The Issue The central issue in this case is whether Petitioner abandoned his position and thereby resigned from career service.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Prior to October 11, 1988, Petitioner was employed as a detention care worker I at the Palm Beach Juvenile Detention Center (center). During Petitioner's period of employment at the center, William Myrick was Petitioner's supervisor. At all times material to this matter, Mr. Myrick served as the Assistant Superintendent for the center. Sometime prior to August 25, 1988, Petitioner requested leave. Mr. Myrick approved Petitioner's leave request for the period August 25 through September 14, 1988. Authorized leave past that period was not approved. Petitioner did request additional leave to afford time for some elective surgery, but that request was not approved due to the scheduling needs of the center. Further, Petitioner did not present a doctor's statement in connection with the leave request. On September 14, 1988, Mr. Myrick advised Petitioner that a doctor's statement would be required to advise the Department of Petitioner's medical condition, and to set a tentative date that Petitioner would be allowed to return to work. Mr. Myrick requested that Petitioner furnish the information by September 16, 1988. The Petitioner did not furnish the doctor's statement, did not return to work, and did not respond to Mr. Myrick's letter. On October 11, 1988, Robert D. Williams, the District IX Administrator, wrote to Petitioner to advise him that because he had failed to report to work for the three day period, September 21-23, 1988, he had abandoned his position and resigned from career service. Petitioner was absent from his scheduled work from September 15, 1988 through September 23, 1988. Petitioner did not have approved leave for the period he was absent subsequent to September 15. Employees of the Department requested medical documentation from Petitioner on at least three different occasions. Petitioner failed or otherwise refused to timely submit proper medical reports to justify the absences. The only medical documentation was received on September 26, 1988, and indicated that the Petitioner had had the elective surgery, circumcision, performed on September 8, 1988. No complications related to the surgery were addressed. No explanation as to why the Petitioner was not medically able to return to work subsequent to September 15, 1988, was offered. At the time of his employment with the Department, Petitioner was furnished an employee handbook which outlined the requirements regarding leave approval prior to being absent from work.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Administration enter a final order confirming the finding that the Petitioner abandoned his position and thereby resigned from the Career Service. DONE and RECOMMENDED this 15th day of March, 1989, in Tallahassee, Leon County, Florida. COPIES FURHISHED: Timothy Baker 718 Douglas Avenue, Apt. #8 West Palm Beach, FL 33401 Laurel Hopper District Legal Counsel Department of Health and Rehabilitative Services District IX 111 Georgia Avenue West Palm Beach, Florida 33401 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 JOYOUS D. PARRISH 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 15th day of March, 1989.
The Issue Whether the employment of Respondent, a school teacher, should be terminated based on the allegations of job abandonment and/or insubordination set forth in the More Definite Statement of Charges filed December 15, 2005.
Findings Of Fact Petitioner has employed Respondent as a school teacher since the school year 1998-99. Respondent’s assigned school has been Nova Middle School (Nova) since the 2000-01 school year. At all times relevant to this proceeding, Petitioner was certified to teach in the designated field of "elementary education." That certification permitted Respondent to teach kindergarten through sixth grade. At all times relevant to this proceeding, Respondent’s employment was subject to the provisions of the collective bargaining agreement (CBA) between Petitioner and the Broward Teachers Union (BTU). At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all public schools within the school district of Broward County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Dr. Ricardo Garcia was the principal of Nova for the 2004-05 and 2005-06 school years. During the 2004-05 school year, Respondent began to perceive that he was having problems with Dr. Garcia1. August 2, 2005, was the first day of the 2005-06 school year for teachers. August 2-5 were teacher planning days with the following Monday (August 8) being the first day of the school year for students. Teachers who will not be at work on a particular school day are instructed to call in to the school office or to a computerized service (called Sub Central) so that the school can take appropriate action to prepare for the teacher's absence, such as obtaining a substitute teacher. Respondent did not report for work at any time during the 2005-06 school year. On August 5, 2005, Mr. Garcia wrote to Respondent the following letter2 that accurately states the facts recited therein: The first day to report to work for the 2005-2006 school year was August 2, 2005 at 8:00 a.m. At 5:12 a.m. on August 2nd you called in sick to Sub Central. On August 3rd, you called in sick to Sub Central at 6:39 a.m., and on August 4th, you called in sick to Sub Central at 7:35 a.m. Today, Friday, August 5th after my office manager checked the Sub Central database, I was informed that you did not call in today, and you also did not report for work. If you are aware that you will be absent for additional days, please inform my office at your earliest. If you need to request a medical leave, contact the Leaves Department to assist you in this matter. Because I have not received any communication from you for your absence today, disciplinary action will be taken if I do not hear from you by August 10th, 2005. The letter of August 5, 2005, was mailed by certified mail and received by Respondent. The address used for all correspondence between Dr. Garcia and Respondent was to the address Respondent had on file with Nova, which was also the address Respondent gave out to the public. That address was to a residence in Boca Raton. An acquaintance of the Respondent lived at that Boca Raton residence. That acquaintance would typically call Respondent when mail came to the Boca Raton address for Respondent. Respondent actually lived at an address in Fort Lauderdale. Respondent used this unusual arrangement for all of his mail, not just mail dealing with school matters. In response to the August 5 letter, Respondent called the principal's office at Nova on August 8 and spoke to a staff person.3 During that conversation, Respondent represented to the staff person that he wanted a leave of absence and that he would file the requisite paperwork by August 10, 2005. On August 8, 2005, Respondent went to Petitioner's Leaves Department and picked up a packet that contained blank leave application forms. The packet also contained a form for his treating physician to fill out. Also on August 8, 2005, Respondent went to Dr. Myers' office and asked him to complete the medical form. Dr. Myers complied with that request the same day. Respondent called to report his intended absence for each workday during the week August 8-12, 2005. Respondent placed the various calls to either Sub Central or Nova. On August 15, 2005, Respondent called Nova and spoke to Ms. Daniel, who worked as a bookkeeper. Prior to that call, Dr. Garcia had instructed his staff that he wanted to talk with Respondent. He further instructed the staff that he wanted Respondent to talk to Ms. Morales if he was not available. When Respondent called on August 15, Ms. Daniel asked Respondent to speak with Dr. Garcia or Ms. Morales. Respondent thought it unnecessary to speak to either Dr. Garcia or Ms. Morales and declined to do so. Respondent’s last day of accrued sick leave expired on August 18. On August 18, 2005, Dr. Garcia wrote Respondent a second letter which was mailed by certified mail to the same address as the August 5 letter. That letter was not received by Respondent prior to the institution of these proceedings. The August 18 letter was as follows: This is a follow-up to my letter dated August 5, 2005. As of today's date, you have not reported to work for the 2005-2006 school year. You called Nova Middle School on August 8th after receipt of the August 5 letter and spoke to Mrs. Morales, Office Manager. You stated to her that you would submit appropriate paperwork to request a leave of absence no later than Wednesday, August 10th. I did not receive any paperwork or any physician's note either by August 10th to date. On Monday, August 15th, you called the front office of Nova Middle School and notified Mrs. Daniels, Bookkeeper, that you wanted to take an unpaid sick leave until Wednesday, August 17th. Mrs. Daniels referred you to talk to Mrs. Morales or me, and you declined to do so. Please be advised that you have the right to use any paid leave for sick purposes before a leave of absence takes effect, according to the Collective Bargaining Agreement, Article 23(S)(9). Because you have failed to inform my office in writing of any medical illness that is supported by a licensed physician and you have not provided, to date, any request for an unpaid medical leave of absence, I must move forward with this matter to ensure that the students of Nova Middle School are not further adversely impacted by your absence in the classroom. As a result, I am requesting that you notify my office, in writing, no later than Tuesday, August 23, 2005, of your return to work date. In addition, I am requesting that you send by mail documentation from a licensed physician to support your illness since August 2, 2005. If I do not receive your response by the date as mentioned above, I must recommend that the School Board consider you for termination due to job abandonment. Please govern yourself accordingly. On August 19, 2005, Respondent’s two leave applications simultaneously reached Dr. Garcia’s office through Petitioner’s internal mail service called the Pony System. Respondent deposited the applications in the Pony System at another school on or about August 17 and it took approximately two days for the applications to reach Dr. Garcia. The first leave application to be discussed is Respondent’s application for leave pursuant to the Family Leave/Medical Leave Act (FMLA). Under defined circumstances, including his own illness, Respondent was entitled to up to 60 days of FMLA leave with his position assured upon the expiration of his leave. Respondent stated on his application that the reason for the FMLA leave was for his illness, which he described as “work-related stress, anxiety . . .”. Respondent requested a total of 60 days of FMLA leave beginning August 2 and ending October 27. The FLMA leave form contained the following direction: All requests for medical leave due to your illness or the illness of a family member must include the completed attached “Certification of Health Care Provider” form[4]. The FMLA also contained a routing instruction directing the school to forward the application and the medical certification to the Leaves Department. Respondent did not attach the completed Certification of Health Care Provider form or any other medical documentation to his FMLA leave application. Respondent’s FMLA leave application was incomplete without the Certification of Health Care Provider or other suitable medical documentation. Respondent knew or should have known that the application for FMLA leave was incomplete without appropriate medical documentation. Respondent’s second application was for a Board Approved Personal Leave of Absence (BAPLA). The reason given for the request was also “work-related stress, anxiety ...” Pursuant to the terms of the CBA between Petitioner and BTU, Respondent had the right to go on an unpaid leave of absence for personal reasons of up to two years' duration. His teaching position would not be assured upon the expiration of that leave, but he could be rehired, depending upon job openings. Respondent’s BAPLA application was incomplete because Respondent did not fill out the part of the form identifying the start date of the requested leave. The form contained the following, which Respondent left blank following the word “on”: I wish to request a leave of absence for the 2005-06 school year effective at the close of work on: 5 Dr. Garcia routed the two applications to the Leaves Department the same day he received them (August 19). On August 30, 2005, Dr. Garcia wrote a letter to Respondent and mailed it to the Boca Raton address. Respondent did not receive Dr. Garcia’s letter of August 30, 2005, prior to the institution of these proceedings. Dr. Garcia advised Respondent that medical documentation was necessary for FMLA leave and set a deadline of September 6, 2005, for Respondent to submit that documentation. Dr. Garcia incorrectly advised Respondent as to the availability of BAPLA6. Debra Knaub, an employee of the Leaves Department, processed Respondent’s applications after receiving them from Dr. Garcia. Ms. Knaub could not process the FMLA leave application because of the missing medical documentation. After she received Respondent’s two applications from Dr. Garcia, Ms. Knaub called on at least two occasions the telephone number that Respondent had provided. The telephone number was to Respondent’s cell phone. On each occasion, Ms. Knaub left Respondent a voice message requesting that Respondent return her call. Ms. Knaub was attempting to obtain Respondent’s medical documentation so she could process his FMLA leave application. Respondent did not respond to these voice messages. After the Leaves Department received and reviewed Respondent’s two leave applications, Marjorie Fletcher, Ms Knaub’s supervisor, prepared a form letter, dated September 7, 2005, that notified Respondent that the FMLA leaves application lacked a signed Certification of Health Care Provider form. This form letter also contained the following: Please respond by September 12, 2005 or you will be placed on Board Approved Personal Leave where your position is no longer guaranteed. After learning from Ms. Knaub that Dr. Garcia had established in his letter of August 30, 2005, a deadline of September 6, 2005, for Respondent to furnish the signed Certification of Health Care Provider form, Ms. Fletcher decided not to send to Respondent her letter of September 7. Ms. Knaub did not process Respondent’s application for BAPLA because she learned that Dr. Garcia had recommended that Respondent’s employment be terminated. Petitioner advised Respondent of the following by certified letter dated September 12, 2005, signed by Receca A. Brito, Director of Instructional Staffing: This is to inform you that your name will be submitted to the Broward County School Board on September 20, 2005, with a recommendation for termination of your employment. If you have any questions, please contact Instructional Staffing Department . . . . After Respondent exhausted his last day of authorized leave on August 18, 2005, he was absent from school without authorized leave for more than three consecutive workdays. Respondent left Broward County for approximately three weeks beginning August 25, 2005. When he returned, he received Ms. Brito’s certified letter. The School Board voted on September 20, 2005, to accept Dr. Garcia’s recommendation that Respondent’s employment be terminated. Petitioner has adopted disciplinary guidelines applicable to this proceeding which provide for progressive discipline. Those guidelines were introduced into evidence as Petitioner’s Exhibit 56 and are adopted by reference. Petitioner established that Respondent’s failure to adhere to Petitioner’s leave policies despite repeated efforts to communicate with him had a detrimental impact on the education process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law set forth herein. It is further recommended that Petitioner terminate Respondent’s employment without prejudice to his right to seek re-employment. It is further recommended that Petitioner find Respondent not guilty of insubordination. DONE AND ENTERED this 10th day of August, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 10th day of August, 2006.
The Issue Whether Petitioner abandoned her position of employment with Respondent and resigned from the career service.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was employed the Department of Health and Rehabilitative Services (DHRS) at South Florida State Hospital (SFSH) as a Human Services Worker I, a career service position. Petitioner was absent without authorized leave or explanation on February 6, 7, 8, 9, 10, and 13, 1991. Petitioner was not at work on February 11 and 12, 1991, but those were scheduled days off. On February 13, 1991, David A. Sofferin, Hospital Administrator at SFSH, notified Petitioner by letter that DHRS had no choice but "... to consider you to have abandoned your Human Services Worker I position and resigned from the State of Florida Career Service at South Florida State Hospital. ..." This letter also advised Petitioner of her right to challenge this action. Petitioner wrote DHRS a letter which was received by DHRS on February 25, 1991. In this letter Petitioner admitted that she had violated the personnel rules and asked for a second chance. Petitioner's letter stated that she had been abducted by a boyfriend on February 11, 1990 (sic), 1/ and taken to Bradenton. The letter did not attempt to explain her absences on February 6, 7, 8, 9, and 10. 1991. Petitioner was provided a copy of DHRS' Employee Handbook on April 20, 1990. Petitioner had been previously advised of Respondent's attendance policies and she had been previously reprimanded for failing to adhere to those policies. The following is found on page 13 of the Employee Handbook under the paragraph entitled "Absences": If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absences without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned. (Emphasis added.) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes. Rule 22A-7.010(2)(a), Florida Administrative Code, provides, in pertinent part, as follows: An employee who is 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 foregoing rule creates a rebuttable presumption. DHRS has established that Petitioner was absent without authorized leave so that she is rebuttably presumed to have abandoned her position of employment and to have resigned from the career service. Petitioner has failed to rebut that presumption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner, Carol Wheeler, has abandoned her position of employment with the Department of Health and Rehabilitative Services and which further finds that she has resigned from the career service. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 13th day of November, 1991. CLAUDE B. ARRINGTON 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 13th day of November, 1991.
The Issue Whether the Respondent, Kenneth M. Watson, abandoned his career service position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code, by being absent from work without authorization on November 4, 5 and 6, 1987?
Findings Of Fact Mr. Watson was employed by the Department from June l2, 1985, until November 6, 1987. When Mr. Watson was first employed by the Department he was given a copy of the Florida Department of Transportation Employee Handbook. Mr. Watson was, therefore, informed of the following, which appears on page 43 of the Handbook (DOT exhibit 5-B): JOB ABANDONMENT After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. The leave policy of the Department requires that employees "[g]et your supervisor's approval before taking leave." Page 21 of the Handbook (see DOT exhibit 5-A). In November, 1987, Mr. Watson was employed by the Department as a Highway Maintenance Technician II. He was a Career Service employee. In November, 1987, Mr. Watson worked under the direct supervision of Tommy Gay. Mr. Gay was a welder and had no authority over Mr. Watson other than to supervise work they performed together. Mr. Gay had no authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Elzie Mercer, a Highway Maintenance Supervisor IV. Mr. Mercer had authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Joseph Heath, the District Bridge Inspection Engineer. Mr. Heath also had the authority to approve personal absences from work for Mr. Watson. On November 3, 1987, Mr. Watson was absent from work. This absence had been approved by the Department. Mr. Watson was supposed to return to work on November 4, 1987. He was supposed to be at work on November 5 and 6, 1987, also. Mr. Watson did not report to work with the Department on November 4, 5 or 6, 1987. Neither Mr. Mercer or Mr. Heath approved Mr. Watson's absence for November 4, 5 or 6, 1987. Mr. Watson did not directly contact Messrs. Gay, Mercer and Heath, or anyone else at the Department about his absence on November 4, 5 or 6, 1987. Mr. Watson did not request approval for his absence on November 4, 5 or 6, 1987. A woman who identified herself as Mrs. Green called the Department on November 4, 1987, and spoke with the receptionist, Carol Ellis. Mrs. Green informed Ms. Ellis that "if Mr. Watson does not show up at his job in a couple of days he is probably in jail." Ms. Ellis informed Messrs. Gay and Mercer about this conversation. Mrs. Green called again on November 6, 1987, and spoke with Barbara Taylor, a secretary with the Department. Ms. Taylor informed Mr. Heath of this phone call. Mr. Heath had Mr. Gay call the Duval County Jail. Mr. Gay verified that Mr. Watson was in jail. Mr. Watson first spoke with Mr. Heath on November 10, 1987. Mr. Watson informed Mr. Heath that he was in jail. Mr. Watson requested approval of annual and sick leave for the period of his absence. Mr. Watson was told that he could not use sick leave for the absence. Mr. Heath also informed Mr. Watson that he was denying the request for annual leave and that Mr. Watson would be treated as having abandoned his position with the Department because of his unauthorized absence. Mr. Watson spoke with Mr. Heath by telephone again on November 13, 1987. Mr. Heath again denied Mr. Watson's request for leave. On November 17, 1987, Mr. Watson appeared at work for the first time since before his authorized absence on November 3, 1987. He was informed that he could not work and he left. Messrs. Mercer and Heath were not contacted by Mr. Watson and requested to approve his absence from work on November 4, 5 and 6, 1987, until November 10, 1987, or later. At no time did Mr. Watson obtain approval of his absence. Mr. Watson was informed by letter dated November 24, 1987, that he had abandoned his position with the Department. The Department received a letter on November 25, 1987, requesting a formal administrative hearing. Mr. Watson had sufficient annual leave to cover his absence from the Department on November 4, 5 and 6, 1987. He did not have sufficient annual leave to cover his absence through November 17, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued by the Department of Administration concluding that Kenneth M. Watson abandoned his career service position with the Department. DONE and ENTERED this 16th day of June, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1989. APPENDIX Case Number 88-0798 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2-3 4. 4-5 5. 6 7. 7 11. 8 13. 9 11-15. 10 16. Hereby accepted. See 17. 13 13. 9. But see 16. Mr. Watson attempted to return to work on November 17, 1989. Hereby accepted. 16 18. 17-18 2. 19-20 Although generally true, the Department failed to present evidence sufficient to support these policies. See Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So. 2d 380 (Fla. 1st DCA 1985). The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 3-6. 2 7. 3 9. 4 11. 5 12. Except for the last three sentences, these proposed findings of fact are not supported by the weight of the evidence. The last three sentences are accepted in findings of fact 14-16. Hereby accepted. Not supported by the weight of the evidence or irrelevant in this de novo proceeding. Not supported by the weight of the evidence or argument. See 20. Not supported by the weight of the evidence. Hereby accepted. Irrelevant in this de novo proceeding. COPIES FURNISHED: Jerry G. Traynham, Esquire Post Office Box 4289 Tallahassee, Florida 32315 Larry D. Scott Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS #58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Brian Clancy was employed by the Department of Transportation in a survey crew and had been so employed since before April 19, 1983, until he was deemed to have resigned from his position by abandonment on July 7, 1986. In March or April, 1986, Petitioner discussed with his immediate supervisor on the survey crew, Ray Fletcher, the possibility of him taking leave in July to go to New York in time for the Statue of Liberty celebration July 4, 1986. Fletcher advised Petitioner that by that time he would have accrued enough leave to take ten days off. Petitioner interpreted that as approval for leave. On June 30, 1986, Petitioner did not report to work and his absence was reported by his supervisor as were his subsequent absences on July 1, 2 and 3, 1986. On July 3, 1986, James Lott, District Location Surveyor, sent a memo to his supervisor stating that Clancy had been absent from the position for three consecutive days and requested he be terminated by reason of abandonment. By letter dated July 7, 1986 (Exhibit 4) the Deputy Assistant Secretary - District One advised Clancy that he was deemed to have resigned his position by reason of abandonment and of his right to a Chapter 120, Florida Statutes, hearing. At no time did Petitioner request leave-in writing nor was he ever granted leave in writing. Other than his discussions with Fletcher in April or May regarding taking leave in July did Petitioner say anything else about his leave and Fletcher has no recollection that any specific time period for this leave was discussed. Petitioner contends that he never intended to abandon his position and thought that his discussions with Fletcher constituted approval of his leave request. By acknowledgment dated April 19, 1983 (Exhibit 2), Petitioner acknowledged receipt of Employee Handbook (Exhibit 1). Petitioner further contends that each time he took leave prior to June 30, 1986, his supervisor had the leave request prepared for him and brought it to Petitioner to sign, and that Petitioner never went to the office to initiate the paperwork. Petitioner did not testify that he ever departed on leave without having written approval prior to June 30, 1986.
Findings Of Fact On or about July 7, 1981, Respondent, Douglas Earl Nalls, M.D. (Nalls), submitted an application for licensure by endorsement to the Petitioner, Board of Medicine (Board). As part of his application for licensure, Nalls was required to disclose to the Board any criminal conviction, any discipline imposed against his license to practice medicine, information related to military service, and other matters specified in the license application. Nalls answered in the negative to questions regarding any criminal convictions and any discipline by other Boards or entities, and Nalls did not reveal any military service. Nalls' Florida medical license was originally issued on or about December 14, 1981, by endorsement. Nalls' license to practice medicine in Florida became void and of no force and effect on or about October 28, 1985, because Nalls failed to demonstrate to the Board that he had continuously practiced medicine in Florida for a minimum of one year during the first three years after issuance of the license by endorsement as required by Section 458.313(3), Florida Statutes (1981). The Board was unaware of Nalls' military status at the time the license was deemed to be void and of no force and effect. On or about July 1, 1987, Nalls was found guilty by jury trial of two counts of child abuse and two counts of third degree sexual offense in the State of Maryland. The charges related to Nalls' thirteen year old stepdaughter for whom Nalls had the care, custody or responsibility for supervising. On or about August 27, 1987, Nalls was sentenced to three years incarceration, of which all but four months were suspended. On or about July 9, 1987, Nalls submitted an application for licensure to the District of Columbia's Board of Medicine. Nalls did not reveal his arrest or conviction to the District of Columbia's Board of Medicine. On or about September 7, 1989, Nalls' license to practice medicine in the District of Columbia was revoked. In early 1991, prior to February 1, 1991, Nalls contacted the Board to reinstate his license by endorsement. Nalls was required to submit minimal information to the Board related to his request for reinstatement. He presented documentation of his military service and discharge. He was not questioned concerning prior convictions or revocations of his medical license in another jurisdiction. On or about February 7, 1991, Nalls was notified that the Board approved his request for reinstatement. Nalls became eligible to practice medicine in Florida on or about May 28, 1991, when his request for reinstatement was completed. On or about April 1, 1991, Nalls was hired as a staff physician at the Workers' Compensation Medical Center located in Pompano Beach, Florida. On or about November 25, 1991, the Board received Nalls' licensure renewal for the license renewal period for January 1, 1992 through January 31, 1994. Nalls listed his business address as Workers' Compensation Medical Center, 150 South Andrews Avenue, Pompano Beach Florida 33069. Twelfth Avenue is also known as South Andrews Avenue. Nalls' last date of employment with the Workers' Compensation Medical Center was April 14, 1992. After April 14, 1992, the Board sent an inquiry to Nalls at the address listed for the Workers' Compensation Medical Center. The administrator at the Workers' Compensation Medical Center sent a handwritten note to the Board stating that Nalls no longer worked at Workers' Compensation Medical Center. On January 24, 1994, Nalls advised the Board that he wished to change his address since the time of his last renewal and listed his new primary place of practice as The Ideal Clinic, 155 N.W. 167th Street, Suite 202, North Miami Beach, Florida 33169.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in regard to DOAH Case No. 93- 2704 finding Douglas Earl Nalls, M.D. guilty of violating Section 458.331(1)(b), Florida Statutes, dismissing the counts relating to violation of Sections 458.331(1)(x) and (ll), Florida Statutes, imposing a $5,000 fine, and revoking his license to practice medicine in the State of Florida. In regard to DOAH Case No. 94-1129, it is RECOMMENDED that a final order be entered, finding Douglas Earl Nalls, M.D. guilty of violating Section 458.331(1)(c), Florida Statutes, imposing a $5,000 fine and revoking his license to practice medicine in the State of Florida. DONE AND ENTERED this 3rd day of February, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 3rd day of February, 1995.
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
Findings Of Fact Petitioner was an employee of DHRS as a Human Services Worker I at Gulf Coast Center, Ft. Myers, Florida. On March 8, 1984, Petitioner informed Ms. Bernstein, a Personnel Technician with duties as the Worker's Compensation coordinator at Gulf Coast Center, that she had a doctor's appointment on March 9, 1984, because of the recurrence of a worker's compensation back injury. Petitioner was not at work on March 9, 1984, and she was scheduled for her regular off days on March 10 and 11, 1984. Petitioner did not call her immediate supervisor or the Personnel Office on March 12, 13, 14 or 15, 1984, even though she was scheduled to work and she did not appear at work. Because Petitioner did not report for work or secure authorized leave for the absences on March 12, 13 and 14, 1984, on March 15, 1984, DHRS mailed Petitioner a letter by certified mail, return receipt requested, to Petitioner's last known address in her personnel record. The letter confirmed Petitioner's separation from employment with DHRS for absence without authorized leave for three (3) consecutive work days, which is deemed to be abandonment of the employment position and resignation from the Career Service System. The letter also advised Petitioner that in the event it was not her intention to resign from employment, she was instructed to immediately contact the Superintendent of Gulf Coast Center and provide a reasonable and acceptable explanation for the unauthorized absence from employment. This letter was accepted and signed for on March 17, 1984 by Patricia Grant, sister of Petitioner. However, Patricia Grant did not give the letter to Petitioner until approximately two weeks after receipt. On March 16, 1984, Petitioner provided to Ms. Bernstein a doctor's statement dated March 9, 1984, stating "no work for now" and a doctor's appointment card showing another appointment on March 16, 1984. Ms. Bernstein advised Petitioner of the March 15, 1984 letter regarding abandonment her position. In April, 1984, Petitioner finally called the Personnel Office of Gulf Coast Center and requested an appointment with the personnel manager regarding her employment. On April 12, 1984, Petitioner appeared at that office with a union steward and spoke with Amy Isaac. Petitioner also had another doctor's statement dated March 16, 1984, showing that she was to go into the hospital on March 18, 1984 for treatment for her back injury. During this meeting, Petitioner acknowledged that she had not called the Superintendent's Office as instructed in the March 15, 1984 letter. Because Petitioner was already deemed to have resigned from her employment, Ms. Isaac was unable to give Petitioner her job back.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that Petitioner, Janet Grant, be separated from her employment with DHRS for abandonment of her employment position. DONE and ORDERED this 19th day of September, 1984, in Tallahassee, Florida. DIANE K. KIESLING 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 September, 1984. COPIES FURNISHED: Daniel C. Brown, Esquire Department of Administration Carlton Building Tallahassee, Florida 32301 Ms. Janet Grant 3125 Dora Street Fort Myers, Florida 33901 Anthony DeLuccia, Jr., Esquire District VIII Legal Counsel Department of Health and Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906 Nevin G. Smith Secretary of Administration 435 Carlton Building Tallahassee, Florida 32301
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
