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
The Issue The issue to be resolved in this proceeding concerns whether the Respondent abandoned his position in the career service employment system of the State of Florida in the manner envisioned by Rule 22A-7.010, Florida Administrative Code, and therefore, whether that employment position is any longer available to him.
Findings Of Fact The Petitioner, Thomas J. Atwell, was employed by the Department of Highway Safety and Motor Vehicles in its regional office in Tampa, Florida. Most of his employment duties were located in the Clearwater, Florida, area. His duties involved inspection of mobile homes at sites where those homes were manufactured. His immediate supervisor was Melvin Hinson, Sr., the Assistant Regional Administrator of the Division of Motor Vehicles Regional Office in Tampa, Florida. On October 19, 1988, the Petitioner injured his back while on duty in the process of jumping to the ground from the door of a mobile home he was inspecting. He was placed on disability leave and received worker's compensation benefits as a result of the injury which occurred within the course and scope of his employment. Sometime after being placed on disability leave, he began a course of treatment at Shands Hospital in Gainesville, Florida. At about the same time, he encountered marital discord with his wife, became separated from her, and moved to Tallahassee, Florida, to live with relatives. Upon arriving in Tallahassee, he began to be treated by Dr. Charles Wingo, who became his treating physician for worker's compensation purposes. Dr. Wingo ultimately notified his employer that he could return to light-duty work in a sedentary capacity, sitting and standing, without doing any carrying, if such work were available to him. This notification was by letter dated October 2, 1989. The Respondent, as a result of this communication, issued a letter to the Petitioner on November 3, 1989 advising him that he should report to the Tampa Regional Office of the Division of Motor Vehicles on November 13, 1989 to begin light-duty employment. The letter stated that the Petitioner would be "assisting in answering the telephone, filing, making xerox copies, and performing other light duties that may be assigned by your supervisor." According to the testimony of Buck Jones, the Respondent had a genuine need for someone to perform these duties and it was a true open position in the Tampa Regional Office. The Respondent did not have a need for someone to perform such light duties in the Tallahassee area, however. Indeed, there is no regional office in Tallahassee, with the closest regional office being in Ocala, Florida. In any event, a few days after the November 3, 1989 letter, the Petitioner telephoned Buck Jones, the Chief of the Bureau for Mobile Home and Recreational Vehicle Construction. The Petitioner told Mr. Jones that he could not get the required medical treatment in Tampa. Mr. Jones told the Petitioner that he would investigate the matter of the availability of medical treatment in Tampa. The Respondent later confirmed that medical treatment was indeed available in the Tampa area, which was suitable for the Petitioner's condition. On November 16, 1989, Mr. Jones wrote the Petitioner another letter stating that medical treatment was available in Tampa and requiring him to report for duty at the Tampa office on November 20, 1989. The letter also expressly stated that should the Petitioner fail to report for duty within three (3) days of that date, November 20, 1989, he would deemed to have abandoned his position and resigned from the Department. The letter invited the Petitioner to contact Mr. Jones should he have any questions about the matter. The Petitioner never contacted Mr. Jones before his employment reporting date of November 20, 1989. He did not report for work on November 20, 1989, as ordered, or at anytime thereafter. Around November 3, 1989, the Petitioner had called Mr. Hinson to discuss his worker's compensation case and his job and was told by Mr. Hinson that he should be contacting the Tallahassee office because he had already been told to call "headquarters." On November 27, 1989, the Respondent notified the Petitioner that he had been absent without authorized leave for three (3) consecutive workdays and was, therefore, deemed to have abandoned his position and resigned from the career service.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Department of Administration declaring that the Petitioner, Thomas J. Atwell, has abandoned his employment position and resigned from the career service. DONE AND ENTERED this 23rd day of August, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 23rd day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-7058 Respondent's Proposed Findings of Fact 1-15. Accepted. Accepted, but not material to resolution of disputed issues. Accepted. COPIES FURNISHED: Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, Esq. General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Thomas J. Atwell, pro se 2320-J Apalachee Parkway Box 455 Tallahassee, FL 32301 Michael J. Alderman, Esq. Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504
Findings Of Fact At all times pertinent to the issue of abandonment in these proceedings, the Petitioner was a Career Service employee. On January 13, 1988, while on leave from employment due to a work related injury, the Petitioner met with her new rehabilitation counselor, Irene Brzozowski. During the meeting, the Petitioner informed Ms. Brzozowski that she had an appointment scheduled with her physician at 5:00 p.m. on the following day. The purpose of the visit was to obtain a medical evaluation so that the Petitioner could return to work in a light duty capacity. The Petitioner incorrectly used the word "discharged" for the planned appointment. The counselor asserted that a "discharge" meant that the Petitioner had to return to work on Friday, January 15, 1988. The Petitioner said that her work shift began on Wednesday and that she would rather return to work on that day. The two women had different views over a decision which was a medical decision which neither woman was in a position to make. The discussion resulted from the Petitioner's misuse of a term that was accepted as a fact by the counselor. At the close of this meeting, the counselor said she would call D.H.R.S. to tell them that the Petitioner would be "discharged." The counselor went beyond what she told the Petitioner she was planning to do. On January 14, 1988, even before the medical appointment took place, the counselor misrepresented to Shirley Eaton, the administrative secretary at D.H.R.S., the following matters: That Ms. Brzozowski had seen a doctor's statement that the `Petitioner would be released on January 14, 1988. That Petitioner preferred to return to work on Wednesday, January 20, 1988, but based on the discharge, the counselor had instructed her to return to work on Wednesday, January 15, 1988. Based upon the counselor's misrepresentations, which appeared to Ms. Eaton to be predicated upon a doctor's written discharge and the Petitioner's personal knowledge that she had to return to work January 15, 1988, the Petitioner was placed on the work schedule for the following day. No one informed the Petitioner that she was scheduled for work on January 15, 1988, even before her doctor had rendered his opinion about her ability to return to work. On January 14, 1988, the Petitioner kept her doctor's appointment. During the examination, she told the doctor her work week began on Wednesday. As a result, the doctor told her he would give her a return to work date of January 20, 1988, for light duty activities. The return to work slip was partially prepared by Karen Nalewaik, a licensed practical nurse. She does not recall why she did not complete the note or why she put down the date of January 18, 1988, on the slip. The slip was signed by the doctor after it was completed by his staff and given to the Petitioner. January 15, 16, and 17 passed without the Petitioner's receiving notification that she had been scheduled to work those dates. Sometime after the Petitioner read the doctor's slip and before Monday, January 18, 1988, she noticed the return date was different from the one orally represented to her by her doctor. She did not inform her employer of the mistaken date. Instead, she returned to the doctor's office on Monday, January 18, to obtain a revised slip which accurately reflected his decision. Upon leaving the doctor's office, the Petitioner advised her employer of her return date. She was told she was unable to return because she had abandoned her position when she did not appear for work on January 15, 16 and A copy of her separation letter was given to the Petitioner on this date. The Petitioner did not abandon her employment. She had not been informed that she was to return to work without a medical evaluation. Her actions on January 18, 1988, manifest a clear intent to continue with her work duties for her employer. Her conduct between January 13, 1988, and January 18, 1988, was consistent in all respects with her testimony at hearing and her desire to remain a Career Service employee for the Respondent. The Respondent mistakenly relied on the new rehabilitation counselor who speculated, surmised, and erroneously substituted her own judgment for that of the attending physician who had been treating the Petitioner for related injuries for over three years. The doctor decided his patient could return to light duty work the following work week on January 18 or January 20 because that was when her work week began. His records show that she was not discharged and was still experiencing medical problems on January 14, 1988. Unfortunately, when the Petitioner tried to straighten this out with her employer after she was separated from her position, the counselor continued to be involved. The counselor had a new medical slip manufactured by a member of the doctor's staff on February 3, 1988, and presented it to the Respondent. The slip, which was never signed by the doctor, tended to support her prior misrepresentations that the Petitioner could return to work on January 15, 1988. Interestingly enough, the doctor's notes do not reflect the information placed on this third slip. It is also contrary to every other piece of credible evidence presented at hearing. Even during the statements under oath presented by the Respondent as the physician's deposition, the counselor was present. She interrupted the questioning at different times, educating the doctor on her version of the facts. Her slanting of the situation, as well as the endorsement of her version by Ms. Orser, a D.H.R.S. worker who also spoke during the deposition, make the doctor's deposition of April 22, 1988, unreliable. It is rejected by the Hearing Officer as incompetent and unreliable testimony due to the constant interjections of the two women with presumed facts and misinformation. The major mistake which kept reoccurring in this series of events was that various parties relied on everyone else but the attending physician to timely determine when the Petitioner could return to work. The doctor's first slip which was undated but was signed on January 14, 1988, is given great weight by the Hearing Officer. The second slip, dated only four days later, is given the greatest weight because it is consistent with all of the credible testimony presented as to why the Petitioner would be given a second note. As a result, abandonment could not have taken place on January 15, 16 and 17, 1988.
The Issue Whether Petitioner received a salary overpayment for the pay period ending November 9, 2000, for which the State of Florida is entitled to be reimbursed.
Findings Of Fact Petitioner was employed by the State of Florida, Department of Juvenile Justice (Respondent) as a Group Treatment Leader, Class Code 5721, for a four-month period ending on November 6, 2000. This is a career service position. Petitioner resigned from the Respondent on November 6, 2000, due to significant personal problems associated with his marriage. Petitioner's resignation was accepted by his supervisor on the same day. Petitioner was not a permanent career service employee on the date of his resignation. Petitioner received a final payment for work performed for the period October 27, 2000 through November 5, 2000, on approximately November 20, 2001. Petitioner was concerned about the possibility of overpayment and contacted his local personnel office to inquire about it. Petitioner was told by his office personnel officer not to be concerned about it. At that time, Petitioner believed the matter to be resolved and no longer an issue. By letter dated May 16, 2001, Petitioner received correspondence from Respondent alleging that he was overpaid and seeking reimbursement in the amount of $233.53 for 21.0 hours of earned annual leave that was not compensable. The notification was not prompt, but is was made in a timely manner. On May 21, 2001, Petitioner requested a formal hearing before the DOAH. On June 26, 2001, Respondent notified Petitioner that a further audit revealed that he was entitled to be paid for 8.0 hours of special compensation leave. Applying these hours to the overpayment left a balance of 13.0 hours, equaling $144.57 due. While this matter was pending before DOAH, that amount was garnished from Petitioner's wages by the Comptroller, without prior notification. Petitioner had 21.0 hours of earned annual leave while employed by Respondent. Due to excessive working hours and the critical nature of the position with Respondent, Petitioner had very limited opportunities to use his leave during the time he was employed by Respondent. Due to the short time that he was employed by Respondent, Petitioner's earned leave was not transferable to the Department of Heath, his current employer. Petitioner seeks to withdraw his original letter of resignation and substitute a new letter, to be effective November 20, 2000. This would allow him to use the annual leave and special compensatory leave to account for the period in question and cancel the garnishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary enter a final order authorizing the garnishment of Petitioner's wages in the amount of $144.57 for salary overpayment for the pay period ending November 9, 2000. DONE AND ENTERED this 1st day of November, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of November, 2001. COPIES FURNISHED: Richard D. Davison, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Sheldon S. Scrivener 5253 Jamaica Road Cocoa, Florida 32927-9058 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact At all times relevant, Petitioner was employed as a Clerk Typist with Respondent. Petitioner did not report to work on February 3, 4 and 5, 1988. Respondent's leave policy is that leave should be requested in advance; if an employee gets sick, he or she needs to call in. Petitioner had not requested leave prior to February 3, 1988. On February 3, 1988, Ms. Lester, a co-worker of Petitioner's received a telephone call from a Ms. Williams who stated that Petitioner was in the hospital. Ms. Baker, Petitioner's supervisor, called three hospitals in the area and none had a Ms. Stanyard listed as a patient. Also, she contacted Ms. Stanyard's brother and another person, neither of whom had any knowledge of Petitioner's whereabouts. Finally, Ms. Baker went to Ms. Stanyard's home, but could not find Ms. Stanyard. As of the end of the day on February 5, 1988, Petitioner had not contacted her supervisor or her office.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Department of Administration issue a final order ruling that Petitioner abandoned her position and resigned from the career service. DONE and ORDERED this 29th day of September, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 29th day of September, 1988. COPIES FURNISHED: Ms. Ethelda Stanyard 7855 Wilson Boulevard Apartment 17 Jacksonville, Florida 32210 Scott D. Leemis Assistant District Legal Counsel Post Office Box 2417 Jacksonville, Florida 32231-0083 Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Agustus D. Aikens, Jr. Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner abandoned his position as a state employee.
Findings Of Fact At all times pertinent to the issue of abandonment in these proceedings, Petitioner William Grimsley was a Career Service Employee, employed by the Department of Health and Rehabilitative Services at Fort Myers, Florida, as a Public Assistance Specialist I. On January 4, 1989, the Petitioner learned that his father's brother had died in Georgia. Petitioner Grimsley requested one day of authorized leave from his supervisor in order to drive his father to the funeral in Colquitt, Georgia. The Petitioner's father was unable to drive himself to Georgia because of his heart condition, and the extreme stress he was under due to the fact that his wife's two children were in critical condition in Shand's hospital in Gainesville, Florida, during this time period. The Petitioner's father had recently suffered a heart attack, and was under doctor's orders not to drive alone for extended periods of time. When the Petitioner requested one day's leave for January 5, 1989, he anticipated that he would be able to return to work on January 9, 1989. The Petitioner was on a four-day work week, and the one day's leave gave him the opportunity to accomplish his task within a four-day time period. After the Petitioner and his father arrived in Georgia, they learned that there had been two other deaths in the family. On Saturday, January 7, 1989, the Petitioner attended his cousin's funeral. On Sunday, January 8, 1989, the Petitioner attended his uncle's funeral. On Monday, January 9, 1989, he attended his great aunt's funeral. As the family lives in a rural and impoverished area in Georgia, the Petitioner did not have access to a telephone until he drove into Bainbridge, Georgia, on January 9, 1989. The Petitioner was without money during his attempts to telephone his office from Bainbridge, Georgia. According to Petitioner, his money was stolen from his wallet by one of his deceased uncle's children during the funeral services. The Petitioner did not tell his father of the incident due to the current tension between his deceased uncle's children and the uncle's widow regarding the disposition of life insurance proceeds. The Petitioner's father was under enough stress, and the Petitioner believed he could contact his office without having to spend money. The Petitioner's attempt to charge the call to his home phone was unsuccessful because there was no one at his home to verify that he was authorized to charge calls to that telephone number. The Petitioner's attempt to place a collect call to his employer was unsuccessful because the Department refused to accept the collect call placed by the Petitioner. The Petitioner then placed a collect call to his mother's home in Fort Myers, Florida. Once his call was accepted, the Petitioner asked to speak to his sister, Iris Hill. Ms. Hill was instructed to contact the Petitioner's supervisor to inform her of the situation in Georgia. The Petitioner had to attend three funerals as opposed to one funeral, and his uncle's widow was in need of his father's assistance. No time frame was given to the Petitioner's sister regarding his anticipated return. His sister assured him that she would contact his supervisor to relay his message. The Petitioner's sister attempted to contact his supervisor by telephone several times, as she had been instructed. However, she was unsuccessful, and did not make contact until after her brother had returned to work on January 12, 1989. During her conversation with the supervisor, Petitioner's sister, Miss Hill, was surprised to learn that the Petitioner had returned to work that morning after driving from Georgia earlier that day. Upon his return to work, the Petitioner was informed that a Notice of Abandonment had been filed, and that he had been separated from his employment with the Department due to his absence without authorized leave for three consecutive work days. The Petitioner did not intend to abandon his position when he remained in Georgia for three additional days in order to assist his father in family matters. The Petitioner reasonably believed his supervisor had been informed of the reasons for his absence on Monday, January 9, 1989, and that he would return to work as soon as possible.
Recommendation Based upon the evidence, it is RECOMMENDED: That the Secretary of the Department of Administration issue a Final Order that Petitioner did not abandon his position in the Career Service System. That the Petitioner be reinstated to his position as a Public Assistance Specialist I with all rights and privileges attendant to that position before the dismissal date of January 11, 1989, and subsequent to that date. DONE and ENTERED this 9th day of August, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 9th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1183 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2 and #3. Accepted. See HO #2. Rejected. Irrelevant. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #5. Accepted. See HO #6 and #7 Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #9. Accepted. See HO #10. Accepted. Accepted. See HO #10. Accepted. See HO #10. Accepted. See HO #10. Accepted. See HO #11. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Improper summary. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #2. Accepted. See HO #3 and #4. Accepted. See HO #5, #6 and #8. Accepted. See HO #9 and #10. Accepted. Accepted. Accepted. Accepted that Petitioner arrived at work on January 12, 1989. The rest of paragraph 8 is rejected as improper summary. Rejected. Witness incompetent to make legal conclusion. Rejected. Irrelevant. COPIES FURNISHED: James A. Tucker, Esquire Florida Rural Legal Services 2209 Euclid Avenue Fort Myers, Florida 33901 Anthony N. DeLuccia, Jr., Esquire District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Andrew J. McMullian General Counsel Interim Secretary Department of Health and Department of Administration Rehabilitative Services 435 Carlton Building 1323 Winewood Boulevard Tallahassee, Florida Tallahassee, Florida 32399-0700 32399-1550 =================================================================
Findings Of Fact Petitioner was a career service employee of Respondent at all times pertinent to these proceedings. Petitioner failed to report to work as scheduled on April 8, 11, 12, 13 and 14, 1988. Petitioner was absent from work without authorized leave for more than three consecutive work days. Petitioner was aware that after an unauthorized absence from work for three consecutive work days Respondent would consider her to have abandoned her position and to have resigned from the career service employment system of the State of Florida. Petitioner was duly notified by Respondent that she had been deemed to have abandoned her position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period of April 8-14, 1988. DONE AND ENTERED this 28th day of September, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 28th day of September, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by Respondent. Petitioner did not submit proposed findings. RESPONDENT'S PROPOSED FINDINGS Adopted in finding 1. Addressed in finding 2. Addressed in finding 3. 4.-5. Addressed in findings 3-5. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kimberly L. Thomas 15025 Southwest 106th Avenue Miami, Florida 33176 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Adis Vila Secretary Department of Administation 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, P.E. Secretary Department of Transportation (Attn: Eleanor F. Turner, M.S. 58) Haydon Burns Bldg. Tallahassee, Florida 32399-0450
The Issue The ultimate issue in the instant case is whether Petitioner abandoned his position with Respondent and resigned from the Career Service.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Petitioner was formerly employed as an Unemployment Compensation (UC) Adjudicator in Respondent's Miami UC office. In this capacity, he interviewed claimants seeking unemployment compensation and made initial determinations regarding the validity of their claims. Petitioner was often absent because of illness. When he was at work, however, he performed his duties competently. Petitioner and his fellow employees at the Miami UC Office were required to notify supervisory personnel no later than the beginning of the workday if they were going to be absent that day. Petitioner was made aware of this requirement on various occasions prior to the absences that led to the termination of his employment with Respondent. On Tuesday, September 5, 1989, Petitioner telephoned his supervisor and told her that he would be absent that day because of an ankle injury he had sustained. He did not indicate during the conversation whether he would be at work the following day. On Wednesday, September 6, 1989, and Thursday, September 7, 1989, Petitioner neither reported to work nor contacted his supervisor at any time during the day to give notification of his absence. On Friday, September 8, 1989, Petitioner again failed to report to work. He did, however, telephone his supervisor concerning his absence, but he did not do so until 4:50 p.m., 20 minutes after the shift to which he was assigned had ended. By letter dated September 11, 1989, Respondent notified Petitioner that it had determined that Petitioner had abandoned his position and resigned from the Career Service effective the close of business September 8, 1989, in view of his unauthorized absence from work on September 6, 7, and 8, 1989. It is this determination that is the subject of the instant controversy.
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 sustaining Respondent's determination that Petitioner abandoned his UC Adjudicator position with Respondent and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of February 1990. STUART H. 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 February 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact To the extent that Petitioner asserts in his letter that he contacted his supervisor on September 5, 1989, and again on September 8, 1989, his proposed findings of fact have been accepted and incorporated in substance in this Recommended Order. To the extent that he claims that he "did not have 3 consecutive days of unauthorized absences," his proposed factual findings have been rejected because they are contrary to the preponderance of the evidence. Respondent's Proposed Findings of Fact First Sentence: Accepted and incorporated in substance; Second Sentence: Rejected because it adds only unnecessary detail. First and second sentences: Rejected because they add only unnecessary detail; Third sentence: Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. First, second and fifth sentences: Accepted and incorporated in substance; Third and fourth sentences: Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. COPIES FURNISHED: Jerry Cooper 1601 Northwest 17th Street, #2 Miami, Florida 33125 Edward A. Dion, Esquire Assistant General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 William A. Frieder Senior Attorney Office of the General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Hugo Menendez, Secretary Florida, Department of Labor and Employment Security Berkeley Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
Findings Of Fact Petitioner: was employed by Respondent as a counselor at the Palm Beach Juvenile Detention Center. In an effort to break up a fight among teenagers while employed on April 14, 1986, Petitioner was pushed against a wall at the Detention Center and sustained an impact injury to the upper portion of his right shoulder and its superior aspect. When Petitioner commenced his employment with Respondent on July 18, 4983, he signed a statement acknowledging receipt of the Department's employee handbook and acknowledging his personal responsibility to review the contents thereof. (Respondent Exhibit 1). That handbook provided, in part, as follows: If you expect to be absent from work for any reasons, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work, you must notify your supervisor. Absence without approved leave is cause for disci- plinary action. If A you are absent for 3 consecutive work days without authorization, you may be considered to have abandoned your position and thus resigned. Following the injury, Petitioner was referred for physical therapy consisting of, among other things, ultra sound and hot packs to the neck and back. Petitioner convalesced from the time of injury during April, 1986 through November 13, 1986 at which time he was released and authorized to return to work by his treating physician. Also, on November 13, 1986, Workers Compensation advised Petitioner that based on his release by his physician, he would not therefore receive further compensation benefits and was therefore to return to work. Petitioner was advised to report for work on November 14, 1986. Petitioner did not heed that directive and report for work. By certified letter dated November 25, 1906, Petitioner was again advised by Karen Christian, Assistant Detention Center Superintendent, that "if we do not hear from you within five (5) days after date of this letter, it will appear that you have abandoned your position". (Respondents Exhibit 3). Petitioner acknowledged receiving the referenced letter from Karen Christian. Petitioner did not return to work as directed and was terminated from employment on December 10, 1986 based on his failure to report to work and his failure to obtain authorized leave from his supervisor to be absent from work. Karen Christian would have offered Petitioner either reduced hours or sedentary duties to accommodate him if, as he contends, he was unable to stand for extended periods or to use his right upper extremity. Petitioner contends that he was unable to report to work inasmuch as the injury he sustained during April, 1986 left him without use of his right arm. Based on Petitioner's claimed loss of use of his right arm, he was referred to three physicians who conducted an extensive examination of Petitioner to determine evidence of any anatomical or physical impairment of Petitioner's upper extremity. All of the examining physicians found no anatomical defect consistent with Petitioner's clinical presentation. Petitioner offered no believable explanation for his failure to report to work on December 8, 9 and 10, 1986 or to otherwise obtain authorized leave for the above-referred three consecutive work days.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Petitioner abandoned his position of employment with Respondent and resigned from the career service. RECOMMENDED this 8th day of July, 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 8th day of July, 1987. COPIES FURNISHED: Eddie Harris Post Office Box 9224 Riviera Beach, Florida 33419 K. C. Collette, Esquire Department of HRS 111 Georgia Avenue West Palm Beach, Florida 33401 Adis Villa, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Janet Truett was a former vocational rehabilitation client due to a hearing problem. After successfully completing the program, she was employed as a secretary by the Office of Vocational Rehabilitation in Tampa, a position which she retained for approximately five years. In 1983, petitioner often took annual leave, sick leave and leave without pay, usually calling in at the last minute. On October 13, 1985, her immediate supervisor advised her that "in the future, all leave must be approved in advance except for emergency sick leave." (HRS Exhibit 1). Due to an automobile accident and gall bladder surgery, Mrs. Truett was absent from work approximately one-fourth of the time from mid-November of 1984 through mid-April of 1985. On April 22, 1985, petitioner and her supervising counselor had a conference and discussed her continued use of leave without pay. Petitioner was advised that her absence put undue stress on the rest of the unit and that her physician was being consulted to determine if she was able to return to work on a full-time basis. Another conference was to be scheduled after receiving her doctor's response. By letter dated April 30, 1985, Dr. Michael J. Wiley advised petitioner's supervisor that petitioner had been discharged from care after recovering from her surgery on March 18, 1985, but had come back to his office on April 3, 1985, complaining of abdominal pain. She was instructed to stay home and return for a follow-up visit the following week. She did not return to Dr. Wiley's office after April 3, 1985. Petitioner received her annual performance evaluation on May 2, 1985, with an overall rating of "conditional". The areas of deficiency included dependability, quality of work and quantity of work. Petitioner was advised that her attendance at work would be monitored over the next sixty days and that she would "not be given any approved leave whether sick leave, annual leave or leave without pay without a written explanation. If she falls ill during the 60 days she must provide me with a doctor's report indicating her problem. If she is to take any other type of leave she must provide me with a written explanation. I will then make a determination as to whether or not I will approve this leave." (HRS Exhibit 3). On May 17, 1985, petitioner called her supervisor and indicated she had car problems. She did not come in to work for the entire day. A counseling session was held on May 20, 1985, and petitioner was advised by her supervisor that she was expected to take the city bus or arrange for other transportation should she experience further car trouble. On May 24, 1985, petitioner called her supervisor at 9:45 A.M. and requested leave because of an alleged family problem. She was told that her story would be verified and was reminded that she had been instructed to call in to request leave before 8:30 A.M. The stated reason for her absence on May 24, 1985 was not truthful. On May 28, 1985, petitioner called in at 8:20 A.M. and requested leave, stating that her car had broken down and that she had numerous family problems. She was told that the leave for May 24 and May 28, 1985, would not be approved. On May 29, 1985, she arrived to work late at 8:15 A.M. Also on that date, she received a written reprimand from her supervisor for taking unauthorized leave on May 24 and May 28, 1985. She was instructed to be honest and to call in by 8:30 A.M. if she was going to be out for any reason. On May 31, 1985, petitioner was granted approval for three hours leave in order to get her electricity turned on. On June 3, 1985, she called in requesting leave stating that she still had no electricity, that she had been up late the night before due to family problems and that she had no way to get to work anyway. Her daughter picked up some checks for her around 1:10 P.M. On June 4, she came to work but requested leave. This request was not approved and she received a second written reprimand for taking unauthorized leave on June 3, 1985. In this second reprimand dated June 4 but signed June 11, 1985, petitioner was advised that "further occurrences of unauthorized leave could result in a suspension or dismissal." (HRS Exhibit 5) A counseling session was held with petitioner on June 4, 1985, to review her job performance since the time of her conditional performance rating. She was advised that her attendance problem had not improved. She was referred to the Employee Assistance Program and was advised that the only way she could obtain future approved sick leave was to provide her supervisor with a doctor's statement. On June 14, 1985, a Friday, petitioner called in and requested sick leave. Her supervisor told her that in order for him to approve her sick leave, she must provide him with a doctor's report. On June 17 and 18, 1985, petitioner failed to report to work and failed to request additional leave. On June 19, 1985, she called in and said she was "too upset" to come to work. When asked if she had seen a doctor, she replied that she had not. Petitioner was then advised by her supervisor that he would not approve her leave for June 14, 17 or 18, 1985. When petitioner was absent from work, other secretaries in the office were required to perform her duties, as well as their own. This created a hardship on the other secretaries, and petitioner's frequent absences impaired both the quantity and the quality of her own work. By letter dated June 21, 1985, petitioner was advised that the Office of Vocational Rehabilitation was processing her resignation from her position as a secretary effective June 13, 1985 at 5:00 P.M. Citing Rule 22A-7.10, F1orida Administrative Code, it was assumed that petitioner had abandoned her position and resigned from the Career Service since she had been on unapproved leave for three consecutive work days.
Conclusions Rule 22A-7.10(2t(a), Florida Administrative Code, provides that "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." The evidence clearly demonstrates that petitioner's absence on June 14, 17 and 18, 1985, was not authorized. Petitioner does not even contend that it was authorized, but merely urges that it was not "reasonable" for her supervisor not to grant her retroactive approval for these absences. Given the numerous amount of leave time utilized by the petitioner and the repeated warnings, both oral and written, concerning future absences, HRS's action can hardly be termed "unreasonable." Petitioner's supervisors and co-workers were aware that petitioner had medical and personal problems and attempted to work around those problems and provide help and counseling to her. Her absences were both disruptive to the operation of the office as a whole and affected the quality and quantity of her own performance. Petitioner was repeatedly advised and counseled concerning the problems her absences were causing and was instructed and warned of the proper procedure to follow should future absences be necessary. It is difficult to envision any further steps HRS could have taken to solve petitioner's problems with continued absences. She was fully aware of the consequences which would ensue should she fail to report to work without authorized leave. Nevertheless, she chose to do so in the face of two written reprimands within a one-week period, and the passage of less than ten days between the second written reprimand and June 14, the first of her three days of absence without authorized leave. Rule 22A-7.10(2)(a), Florida Administrative Code; is clear and mandates the action to be taken when an employee is absent without authorized leave for three consecutive work days. A review of the facts of this case clearly supports the conclusion that petitioner abandoned her position with HRS and must be deemed to have resigned from the Career Service.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner Janet E. Truett be deemed to have abandoned her position with HRS and to have resigned from the Career Service. Respectfully submitted and entered this 19th day of November, 1985, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1985. COPIES FURNISHED: Janet Truett 1605 East Kirby Apartment B Tampa, Florida 33610 Robert Cox Regional Director, ASCME 4404 Westmoreland Court New Port Richey, Florida 33552 Claudia Isom-Rickert District VI Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614 Richard L. Kopel Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 ================================================================ =
