The Issue The issue in this case involves a consideration of whether the Petitioner has abandoned his job position with the Respondent as described in Rule 22A- 7.010, Florida Administrative Code.
Findings Of Fact In the relevant time period which is associated with this case, Petitioner was employed by the Department of Revenue as an Appraiser II in the Jacksonville, Florida, office of the Northeast Region, Bureau of Field Appraisals, Division of Ad Valorem Tax. He worked with the Respondent agency beginning April 1980 until his dismissal from the agency on December 17, 1986, based upon the theory that he had allegedly abandoned his job within the meaning of Rule 22A-7.010(2)(a), Florida Administrative Code. During his employment Petitioner operated out of his home, which was in Palm Coast, Florida. Douglas Drozd, an employee of the Respondent agency, was sent to the Jacksonville office of the Bureau of Field Appraisals, Division of Ad Valorem Tax to serve as a temporary Appraiser Supervisor for that office. This assignment occurred on October 6, 1986. On October 21, 1986, Albert Johnson, the former Appraiser Supervisor with the Jacksonville office, left that position. Following the departure of Johnson, Drozd became the permanent Appraiser Supervisor for the Jacksonville office. From October 6, 1986, through November 18, 1986, Drozd acted in the capacity as the immediate supervisor of the Petitioner. Beyond that date, Robert Worley, an Appraiser II in the Jacksonville office, took over the position of Appraiser Supervisor in the subject regional office. Worley served in the capacity of supervisor from November 19, 1986, until December 22, 1986, when he returned to his duties as Appraiser II. While Worley was serving as Appraiser Supervisor, Drozd took over the function of Property Appraiser, Duval County, Florida. On December 22, 1986, Drozd returned to his duties as Appraiser Supervisor for Respondent's Jacksonville office. On November 17, 1986, Petitioner asked the permission of his supervisor, Drozd, to take annual leave for days in December 1986. This request was not made in writing and was not responded to in writing. Although Rule 22A- 8.002(4), Florida Administrative Code, contemplates that leave shall be requested in writing, it gas the custom and practice of the Respondent agency for oral requests for annual leave to be made and approved orally. At the time of the conversation on November 17, 1986, between the Petitioner and Drozd concerning the request for annual leave, Drozd initially granted that request without any reservations or contingencies being applied to the permission given. Subsequently, on that same day, Drozd told Richards that he expected that all "field work" assigned to the Petitioner should be completed before leave was taken. This arrangement included work being done on vacant parcels of property as well as improved parcels. More particularly, "field work" includes: Completion of neighborhood analysis form Dr-549 Completion of structural elements form Dr-551 Measurements of all improvements Notes pertaining to subject property (condition of property, any unusual circumstances) Sketching and traversing (perimeter measurements for calculating square footage) Pictures Completion of factual change of physical characteristics forms. Worley was unaware on November 17, 1986, of the arrangement between Drozd and the Petitioner concerning conditions placed upon the permission for the Petitioner to take leave as set forth by Drozd. Petitioner's work assignment involved 180 parcels. Effective December 12, 1986, 27 parcels had "field work" which was incomplete, according to his flow chart of that date. Effective that date, Petitioner had turned in field folders for 88 of the 180 parcels. He kept 92 field folders for the remaining parcels. Thus, his supervisor was unable to verify whether Petitioner had completed his "field work" as summarized in his flow chart submitted on December 12, 1986. According to Petitioner's account set forth in his flow chart of December 12, 1986, which is part of Petitioner's Exhibit R submitted by the Respondent and admitted into evidence, the 27 parcels pertained to vacant land. Petitioner further conceded that other minor problems existed concerning the completeness of the "field work" pertaining to the improved parcels reported in his flow chart. Prior to Petitioner's departure from the Jacksonville office on December 12, 1986, Worley, who was then serving as the Appraiser Supervisor, did not have a detailed knowledge of the flow chart submitted by the Petitioner on that date. Worley had reviewed some of the Petitioner's files and noted shortcomings in the work; however, on balance, Worley took no issue with Petitioner's work progress. Worley acquiesced in the Petitioner's departure on the afternoon of December 12, 1986, as a prelude to the commencement of Petitioner's annual leave on December 15, 1986 This acquiescence was by a verbal expression to the effect that the Petitioner should have a nice holiday. By contrast, on December 12, 1986, Drozd became aware, upon examination of Petitioner's flow chart, that certain parcels had not been completed in terms of "field work." Drozd's observations about Petitioner's flow chart became significant when Worley and Drozd spoke to supervisors in Tallahassee, Florida, on the afternoon of December 12, 1986, in the person of Ben Faulk, Chief of the Bureau of Field Operations in the Respondent agency, and Eugene White, who was the Deputy Director of the Division of Ad Valorem Tax for that organization. In actuality, there were two conversations, and in the latter conversation Drozd participated in a discussion in which Faulk, White and Drozd determined that Petitioner should not be allowed to proceed with annual leave based upon his failure to comply with the contingency which Drozd had established on November 17, 1986, pertaining to Petitioner's wish to take annual leave, the contingency being completion of "field work." The latter conversation between Worley, Drozd, White and Faulk took place following Petitioner's departure from the Jacksonville office. At the time this conversation was held, Drozd was not a member of the Respondent agency. On the other hand, Faulk and White were appropriate officials within the Respondent agency with power to make determinations concerning the annual leave of a subordinate employee, in this instance, the Petitioner. Worley was also a proper source of policy in she management chain. It was decided that Worley should try to telephone the Petitioner and forestall the use of the annual leave by Petitioner. Emphasis is placed upon the fact that Faulk and White felt that this denial of Petitioner's annual leave based upon Petitioner's failure to meet a contingency concerning his "field work" was an appropriate disposition of the case. Around 6:00 p.m., Worley was able to reach Petitioner by telephone while Petitioner was at his daughter's home, preparing to leave for a trip to Washington, D.C. In placing the telephone call to Petitioner, Worley did not favor the revocation of leave opportunity. Nonetheless, he did revoke the leave while acting as supervisor for the Northeast Region, at the behest of Drozd and upon authority of Faulk and White. In the conversation with Petitioner on December 12, 1986, by telephone, Worley told Petitioner that his leave had been revoked and that Petitioner should report to his job assignment at 8:00 a.m. on Monday, December 15, 1986, or be considered on unauthorized leave. Further, it was explained to Petitioner that he would be considered to have abandoned his job position if he had not returned to work by 5:00 p.m. on Wednesday, December 17, 1986. These remarks by Worley were not equivocal, and Petitioner understood the significance of those instructions and the implications of his failure to attend his duties on the dates described. This understanding of the explanation of unauthorized leave and potential abandonment of his job position was held by the Petitioner at the point of the conversation at approximately 6:00 p.m. on December 12, 1986. Instead of reporting to work on December 15, 1986, at 8:00 a.m., Respondent absented himself from his job assignment on that date and on December 16 and 17, 1986. For those three consecutive days in which Respondent did not attend his job, his nonattendance was without authorization to take any form of leave and in the face of having been advised that he was in the posture of unauthorized leave. The days that Petitioner was missing from his job were work days. Petitioner's choice to go forward with his vacation plans and ignore the instruction of his supervisor concerning returning to his job position was made knowingly, with volition, with intent and showed willful disregard of a legitimate order of a superior. Petitioner had decided that since he had longstanding plans for taking annual leave in Washington, D.C., and given the fact that his wife was already there awaiting the arrival of the Petitioner and his daughter, he would go forward with his plan on the expectation that someone in his employment system would not allow a conclusion to be drawn that he had abandoned his job position. In furtherance of the assertion that the Petitioner would be considered to have abandoned his job position if he didn't return before the conclusion of the work day on December 17, 1986, a memorandum was sent to the Petitioner at his residence on December 15, 1986. A copy of that memorandum may be found as Respondent's Exhibit Q admitted into evidence. Petitioner did not become aware of this memorandum until returning from his vacation. When he returned, he signed for service of correspondence of December 18, 1986, which constituted the Respondent agency's notice of claimed abandonment and notice of rights to administrative hearing to contest that claim. A copy of that notification may be found as part of the Respondent's Exhibit M admitted into evidence, together with the return receipt signed by the Petitioner on December 29, 1986. A timely petition requesting consideration of the agency's claims of abandonment was filed by the Petitioner on January 5, 1987.
Findings Of Fact Barbara Calhoun, Respondent, is a Career Service employee with permanent status. She has been employed by the Petitioner since approximately 1969 and is presently employed in the capacity of a Resident Lab Assistant (RLA). Mary Ellen Weaver, Nursing Director at Sunland Center at District VII, is in charge of the nurses and other staff personnel at the Sunland Center in Orlando. Mrs. Weaver testified that she approved initially the recommendation by Mrs. Calhoun's supervisor that she be suspended for a continued pattern of absenteeism which had been documented by three previous reprimands, the first of which occurred approximately September 16, 1976. The first reprimand was an oral reprimand of September 16, 1976, and was based on an excessive pattern of sick leave in conjunction with days off. The second one occurred on November 29, 1976, and was submitted by a Mrs. Renner, R.N. and the reviewing officer on that reprimand was Mrs. Graham, R.N. III. The third reprimand occurred on February 5, 1977, a written reprimand the basis therein was excessive absenteeism, with the reviewing officers being Mrs. Renner and Mrs. Graham. (See Petitioner's Exhibits Nos. 1, 2 and 3.) Documentary evidence introduced reveals that from February 11, 1976, to June 23, 1977, the Petitioner accumulated approximately 19 days of unscheduled absences with the majority of such absences occurring in conjunction with days off and most of which were leave without pay (LWOP) because during the Respondent's approximately eight year employment tenure, she had accumulated no annual or sick leave. (See Joint Exhibit 1.) Without going into a recitation of all of the numerous days in which the Respondent was absent, the following is illustrative. On February 11, 1977, Respondent called in sick which was also without pay because she had accrued no leave. The following day the Respondent called in sick and again this absence was without pay and unscheduled. On March 6, 1977, Respondent had a friend call to advise that she was sick with the flu and again a message was sent the following day, on March 7, 1977. On March 26 the Respondent called in sick which was before she was off for two days. On April 18 the Respondent again called in ill. On May 2 Respondent requested annual leave, which was granted. On May 3 the Respondent called in sick and obtained permission to use annual leave since there was no more sick leave accrued. On May 12 Respondent called in sick and again there was no annual leave accrued to cover the absence. The following day the Respondent called in sick, which was prior to her weekend off. On June 1, 1977, Respondent called in sick after being off on May 30 and May 31. On June 16, 1977, Respondent was off and used an annual leave day, which was unscheduled and without prior approval. On June 23 Respondent called in sick, which was unscheduled. It was at this juncture that Respondent's supervisor recommended a suspension, which was approved by Mrs. Weaver and ultimately sent to a Mr. Windsor for final approval. The Respondent offered no explanation to explain, refute or otherwise contradict the numerous absences nor did she offer any proof of any kind to establish that she was in fact sick in such a sporadic form which occurred in conjunction with her days off. 1/ In view of the above, the undersigned concludes that there is competent and substantial evidence to support the Petitioner's disciplinary action directed toward the Respondent.
Recommendation Based on the foregoing findings and conclusions of law, it is hereby recommended the personnel action of the Petitioner, Department of Health and Rehabilitative Services, be sustained. RECOMMENDED this 27th day of July, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1978.
Findings Of Fact The Petitioner, William Thomas, was employed at times pertinent hereto as a permanent employee at the Duval Regional Juvenile Detention Center (Detention Center) operated by the Department of Health and Rehabilitative Services. His title was Detention Case Worker I. During the two week period beginning June 13, 1988, the time period relevant to this proceeding, he was working a so called "asymmetric workweek." This is a modified work schedule such that the Petitioner was working two work days on the weekends consisting of two sixteen hour shifts, one for each day, for a total of thirty-two hours of work scheduled to be performed by the Petitioner on June 18 and 19, 1988. Prior to the problem which arose in this situation, the Petitioner was also scheduled to work on Tuesday, June 21, but not on Monday, June 20. The Petitioner's immediate work supervisor was Wilson Reynolds, Jr., who testified on Petitioner's behalf. In addition to the Petitioner, Mr. Reynolds supervised twelve other employees who were working the asymmetric work week. This work week had been approved by the Department of Administration approximately two years previously, in 1986, at least as to this juvenile detention center. Pursuant to HRS rules, Mr. Wilson had authority to grant emergency leave when employees requested as, for instance, when an employee phoned in such a request when he was unable to come to work due to some emergency having arisen. Mr. Wilson also had authority to schedule employees to work shifts outside of their routine work schedule if the need arose. Mr. Wilson's employees, for instance, had been scheduled to work some extra duty in order to perform the duties of other employees who had to be absent from their normal work stations to attend training sessions. According to agency policy, in Mr. Reynolds' absence, the supervisor immediately on duty could grant tentative approval of emergency leave requests. In the event the supervisor on duty was unable to approve or deny the leave request, Mr. Reynolds had authority to approve leave requests "after the fact." It developed that some time during the week of June 13, the Petitioner became incarcerated. The Petitioner was unable to obtain access to a telephone for several days, and so, at his behest, his wife called the "Master Control" office at the detention center on June 16, 1988, to advise the Petitioner's employer that he would not be able to report to work, as scheduled, due to emergency reasons. On June 18, 1988, she again called that same "Master Control" office to advise that the Petitioner would be away from work until June 30, 1988, due to an emergency beyond his control. The Petitioner, after his last duty shift which he had performed, was not scheduled to work until June 18, 1988. He was then scheduled to work two eight hour shifts on June 18 and two eight hour shifts on June 19, which was a Sunday. On Monday, he was not scheduled to work. Then on June 21, Tuesday, he was scheduled to work an eight hour shift. Mrs. Thomas' reason for calling the employer's office was to put the employer on notice of his unavoidable absence from work. She was not aware of the rule requiring her to speak with the immediate supervisor. The immediate supervisor was not on duty on the day that she called in any event. She did speak with a staff member, a Mrs. Wavel Johnson, with whom she was acquainted, who advised her to have the Petitioner himself call in and request approval for the absences. Mrs. Thomas then revealed that her husband was incarcerated and would be incarcerated until June 30, 1988, which was why he was unable to call. This information was then conveyed to Mr. Reynolds, the Petitioner's immediate supervisor on June 19, 1988 at the beginning of the shift. On that day, during the morning, the Petitioner called and spoke with Mr. Reynolds, his supervisor. The Petitioner advised him of his incarceration and his anticipated release date of June 30, 1988, requesting that he use his accrued annual leave to cover this absence. Mr. Reynolds orally agreed to the request and approved it, pending the Petitioner's return to work and submittal of proof of the reason for the stated emergency basis for absence. Mr. Reynolds considered Mr. Thomas' incarceration as a sufficient justification for granting emergency leave. In the log book, Mr. Reynolds had a staff member, Mrs. Johnson, make a note that Mr. Thomas had called in requesting leave and that he "had no problem" granting emergency leave. He testified that he intended that notation to mean that he had approved the leave request. During Mr. Reynold's conversation with the Petitioner, he advised Petitioner that he would schedule him off duty for Tuesday, June 21, 1988, because he already had sufficient staff who would be present for duty to cover his assignment and would not need the Petitioner. Thus, for the eight hour shift he was originally scheduled to work on June 21, 1988, the Petitioner was not absent without approval either. The roster was changed so that he was not even scheduled to work that day. Andrea Cash is the superintendent of the Duval Regional Detention Center. On or about June 20, 1988, she read Mrs. Johnson's entry in the log book and concluded that Mr. Reynolds had not granted the necessary leave approval to cover the Petitioner's absence. Ms. Cash interpreted that entry to be that the leave approval was merely pending and that Mr. Reynolds had "no problem" with granting it. Ms. Cash, however, did not confer with Mr. Reynolds or Mrs. Johnson about what the entry meant nor seek any clarification as to the meaning of the entry or Mr. Reynolds' intentions with regard to the leave approval. Ms. Cash concluded that the leave had neither been approved nor denied, but did not communicate that position to the Petitioner. Instead, on June 23, 1988, she wrote the Petitioner advising him of his alleged job abandonment due to his absences of June 18th and 19th. She never discussed her plans to terminate the Petitioner, for alleged abandonment, with Mr. Reynolds. The approval granted during June or July 1986 to the Detention Center to implement an asymmetric work week was in accordance with Rule 22A-8.003(1), Florida Administrative Code. That rule provides that eight hours of work shall constitute a work day for all full-time employees, unless a different work day is specifically approved by the Secretary of Administration. The asymmetric work day had been so approved and implemented at times pertinent hereto. The Petitioner normally worked two 16 hour work days from 7 a.m. to 11 p.m. on Saturday and on Sunday plus one other eight hour work day. Thus, three calendar work days constituted Petitioner's normal work week of 40 hours. The Detention Center has a "Facility Operating Procedure on Leave and Attendance" which provides that an employee must contact the supervisor on duty in advance of the beginning of his shift and advise that supervisor of the nature of any emergency concerning which he asks for leave. The duty supervisor then has authority to tentatively approve or deny the request. The employee must personally speak with the supervisor who is on duty. Thereafter, on the first day the employee reports back to work an "HRS Form 84" must be completed and the immediate supervisor must provide final approval if the annual leave is to be approved due to the stated emergency. The procedure does not provide that the employee's supervisor is to discuss the request with higher levels of supervision prior to granting approval for use of annual leave to cover such an absence. This procedure and policy does not require that higher level supervisors review the request and give final approval or denial. In other words, the employee in this situation is using his own annual leave to make up for his absence for emergency reasons and the facility's policy gives the immediate supervisor himself or herself the authority to approve it or deny it without recourse to higher supervisory authority. The Petitioner's wife contacted the person or office she believed was appropriate to report the Petitioner's impending absence and to explain that it was for emergency reasons, not knowing that she should speak to his immediate supervisor. In any event, before the Petitioner had missed three consecutive days of work he himself contacted his immediate supervisor, Mr. Reynolds, during the morning of June 19, 1988, and obtained Mr. Reynolds' verbal approval for absence due to emergency reasons, to be "covered" by Petitioner's annual leave. Mr. Reynolds did not tell the Petitioner that his request did not comply with the Facility Operating Procedure on Leave and Attendance. Mr. Reynolds, rather, accepted the Petitioner's justification for the emergency leave and approved it.
Recommendation Having considered the foregoing findings of fact and 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 determining that the circumstances presented in this case, found and discussed above, did not constitute abandonment of position, as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code, and directing that the Petitioner be reinstated to his former position with backpay and reimbursement of related benefits. DONE and ORDERED this 20th day of March, 1989, in Tallahassee, 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 20th day of March, 1989. APPENDIX Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Respondent's Proposed Findings of Fact Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent immaterial. Accepted, but not in itself dispositive of material issues presented. Accepted, but not in itself dispositive of material issues presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as contrary to the preponderant weight of the evidence. COPIES FURNISHED: Linoria Anthony, Esquire 345 South Magnolia Drive & Suite F - 21 Tallahassee, FL 32301 Scott D. Leemis, Esquire P. O. Box 2417 Jacksonville, FL 32231-0083 Gregory L. Coler, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Petitioner was employed by Respondent and supervised by Wilson Yawn, Maintenance Engineer, Chipley, Florida. On April 15, 1985, Petitioner signed an acknowledgment receipt indicating that: (a) he had received an Employee Handbook; (b) it was his responsibility to review the Handbook; and (c) he was to request clarification, if needed, from his supervisor. Petitioner knew, or should have known, since the Handbook explained job abandonment, that unauthorized leave of absence could result in the loss of his job through abandonment. Petitioner was absent from work without authorized leave on August 17, 18, 19, and 20, 1987. At no time relevant to this proceeding was any type of leave requested by Petitioner, or granted by Respondent. Petitioner was formally advised by certified letter dated August 21, 1987 that Respondent considered him to have abandoned his job and to have resigned from the Career Service.
Findings Of Fact Petitioner, Grey C. English, has worked for DOT, primarily in its Okeechobee, Florida office, for approximately seven years. At the time in question, he was serving as an HMT II, crew leader, with job duties that included various equipment and machinery maintenance and general road work. In some cases he served as crew leader and in other cases, he was merely a member of the crew. In April, 1986, Mr. English filed a charge of discrimination against DOT before the Florida Commission on Human Relations alleging that he had been passed over for promotion and discriminated against therein because of his race (Black). Part of the allegation involved Mr. R. C. Roberts, who concurred in the selection of another applicant over the Petitioner when he knew there was an irregularity in the selection process. Petitioner presented this evidence in an effort to discredit Mr. Roberts' testimony for Respondent here on the basis of bias, but was unsuccessful. In January 1987, Petitioner and DOT entered into a settlement agreement which disposed of the Petitioner's charge of discrimination without assessing blame, but as a result of which, Petitioner was paid the sum of $2,656.40. This sum was paid by state warrant dated February 13, 1987 which, it is concluded, was received by Petitioner several days later. Attendance documents maintained by DOT reflect that on February 13, 1987, which was a Friday, Petitioner was on authorized leave without pay. On February 16, 1987, the following Monday, he worked 7.3 hours and was authorized leave the remainder of the time. Between Tuesday, February 17 and Thursday, February 19, 1987, Petitioner was present for duty performing safety duties. However, on Friday, February 20, 1987, he was placed on unauthorized leave without pay and remained in that status through March 19, 1987. Michelle L. King, Petitioner's immediate supervisor, relates that on February 19, 1987, when Petitioner came to work, she advised him where his work site would be and with whom he would be working. According to Ms. King, when so advised, Petitioner indicated he would not work with Mr. Mills, apparently one of his prospective co-workers, and walked off the job. Shortly thereafter, Ms. King received a phone call from Petitioner's mother who advised her that Petitioner's grandfather was seriously ill and in the hospital and Petitioner's presence was needed at the hospital to assist in caring for him. When Ms. King immediately went to look for Petitioner, she found him sitting in his car approximately one half block from the DOT yard where she advised him of the message she had received. At this point; Petitioner immediately left the area presumably to go to the hospital. According to Ms. King, he did not ask permission to leave then nor did he ask for any time off during the succeeding days for which he was marked in an unauthorized absence status. During that entire period, however, she did not try to reach him by phone or in person even though she had his phone number on record in the office and knew where he lived. She admits she made no effort to reach Petitioner to tell him his job was in jeopardy because she felt, he had walked off the job and was not, therefore, entitled to that consideration. She merely reported the Petitioner's status to her supervisor, Mr. Lanier, and considered the matter closed. Mr. Lanier indicates he made no effort to contact Petitioner either. Petitioner admits that he was sitting in his car with the mechanic who repaired it; away from the job site, when he was advised of his grandfather's illness. He contends he had left the job earlier that morning because he, himself, was ill, not because he did not want to work with Mr. Mills and he contends that his continued absence from work was occasioned by the need for him to remain with his grandfather in the hospital for the period of time of his absence because there were no other family members available to do so. He contends he stayed with his grandfather, who was ill with and ultimately died of cancer, the entire time. There is no evidence of record, however, to indicate that Petitioner requested or was placed on sick leave when he left work on the morning in question. Petitioner also claims that on one occasion several days after February 19, 1987, he met Ms. Kings, Ms. Chapman, and Mr. Lanier, another supervisor, in a local restaurant during the lunch hour. At that time he told them that he would have to have some time off for a few days because of his grandfather's illness but that he would stay in touch. Petitioner contends that this absence was approved by either Mr. Lanier or Ms. King and he was given no instructions to call in or take any other action regarding his absence. The meeting is confirmed by Mr. Branchaud, a co-worker, who observed Petitioner in a conversation with Mr. Lanier but he cannot say for certain what the specifics of the conversation were. Both Mr. Lanier and Ms. King deny any such meeting took place and this is confirmed by Ms. Chapman. Ms. King and Ms. Chapman, as well as Mr. Lanier, though all employees of DOT, have nothing to gain by telling an untruth or giving perjured testimony regarding the situation involving Petitioner. Consequently, it is found that Mr. English did not get permission from either Mr. Lanier or Ms. King to be absent, and that, therefore, his absence between February 19, 1987 and March 10, 1987 was unexcused. During the period of Petitioner's absence, on March 4, 1987; a DOT official, by certified letter, advised him of his continued absence without approved leave and directed him to report to his duty section by 8:00 am on March 9, 1987 under pain of termination for a failure to comply. The return receipt executed by someone reflecting Mrs. Grey English indicates that the letter was received at Petitioner's home address in Okeechobee on March 11, 1987, one day after the action was taken to terminate him. Petitioner contends that he did not receive that letter and that on the date in question, there was no Mrs. Grey English. He was living at that residence, he contends, with his mother whose name is not English. No other female at that address bore the name Mrs. Grey English. The girl friend who he sometimes identified as his wife was not living at his address at the time the letter was received and did not sign for it in his behalf. Be that as it may, the letter was receipted for by an adult at the Petitioner's address. He did not, however, thereafter comply with the terms of the letter and termination action was taken by DOT on March 10, 1987 when the District Director sent him a letter notifying him of his termination by certified mails return receipt requested. Petitioner, as was stated previously, denies any intention to abandon his position and denies having received any letter of warning. He was, however, fully aware of the department's procedures for obtaining leave authorization and obviously failed to take any of the necessary steps to secure that authorization, instead relying on a purported casual meeting with his supervisor at a restaurant where he supposedly received verbal permission to be absent. This is not persuasive. His credibility, in addition, is somewhat suspect in that he has already demonstrated his willingness to falsify official documentation if it suits his purpose. Petitioner admits that several years prior to the instance in question, he, though not married, filled out certain official documentation for DOT claiming his girlfriend to be his wife for the purpose of putting her on his record as beneficiary of his insurance with the department. He claims he was advised by some official of the department to do this but does not indicate who this individual was. Even if that were the case, he recognized at the time that the lady was not his wife and was nonetheless willing to falsify documentation if it was to his benefit to do so. Consequently, his willingness to be less than candid when it suits his purpose to be so has been established and in this case, the better weight of the evidence establishes clearly that notwithstanding his protestations to the contrary, he walked off the job without authority and made no effort to take any action necessary to preserve his employment status. It is, therefore, concluded that he did abandon his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Grey C. English, be terminated from employment with the Department of Transportation effective March 11, 1987. RECOMMENDED this 18th day of September, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 18th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1931 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 to this case. By the Petitioner 1-2. Accepted and incorporated in Findings of Fact 1. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10, except for the last section thereof relating to a restatement of his testimony at the hearing, which is not a Finding of Fact. Rejected as contrary to the weight of the evidence. Accepted. Rejected. Petitioner was not terminated for excessive absenteeism. The respondent was considered to have resigned his position with the Department of Transportation and the rules regarding disciplinary termination are not relevant to this situation. 9-12. Irrelevant. 13-17. Rejected as not Finding of Fact. By the Respondent Accepted. Accepted and incorporated in Findings of Fact 9. 3-4. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 9. 8-9. Accepted. 10-13. Irrelevant. Rejected as not a Finding of Fact. Accepted. COPIES FURNISHED: Isidro Garcia, Esquire Florida Rural Legal Services, Inc. 572 S.W. 2nd Street Belle Glade, Florida 33430 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact Graham is employed by USF as a police officer at the Tampa campus and was so employed on December 18, 1976, at 1:30 a.m. On that date it was the policy of the campus police department that prior authorization be obtained from immediate supervisors prior to the taking of any time off from scheduled duties. Graham was fully aware of this policy. Graham was scheduled to appear for duty at 1:30 a.m., on December 18, 1976. At 8:46 p.m., December 17, 1976, Graham telephoned the dispatcher on duty and advised him to relate to Graham's supervisor that he would not be in for work at 1:30 a.m., the following day. Graham then failed to appear at the appointed hour and performed no duties during that scheduled shift. During his employment with USF, Graham has been disciplined five (5) previous times for being absent without authorized leave.
The Issue Whether the petitioner abandoned his position and resigned from the Career Service under the facts and circumstances of this case.
Findings Of Fact 2. On April 14, 1983, petitioner received a copy of the "Employee Handbook" published by the Department of Transportation. Job abandonment is explained in the Employee Handbook as follows: 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 policy. The petitioner was absent without authorized leave on April 13, 14 and 15, 1987. Petitioner did not appear for work on those days and did not call the office to explain or report his absence. On April 16, 1987, petitioner called the office at approximately 8:00 a.m. to say that no one had come to pick him up. A fellow employee sometimes furnishes petitioner's transportation. By the time petitioner called in to work, he had been absent three consecutive days without authorization. Petitioner had previously been warned about his absenteeism. On March 17, 1987, petitioner was placed on unauthorized leave without pay due to his failure to report to work or notify his supervisor. On March 18, petitioner was sent a letter notifying him that he had to report by March 24, 1987, or he would be dismissed. Thus, petitioner was well aware that he had to notify his supervisor of any absences.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Transportation and finding that Fred P. Noble abandoned his position and resigned from the Career Service. DONE AND ENTERED this 28th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 December, 1987. COPIES FURNISHED: Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450 Mr. Fred P. Noble 2516 Queen Street South St. Petersburg, Florida 33705 Pamela Miles, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
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 Based on the evidence received at the final hearing, I make the following findings of fact. The Petitioner, Patricia Fountain, was employed by the Department of Health and Rehabilitative Services as a Direct Services Aide working with the District Four Children, Youth, and Families (CYF) Services. For some time prior to July 24, 1987, the Petitioner was under medical treatment and had been absent from work on one form or another of approved leave. On July 24, 1987, the Petitioner's physician released her from medical treatment to return to light duty. The physician's release was subsequently amended to effect the Petitioner's release to return to work on July 27, 1987. The Petitioner's supervisor, in consultation with the Petitioner's physician, arranged a schedule of light duty work for the Petitioner to perform during the week beginning July 27, 1987. On July 27, 1987, the Petitioner reported to work as scheduled and submitted a written statement from a physical therapist to the effect that it would be in the Petitioner's best interest to have a leave of absence from work. The Petitioner was advised that the statement from the physical therapist was insufficient, and that the Petitioner would be expected to perform her duties. On July 28, 1987, the Petitioner resubmitted the statement from the physical therapist with some additional information added to the statement. On that same day, the Petitioner left a written request for leave without pay on the program administrator's desk and, without anyone's knowledge, left work without authorization. The Petitioner did not thereafter return to work. Her request for leave without pay was never approved. The Petitioner's supervisor made several unsuccessful efforts to have the Petitioner attend a conference to discuss her unauthorized absence. On August 4, 1987, the Petitioner was contacted at home and served written notice that her absence was unauthorized and that she was expected to return to work on August 5, 1987. The Petitioner did not report to work on August 5, 6, or 7, 1987, nor did she report thereafter. The Petitioner did not contact her supervisor on August 5, 6, or 7, 1987, to explain her absence. A letter was mailed to the Petitioner advising her that by reason of her failure to report to work on August 5, 6, and 7, 1987, she was deemed to have abandoned her position and to have resigned from the Career Service, effective 5:00 p.m. on August 7, 1987. During August of 1987, the Petitioner did not have any sick leave or annual leave balance.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Patricia Fountain, was properly terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED this 17th day of June, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 17th day of June, 1988. COPIES FURNISHED: Assistant District Legal Counsel Department of Health and Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417 Jacksonville, Florida 32231-0083 Ms. Patricia Fountain 2533 Wilmot Avenue Jacksonville, Florida 32218 Pamela Miles, Esquire Assistant General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, 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
The Issue Whether the Respondent, Kenneth M. Watson, abandoned his career service position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code, by being absent from work without authorization on November 4, 5 and 6, 1987?
Findings Of Fact Mr. Watson was employed by the Department from June l2, 1985, until November 6, 1987. When Mr. Watson was first employed by the Department he was given a copy of the Florida Department of Transportation Employee Handbook. Mr. Watson was, therefore, informed of the following, which appears on page 43 of the Handbook (DOT exhibit 5-B): 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. The leave policy of the Department requires that employees "[g]et your supervisor's approval before taking leave." Page 21 of the Handbook (see DOT exhibit 5-A). In November, 1987, Mr. Watson was employed by the Department as a Highway Maintenance Technician II. He was a Career Service employee. In November, 1987, Mr. Watson worked under the direct supervision of Tommy Gay. Mr. Gay was a welder and had no authority over Mr. Watson other than to supervise work they performed together. Mr. Gay had no authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Elzie Mercer, a Highway Maintenance Supervisor IV. Mr. Mercer had authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Joseph Heath, the District Bridge Inspection Engineer. Mr. Heath also had the authority to approve personal absences from work for Mr. Watson. On November 3, 1987, Mr. Watson was absent from work. This absence had been approved by the Department. Mr. Watson was supposed to return to work on November 4, 1987. He was supposed to be at work on November 5 and 6, 1987, also. Mr. Watson did not report to work with the Department on November 4, 5 or 6, 1987. Neither Mr. Mercer or Mr. Heath approved Mr. Watson's absence for November 4, 5 or 6, 1987. Mr. Watson did not directly contact Messrs. Gay, Mercer and Heath, or anyone else at the Department about his absence on November 4, 5 or 6, 1987. Mr. Watson did not request approval for his absence on November 4, 5 or 6, 1987. A woman who identified herself as Mrs. Green called the Department on November 4, 1987, and spoke with the receptionist, Carol Ellis. Mrs. Green informed Ms. Ellis that "if Mr. Watson does not show up at his job in a couple of days he is probably in jail." Ms. Ellis informed Messrs. Gay and Mercer about this conversation. Mrs. Green called again on November 6, 1987, and spoke with Barbara Taylor, a secretary with the Department. Ms. Taylor informed Mr. Heath of this phone call. Mr. Heath had Mr. Gay call the Duval County Jail. Mr. Gay verified that Mr. Watson was in jail. Mr. Watson first spoke with Mr. Heath on November 10, 1987. Mr. Watson informed Mr. Heath that he was in jail. Mr. Watson requested approval of annual and sick leave for the period of his absence. Mr. Watson was told that he could not use sick leave for the absence. Mr. Heath also informed Mr. Watson that he was denying the request for annual leave and that Mr. Watson would be treated as having abandoned his position with the Department because of his unauthorized absence. Mr. Watson spoke with Mr. Heath by telephone again on November 13, 1987. Mr. Heath again denied Mr. Watson's request for leave. On November 17, 1987, Mr. Watson appeared at work for the first time since before his authorized absence on November 3, 1987. He was informed that he could not work and he left. Messrs. Mercer and Heath were not contacted by Mr. Watson and requested to approve his absence from work on November 4, 5 and 6, 1987, until November 10, 1987, or later. At no time did Mr. Watson obtain approval of his absence. Mr. Watson was informed by letter dated November 24, 1987, that he had abandoned his position with the Department. The Department received a letter on November 25, 1987, requesting a formal administrative hearing. Mr. Watson had sufficient annual leave to cover his absence from the Department on November 4, 5 and 6, 1987. He did not have sufficient annual leave to cover his absence through November 17, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued by the Department of Administration concluding that Kenneth M. Watson abandoned his career service position with the Department. DONE and ENTERED this 16th day of June, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 June, 1989. APPENDIX Case Number 88-0798 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2-3 4. 4-5 5. 6 7. 7 11. 8 13. 9 11-15. 10 16. Hereby accepted. See 17. 13 13. 9. But see 16. Mr. Watson attempted to return to work on November 17, 1989. Hereby accepted. 16 18. 17-18 2. 19-20 Although generally true, the Department failed to present evidence sufficient to support these policies. See Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So. 2d 380 (Fla. 1st DCA 1985). The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 3-6. 2 7. 3 9. 4 11. 5 12. Except for the last three sentences, these proposed findings of fact are not supported by the weight of the evidence. The last three sentences are accepted in findings of fact 14-16. Hereby accepted. Not supported by the weight of the evidence or irrelevant in this de novo proceeding. Not supported by the weight of the evidence or argument. See 20. Not supported by the weight of the evidence. Hereby accepted. Irrelevant in this de novo proceeding. COPIES FURNISHED: Jerry G. Traynham, Esquire Post Office Box 4289 Tallahassee, Florida 32315 Larry D. Scott Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS #58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
