that he was absent without authorized leave for three consecutive workdays.
Recommendation It is, accordingly, RECOMMENDED: That petitioner reinstate respondent and award back pay, but without prejudice to instituting any appropriate proceedings before the Public Employees Relations Commission. DONE and ENTERED this 27th day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1990. COPIES FURNISHED: Jerry O. Bryan Federal Prison Camp Post Office Box 600 Eglin AFB, Florida 32542-7606 William A. Frieder, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Robert Scanlon, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact On July 9, 1986 Petitioner, a Clerk Typist Specialist employed by the Department of Health and Rehabilitative Services, signed a receipt acknowledging that she had received a copy of the Department's Employee Handbook which contains the information that an employee who is absent for three consecutive workdays without authorization may be considered to have abandoned his or her position and thereby to have resigned. On September 3, 1987 Petitioner telephoned her supervisor to advise him that she had an interview scheduled and that she would be at work by 9:30 a.m. She, however, thereafter failed to appear at work and failed to make any further contact with her supervisor on September 3, 4, 8, 9, 10, and 11, 1987. On September 11, 1987 by certified letter the Department advised Petitioner that, as of the close of business on September 9, she was deemed to have abandoned her position and to have resigned from the Career Service due to her unauthorized absence for three consecutive workdays, i.e., September 3, 4, and 8, 1987.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is, RECOMMENDED that a Final Order be entered deeming Petitioner to have abandoned her position and to have resigned from the Career Service. DONE AND ORDERED this 30th day of November, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1987. COPIES FURNISHED: Ruby Holloway-Jenkins 649 West 4th Street Riviera Beach, Florida 33404 K. C. Collette, Esquire District IX Legal Counsel 111 Georgia Avenue West Palm Beach, Florida 33401 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
