Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Louis C. Germain, has been employed with the Department of Health and Rehabilitative Services, Foster Care Unit-452 since late 1984 or early 1985. On the morning of February 3, 1986, the Petitioner was involved in an automobile accident during the course of his employment while enroute to pick up a client who had a court appointment. As a result of the accident the Petitioner sustained several injuries, including a nose injury, back pains, headaches and blurred vision. The Petitioner was taken to his physician's office. At approximately 4:30 p.m. on February 3, 1986, the Petitioner called his immediate supervisor, Ms. Shelia Weiner, and advised her of the accident and of his injuries. On Friday, February 7, 1986, the Petitioner went to his office to pick up his pay check. The Petitioner spoke with Ms. Weiner and informed her that he did not know when his physician would allow him to return to work. On Monday, February 17, 1986, the Petitioner returned to the office once more to pick up a pay check. Ms. Weiner told the Petitioner that he had to report to work on Thursday, February 20, 1986. The Petitioner told Ms. Weiner that he was still suffering from injuries sustained in the February 3, 1986 accident and that he did not know when he would be able to return to work. On February 20, 1986, Ms. Weiner wrote the Petitioner a letter stating that his absence from work since February 17, 1986 had not been authorized. The letter stated in part that: "You are directed to report to work immediately and provide an explanation for your absences." The Petitioner received Ms. Weiner's letter on Saturday, February 22, 1986. On Tuesday, February 25, 1986, the Petitioner had an appointment with his physician and obtained a medical statement from her. The Petitioner's physician indicated in the medical statement that Petitioner had been under her care since the automobile accident of February 3, 1986, that Petitioner sustained multiple injuries in the accident and that Petitioner was now able to return to work. The Petitioner returned to work on February 25, 1986 and was advised that he needed to speak with Mr. Carlos Baptiste, supervisor of the personnel department. The Petitioner presented the letter from his doctor to Mr. Baptiste, but Baptiste was not satisfied with the doctor's statement and felt that it was "insufficient." Baptiste asked the Petitioner if he had a towing receipt or an accident report to confirm the accident of February 3, 1986. The Petitioner replied that he did not. The Petitioner was not allowed to return to work. At the final hearing, Mr. Baptiste stated that: "If Mr. Germain had produced an accident report, he would still be working with HRS." The Petitioner's leave and attendance record maintained by DHRS reflected that the Petitioner was given sick leave from February 3 to February 6, 1986. From February 7 to February 20, 1986 the Petitioner was placed on leave without pay. On March 3, 1986, Ms. Sylvia Williams notified the Petitioner by certified mail that due to his absence from work since "February 17, 1986", he was deemed to have abandoned his position and to have resigned from the Career Service.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Administration enter a final order reinstating Petitioner to his position with the Department of Health and Rehabilitative Services, Foster Care Unit-452 in Miami, Florida. DONE and ORDERED this 4th day of February, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3319 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as argument. Partially adopted in Finding of Fact 11. Matters not contained therein rejected as argument. Addressed in Conclusions of Law section. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as argument. Rejected as argument. Rejected as argument. Rejected as argument. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as a recitation of testimony and/or argument. Adopted in substance in Finding of Fact 6. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as mis- leading. Rejected as subordinate. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: Louis C. Germain 308 Northeast 117 Street Miami, Florida 33161 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue - Suite 790 Miami, Florida 33128 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue Whether Kennie W. McKay should be deemed to have abandoned his position and to have resigned from the Career Service on account of his absence from work on March 10, 13, 14, and 15, 1987?
Findings Of Fact Some 18 years ago, when petitioner Kennie W. McKay began working at the Dozier School in Marianna, he received a copy of the employee handbook the Department of Health and Rehabilitative Services (HRS) published at the time. A more recent edition, dated June 1, 1986, provides, in part: As soon as possible on the first day of absence, it is your responsibility to notify your supervisor that the absence is due to illness, injury, exposure to a contagious disease, or the illness or injury of a member of your immediate family. Your supervisor should also be given an estimate of the length of the absence. Medical certification may be requested. Respondent's Exhibit No. 3, p. 19. It was not clear from the evidence either that this language appeared in the edition Mr. McKay was furnished when he began work, or that he had ever seen the edition which came into evidence without objection. On June 1, 1983, the Dozier School adopted "POLICY AND PROCEDURE #:035" requiring advance approval of leave, except when "illness or a bona fide emergency" occasions the absence. In that event, the policy specifies that the employee must contact his/her supervisor as soon as possible. If he/she is unable to contact his/her immediate supervisor, the employee must contact the next higher level supervisor or someone in his/her normal chain of command. Leaving messages with the switchboard, coworkers, or other uninvolved staff will not be considered adequate notice. The employee is to notify his/her supervisor and only in situations where the employee is unable to contact the supervisor himself/herself will a call/contact from another person be acceptable. * * * (6) Employees displaying a pattern of unplanned absences may be suspected of abusing their leave privileges and may be subject to appropriate corrective action in accordance with HRSP 60-1 State Personnel Rules (Chapter 22A-8 and HRSR 60-51). Respondent's Exhibit No. 5, pp. 1 and 2. HRS has not promulgated this "policy and procedure" as an administrative rule. Direct evidence did not establish to what extent, if at all, petitioner McKay was aware of its existence or its provisions. But his efforts to reach the man he thought to be his immediate supervisor, James R. Kersey, suggest he believed he was required to try to do so. In his letter of February 23, 1987, the Dozier School's superintendent, Roy C. McKay, no relation to petitioner, advised petitioner McKay that Mr. Kersey would become his immediate supervisor upon petitioner's demotion from carpenter to house parent. In part, the letter stated: This is official notification that you are being demoted from Carpenter, position number 01082, to Houseparent, position number 01188. You are to report to Friendship House on the 10:00 p.m. to 6:00 a.m. shift, effective Friday, February 27, 1987, or the first day you return back to work. 1/ Your immediate supervisor will be Mr. James Kersey, Houseparent Supervisor I; and your days off will be Wednesday and Thursday. Respondent's Exhibit No. 1. Like Mr. Kersey, Mr. James Pyles and Mr. Jethro Pittman were house parent supervisors I assigned to Friendship House. Each supervised a different shift. Houseparent supervisors I reported to Norman Harris, who reported to assistant superintendent Pate, who reported to superintendent McKay. On every shift, an administrative duty officer has campus-wide responsibility. The administrative duty officer is also in the chain of command. Petitioner McKay did not learn until after he was told he no longer had a job that Mr. Harris was to be in the chain of command, because he did not see Mr. Harris' memorandum of March 10, 1987, until after March 16, 1987. In this memorandum, Mr. Harris advised: YOUR IMMEDIATE SUPERVISOR WILL BE JAMES PYLES, HOUSEPARENT SUPERVISOR I. YOUR NEXT HIGHER SUPERVISOR BILL BE ME, MR. NORMAN HARRIS. Respondent's Exhibit No. 8. Written communications addressed to petitioner McKay dated on and after March 10, 1987, were placed in "his box," but Superintendent McKay was aware that petitioner McKay did not see them on or before March 16, 1987. Before the superintendent's letter of February 23, 1987, gave "official notice" of the demotion, the two Messrs. McKay and others met in the Dozier School's conference room, on February 20, 1987. Petitioner McKay told those present that he had a doctor's appointment in Columbus, Georgia on March 10, 1987. As the superintendent understood it, the doctor had earlier warned against petitioner's overexerting himself, even against his walking too far. Everybody knew he was on leave on account of his medical condition at the time of the conference; he was, in fact, demoted because he was not physically able to discharge the duties of a carpenter. Evidently because he told the superintendent that he had a "sick slip through the ninth," the superintendent directed him to report on the tenth. Whoever drew the work schedule put him down as beginning his new assignment on March 9, 1987. As it happened, somebody in the doctor's office in Columbus called petitioner McKay's wife on March 9, 1987, and rescheduled the appointment for March 11, 1987. Deciding not to report for work before seeing the doctor, Kennie McKay telephoned the Dozier School on the tenth to let them know. Twice he reached Mr. Bridges, who was working the day shift as a house parent at Friendship House. He told Mr. Bridges he was not coming in to work that night. He asked each time to speak to Mr. Kersey. Each time Mr. Bridges told him Mr. Kersey was not there. Although Friendship House is the most secure cottage at the Dozier School and the locus of the school's "intensive supervision program," which is designed to calm boys down who are "in an uproar," the work on the night shift is not physically demanding. The boys are supposed to be asleep, and a house parent can call for reinforcements if problems arise. The houseparent can lock himself in a "crime cage" out of reach of the inmates, and could do his duty, which is mainly to observe, on crutches, if necessary. Nevertheless, when petitioner McKay visited the doctor in Columbus on March 11, 1987, he obtained a form from the doctor's office stating "out of work until next visit in 3 wks." Respondent's Exhibit No. 12. After he reached Marianna, he telephoned the Dozier School at 7:46 p.m. that evening. Charles Gardner, Jr., who was working as a house parent at Opportunity Cottage, took the telephone call. Mr. McKay told him he could not come to work that night, that he had been to see a doctor, that he had a doctor's excuse, and that he needed to talk to a night supervisor. While they were talking, Luther L. Spurlock, a house parent supervisor II in charge of a cluster that did not include Friendship House, entered the room, and took the phone from Mr. Gardner, who handed it to him. Petitioner McKay told Mr. Spurlock, "I'll be in tomorrow with a doctor's slip for Danny." After the phone call was over, Mr. Spurlock said to Mr. Gardner, "I'm not McKay's supervisor," or words to that effect. A form filled out toward the end of the shift stated: Kenny McKay called and said that he would be at the school tomorrow with a doctor slip to give Mr. Pate. Everything went well tonight no major problems. Respondent's Exhibit No. 10. Mr. Spurlock did not tell the petitioner that he ought to notify anybody else about his continuing absence. Kennie McKay had not been scheduled to work on March 11, 1987, in any event. His next scheduled work day was March 13, 1987. Respondent's Exhibit No. 7. On March 13, 1987, he telephoned the superintendent's office but, when told he was in a meeting, asked to speak to Bruce Gambill, Dozier School's business manager , instead. Mr. Gambill answers directly to the superintendent. He told Mr. Gambill "that he had been to the doctor and had a sick slip to be out of work." Respondent's Exhibit No. 11. Mr. Gambill asked him to bring a copy of the slip to the business office for Workers Compensation purposes ... [and] instructed Mr. McKay to contact his supervisor concerning the sick slip and being out of work. [Petitioner] said he had tried to call, but there was no answer. [Mr. Gambill] told him he needed to let his supervisor know about the sick slip. Respondent's Exhibit No. 11. Petitioner had telephoned that morning at 10:24 from Marianna, Petitioner's Exhibit No. 1, but he had not reached Mr. Pittman, the supervisor, who testified he might have been on an errand then. Whether Petitioner tried again to reach a supervisor after speaking to Mr. Gambill is not clear. James Pyles, the man who, although petitioner did not know it at the time, became the latter's supervisor on March 10, 1987, asked superintendent Roy McKay's permission to use a state car about three o'clock that afternoon to find out if Kennie McKay was going to come to work. Mr. Pyles drove to Dothan, Alabama, where he found petitioner walking around without crutches in an establishment known as Shag's. He did not tell petitioner that he had been made his supervisor or suggest that, since he did not seem to need crutches, petitioner come to work. The following night, as well, Mr. Pyles saw Mr. McKay getting around without crutches. On that occasion, too, Mr. Pyles refrained from any discussion relating to work at Dozier School. When Kennie W. McKay brought the doctor's slip, Respondent's Exhibit No. 11, to Dozier School on March 17, 1987, he was informed he no longer had a job.
Recommendation It is, accordingly, RECOMMENDED: That the Department of Administration rule that Kennie W. McKay has not abandoned his position with the Department of Health and Rehabilitative Services, and has never lost his membership in the Career Service. DONE AND ENTERED this 28th day of September, 1987, in Tallahassee, Florida. ROBERT T. BENTON, II 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, 1987.
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 The Petitioner, John C. Scott, has been a Career Service employee with the Department of Transportation for approximately ten years, assigned to the Centerline Maintenance Office in Pompano Beach, Florida. During all times material to these proceedings, Petitioner's immediate supervisor was Allen Thomas. Robert Lucas, Highway Maintenance Supervisor in charge of the District III Centerline Crew, is the Petitioner's second-level supervisor. Thomas and Lucas are the only individuals at the Centerline Maintenance Office authorized to approve leave for Petitioner. On May 23, 1987, the Petitioner was arrested for D.U.I. and placed in jail for fifteen days. After the Petitioner was arrested, he called his mother and asked her to inform his supervisor at work that he had some personal business to attend to and would need annual leave. On May 26, 1987, the Petitioner failed to report to work and had not previously requested leave from any of his supervisors. On the morning of May 26, 1987, Ms. Scott, the Petitioner's mother, called Mr. Lucas and told him that her son would need a couple of days off from work because of personal business. Mr. Lucas informed Mrs. Scott that annual leave could not be authorized over the telephone for personal business but that leave could be granted for an emergency situation. Ms. Scott reiterated that the Petitioner had some personal business to take care of. Mr. Lucas advised her that annual leave could not be authorized over the telephone under those circumstances. On June 1, 1987, Mr. Lucas was informed by Mr. Oshesky, the District Personnel Supervisor, that Petitioner's attorney had called and told him that Petitioner was in jail. The Petitioner was absent from work on May 26, 27, 28, and June 1, 2, 3, and 4, 1987. May 29, 30 and 31, 1987 were non-work days for Petitioner. At the time, the Petitioner's work week consisted of four ten hour days from 7:30 a.m. to 5:30 p.m. The last day that Petitioner actually reported for work was Wednesday, May 20, 1987. However, on Thursday, May 21, 1987, the Petitioner was absent from work on authorized annual leave, May 22-24, 1987, were non-work days and on Monday, May 25, 1987, the Petitioner was absent from work due to an official holiday (8 hours) and authorized annual leave (2 hours). On June 5, 1987, the Respondent advised Petitioner by certified mail, return receipt requested, that he was being terminated effective May 20, 1987, (Petitioner's last day at work) for abandonment of his position. The Petitioner's absence from work and involvement with civilian authorities were related to an admitted alcohol problem. Since the Petitioner was released from jail, he has participated in a twenty-day in-patient substance abuse program at John F. Kennedy Hospital and is presently involved with a Fort Lauderdale after-care program. The Petitioner had been provided with a Department of Transportation Employee Handbook by his employers. The Handbook outlined the requirements for annual leave and leave of absences without pay. The Handbook provides in part as follows: Annual Leave - Get your supervisor's approval before taking leave. If an emergency develops, tell your supervisor of the emergency and ask verbal approval to use annual leave. When you return to work complete the leave request form, as appropriate. Leaves of Absence Without Pay - Upon request, you may be granted leave without pay ... for a period not to exceed twelve calendar months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Administration enter a final order finding that the Petitioner, John C. Scott, has abandoned his Career Service position with the Department of Transportation. DONE and ORDERED this 16th day of October, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON 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 16th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2750 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Adopted in substance in Finding of Fact 3. Partially adopted in substance in Findings of Fact 5 and 6. Matters not contained therein are rejected as subordinate and/or unnecessary. Rejected as contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as argument and/or subordinate. Adopted in substance in Findings of Fact 3, 5, and 6. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 11. Adopted in Findings of Fact 7 and 9. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Hon. Kaye N. Henderson Department of Transportation Secretary Room 562 Burns Building Department of Transportation Tallahassee, Florida 32399-0450 605 Suwannee Street Tallahassee, Florida 32399-0458 Patrick J. Curry, Esquire Attn: Eleanor F. Turner, 200 Southeast Sixth Street M.S. 58 Suite 200 Ft. Lauderdale, Florida 32301 Adis Vila, Secretary Department of Administration Thomas H. Bateman, III, Esquire 435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Bldg. Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Edith Rogers, was employed as a data operator with the Indian River County Health Unit, a sub-unit of the Department. She was hired by the Department on January 4, 1988 and began working for Gerry L. Waite as a data operator in October, 1988. When employees are hired by the Health Unit, they are briefed on the unit's leave policies and procedures and are given a copy of the unit's personnel policies for which each employee is obligated to sign a receipt. That portion of the handbook dealing with absences provides that when possible, employees requesting to be absent should request authorization from their supervisor in advance. If prior application is not possible, and absence is necessary, the employee is to call in at the earliest possible moment to let the supervisor know what is going on and approximately how long the employee will be absent. Respondent has complied with these policies on several occasions in the past. On July 26, 1991, a Friday, the Respondent was at her place of employment and there was no indication given that she was experiencing any difficulty. The following Monday, however, July 29, 1991, she did not report for work and Ms. Waite, her supervisor, knew from an article which had appeared in the prior day's newspaper, that Respondent had been arrested. Respondent did not call in on that day, nor did anyone else call in for her. Respondent remained in jail until August 19, 1991. Subsequent to Monday, July 29, 1991, Ms. Waite called the jail twice a week to check on the Respondent's statue. Each time the Respondent was there. At no time during that period did Respondent, or anyone else on her behalf, call her duty section and speak with her supervisor regarding the basis for her absence, nor did Respondent write a letter to explain, though she was able to do so. Mrs. Rogers did not come to work on August 20, 1991, a Tuesday and the day after her release from jail, nor did she come in on August 21 or 22, 1991, the following Wednesday and Thursday. There was no contact from the Respondent, and her absence subsequent to her release had not been authorized. Ms. Waite is satisfied that Respondent knew the abandonment provisions and the potential results of failing to appear for several days without authority since, in 1984, a similar action was taken regarding her employment with the Department in St. Lucie County, and she was deemed to have abandoned her position at that time. Respondent was seen in Walmart by another Department employee on the morning of Tuesday, August 20, 1991. At that time she was buying clothes for her 13 year old son preparatory to getting him enrolled in middle school. She admits she did not call her office on that day, however, on Wednesday, August 21, 1991, after arranging to have the power to her residence turned on and taking care of some other personal affairs, she called a friend of hers, Mrs. Brenda Troutman, who works for the Health Unit in its vital statistics division, and explained where she was. Ms. Troutman, however, was not working in Respondent's division nor was she in any supervisory capacity over her. Though Ms. Rogers claims she asked Ms. Troutman to notify Ms. Waite of her status for her, Ms. Troutman declined to do so, suggesting Ms. Rogers make the contact herself. On Thursday, August 22, 1991, Respondent did call her office and asked to speak with Ms. Waite. Unfortunately, she called at lunchtime, sometime between 1 and 1:15 PM, and neither Ms. Waite, nor anyone else in authority was there to speak with her. Respondent admits she did not leave her name at the time of that call. The evidence is clear that at no time, from the time Ms. Rogers was placed in jail in July until Ms. Waite spoke with her on the evening of Friday, August 23, 1991, did Respondent, or anyone on her behalf, make any sincere effort to contact the Unit to explain, officially, to anyone in authority where she was, the reason for her absence, and when she would be back. At that time, Ms. Rogers advised Ms. Waite that she would be back to work on August 26, 1991, but Ms. Waite told her then it was too late as she had already been processed for abandonment of her position. Ms. Waite is quite certain that Ms. Rogers is and was aware of the procedures to be used when an absence is anticipated or when it was unavoidable, because Respondent has taken advantage of these procedures and utilized them several times in the past during the period she has been working for the Department. According to Ms. Register, the employee specialist with the Department's District office, there is a difference between an abandonment action and a termination for cause. The latter is a disciplinary action and is appealable through the Public Employees Relations Commission or through union grievance procedures. The abandonment is a determination made after an unauthorized absence with a provision for review, and is more a constructive action determined on the basis of the employee's failure to appear. Respondent is quite insistent that she did not intend to abandon her position and intended to come back to work the Monday following her release, (August 26, 1991). She claims one of the reasons for her delay in going back to the office was her embarrassment in going back and facing her coworkers after having been in jail, but she contends that at all times she wanted her job back. She differentiates her situation in this case from that in the 1984 abandonment action. Then, she admits, she walked away from her job because of her addiction to cocaine. Here, she claims, this was not her intent, and she fully intended to go back to work just as soon as she was able to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered finding that Respondent, Edith Rogers, abandoned her position with the Indian River County Health Unit and resigned from the Career Service. RECOMMENDED in Tallahassee, Florida this 24th day of January, 1992. ARNOLD H. POLLOCK 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 24th day of January, 1992. COPIES FURNISHED: Karen M. Miller, Esquire DHRS, District 9 111 Georgia Avenue West Palm Beach, Florida 33401 Charles A. Sullivan, Jr., Esquire Post Office Box 2620 Vero Beach, Florida 32961-2620 John Slye General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact Prior to her termination and at all times material hereto, Petitioner was employed as a Secretary Specialist for Respondent. In December 1988, Petitioner planned a trip to Haiti to be married and requested annual leave for the work period of December 9 through December 14, 1988, which was approved. Although she was aware of the political unrest in Haiti, Petitioner departed on December 16, 1988 with the intent to return on December 19, 1988. When she returned to the airport on December 19, 1988, she was told that she could not obtain a boarding pass and the next available flight was not until December 22, 1988. Realizing that the delay would result in her absence for three consecutive work days without approved leave and her possible termination, Petitioner attempted to telephone her immediate supervisor. She was told that outgoing calls were limited. At around 7:00 p.m. on December 9, 1988, she was successful in placing the call; however, her call was not answered. She next called her next level of supervisor who also did not answer. Finally, she reached her sister who was to relay the circumstances of her delay to Petitioner's supervisor. Yet, when Petitioner's sister attempted to call the supervisor, she was unable to reach him and did not try again. On December 22, 1988, Petitioner returned to Miami and was informed that she did not have a job. Although Petitioner's airline situation might have been considered an emergency which might have allowed her leave to be continued, reasonable notice to her supervisor of her plight was still required unless the prohibition of notice itself was the emergency. Here, notice by telephone was possible. Petitioner's attempts to contact her employer, although stringent under the circumstances, failed because she did not verify that her message had been received. Thus, Petitioner's absences on December 19 through 21, 1988, were unauthorized; Petitioner abandoned her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned her position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June 1989. JANE C. HAYMAN 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 28th day of June 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1184 Respondent's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed, in part, in paragraphs 2 and 4. Subordinate to the result reached. Subordinate to result reached. Addressed in paragraph 5. Addressed in paragraph 5. Not supported by competent and substantial evidence Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. COPIES FURNISHED: Ms. Doris B. Cantave Dorcilin 1238 N.E. Krome Terrace Apartment 1 Homestead, Florida 33030 Perri M. King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Alkens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 =================================================================
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 ================================================================ =
The Issue Whether the Department of Juvenile Justice overpaid Christopher Stokes for pay periods ending May 25, 2000, for 34.5 hours amounting to $274.91; June 8, 2000, for 9.25 hours amounting to $73.81; and June 30, 2000, for 8.0 hours amounting to $63.71.
Findings Of Fact Petitioner, Christopher Stokes, was employed by the Department of Juvenile Justice (Respondent) as a painter at the Dozier School for Boys in Marianna during the period at issue, May 12, 2000, through June 30, 2000. Petitioner continues to be employed by Respondent in the same capacity. Respondent's Policy and Procedure 3.26 (FDJJ 3.26), which is available in hard copy at the workplace and via the internet, delineates the agency's Sick Leave Transfer Policy.1 FDJJ 3.26 is based upon the requirements and provisions of Rule 60L-5.030(3), Florida Administrative Code. FDJJ 3.26, Procedure A provides that in order to donate sick leave, the donor must complete the Interagency Sick Leave Transfer (Request to Donate) form and submit it to the Bureau of Personnel. FDJJ 3.26, Procedure B provides that in order to receive donated sick leave, the employee must complete the Interagency Sick Leave Transfer (Request to Use) form and submit it to the Bureau of Personnel.2 The Department of Juvenile Justice is a centralized agency and the Bureau of Personnel is located in Tallahassee. A request to donate or to use donated sick leave may be made directly to the Bureau of Personnel via U.S. Mail, courier, or fax. FDJJ 3.26, Procedure C provides that sick leave credits donated to the receiving employee shall be credited on the last day of the pay period. Transferred leave must be processed by the last day of the pay period in order to be credited to the employee. This includes checking to see if the donor has leave to transfer and is permitted to transfer it by the donor's employer. The Department of Juvenile Justice has 26 pay periods per year. Requests to donate leave to use donated sick leave that are timely submitted to the Department of Juvenile Justice, Bureau of Personnel, located in Tallahassee, will be accepted by the Department of Juvenile Justice even when the request may be incomplete or incorrectly submitted. Requests to donate leave or to use donated sick leave will be processed by the Department when the error or delay is attributable to the Bureau of Personnel. During the pay period ending May 25, 2000, Petitioner had a medical emergency requiring him to miss several days of work during that period and those that followed. Lynn R. Price, a Department of Children and Families employee, completed a request to donate 25.5 hours of sick leave to Christopher Stokes on May 24, 2000. Christopher Stokes submitted the Lynn Price Request to Donate Sick Leave Hours to the personnel office at Dozier School on May 25, 2000, the last day of the pay period. The Department of Children and Family Services, donator's agency, approved the donation of the leave on June 29, 2000, seven days after the last day of the three pay periods in question. The leave donated by Lynn Price was "not approved per criteria" by the Department of Juvenile Justice on September 12, 2000. This leave could not be credited to the employee's leave account for the next pay period. Earma J. Hendrix, Department of Children and Family Services employee, completed a request to donate 8 hours of sick leave to Christopher Stokes on June 8, 2000, the last day of the period. The Department of Children and Family Services, Donator's Agency, approved the donation of the leave on June 9, 2000, the day after the last of the second pay period at issue. The leave donated by Earma Hendrix was "not approved per criteria" by the Department of Juvenile Justice on September 11, 2000. This leave could not be credited to the employee's leave account for the next pay period. The Department of Juvenile Justice paid Christopher Stokes for 34.5 hours of donated sick leave during the pay period of May 12 through May 24, 2000. Because the attempt to donate sick leave by Earma Hendrix during that pay period was not approved as untimely submitted, Mr. Stokes should not have been paid for the 34.5 hours of donated sick leave, totaling $274.91, on the June 2, 2000, warrant. The Department of Juvenile Justice paid Christopher Stokes for 9.25 hours of donated sick leave during the pay period of May 26 through June 8, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 9.25 hours donated sick leave hours of donated sick leave, totaling $73.81, on the June 16, 2000, warrant. DJJ paid Christopher Stokes for 8 hours of donated sick leave during the pay period of June 9 through June 22, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 8 hours of donated sick leave, totaling $63.71, on the June 30, 2000, warrant.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order upholding the Agency's determination of a salary overpayment. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 8th day of November, 2001.
The Issue Whether the Respondent overpaid the Petitioner for hours of annual leave, and, if so, the amount of the overpayment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Ms. Bamishigbin was employed by the State of Florida for 17 years. In June 2001, her position classification was changed from Career Service to Select Exempt Service. Ms. Bamishigbin was terminated from her employment effective January 4, 2002, because of budget cuts. After her termination, Ms. Bamishigbin was paid for her accrued annual and sick leave balances; accrued annual leave hours are paid in full, but only one-quarter of accrued sick leave hours are paid. Based on the final audit of her annual and sick leave balances, Ms. Bamishigbin was paid a net total of $5252.59 for 441 hours of annual leave and 98 (391.5 hours ÷ 4) hours of sick leave by warrant dated February 22, 2002. Subsequent to this payment, Ms. Bamishigbin's leave records were again audited, and, based on the revised calculations, the Department concluded that she had been paid for more hours of annual leave and for fewer hours of sick leave than she had accrued as of her termination date. In calculating the revised annual leave and sick leave hours for Ms. Bamishigbin, Department personnel used the leave balances shown for Ms. Bamishigbin in COPES, the official compilation of annual and sick leave for all state employees, as of June 8, 2001, and supplemented this data with a manual audit of Ms. Bamishigbin's timesheets from June 8, 2001, to the date of her termination. When preparing the revised audit, Department personnel discovered that Ms. Bamishigbin's annual leave hours for 2001-2002 had not been pro-rated to account for her termination on January 4, 2002: COPES showed 380.5 accrued annual leave hours for Ms. Bamishigbin as of June 8, 2001, together with an additional 4.5 hours of annual leave that she had accrued in June 2001 as a career service employee, before her position was changed to Select Exempt Services. In accordance with the usual procedure for Select Exempt Service employees, Ms. Bamishigbin was credited in June 2001 with 176 hours of annual leave for the 12-month period extending from June 2001 to June 2002, for a total of 561 hours of annual leave. In the original leave audit, the entire 176 hours had been included in the calculation of Ms. Bamishigbin's accrued annual leave. However, because she was terminated on January 4, 2002, the 176 hours of annual leave accrued for the 12-month period from June 2001 to June 2002, should have been pro-rated for 7 months. Ms. Bamishigbin, therefore, had 102.669 ((176 ÷ 12) x 7) hours of annual leave that she was entitled to use from June 8, 2001, to January 4, 2002. Ms. Bamishigbin used 117.25 hours of annual leave between June 8, 2001, and January 4, 2002. Even though Ms. Bamishigbin used an amount in excess of the number of pro-rated annual leave hours available to her between June 2001 and January 2002, the Department does not penalize an employee who is terminated for using annual leave hours in excess of the pro-rated amount, so Ms. Bamishigbin was credited with no hours of annual leave accrued between June 2001 and January 2002. The Department calculated that Ms. Bamishigbin had accrued annual leave hours equal to the 380.5 hours of accrued annual leave she had on June 8, 2001, plus 4.5 hours, for a total of 385 hours. Ms. Bamishigbin was paid for 441 hours of accrued annual leave, so the Department calculated that she had been overpaid for 56 hours of annual leave. The Department also discovered that Ms. Bamishigbin had been underpaid for her accrued hours of sick leave. She was paid for 391.5 hours of sick leave, but she should have been paid for 410.169 hours of sick leave, a difference of 18.669 hours. The total underpayment to Ms. Bamishigbin for her accrued sick leave was 4.66 (18.669 ÷ 4) hours. The Department finally determined that Ms. Bamishigbin had been overpaid by a total of 51.5 hours of accrued leave (56 hours of annual leave - 4.66 hours of sick leave). Based on these figures, Ms. Bamishigbin was overpaid in the amount of $612.97. Ms. Bamishigbin claims that the 380.5 hours of accrued annual leave shown in COPES for June 8, 2001, was incorrect, and that she had more hours of annual leave than was shown in the system. Ms. Bamishigbin did not, however, provide any evidence to contradict the information regarding the total annual leave hours the Department obtained from COPES, although Ms. Bamishigbin testified that COPES incorrectly reported the amount of compensatory leave she had accrued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order finding that Ms. Bamishigbin is liable to repay $612.97 for an overpayment of 51.5 hours of accrued leave. DONE AND ENTERED this 18th day of November, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 18th day of November, 2002. COPIES FURNISHED: Olivia O. Bamishigbin 4466 Northwest 200 Street Carol City, Florida 33055 Richard D. Davison, Esquire Department of Juvenile Justice Knight Building 2737 Centerview Drive, Suite 312 Tallahassee, Florida 32399-3100 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 In September, 1989, Shirley B. Walker (Walker), was a clerk-typist in the Bartow office of the Respondent, the Department of Health and Rehabilitative Services (HRS), District 6, Subdistrict B, Children, Youth and Families, Child Protection Services. Walker was absent on Tuesday, September 5, 1989, and had a friend call her supervisor to say that Walker would not be at work until Friday, September 8, 1989, due to a medical condition. Walker reportedly had been in an altercation with her husband over the Labor Day weekend and had been injured to the extent that her neck was in a brace. The supervisor, Patricia Lawler, asked that the friend give Walker the message that she would need to bring a doctor's excuse with her on her return to work. Walker did not return to work on Friday, September 8, 1989. Walker did not give, or arrange for, any notification to her supervisor or anyone in the office that she would not be at work that day. Since Walker had no home telephone, and the telephone number of a relative that had been given to her supervisor as a means of contacting her at home was obsolete by September 8, Lawler asked office friends of Walker to go to Walker's home during the lunch hour to check on her well-being and find out why she was not at work. When they did, they found no one at home. Walker also did not go to work on Monday through Friday, September 11 through 15, 1989. Again, she did not give, or arrange for, any notification to her supervisor or anyone in the office that she would not be at work. No one at the office knew anything further about Walker or why she was not at work from Friday, September 8 through Friday, September 15, 1989. When Walker began her work at HRS, she was given an employee handbook, part of which clearly states: "If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned." At approximately 4:45 p.m. on Friday, September 15, 1989, Lawler hand- delivered to Walker at Walker's home a letter notifying Walker that she was being terminated from her employment with HRS for the consecutive unexcused and unauthorized absences, which were viewed as an abandonment of her employment and a resignation from the State Career Service. Although Walker asked for a formal administrative hearing on the question whether she had abandoned her position, neither she nor anyone on her behalf appeared at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Administration enter a final order finding that the Petitioner, Shirley B. Walker, abandoned her position and resigned from the State Career Service. RECOMMENDED this 1st day of March, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 1st day of March, 1990. COPIES FURNISHED: Shirley B. Walker 1050 Golfview Avenue Apartment 803 Bartow, FL 33830 Jack Emory Farley, Esquire Department of Health and Rehabilitative Services 400 W. Dr. Martin Luther King, Jr., Boulevard Room 500 Tampa, Florida 33614 Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
