The Issue Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service?
Findings Of Fact Petitioner was employed by the Department of Corrections as a Correctional Officer I in the Food Service Department at the Union Correctional Institution. Prior to his termination, Petitioner had been employed by the Department of Corrections for approximately four years. Petitioner's immediate supervisor was Mr. Norman Hedding, Food Service Director II at Union Correctional Institution. Sometime in April or May, 1987, Petitioner filled out a request for leave, requesting three weeks annual leave to be taken in July, 1987. The request for leave was placed on Mr. Hedding's desk. Mr. Hedding told Petitioner he would see what he could do and mentioned that other officers needed to take vacation time or they would forfeit the time. However, no other officer asked to take leave during the same period of time requested by Petitioner. On various occasions during May, June and July, Petitioner asked Wanda Phillips, Mr. Hedding's assistant, whether his leave had been approved. Ms. Phillips told him she had not heard anything. During one of the conversations with Ms. Phillips, Petitioner told her that he had purchased round-trip airline tickets to California. Petitioner and Mr. Hedding did not speak about the leave request until the Petitioner's last day at work prior to having two scheduled days off and then starting the 3-week period for which leave time had been requested. During this conversation, the Petitioner informed Mr. Hedding that he had confirmed round-trip tickets to California and his grandson had surgery scheduled for the time period in question. The testimony is conflicting as to what was said during this conversation. Mr. Hedding testified that he told Petitioner that the leave was not authorized. Petitioner testified that Mr. Hedding told him that the leave "had not been approved yet." Based on the testimony given at the hearing and the actions of Petitioner after his conversation with Mr. Hedding, I find that Petitioner was never told in unequivocal and clear terms that his leave had been disapproved. Petitioner assumed his leave would be approved and, before leaving work on his last day, he filled out pay slips in advance so that his payroll records would be accurate and told people at the office that he was going on vacation. Petitioner remained in town for the next four days, without reporting for work, and left for California. On August 6, 1987, upon his return from California, Petitioner received a certified letter from Mr. Hicks, an Assistant Superintendent II at Union Correctional Institution, informing Petitioner that he had been deemed to have abandoned his position and resigned from the Career Service System. Petitioner then spoke with Mr. Ellis, the Superintendent at Union Correctional Institution, who told Petitioner he needed to talk with Mr. Hedding about getting his job back. Petitioner told Mr. Hedding he had not intended to abandon his position. The next day Mr. Hedding told Petitioner he would not take him back.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented in this case do not constitute abandonment as contemplated by Rule 22A-7.10(2)(a), Florida Administrative Code, and directing that Petitioner be reinstated to his former position as of July 20, 1987. DONE and ORDERED this 25th day of February, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3828 The parties submitted-proposed findings of fact, which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Petitioner's posthearing filing is a document titled "Petitioner's Argument and Citation of Law." The first three paragraphs consist of factual information and will be considered as proposed findings of fact. Petitioner's proposed findings are generally accepted, as modified in the Findings of Fact to conform to the testimony and evidence presented at hearing. Respondent's Proposed Findings of Fact Respondent's Paragraph Number Ruling and RO Paragraph Accepted. RO 1. Accepted, as modified to reflect approximate dates. RO 2, 3. Rejected. Mr. Hedding assumed this to be the case. Accepted, generally as modified. RO 4. Accepted, generally. RO 5. Accepted, as modified to reflect approximate dates. RO 6. Accepted, as modified. RO 6, 7. First sentence accepted. RO 9. Second sentence rejected as irrelevant. Accepted, generally. RO 10. Rejected as irrelevant. COPIES FURNISHED: Rodney W. Smith, Esquire Louis A. Vargas, Esquire 409 North East First Street General Counsel Post Office Box 628 Department of Corrections Alachua, Florida 32615 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Perri M. King, Esquire Assistant General Counsel Richard Dugger, Secretary Department of Corrections Department of Corrections 1311 Winewood Boulevard 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Tallahassee, Florida 32399-2500 Adis Vila, Secretary 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact From July 1946 until his retirement from the state career service system on June 30, 1983, Petitioner was an employee of the Department of Labor and Employment Security or its predecessor agencies (the Florida Industrial Commission, the Department of Commerce, and the War Manpower Commission), hereinafter collectively referred to as the Department. The Department, at the time of Petitioner's initial employment, established and administered its own leave policies. Subsequently, the Florida Merit System was expanded to cover all state agencies, including the Department, and uniform personnel policies and practices, including the accumulation of annual leave, were established. Effective July 1, 1957 the accumulation of annual leave for employees of the Department, as with employees of all state agencies, was limited to 240 hours. Initially, Merit System leave regulations provided that leave accumulated by employees of agencies with existing leave regulations, such as the Department, would be credited to their accounts as of July 1, 1957, but any accumulated leave in excess of 240 hours would become void after December 31, 1959. At the behest of the Department, the deadline within which excess accumulated leave had to be utilized was extended to December 31, 1961. Essentially employees were afforded four and one-half years within which to utilize their excess accumulated annual leave or forfeit it. Upon his retirement June 30, 1983, Petitioner was paid for, and had computed as part of his Average Final compensation; the annual leave he had accumulated up to a maximum of 240 hours in accordance with Rule 22A-8.10, F.A.C. That rule, or its predecessor, has contained the same 240-hour limitation since December 31, 1961. Petitioner asserts that he had accumulated leave in excess of 240 hours on December 31, 1961. While the evidence does establish Petitioner had excess leave on that date, there was no competent evidence presented from which his actual leave balance could be established. The actual amount of Petitioner's excess leave is not, however, significant since any annual leave he had in excess of 240 hours was void after December 31, 1961. Notwithstanding the voiding of his excess annual leave, Petitioner asserts that his entitlement to such leave still exists because of certain assurances he received from his supervisors. According to Petitioner, he was unable to utilize his excess leave between July 1, 1957 and December 31, 1961, because he was on "special assignments" for the Department which precluded his absence from work. Consequently, Petitioner says, `his supervisors "assured" him that they would see to it that he "got his excess leave." It is worthy of note that the supervisors who purportedly gave such assurances have been dead for over a decade, that there exists no corroborating evidence of Petitioner's assertions, and that at no time during the ensuing 23 years did Petitioner raise any issue concerning, or attempt to use, the leave which had been forfeited. It is further worthy of note that while purportedly assured he would "get his excess leave," Petitioner received no assurance he would be paid for it upon retirement. It is unnecessary to decide whether such assurances were in fact given. The evidence is clear that the supervisors in question had no authority, real or apparent, to bind the State by such assurances. Further, any reliance Petitioner may have placed on such assurances would not have been reasonable, since such assurances were contrary to existing regulations.
The Issue Whether the petitioner abandoned her position and resigned from the Career Service System under the circumstances of this case.
Findings Of Fact Petitioner was employed as a permanent full-time employee in the Bureau of Workers' Compensation within the Division of Risk Management in the Department of Insurance. Her job title was Secretary Specialist. Her immediate supervisor was Lawrence Sharp, Chief of the Bureau. However, on February 6, 1985, Mr. Sharp was on annual leave, and Ms. Peggy Veigas was the acting supervisor. On February 6, 1985, Petitioner took two hours of authorized leave from work from 8 a.m. to 10 a.m., in order to attend a Leon County Court hearing on charges of cashing bad checks. The checks had been repaid in advance of the hearing: however, petitioner was immediately adjudicated guilty of writing bad checks, sentenced to 12 days in jail, and taken into custody. Petitioner was due to return to work at 10:00 a.m., but was unable to do so because of circumstances beyond her control. She was taken directly from her court appearance to the Leon County Jail. However, prior to being transported to the jail, she was able to ask her husband, who had accompanied her to court, to call her employer and ask for emergency leave to cover the 12 days she would be serving her sentence. Mr. Penney called petitioner's office at about 2 p.m. on February 6, 1985, and in the absence of Mr. Sharp the call was referred to Ms. Veigas, the acting supervisor. Mr. Penney explained that Mrs. Penney would not be at work for the next eight to ten days and requested emergency leave for that period of time. Mr. Penney was very vague about the nature of the emergency and Mrs. Penney's whereabouts. He did not explain that Mrs. Penney was in jail because he felt it would be embarrassing to Mrs. Penney. Ms. Veigas stated that emergency leave could be granted but she would have to talk to Mrs. Penney. She told Mr. Penney to have Mrs. Penney call her. Mr. Penney stated that Mrs. Penney could not call in and implied that Mrs. Penney was out of town. Ms. Veigas explained that Mrs. Penney needed to call her as soon as she could get to a phone and, if necessary, for her to call collect. Mr. Penney interpreted Mrs. Veigas' statement, that she could grant the leave but Mrs. Penney would have to call as soon as possible, as meaning that the leave was approved and that Mrs. Penney had to call work as soon as she was able to do so. However, in making the statement, Mrs. Veigas meant only that there was a possibility that leave would be granted and Mrs. Penney needed to call and explain the nature of the emergency. The subsequent actions of both Mr. Penney and Mrs. Veigas were consistent with their respective conceptions of the conversation. That afternoon, after the telephone call, Ms. Veigas went to the personnel office and discussed the matter with Ms. Cooper. Ms. Veigas wanted to find out how she should handle the request for leave and whether she should wait for Mr. Sharp to return from his vacation. Mr. Yohner, the Chief of Personnel Management, was consulted, and he stated that when Mrs. Penney called, Ms. Veigas would have to determine whether she would approve the leave or not. Ms. Veigas was told by Ms. Cooper to wait until Ms. Veigas heard from Mrs. Penney "so we would know whether it was an illness or whatever it was." (T-47) However, the nature of the emergency was determined without the necessity of a call from Mrs. Penney. Within a short period of time after the call from Mr. Penney, Ms. Veigas mentioned the request for emergency leave to Ms. Benefield. Ms. Benefield told Ms. Grissom about the call from Mr. Penney, and the two speculated that Mrs. Penney might be in jail. They were aware that Mrs. Penney had financial problems. While Ms. Grissom stood by, Ms. Benefield telephoned the jail and was told that Mrs. Penney was in jail for passing bad checks. They immediately communicated the information to Ms. Veigas, and the three of them, along with a woman named Edna, discussed the situation for about five or ten minutes. Ms. Veigas then conveyed the information to Mr. Yohner, Ms. Cooper and Mr. Beardon, the Director of the Division of Risk Management, who had previously been informed of the call from Mr. Penney. The following day Mr. Sharp returned to work and was informed of the entire situation. Mr. Sharp discussed the matter with Mr. Beardon. Mr. Beardon had his assistant call the State Attorney's Office to verify that Mrs. Penney was in jail. Thus, by the end of the workday on February 7, 1985, Mrs. Penney's co-workers, her immediate supervisor, the Chief of Personnel Management, and the Director of the Division of Risk Management were all aware that Mrs. Penney, through her husband, had requested emergency leave, and they were all aware that the emergency leave had been requested due to Mrs. Penney's incarceration. On either February 6th or 7th, Mr. Yohner notified Mr. Gresham, the Director of the Division of Administration and Mr. Yohner's supervisor, that a possible abandonment of position situation existed. Mr. Gresham was not informed that petitioner had requested emergency leave. On Friday, February 8th, or on the following Monday, Mr. Sharp called a friend of his in the Department of Administration, Don Bradley, to gain advice on application of the rule relating to abandonment of position. He was told that when someone missed three days of work without having authorization, it was the same thing as resigning and required termination. Mr. Sharp relayed the information to Mr. Beardon. Mr. Sharp did not consider petitioner's leave request and did not know whether he had the authority to approve the leave since at least a portion of the leave requested would have been without pay.2 After three days expired and Mrs. Penney had neither reported for work nor called the office, Mr. Beardon contacted Mr. Yohner to discuss the situation. He also discussed the situation with his superior in the Department. Though Mr. Beardon was aware that Mrs. Penney had requested leave through her husband and was aware that she was absent from work only because she had no choice, Mr. Beardon did not consider her request for leave. His reason was that Mrs. Penney did not personally request the leave. He did not consider the possibility that Mrs. Penney was not able to call in person. Mr. Beardon felt that a call from Mrs. Penney was necessary to find out "all of the pertinent facts and why the request was needed." However, it is apparent that Mr. Beardon already knew why the requested leave was needed and had already discovered the pertinent facts. Nevertheless, Mr. Beardon determined that, under the abandonment rule,3 petitioner had abandoned her job and her employment should be terminated. He recommended that the personnel office proceed with the action in accordance with the rule. Mr. Yohner informed Mr. Gresham of Mr. Bearden's recommendation that petitioner be terminated from the Career Service via the abandonment rule. A letter was prepared for Mr. Gresham's signature, notifying Petitioner of her termination from the Career Service. Mr. Gresham signed the letter and mailed it to petitioner at her home address. By the letter dated February 11, 1985, and then by an amended letter dated February 12, 1985, petitioner was notified that she had been absent without authorized leave for three consecutive days, and therefore she was deemed to have abandoned her position pursuant to Rule 22A-7.10(2)(a), Florida Administrative Code, and to have resigned from the Career Service. Meanwhile, Mr. Penney was under the impression that the emergency leave had been granted. He was able to speak with his wife for the first time on February 9, 1985, and the first question petitioner asked her husband was whether the leave had been granted. He told her that it had been, and she displayed visible signs of relief at the knowledge. Petitioner's husband also told her that she should call Ms. Veigas at her earliest opportunity. Mrs. Penney made diligent attempts to contact her employer both before and after she spoke with her husband on February 9, 1985. On each day of her incarceration she made written requests to the Captain at the jail for permission to use the telephone to call her employer. However, she received no response. In accordance with jail policy, which allowed one phone call per week at a set time, she was permitted use of the telephone on only one occasion, on February 11, 1985 at about 11 p.m. in the evening. Mrs. Penney's sentence was reduced by Judge McClamma and she was released from jail on February 14, 1985. She received the termination letter that evening when she got home. The next morning she called Mr. Yohner and stated that she wanted to return to work. Mr. Yohner informed her that she was no longer an employee of the Department. Mrs. Penney's position was advertised on February 19th and readvertised on March 4, 1985. Sometime after March 4, 1985, a replacement was hired. Although the workers compensation bureau had a very heavy case load, Mrs. Penney's work performance had been satisfactory. Indeed, she had been promoted to the position of Secretary Specialist from her previous position of Clerk-Typist III with the bureau. Petitioner had no intent to abandon her position in the Career Service, and she had no intent to resign her position. The Department had actual knowledge of the petitioner's whereabouts during her absence from work, and had actual knowledge that she intended to return to work as soon as she could. Further, the Department was aware that petitioner had requested leave to cover the period of time she would be gone. However, instead of taking action on the request, one way or the other, the Department left the request in limbo. A decision was never made to approve or disapprove the request. The only explanation given for not considering the request was that Mrs. Penney had not made it personally. However, it is quite clear that at the time of Mr. Penney's call the Department considered the call a legitimate request for leave from Mrs. Penney even though the call was not made by her. Ms. Veigas did not tell Mr. Penney that the leave could not be granted because Mrs. Penney had not called in person. Indeed, the first thing Ms. Veigas did after the telephone call was go to the personnel office to find out how she should "process the request". The only reason that the Department wanted to talk to Mrs. Penney personally, prior to determining whether leave should be granted, was to discover the nature of the emergency. Although Mr. Penney explained that there was an emergency, that Mrs. Penney was unable to call, and that leave was being requested to cover the period of time that Mrs. Penney would be unable to work, he was very vague about the nature of the emergency. The Department understandably wanted to know the reason for the request before deciding to grant leave. However, once the Department discovered Mrs. Penney's circumstances, it was in a position to make an informed decision on the leave request, and there was no rational basis for its failure to do so. Although the granting of leave is discretionary, the discretion must be exercised. Apparently, the Department officials believed that Mrs. Penney's absence from work for three consecutive days mandated termination notwithstanding the pending request for leave. Because the Department failed to take any action on the leave request, Mrs. Penney was never notified that her request for leave had been denied. Upon consideration of the facts and circumstances of this case, it must be concluded that Mrs. Penney did not abandon her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented by this case do not constitute abandonment of position as contemplated by Rule 22A-7.10(2)(a) and directing that the petitioner be reinstated to her former position as of February 15, 1985. DONE and ENTERED this ;26th of December, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of December, 1985.
Findings Of Fact The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto pursuant to Section 120.57(1), Florida Statutes. Respondent has been employed as a permanent full-time employee since March 7, 1980 with Petitioner's facility, Landmark Learning Center (hereafter, "Landmark") located in Opa-locka, Florida and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code. The purpose of Landmark is to train, program, and modify the behavior of retarded clients so that they may realize their fullest potential for self care and independence. Ulysses Davis is the Superintendent of Landmark. Immediately below him in the chain of command is Deborah Wicks Kahn, Residential Services Director. Hers is a supervisory administrative position also over the entire facility. Within Respondent's unit, which is one of several units within Landmark, there are other supervisors between Respondent and Deborah Kahn. Approximately 1980, Respondent was convicted in federal criminal court of bank fraud but remained at liberty pending resolution of an appeal and various post-conviction relief procedures for reduction of a three-year sentence. Respondent has had a history of leaves of absence during his employment with Landmark. The longest hospitalization established by his medical records was from January 30, 1983 to May 6, 1983 at North Miami Hospital for approximately 96 days or three months; from September 18, 1983 to September 25, 1983 (approximately six days) he was again hospitalized at North Miami Hospital. At that time, ulcer disease was ruled out by Dr. Bertram P. Shapiro (Bell Composite Exhibit 7). These hospitalizations were known to Respondent's supervisors and co-workers and occurred during periods when leave had been authorized, although the nature of the type of leave (i.e., sick leave, annual leave, disability leave, leave without pay) was not established. Everyone at Landmark seems to have known that thereafter Respondent was on medication for his stomach and assumed or had been told by the Respondent that his problem was associated with bleeding ulcers. The usual procedure followed at Landmark requires that any leave of absence of one to two days may be approved by a lower level supervisor on an employee's bi-weekly time sheet. Leaves of absence in excess of one-two days require approval of at least Director Kahn. If the leave requested will be completed within the current two-week pay period, the bi-weekly time sheet may be used by the employee to make his leave request and approval is indicated on the time sheet itself. A time sheet is signed by Director Kahn or a lower level supervisor if the shorter leave is approved, and if it is disapproved, the word "disapproved" and the supervisor's or Director's signature is signed at the bottom. So that multiple time sheets will not be tied up by extended leave requests, a separate written request is required from the employee and a separate outside proof of need therefor must be attached to the employee's written request for all leave requests in excess of a two-week period. For instance, if the request is for extended educational leave, the employee's request must be made in writing with an attached verification of the program from the educational institution. If the request is for extended medical leave, the employee's request must be made in writing with an attached doctor's statement verifying the employee's need therefor. Superintendent Davis requires that his subordinate supervisors get his approval before they grant any extended leave request. In extended leave cases, a separate approval letter is typed, signed by Superintendent Davis and sent certified mail, return receipt requested, to the employee whose leave has been approved. Director Kahn testified she habitually would approve leave requests in increments of one, two and three months after getting guidance from Superintendent Davis or the personnel office. Shortly prior to October 17, 1983, Respondent requested a leave of absence for two months which Director Kahn denied due to an agency-wide survey (inspection). She wrote on the bottom of this request that Respondent would also need to get a supportive medical statement. When the survey concluded, Respondent approached Director Kahn about a leave of absence which she said she would approve if the Respondent provided a supporting medical statement. Director Kahn understood this to be a renewal of Respondent's request for either two or three months of medical or personal leave. Respondent states he understood this to be a request for one year of medical leave, specifically October 17, 1983 through October 17, 1984. Director Kahn again asked for a supporting medical statement. Director. Kahn left on vacation for three weeks immediately following this conversation. Respondent, in response to telephoned information from his lawyer, reported to Federal Prison Camp, Eglin Air Force Base, Florida, and on October 17 and 13, 1983 was processed in accord with federal prison procedures to begin serving his criminal sentence. Part of this process is a thorough medical examination (Bell Exhibit 6) and he thereafter received extensive treatment for his medical problems, including ulcers. After Director Kahn returned from three weeks' vacation, the person she left in charge in her office presented her with a medical statement on Dr. Bertram Shapiro's stationery, dated October 17, 1983, urging that Respondent be granted a one-year medical leave of absence (Bell Exhibit 3). The date this item was stamped into the Landmark personnel office is November 10, 1983. No formal written request of Respondent for one year's medical leave was received by Director Kahn, Superintendent Davis, or the Personnel Office. Despite the absence of a formal written request from Respondent for one year to correspond with Dr. Shapiro's statement dated October 17, 1983, a letter authorizing two months' leave of absence from October 19 through December 19, 1983 was sent by certified mail, return receipt requested, to Respondent at 2146 N.W. 61st Street, Miami, Florida 33142 (HRS Exhibit 1). This letter was signed by Ulysses Davis, Superintendent, and Deborah Wicks Kahn, Residential Services Director, Facility II. It states that Respondent's failure to report for duty December 20, 1983 would constitute unauthorized leave and three consecutive days of unauthorized leave would result in Respondent being deemed to have abandoned his position and to have resigned his position in accord with Section 22A-7.10(2)(a), Florida Administrative Code. Petitioner's November 17, 1993 letter was delivered November 25, 1983 to 2146 N.W. 61st Street, Miami, Florida 33142 and was signed for by Respondent's sister-in-law, Vesturee Brownlee (HRS Exhibit 2). This address continued to be the legal address of Respondent from October 17, 1983 at least through the date of the hearing. Respondent admitted intentionally not notifying Petitioner of any other address where he right be reached until mid-May 1984. Indeed, Respondent and his girlfriend, Ann White, a co-employee, worked diligently until mid-May 1984 to camouflage his criminal incarceration and exact location from everyone at Landmark. Further, this address appears as his legal address on all of his federal prison incarceration documents (Bell Exhibit 6). At hearing, Respondent denied that he received the November 17, 1983 letter but it is clear that he knew its contents because approximately December 19, 1983 Respondent telephoned Director Kahn at her home and requested an extension to a full year's leave dating from the doctor's statement dated October 17, 1984. Director Kahn said three months' leave might be authorized. Despite discussing his ulcer problems, no mention of jail or his actual whereabouts was made by Respondent. Although a written request and new doctor's statement was not submitted by Respondent, his oral telephone request to Director Kahn was acted upon. On January 20, 1984, a letter (HRS Exhibit 3) was sent by certified mail, return receipt requested, to Respondent at his last known address. This letter, signed by Ulysses Davis, Superintendent, and Deborah Wicks Kahn, Director, authorized leave from December 17, 1983 to Friday, April 27, 1984. Instructions were given that if Respondent could not report on Monday, April 30, 1984 at 8:00 a.m., he must, prior to that date, complete a blank leave request showing his anticipated date of return and submit it to "me". Since the letter was signed by two supervisors, I interpret its intent to be that the Respondent could have submitted his completed leave request to either Superintendent Davis or Director Kahn. Again, Respondent was instructed that failure to either report for work timely on April 30 or to submit a written request for extension would result in a determination of abandonment of his position pursuant to Section 22A- 7.10(2)(a), Florida Administrative Code. Petitioner's January 30, 1984 letter was delivered on February 8, 1984 to Respondent's last known address and was signed for by Rosa L. Bell, Respondent's mother (HRS Exhibit 4). Although at hearing Respondent denied that he received Petitioner's January 30, 1984 letter, it is clear that he knew the contents thereof because in at least four telephone conversations with Landmark employees, Ann White and Leah Black, Respondent discussed the concern over his medical condition and absence from the job which had been expressed to Ms. White and Ms. Black by Director Kahn and other Landmark employees. On April 30, 1984, Respondent again did not report to work nor did he complete and submit to anyone at Landmark a written leave request form. In excess of three consecutive days Passed without Petitioner receiving any communication from Respondent. Petitioner did not report to work at any time during this period because he was still involuntarily incarcerated in Lexington, Kentucky. On May 8, 1984, a letter (Bell Exhibit 1) was sent by certified mail, return receipt requested, to Respondent at his Miami address. This letter was signed by Superintendent Davis and by Leah F. Black FOR Director Kahn in Ms. Kahn's absence. This letter, designated a "warning of abandonment letter," states that Respondent's failure to report for work or otherwise make contact after April 27, 1984 had resulted in Respondent being placed on an unauthorized leave of absence and that unless Respondent contacted the signatories with a "reasonable and acceptable" excuse for the unauthorized absence since April 27, 1984 and/or reported for work by close of business on May 17, 1984, a determination of abandonment pursuant to Section 22A-7.10(2)(a), Florida Administrative Code, must be made. Respondent was specifically cautioned that a "response is vital to your continued employment." The letter provided Respondent the option of resigning if he sent a letter of resignation by May 17, 1984. This letter was delivered on May 11, 1984, to Respondent's Miami address. It was signed for by Rosa L. Bell, Respondent's mother (Bell Exhibit 1). At hearing Respondent denied that he received Petitioner's May 8, 1984 letter but it is clear that he knew its contents and import because he admittedly signed and sent a two page typed letter dated May 16, 1984 to Superintendent Davis. (Tr. 151) This letter was received in the Superintendent's office on May 21, 1984. (Bell Exhibit 2) This was four days after the requested due date of May 17, 1984 for any excuse. Respondent's May 16, 1984 letter informed his supervisor for the first time that Respondent was serving a federal sentence for bank fraud, that he was scheduled to be released June 30, 1984; that he felt he was not guilty of crime, that he was unaware of Director Kahn having her vacation during the time when Respondent requested his leave, that he did not confide his jail problem to Director Kahn because he did not trust her, that in December Director Kahn told him she did not receive the Respondent's one year leave request letter from Donna Bailey, that Respondent had been in touch with Ms. Leah Black since 1983 and recently hand informed Ms. Black of his present location due to rumors, that before leaving Landmark, Respondent requested a leave of absence of one year, that at that time Respondent had accumulated four months of accrued leave and requested four months leave with pay and the remainder as leave without pay, that Director Kahn told him she could not approve his leave request without a physician's statement and he had attached such a statement to his letter request before he left Landmark and gave it to Donna Bailey. Superintendent Davis and Director Kahn believed Respondent to be sick until receipt of his letter dated May 16, 1984. That date is the first date either had actual knowledge of his physicial location and that he was in jail. In Respondent's absence, his supervisors were required to hire temporary employees to fill his position as Behavior Program Specialist. Sometimes they were not able to hire any temporary fill-in personnel and this created additional work for other full-time employees in covering Respondent's caseload. Sometimes the temporary help they were able to hire were not of a comparable skill level with Respondent or someone who might have taken the job full-time. As long as Respondent was on a leave of absence they were unable to advertise for a skilled full-time replacement. This had a detrimental effect on Landmark's in-depth applied behavior modification program. Superintendent Davis determined that Respondent's admission of involuntary incarceration, even if coupled with institutional medical care, did not constitute a reasonable and acceptable excuse as requested in Petitioner's May 8, 1984 letter. This determination is consistent with Landmark's internal policy. Superintendent Davis has previously refused all employees' requests for extended leave for the purpose of serving involuntary jail time. He testified that he would not have granted any of Respondent's previous leave time nor any extensions thereof if the jail sentence had been known to him. His basis for this policy is that criminal sentences are detrimental to employees' functions as role models. He applied this policy to Respondent because Respondent's position as a Behavior Program Specialist requires intensive leadership and role modeling/programming of retarded clients. Superintendent Davis also considered the Respondent's failure to disclose his incarceration to be dishonest dealing with the agency. Superintendent Davis further determined that the date of his receipt of Respondent's May 16, 1984 letter was beyond the allotted time for such excuse. Respondent maintained that he was diagnosed early on the morning of October 17, 1983 by Dr. Shapiro as needing a year's ulcer treatment, applied for and got the leave of absence from Director Kahn some time between Noon and 2:00 P.M. that same day, and thereafter, between 4:30 - 5:00 P.M., he was telephoned by his lawyer to report that very day to federal prison in Eglin, Florida. Respondent says that he had a normal appointment with Dr. Shapiro at 10:45 A.M., October 17, 1983, and at that time received the statement indicating need for a year's leave of absence (Bell Exhibit 3), returned to Landmark, wrote out on a legal pad what was apparently an explanation to Director Kahn that he wanted to use 4 months of accumulated leave with pay (annual and sick leave combined) and to receive 6 months leave without pay to cover October 17, 1983 through October 17, 1984; that he then gave this to Donna Bailey to type, that Director Kahn signed her approval on the typed letter and he returned his letter and medical letter to Donna Bailey. Stephanie Green states that she was with Respondent at the doctor's office on October 17, 1983, and saw him give his typed letter request, the medical letter, and his timesheets to Donna Bailey. Ms. Green does not recall any approval at the bottom of Respondent's letter. Ann White, Respondent's girlfriend, supports some of this information but contradicts much by saying she saw Respondent's letter request at her home on a separate occasion and saw the doctor's letter before that date when hue showed it to her at Landmark. She then says that at the end of October 1983, she examined Respondent's personnel file and saw the Respondent's typed letter request with Director Kahn's approval written at the bottom with the medical letter. These witnesses may have seen another earlier leave request, but timesheets and approval on the bottom of an employee's request would be inappropriate for extended leave request and approval. Director Kahn absolutely denies giving a year's approval in writing at any time and denies ever receiving a typed letter request for one year signed by Respondent. Her secretary was not Donna Bailey but was Sandra Williams. Based upon observation of the candor and demeanor of the witnesses testifying and their credibility or lack thereof, I choose to believe Director Kahn. Independent of the credibility of the live testimony, I also find supportive of Ms. Kahn's testimony the Respondent's admission that he gave his documents, if they were given, to someone not her secretary. Respondent further stated that at that time before his lawyer's call he intended a vacation to get away from it all instead of immediate medical care. Also clearly supportive of Ms. Kahn's testimony is Bell's Exhibit 2 wherein Respondent admits Director Kahn told him in their December phone conversation that she did not receive his letter request for a year's leave and that he was not approved for a year but might be approved for an additional three months after the original December 19, 1953 date. On June 6, 1984, Superintendent Davis sent a letter, (HRS Exhibit 5), certified mail, return receipt requested, to Respondent Bell at Antaeus Unit, Post Office Box 2000, Lexington, Kentucky, 40511. This was the return address on the envelope of Respondent's May 16, 1984 letter. At hearing, Respondent denied receipt of this letter but was admittedly incarcerated by the federal government at that location at that time and did not return to Miami until June 17, 1984. Petitioner's June 6, 1984 letter was received at that address on June 11, 1984, and was signed for by "D.D. St (illegible)" (HRS Exhibit 5). The undersigned finds that Respondent did receive on that date Petitioner's June 6, 1984 letter which stated that Respondent's failure to report on April 30, 1984, and thereafter was now considered abandonment of his position under Section 22A- 7.10 (2)(a) and that he was deemed to have resigned as of the date the letter was received or date it was returned to Petitioner if that occurred. The undersigned is not impressed by Respondent's analysis of Bell Exhibit 5. This item was found among Petitioner's business records, in Respondent's Personnel file. It is a handwritten, undated memorandum which reads in one handwriting "N. Bell went out on med. leave but last med slip is 10/83. Needs one every 30 days even the leave is for year-they keep jumping back and forth on AL to SL, etc." To which, another's hand has replied, "notified Bill Miller 2/13/84 will send in." At best, its message is ambiguous and one obvious interpretation is that monthly doctor's statements would be required by Petitioner from Respondent although the payroll employees already had the medical statement dated October 17, 1983 specifying one year, and that some confusion existed as to how to debit the Respondent's four months accumulated annual and sick leave during his absence. Under the foregoing findings of fact, Respondent abandoned his position upon his unexcused absence for three consecutive days after April 30, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law set forth herein, it is RECOMMENDED that, Respondent having been absent without approval for 3 consecutive workdays he be deemed to have abandoned the position of Behavior Program Specialist and to have resigned from the Career Service effective Jun 6, 1984. DONE AND ORDERED this 1st day of February, 1985, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 1st day of February, 1985. COPIES FURNISHED: Sharon Langer, Esquire 255 Alhambra Circle Suite 312 Coral Gables, Florida 33134 John Abramson, Esquire 799 Brickell Avenue Suite 800 Brickell Center Miami, Florida 33131 Gilda Lambert Secretary, Dept. of Administration 435 Carlton Building Tallahassee, Florida 32301 David H. Pingree Secretary, Dept. of Health & Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Prior to her termination and at all times material hereto, Petitioner was employed as a Senior Clerk for Respondent. At sometime prior to December 19, 1988, Petitioner purchased a nonrefundable airline ticket departing on December 23, 1988, and returning on December 30, 1988. Thereafter, Petitioner requested 40 hours of annual leave for the workdays of December 23, 1988, and December 27-30, 1988 and requested her personal holiday for the workday of December 28, 1988. On December 19, 1988, Petitioner was informed that she had 21.2 hours of available annual leave and was granted 16 of those hours for the workdays of December 23, 1988, and December 27, 1988. Petitioner's request to take her personal holiday on December 28, 1988 was denied, as was her request for annual leave for the period of December 28-30, 1988 denied. Upon being advised that a portion of her leave request had been denied, Petitioner told her supervisor about the airline ticket and that she "could not afford to lose my investment of my air-fare." Her supervisor, in turn, advised Petitioner that if she were absent December 28-30, 1988 she would be deemed to have abandoned her position. Notwithstanding such knowledge, Petitioner was absent from work without authorized leave for the three consecutive workdays of December 28-30, 1988.
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 5th 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 5th day of June 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1185 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 3. Not pertinent nor necessary to result reached. Addressed in paragraph 4. Addressed in paragraph 3. Not supported by competent and substantial evidence. Not pertinent nor necessary to result reached. Not pertinent nor necessary to result reached. Addressed in paragraph 4. Addressed in paragraph 5. Addressed in paragraph 5. Addressed in paragraph 4. Not pertinent nor necessary to result reached. Not pertinent nor necessary to result reached. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas H. Bateman, III., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ms. Nancy M. Morrison 1925 Coolidge Hollywood, Florida 33020 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service pursuant to the personnel rules of the Career Service System?
Findings Of Fact The Petitioner was an employee of the Respondent for more than five years. At all times relevant hereto, the Petitioner was employed by the Respondent. During the month of December, 1986, and the portion of January, 1987, prior to the date the Petitioner was removed from his position, the Petitioner was assigned to the Blountstown, Florida, road maintenance office. The Petitioner's immediate supervisor was Mr. Gustavev Goodwin. Mr. Goodwin was an HMT-3 with the Respondent and supervised a maintenance crew of three men, including the Petitioner. Mr. Goodwin was the Petitioner's immediate supervisor. Mr. Lloyd Blackburn, a Highway Maintenance Supervisor with the Respondent, was Mr. Goodwin's immediate supervisor. Mr. Blackburn supervises all crews operating out of the Blountstown office. The Petitioner and his crew worked a 10-hour day, 4 days a week. Mr. Goodwin prepares a weekly crew report on a daily basis. Mr. Goodwin records the hours a crew member worked or, if a crew member was not present, Mr. Goodwin notes the absence and the reason for the absence. Mr. Blackburn transfers the information recorded on the weekly crew reports to timesheets which are used for payroll purposes. If approval of a request for leave is required, employees are required to report to their crew supervisor or Mr. Blackburn. The Petitioner would have been required to obtain approval of leave from Mr. Goodwin or Mr. Blackburn, if prior approval had been required. In cases of sick leave, employees were expected to call by telephone on the day of the illness or injury and inform Mr. Blackburn. Mr. Blackburn was at the office each work day in the morning before the crews completed fueling their trucks and departed for the day. Mr. Blackburn was then out of the office during most of the remainder of the day. During the last week of December, 1986, Mr. Goodwin, the Petitioner and the other members of Mr. Goodwin's crew were "bull skating" (joking and talking). The Petitioner told Mr. Goodwin in response to some comment, probably pertaining to the work that would be done the first week of January, 1987, that "I won't be here next week anyway. I be in the hospital." Although Mr. Goodwin did not remember the Petitioner having made these comments, the Petitioner and one of the crew members, Mr. Arthur Jackson, both testified that the comments were made. Neither Mr. Goodwin or Mr. Blackburn told the Petitioner that he could be absent from work during the first week of January, 1987. The Petitioner was absent from work during the first week of January, 1987 -- January 5, 6, 7 and 8, 1987. Neither Mr. Goodwin nor Mr. Blackburn were contacted on January 5-8, 1987, by the Petitioner or anyone on behalf of the Petitioner, about the Petitioner's absence. Neither Mr. Goodwin or Mr. Blackburn told the Petitioner that his absence on January 5-8, 1937, was approved. The Petitioner had obtained approval of annual leave prior to the period at issue in this case. The Petitioner had planned to go to the hospital on January 5, 1987, because of problems he has had with his legs, and to remain in the hospital for the remainder of the week. Because of the problems with his legs and his automobile, the Petitioner did not go to the hospital or see a doctor on January 5, 1987. On January 8, 1987, the Petitioner had a friend drive him to Panama City, Florida, where he remained under the care of Dr. Ernest G. Haslam, M.D., in the hospital, until January 12, 1987. Although the Petitioner does not have a telephone at his residence, Mr. Goodwin or Mr. Blackburn could have been contacted by Petitioner's wife, who works at Hardees, or by a friend. The Petitioner acknowledged receipt on April 14, 1983, of the Florida Department of Transportation Employee Handbook and his responsibility to review the handbook in detail and to request clarification, if necessary. On page 43 of the handbook it is provided that "[a]fter an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from Career Service ..." On page 22 of the handbook it is provided that "[i]f a medical appointment is necessary during work hours, you should obtain `approval, in advance, to use your earned sick leave." By certified letter from Allen Potter, Deputy Assistant Secretary of the Department, dated January 8, 1976, the Petitioner was informed that he was deemed to have abandoned his position with the Respondent and to have resigned from the Career Service because of his absence from work during the first week of January, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration rule that the Petitioner, Albert T. Smith, has not abandoned his position with the Respondent, the Department of Transportation, and has not resigned from the Career Service. DONE and ENTERED this 12th day of May, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 12th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0450 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), if any, in the Recommended Order where they have been accepted. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RD ." Petitioner's Proposed Findings of Fact The Petitioner has filed a letter dated April 10, 1987. The only proposed finding of fact contained in this letter concerns the question of whether the Petitioner told his supervisor, Mr. Goodwin, that he would not be at work during the period of time at issue in this case. The proposed finding of fact has been accepted in RD 10. Respondent's Proposed Findings of Fact Proposed Finding RD Number of Acceptance of Fact Number or Reason for Rejection 1 RD 1-4 and 8. 2 RD 5-7 and 9. 3 RD 10-11. 4 RD 11 and 13. The evidence did not prove that the Petitioner had obtained prior approval for sick leave subsequent to the period of time involved in this case. The evidence only proved that the Petitioner had on other occasions received prior approval of annual leave. 5 RD 19-20. RD 16 and 18. The evidence does not prove that the Petitioner got into a car and drove to town. RD 21. The Petitioner was not, however, "absent from his position without authorized leave ..." COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kay N. Henderson, P.E., Secretary Department of Transportation Hayden Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 ATTN: Eleanor F. Turner, MS 58 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Mr. Albert T. Smith Route 1, Box 135, B 69A Blountstown, Florida 32424 =================================================================
Findings Of Fact Petitioner was employed by Respondent as a clerical worker, a permanent career service position, at all times material hereto. Prior to October 3, 1988, Petitioner experienced back problems which prevented her attendance at work. Dr. Brian M. Mitteldorf, a chiropractic physician, treated Petitioner beginning September 25, 1988, and continuing through all times material hereto. On October 3, 1988, Theresa (Terry) Bartelmo, Petitioner's supervisor, advised Petitioner in writing that Petitioner would be out of sick leave and annual leave the following day. Mrs. Bartelmo enclosed two copies of the form used to request a leave of absence and advised Petitioner that it was necessary to fill in all blanks and to return the form to her by no later than October 10, 1988. Respondent does not authorize any type of leave for unspecified or unlimited duration. Ms. Bartelmo further advised Petitioner that "... If I do not hear from you by that date, (October 10,1988) then I will assume you wish to terminate your employment with the Department and will process the necessary documentation." On October 3, 1988, Petitioner's husband, Edmund DeSilva, met with Ms. Bartelmo. During the meeting, Ms. Bartelmo gave to Mr. DeSilva the letter she had written to Mrs. DeSilva, together with the forms for the leave of absence. The form for leave of absence was signed by Petitioner on October 3, 1988. Mr. DeSilva hand delivered the form to Ms. Bartelmo prior to the deadline of October 10 set by Ms. Bartelmo. This form was forwarded by Ms. Bartelmo to Martha (Marty) Anderson, Respondent's district personnel manager. Ms. Bartelmo recommended that the leave of absence be granted. Ms. Anderson approved the leave of absence on October 13, 1988. The leave of absence form submitted by Petitioner and approved by Respondent contained a tentative return-to-work date of November 23, 1988. On October 3, 1988, the date Petitioner signed the leave of absence form, it was uncertain when Petitioner would be able to return to work because of her medical condition. On or about October 18, 1988, Ms. Bartelmo telephoned Petitioner to check on her progress. After Petitioner told Ms. Bartelmo that she did not feel well enough to talk, Ms. Bartelmo asked Petitioner to call her when Petitioner felt better. Ms. Bartelmo did not talk with Petitioner again until after Petitioner's employment was terminated. Dr. Mitteldorf called Ms. Bartelmo on November 22, 1988, at approximately 3:30 p.m. Dr. Mitteldorf told Ms. Bartelmo during that telephone conversation that Petitioner was too ill to return to work. Ms. Bartelmo asked Dr. Mitteldorf for a letter stating his opinion as to when Petitioner could return to work. Dr. Mitteldorf's letter was dated December 13, 1988. During their telephone conversation on November 22, 1988, Ms. Bartelmo did not tell or indicate to Dr. Mitteldorf that their conversation was tantamount to an extension of Petitioner's leave of absence. Ms. Bartelmo did not tell Dr. Mitteldorf that she was mailing to him the forms Petitioner needed to submit to request an extension of her leave of absence. Ms. Bartelmo can recommend approval of a request for leave of absence, but she does not have the authority to grant the approval. Ms. Bartelmo did not tell Petitioner or anyone acting on Petitioner's behalf, that Petitioner had any form of authorized leave after November 22, 1988. Other than having Dr. Mitteldorf call Ms. Bartelmo, Petitioner made no effort to have her leave of absence extended. Petitioner's authorized leave of absence ended on November 22, 1988. Petitioner was absent without authorized leave of absence beginning November 23, 1988, and continuing for more than 3 consecutive work days. By certified mailing on December 2, 1988, Petitioner was advised that her career service position was terminated as of December 1, 1988. Petitioner had been given a copy of Respondent's Employee Handbook on December 16, 1986, which provides in part: After an unauthorized 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 policies. Petitioner's request for a formal hearing was timely filed.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter a Final Order concluding that Petitioner has abandoned her position with Respondent in the career service due to her unauthorized absence from employment for three consecutive workdays beginning November 23, 1988. DONE and ENTERED this 17th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 17, 18 of Petitioner's proposed findings of fact are adopted in substance, insofar as material. The findings of fact contained in paragraphs 9, 10, 15 and 16 of Petitioner's proposed findings of fact are unsupported by the evidence. COPIES FURNISHED: Larry D. Scott, Esquire Senior Attorney Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Colomba DeSilva 2019 Southwest 29th Avenue Fort Lauderdale, Florida 33312 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has just cause to terminate the employment of the Respondent.
Findings Of Fact The Petitioner is the School Board of Lake County, Florida (Board)(Petitioner). It is charged with operating and managing the public school system in Lake County, Florida, otherwise known as the Lake County School District. The Respondent, at times pertinent hereto, was employed by the Board as a school guidance counselor at Sawgrass Elementary School. Her principal was Rhonda Hunt. During the 2005-2006 school year, the Respondent missed 71 days from her job. In the 2006-2007 year, she missed 97 days. In the 2007-2008 school year, the Respondent missed 87 days from work. The contract for a guidance counselor requires that they work for 221 days per school year. During these times, especially in the 2007-2008 school year, the Respondent had been making repeated requests for leave. Ms. Hunt, her principal, became concerned and in May of 2008 reported the situation about extensive absences, and leave requests, to Ms. Rebecca Nelsen, the Board's Supervisor of Compensation, Benefits and Employee Relations. In the 2007-2008 school year, when Ms. Hunt brought the issue to Ms. Nelsen's attention, the Respondent had missed work the number of days found above, which represented all the days in the school year from February 13th through the end of the school year. In the previous year, she had missed work from the middle of January through the end of the school year. Ms. Nelsen prepared a memo to Deke DeLoach, the Board's Chief of Human Resources, apprising him of the situation regarding the Respondent's absences. She explained to him the situation involving the excessive absences over a 5-year period. She explained to Mr. DeLoach that when an employee has been on extended unpaid leave that, according to Board policy 6.50, her return to employment is dependant upon a position being available. Therefore, while an individual is on extended leave, which is approved, their position becomes available to be filled at the decision of an individual school administrator. Moreover, unpaid leave, the status applicable to the Respondent's situation, must be approved in advance. An employee may not go off-duty on unpaid leave and then get approval for it at a later time. Approval must be requested in advance. A formal request must be made to the Superintendent, for the Superintendent's recommendation to the Board. Extended Illness Leave is a leave category that is required to be approved by the Board as well. Ms. Nelsen therefore explained to Mr. DeLoach that the Respondent had been on extended unpaid leave and, according to the above-referenced Board policy, her return to employment was dependent upon a position being available. Employees are required to have approval for some form of leave before they take leave or miss time from work. If an employee does not have approval for some form of leave and does not come to work, then under Board policy they are deemed to be absent without leave. If that is the situation, the employee can be terminated under Board policy. The School Board must have a recommendation from the Superintendent in order to be able to act on any sort of leave request. Under Board policies, an Extended Illness Leave is required to be approved by the Board. The school fiscal year ends June 30th. July 1, 2008, therefore, was the beginning of the new fiscal year for the 2008-2009 school year. The regular school session then began near the end of August 2008. Ms. Nelsen wrote to Ms. Chavous on August 19, 2008, explaining to her that she had been on unpaid sick leave numerous days, and giving her options to consider. Ms. Nelsen informed her that she must report to work or be considered absent without approved leave, that she could explain to her supervisor any accommodations that she may need, or that she could request Extended Illness Leave. That communication, from Ms. Nelsen to Ms. Chavous, references a July 29, 2008, request for sick leave. Ms. Chavous completed the July 29, 2008, request for sick leave on a Request for Leave of Absence form, which is the form required to be completed by employees who are requesting any kind of leave from the School Board. The July 29, 2008, leave form depicted a request for leave from August 4, 2008, through August 19, 2008. The reason for the leave requested was indicated as "Illness of self.” The Respondent did not have any sick leave available to her at that time. In the 2008-2009, school year, the Respondent was not eligible for leave under the Family Medical Leave Act. This was because she had not worked enough days in order to trigger eligibility under that law. This leave request was denied because the Respondent was on unpaid sick leave the prior year, had missed 87 days, and had never offered an explanation for her need to use sick leave. Therefore, the Board had no basis on which to approve the additional leave request and the Respondent's approved leave ended June 30, 2008. Any leave that the Respondent would have received for any extended illness would have been for the previous school year which was over at the end of the fiscal year, June 30, 2008. Ms. Nelsen gave the Respondent two options in her August 19, 2008, letter: To report to work or be considered absent without approved leave, or To submit a leave request form asking for extended illness leave for the remainder of the year. On August 28, 2008, a request was faxed from the Respondent seeking extended illness leave. The attached doctor's note did not explain the nature of the medical situation or condition, in terms of providing justification for the leave requested. The Respondent submitted a leave request form with that August 28, 2008, request. It did not confirm that she was asking for extended illness leave for the school year. Instead she requested leave from August 4, 2008, until October 30, 2008. Since School Board policy required the Respondent, in this situation, to request leave for the remainder of the school year, Ms. Nelsen sent an e-mail to the Respondent telling her that she had no available sick leave to use and again telling her that she had the option to either report to work or to request an extended illness leave for the remainder of the year. That communication was sent on August 29, 2008, the day after the Respondent faxed the form requesting leave through October. The Respondent then sent Ms. Nelsen another leave request form in response to the August 29, 2008, e-mail. It again requested leave from August 4, 2008, through October 30, 2008. On September 9, 2008, a letter was sent from the Superintendent to the Respondent, explaining that the Respondent had not reported to work and that she had not requested extended illness leave. Consequently she was informed that she was now considered “absent without approved leave” and would be recommended to the School Board for termination of employment. When the Superintendent sent the letter to the Respondent, on September 9, 2008, the Respondent was not on approved leave. She was absent without leave under the terms of the School Board policy. Pursuant to that policy she was therefore subject to being terminated. Ms. Nelsen received three leave request forms from the Respondent, none of which requested leave for the remainder of the school year, and none of which gave an explanation for the basis of the medical condition. The Respondent's response to these facts was her statement to the effect that "[I]t was just always told to me that you can't request for more leave than what your doctor has put on the form. So, therefore, that's why I put the dates there." She also acknowledged that sometimes she does not remember some things or doesn't respond as fast as she should. Therefore she simply stated that she believed, in effect, that she had submitted everything that she could and had explained her situation to the best of her ability at the time. The collective bargaining agreement between the Lake County School District and the Lake County Education Association includes the position of guidance counselor. That contract references the Board policy which makes it a terminable offense to be absent without leave. The recommendation to the Board, prior to the Respondent making a Request for Hearing, was that she be terminated for being absent without leave. The Respondent's prior leave had expired at the end of the 2007-2008 school year. When the first day of school started in the current school year of 2008-2009, the Respondent did not report to work. The Respondent probably would have been unable to work because of her illness before January 2009. She would therefore have missed all of August, September, October, November, and December.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, RECOMMENDED that a Final Order be entered by the Lake County School Board finding that the employment of the Respondent, Latonya Chavous, be terminated for just cause. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2009. COPIES FURNISHED: Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Latonya Chavous 136 Desiree Aurora Street Winter Garden, Florida 34787 Dr. Susan Moxley, Superintendent Lake County Schools 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Respondent has been a permanent full-time employee of petitioner's for over 22 years and at the time of the alleged abandonment was employed as a Engineer Technician III in petitioner's Second District and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code. Walter Henry Skinner, III, is the District Engineer, Second District, with offices in Lake City, Florida, covering a 16 county area over northeast Florida. In this instance, directly below Mr. Skinner in the chain of command is Raymond O. Humphreys, Resident Construction Engineer. His is a supervising position as contract administrator for road and bridge contracts let by the petitioner to private contracting firms for construction of roads and bridges within 9 counties of the second district. Respondent has worked within Mr. Humphreys' jurisdiction since March, 1976. The record is not clear, but apparently there is at least one other supervisor between Mr. Humphreys and respondent, the position of survey crew chief. Respondent was granted leave of absence without pay on Humphreys' recommendation on May 1, 1983 through July 12, 1983 (Petitioner's Exhibit 9); October 3, 1983 through April 2, 1983 (Petitioner's Exhibit No. 8); and again on April 3, 1984 for 6 months (Petitioner's Exhibit No. 4). Respondent returned to work before the end of this 6 months leave of absence without pay. The record does not reflect when respondent returned to work but apparently he returned to work sometime after his release from the Hamilton County Jail on July 9, 1984. The record shows that respondent was working on September 21, 1984 (Petitioner's Exhibit No. 3). Respondent was granted 4 hours annual leave on September 24, 1984, 8 hours of annual leave on September 25, 1984 and 8 hours annual leave on September 26, 1984. On September 27, 1984 petitioner placed respondent on unauthorized leave of absence without pay. On September 27, 1984 petitioner was advised by Roger Tanner, respondent's probation officer, that respondent had bean incarcerated in the Hamilton County Jail on September 26, 1984. Petitioner knew that respondent had 78.2 hours of accrued annual leave and 524.0 hours of accrued sick leave. Petitioner did not notify respondent that he had been placed on unauthorized leave without pay on September 27, 1984 until October 4, 1984 when petitioner delivered to respondent a letter from Skinner advising him that he had abandoned his position with the petitioner. Respondent had been incarcerated in the Hamilton County Jail on: (1) April 22, 1983 to July 5, 1983; (2) July 23, 1983; (3) August 11, 1983 to August 12, 1983; (4) September 22, 1983 to July 9, 1984; and (5) September 26, 1984 to October 6, 1984. The evidence reflects that respondent had a "drinking problem" of which petitioner was aware but did very little "counseling" with respondent in this regard. On October 1, 1984 Mr. Markham, Humphreys Resident Office Manager, contacted Judge John Peach's office and was informed by his secretary, after she discussed the matter with Judge Peach, that respondent's "problem would be resolved in a few days" or at least "by the weekend." Respondent worked with a survey crew taking final measurements and checking work in the field completed by the contractors. Respondent was assigned to this survey crew by Humphreys because respondent did not have a valid driver's license. Walter H. Skinner had been delegated authority to take this type action against respondent by Mr. Pappas, Secretary of the Department of Transportation and such delegation was in effect at all times material herein.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that it be found that respondent did not abandon his position and resign from the Career Service as contemplated under Rules 22A-7.1O(2)(a) and 22A-8.O2, Florida Administrative Code and that respondent be reinstated to his position of Engineer Technician III as of September 27, 1984. DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 May, 1985. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Donald K. Hudson, Esquire Post Office Box 948 Jasper, Florida 32052 Daniel C. Brown Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Paul A. Pappas Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel 562 Hayden Burns Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 =================================================================
The Issue The issues are whether Petitioner received a salary overpayment from Respondent for leave usage to which he was not entitled, as set forth in correspondence dated April 26, 2013; and, if so, whether Respondent is entitled to a repayment for the salary overpayment made to Petitioner.
Findings Of Fact Petitioner, Bruce Deterding, was an employee of the Department of Health, having served as an executive director of a medical practice board, making him a Select Exempt Service (SES) employee. Petitioner entered into a settlement agreement with the Department on December 19, 2012. The agreement required Petitioner to resign his position with the Department effective February 28, 2013, and included the following conditions: Petitioner's last day in the office would be December 18, 2012, one day preceding the signed settlement agreement; and Petitioner was required to utilize 384 hours of accrued annual leave beginning on December 19, 2012, and ending on February 27, 2013. Petitioner did not participate in the preparation of the settlement agreement, but agreed to its terms by his signature. The agreement was signed by the Division of Medical Quality Assurance Director Lucy C. Gee on behalf of the Department. From December 19, 2012, through February 28, 2013, Petitioner performed as obligated under the agreement. The Department paid Petitioner for the 384 hours of leave as required by the agreement. Petitioner relied on the Department's representations that he would be able to purchase his former military service time from the State Retirement System and retire with 30 years of state service on the resignation date set forth in the agreement. Petitioner demonstrated through a screen shot of his personnel records in the "PeopleFirst" system that he had an available balance of 428 hours of annual leave at the time he entered into the settlement agreement with the Department. The Department's employee verified through PeopleFirst that sufficient hours of leave were available prior to presenting the settlement agreement offering to pay 384 hours of leave to Petitioner. The Department notified Petitioner by a letter dated April 26, 2013, that he had received salary overpayments. Specifically, the letter stated that two payments in the amounts of $1,262.48 and $1,717.56, dated February 22, 2013, and March 8, 2013, respectively, had been erroneously made to him. Petitioner, as an SES employee, received 176 hours of annual leave on his leave accrual anniversary date of July 1 each year. In 2010, Petitioner received an annual leave accrual of 176 hours on June 18, 2010, and a second annual leave accrual on July 1, 2010. On April 26, 2013, Petitioner had a telephone conversation with Meshelle Bradford, one of the Department's payroll employees, concerning potential salary overpayments. During that conversation, Petitioner acknowledged he had received the two salary accruals totaling 352 hours on June 18 and July 1, 2010. Petitioner testified that he assumed he was the beneficiary of an "extraordinarily good hire date" which entitled him to receive leave on his former (from his previous state employment) and new leave accrual dates. The Department conducted a payroll and leave audit after the date of Petitioner's resignation and separation from the agency. The audit revealed that Petitioner had been overpaid for annual leave hours that he had accrued in 2010 by mistake. Petitioner had been paid for annual leave he used in February 2013, when he had exhausted all of his accrued leave. During the two-week pay period of February 1 through 14, 2013, Petitioner received pay for 58.5 hours of leave he did not have available, and for the two-week pay period of February 15 through 28, 2013, Petitioner received pay for 80 hours of leave he did not have available, resulting from the double accrual of leave in June and July 2010. The Department's position is that Petitioner should have been in leave without pay status for the 58.5 and 80 hours of leave for which he was paid in February 2013. The calculated overpayment for the unavailable leave is $2,980.04. The Department seeks reimbursement from Petitioner for that amount. Petitioner disputes that he owes any amount due to the fact he entered into a settlement agreement that delineated the payments to be made by the Department to him as a condition of his resignation. The Department's Agency Attendance and Leave Policy, in section VI.D.3, states: "It is the employee's responsibility to maintain an accurate accounting of their leave balances."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health requiring Petitioner to repay the overpayment of salary in the amount of $2,980.04. DONE AND ENTERED this 5th day of December, 2013, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2013. COPIES FURNISHED: Mark John Henderson, Esquire Department of Health 2585 Merchants Row, Room 110J Tallahassee, Florida 32399 Bruce Milton Deterding 4841 Old Bainbridge Road Tallahassee, Florida 32303 Althea Gaines, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 John H. Armstrong, M.D., F.A.C.S. State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
