The Issue The issue in this case involves a consideration of whether the Petitioner has abandoned his job position with the Respondent as described in Rule 22A- 7.010, Florida Administrative Code.
Findings Of Fact In the relevant time period which is associated with this case, Petitioner was employed by the Department of Revenue as an Appraiser II in the Jacksonville, Florida, office of the Northeast Region, Bureau of Field Appraisals, Division of Ad Valorem Tax. He worked with the Respondent agency beginning April 1980 until his dismissal from the agency on December 17, 1986, based upon the theory that he had allegedly abandoned his job within the meaning of Rule 22A-7.010(2)(a), Florida Administrative Code. During his employment Petitioner operated out of his home, which was in Palm Coast, Florida. Douglas Drozd, an employee of the Respondent agency, was sent to the Jacksonville office of the Bureau of Field Appraisals, Division of Ad Valorem Tax to serve as a temporary Appraiser Supervisor for that office. This assignment occurred on October 6, 1986. On October 21, 1986, Albert Johnson, the former Appraiser Supervisor with the Jacksonville office, left that position. Following the departure of Johnson, Drozd became the permanent Appraiser Supervisor for the Jacksonville office. From October 6, 1986, through November 18, 1986, Drozd acted in the capacity as the immediate supervisor of the Petitioner. Beyond that date, Robert Worley, an Appraiser II in the Jacksonville office, took over the position of Appraiser Supervisor in the subject regional office. Worley served in the capacity of supervisor from November 19, 1986, until December 22, 1986, when he returned to his duties as Appraiser II. While Worley was serving as Appraiser Supervisor, Drozd took over the function of Property Appraiser, Duval County, Florida. On December 22, 1986, Drozd returned to his duties as Appraiser Supervisor for Respondent's Jacksonville office. On November 17, 1986, Petitioner asked the permission of his supervisor, Drozd, to take annual leave for days in December 1986. This request was not made in writing and was not responded to in writing. Although Rule 22A- 8.002(4), Florida Administrative Code, contemplates that leave shall be requested in writing, it gas the custom and practice of the Respondent agency for oral requests for annual leave to be made and approved orally. At the time of the conversation on November 17, 1986, between the Petitioner and Drozd concerning the request for annual leave, Drozd initially granted that request without any reservations or contingencies being applied to the permission given. Subsequently, on that same day, Drozd told Richards that he expected that all "field work" assigned to the Petitioner should be completed before leave was taken. This arrangement included work being done on vacant parcels of property as well as improved parcels. More particularly, "field work" includes: Completion of neighborhood analysis form Dr-549 Completion of structural elements form Dr-551 Measurements of all improvements Notes pertaining to subject property (condition of property, any unusual circumstances) Sketching and traversing (perimeter measurements for calculating square footage) Pictures Completion of factual change of physical characteristics forms. Worley was unaware on November 17, 1986, of the arrangement between Drozd and the Petitioner concerning conditions placed upon the permission for the Petitioner to take leave as set forth by Drozd. Petitioner's work assignment involved 180 parcels. Effective December 12, 1986, 27 parcels had "field work" which was incomplete, according to his flow chart of that date. Effective that date, Petitioner had turned in field folders for 88 of the 180 parcels. He kept 92 field folders for the remaining parcels. Thus, his supervisor was unable to verify whether Petitioner had completed his "field work" as summarized in his flow chart submitted on December 12, 1986. According to Petitioner's account set forth in his flow chart of December 12, 1986, which is part of Petitioner's Exhibit R submitted by the Respondent and admitted into evidence, the 27 parcels pertained to vacant land. Petitioner further conceded that other minor problems existed concerning the completeness of the "field work" pertaining to the improved parcels reported in his flow chart. Prior to Petitioner's departure from the Jacksonville office on December 12, 1986, Worley, who was then serving as the Appraiser Supervisor, did not have a detailed knowledge of the flow chart submitted by the Petitioner on that date. Worley had reviewed some of the Petitioner's files and noted shortcomings in the work; however, on balance, Worley took no issue with Petitioner's work progress. Worley acquiesced in the Petitioner's departure on the afternoon of December 12, 1986, as a prelude to the commencement of Petitioner's annual leave on December 15, 1986 This acquiescence was by a verbal expression to the effect that the Petitioner should have a nice holiday. By contrast, on December 12, 1986, Drozd became aware, upon examination of Petitioner's flow chart, that certain parcels had not been completed in terms of "field work." Drozd's observations about Petitioner's flow chart became significant when Worley and Drozd spoke to supervisors in Tallahassee, Florida, on the afternoon of December 12, 1986, in the person of Ben Faulk, Chief of the Bureau of Field Operations in the Respondent agency, and Eugene White, who was the Deputy Director of the Division of Ad Valorem Tax for that organization. In actuality, there were two conversations, and in the latter conversation Drozd participated in a discussion in which Faulk, White and Drozd determined that Petitioner should not be allowed to proceed with annual leave based upon his failure to comply with the contingency which Drozd had established on November 17, 1986, pertaining to Petitioner's wish to take annual leave, the contingency being completion of "field work." The latter conversation between Worley, Drozd, White and Faulk took place following Petitioner's departure from the Jacksonville office. At the time this conversation was held, Drozd was not a member of the Respondent agency. On the other hand, Faulk and White were appropriate officials within the Respondent agency with power to make determinations concerning the annual leave of a subordinate employee, in this instance, the Petitioner. Worley was also a proper source of policy in she management chain. It was decided that Worley should try to telephone the Petitioner and forestall the use of the annual leave by Petitioner. Emphasis is placed upon the fact that Faulk and White felt that this denial of Petitioner's annual leave based upon Petitioner's failure to meet a contingency concerning his "field work" was an appropriate disposition of the case. Around 6:00 p.m., Worley was able to reach Petitioner by telephone while Petitioner was at his daughter's home, preparing to leave for a trip to Washington, D.C. In placing the telephone call to Petitioner, Worley did not favor the revocation of leave opportunity. Nonetheless, he did revoke the leave while acting as supervisor for the Northeast Region, at the behest of Drozd and upon authority of Faulk and White. In the conversation with Petitioner on December 12, 1986, by telephone, Worley told Petitioner that his leave had been revoked and that Petitioner should report to his job assignment at 8:00 a.m. on Monday, December 15, 1986, or be considered on unauthorized leave. Further, it was explained to Petitioner that he would be considered to have abandoned his job position if he had not returned to work by 5:00 p.m. on Wednesday, December 17, 1986. These remarks by Worley were not equivocal, and Petitioner understood the significance of those instructions and the implications of his failure to attend his duties on the dates described. This understanding of the explanation of unauthorized leave and potential abandonment of his job position was held by the Petitioner at the point of the conversation at approximately 6:00 p.m. on December 12, 1986. Instead of reporting to work on December 15, 1986, at 8:00 a.m., Respondent absented himself from his job assignment on that date and on December 16 and 17, 1986. For those three consecutive days in which Respondent did not attend his job, his nonattendance was without authorization to take any form of leave and in the face of having been advised that he was in the posture of unauthorized leave. The days that Petitioner was missing from his job were work days. Petitioner's choice to go forward with his vacation plans and ignore the instruction of his supervisor concerning returning to his job position was made knowingly, with volition, with intent and showed willful disregard of a legitimate order of a superior. Petitioner had decided that since he had longstanding plans for taking annual leave in Washington, D.C., and given the fact that his wife was already there awaiting the arrival of the Petitioner and his daughter, he would go forward with his plan on the expectation that someone in his employment system would not allow a conclusion to be drawn that he had abandoned his job position. In furtherance of the assertion that the Petitioner would be considered to have abandoned his job position if he didn't return before the conclusion of the work day on December 17, 1986, a memorandum was sent to the Petitioner at his residence on December 15, 1986. A copy of that memorandum may be found as Respondent's Exhibit Q admitted into evidence. Petitioner did not become aware of this memorandum until returning from his vacation. When he returned, he signed for service of correspondence of December 18, 1986, which constituted the Respondent agency's notice of claimed abandonment and notice of rights to administrative hearing to contest that claim. A copy of that notification may be found as part of the Respondent's Exhibit M admitted into evidence, together with the return receipt signed by the Petitioner on December 29, 1986. A timely petition requesting consideration of the agency's claims of abandonment was filed by the Petitioner on January 5, 1987.
Findings Of Fact The Petitioner, James D. Reeves (Reeves), was employed full time by Respondent, Department of Agriculture and Consumer Services (Department), as an Inspector I in Vero Beach, Florida. On February 3, 1986, Reeves met with Mr. Charles E. Knight, Director of the Department's Division of Fruit and Vegetable Inspection. Recognizing that Reeves was suffering severe emotional problems, Mr. Knight authorized him to take sick leave to visit his family physician in Wrens, Georgia. Regarding the duration of that leave, Mr. Knight testified: I told Mr. Reeves as soon as he got into Georgia, he needed to see his doctor, if he had to go there and sit and wait all day and be the last person to see him, because he needed to follow the personnel rules and regulations, and he needed to get a doctor's excuse signed, if he was going to be off for any extended period of time. I told him I'd like to see him back at work within ten days, if he could get back to work by then. But I told him we would abide by whatever the doctor said, if he signed a written excuse, and he got his papers in. I also told him that he needed to stay in contact with me or the personnel office.... Reeves executed an application for sick leave effective February 4, 1986, with an open return date. On February 4, 1986, while enroute to Wrens, Georgia, his automobile broke down on I-95 near Savannah, Georgia. By February 10, 1986 the necessary repairs, including a rebuilt engine, had been competed on his automobile, and Reeves was able to resume his journey. On February 12, 1986, Reeves was finally able to see his physician, who prepared a "written excuse" that provided: Mr. Dixon Reeves was seen by me today in the office. He related his work history and present employment situation to me. Mr. Reeves admits to and is obviously under a great deal of stress concerning this issue. From the standpoint of mental well being, it is inadvisable for him to return to the cannery. I also understand that from the physical standpoint, he had to consult a podiatrist after working in the cannery for a number of years. Mr. Reeves is currently under my care for treatment of anxiety that the present circumstances have created. It is my opinion that a return to his former position in the cannery would worsen his condition and is therefore medically contraindicated. Please feel free t contact me if you need any further information. On February 13, or 14, 1986, Reeves forwarded a copy of his doctor's excuse, as well as a copy of the towing bill and repair bill for his car, to the Department's personnel office. These documents were sent to the Department without benefit of a cover letter and were the first contact the Department received from Reeves after his departure. By certified letter of February 19, 1986, the Department advised Reeves that his absence from work on February 10-12, 1986, was unauthorized and that, pursuant to Rule 22A-7.010(2), F.A.C., he was deemed to have abandoned his position and resigned from the Career Service. The letter further advised Reeves of his right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment. Reeves timely petitioned the Department of Administration for review. On May 15, 1986, the Department accepted Reeves petition and on July 18, 1986 requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing. While it certainly would have been better practice for Reeve's to have kept his employer informed of the problems he encountered on his journey and the delays occasioned to his return, it cannot be concluded from this record that Reeve's absences of February 10-12, 1986 were unauthorized or that he abandoned his position. While somewhat open ended, Reeves' leave was at least authorized through February 13, 1986.
The Issue Whether the Petitioner received a salary overpayment from the Respondent for leave usage to which she was not entitled, as set forth in amended correspondence dated October 2, 2009, and, if so, the amount of any overpayment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Ms. Anderson was employed by the Department as a full- time Career Service employee until her separation on August 11, 2009. She had one year and four months' service with the State of Florida. As an employee of the Department, Ms. Anderson was paid biweekly. Based on her years of service, Ms. Anderson accrued four hours of annual leave and four hours of sick leave each biweekly pay period. Ms. Anderson used the People First System to complete her timesheets, request approval of leave, and review her leave balances. At issue is the amount of annual and sick leave used by Ms. Anderson during the pay period beginning February 6, 2009 and ending February 19, 2009. Ms. Anderson entered her time in the computerized People First timesheet as follows: February 6, 2009 8 hours' worked February 9, 2009 8 hours' sick leave February 10, 2009 8 hours' sick leave February 11, 2009 3.25 hours' sick leave 4.75 hours' annual leave February 12, 2009 8 hours' personal holiday February 13, 2009 8 hours' annual leave February 16, 2009 7.25 hours' annual leave February 17, 2009 8 hours' worked February 18, 2009 8.75 hours' worked February 19, 2009 4 hours' sick leave 4 hours' annual leave The Pay Period Overview in the People First System for the pertinent time period reflected the following: Beginning balance 2/06/09: 0 hours' annual leave 0 hours' sick leave 0 hours' personal holiday Accrual 2/19/09: 4 hours' annual leave 4 hours' sick leave 0 hours' personal holiday Used N/A : (24.00) hours' annual leave (23.25) hours' sick leave 0 hours' personal holiday Ending Balance 2/19/09: 0 hours' annual leave 0 hours' sick leave 0 hours' personal holiday The Department's Policies and Procedures for Attendance and Leave provides in pertinent part: III. Standards and Procedures * * * Annual Leave Method of Earning Annual Leave * * * Bureau of Personnel 1. Annual leave earned during any period shall be credited to the employee on the last day of that pay period or, in the case of separation, on the last day the employee is on the payroll. * * * Use of Earned Annual Leave Employee 1. Use of annual leave shall not be authorized prior to the time it is earned and credited and shall only be used with the prior approval of the proper authority. * * * Sick Leave Method of Earning Sick Leave * * * Employee * * * 4. Sick leave earned during any pay period shall be credited to the employee on the last day of that pay period, or in the case of separation, on the last day the employee is on the payroll. * * * Use of Earned Sick Leave Employee 1. Use of sick leave shall not be authorized prior to the time it is earned and credited to the employee and shall only be used with the approval of the proper authority. The Department keeps an official record of an employee's leave balances and accruals for each pay period, and it conducts audits of an employee's leave upon separation. The Department performed an audit of Ms. Anderson's leave and created an Employee Leave Record setting out annual and sick leave earned and used by Ms. Anderson up to her date of separation in August 2009. The audit revealed that Ms. Anderson had 20 hours of annual leave and 19.25 of sick leave available as of January 6, 2009, and that she accrued 4 hours of annual leave and 4 hours of sick leave on February 19, 2009, which could be used beginning February 20, 2009. As shown on the People's First timesheet prepared by Ms. Anderson and set out above, Ms. Anderson used 24 hours of annual leave and 23.25 hours of sick leave during the pay period beginning February 6, 2009, and ending February 19, 2009. Ms. Anderson, therefore, used four hours of annual leave and four hours of sick leave to which she was not entitled during the pay period extending from February 6, 2009, to February 19, 2009, and she was paid for these hours in the salary warrant issued February 27, 2009. In calculating the amount of the salary overpayment to Ms. Anderson, the Department made allowance for the one hour's annual leave balance Ms. Anderson had when she separated from the Department. The Department, therefore, calculated the salary overpayment based on seven non-compensable hours, and the balance owed by Ms. Anderson to the Department for the salary overpayment is $66.65.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order requiring Lillian Anderson to remit to the Department of Juvenile Justice the amount of $66.65. DONE AND ENTERED this 19th day of February, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 19th day of February, 2010. COPIES FURNISHED: Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399 Lillian Anderson 3617 Carambola Circle North Coconut, Florida 33066 Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The ultimate issue in the instant case is whether Petitioner abandoned his position with Respondent and resigned from the Career Service.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent was formerly employed as a Tax Auditor II in Respondent's Fort Lauderdale office. In May, 1987, Petitioner filed a charge against Respondent with the Equal Employment Opportunity Commission (EEOC). The charge was docketed as Charge No. 150871115. Eleven months later, Petitioner filed a second charge against Respondent with the EEOC. This second charge was docketed as Charge No. 150881243. By letter dated May 3, 1988, Petitioner requested that he be granted leave without pay "until both EEOC investigations [were) over." Petitioner's request resulted in a memorandum of understanding and agreement between Petitioner and the Acting Director of Respondent's Division of Audits, Glenn Bedonie. The memorandum was signed by Bedonie on May 9, 1988, and by Petitioner the following day. It provided in pertinent part as follows: This memorandum will confirm our agreement that the Department is granting your request for leave without pay until such time as the two Equal Employment Opportunity Commission (EEOC) investigations are completed and the findings or conclusions are rendered and final. This action is based upon your voluntary request dated May 3, 1988 attached herein. You will remain on approved leave without pay commencing at 8:00 a.m., Wednesday, May 11, 1988 for (12) twelve calendar months or until a finding or conclusion has been rendered and becomes final by the EEOC in both of the above EEOC investigations. If a finding is not so rendered in both investigations within (12) calendar months, and if you make a timely request to this office the Department agrees to request an extension from the Department of Administration of your leave of absence without pay under Rule 22A- 8.016(2), F.A.C. Such extension is to last until such time as an investigative finding or conclusion is rendered and becomes final in both investigations. On May 10, 1988, the same day he signed the foregoing memorandum of understanding and agreement, Petitioner advised his supervisor in writing that the following were "two addresses where mail will reach me:" P.O. Box 22-2825, Hollywood, Florida 33022 and 8311 Dundee Terrace, Miami Lakes, Florida 33016. Petitioner did not indicate any other manner in which he could be contacted. By letter dated August 31, 1988, Petitioner and Respondent were informed that the EEOC's Miami District Director had determined, with respect to Charge No. 150871115, that the evidence obtained during the investigation [did] not establish a violation of the statute." The letter also contained the following advisement: This determination does not conclude the processing of this charge. If the charging Party wishes to have this determination reviewed, he must submit a signed letter to the Determination Review Program which clearly sets forth the reasons for requesting the review and which lists the Charge Number and Respondent's name. Charging Party must also attach a copy of this Determination to his letter. These documents must be personally delivered or mailed (postmarked) on or before 09-14-88 to the Determinations Review Program, Office of Program Operations, EEOC, 2401 E. Street, N.W., Washington, D.C. 20507. It is recommended that some proof of mailing, such as certified mail receipt, be secured. If the Charging Party submits a request by the date shown above, the Commission will review the determination. Upon completion of the review, the Charging Party and Respondent will be issued a final determination which will contain the results of the review and what further action, if any, the Commission may take. The final determination will also give notice, as appropriate, of the Charging Party's right to sue. Petitioner requested review of the Miami District Director's determination in Case No. 150871115. By letter dated April 28, 1989, Petitioner and Respondent were notified of the results of that review. The body of the letter read as follows: The Commission has reviewed the investigation of this charge of employment discrimination and all supplemental information furnished. Based upon this review, we agree with the determination issued by our field office and hereby issue a final determination that the evidence obtained during the investigation does not establish a violation of the statute. Therefore, the Commission dismisses and terminates its administrative processing of this charge. As the charge alleged a Title VII violation, this is notice that if the Charging Party wishes to pursue this matter further, (s)he may do so by filing a private action in Federal District Court against the Respondent(s) named above within 90 days of receipt of this Determination. IF CHARGING PARTY DECIDES TO SUE, CHARGING PARTY MUST DO SO WITHIN 90 DAYS FROM THE RECEIPT OF THIS DETERMINATION; OTHERWISE THE RIGHT TO SUE IS LOST. By letter dated March 8, 1989, Petitioner and Respondent were informed that the EEOC's Miami District Director had determined, with respect to Charge No, 150881243, that the "evidence obtained during the investigation [did) not establish a violation of the statute," The letter further advised: If the Charging Party does not request a review of this determination by March 22, 1989 this determination will become final the following day, the processing of this charge will be complete, and the charge will be dismissed. (This letter will be the only letter of dismissal and the only notice of the Charging Party's right to sue sent by the Commission.) FOLLOWING DISMISSAL, THE CHARGING PARTY MAY ONLY PURSUE THIS MATTER FURTHER BY FILING SUIT AGAINST RESPONDENT(S) NAMED IN THE CHARGE IN FEDERAL DISTRICT COURT WITHIN 90 DAYS OF THE EFFECTIVE DATE OF THE DISMISSAL. Therefore, in the event a request for review is not made, if a suit is not filed by June 21, 1989 the Charging Party's right to sue will be lost. Petitioner did not request review of the District Director's determination in Case No. 150881243. Therefore, this determination became final on March 23, 1989. On May 5, 1989, Respondent's Personnel Officer, William P. Fritchman, sent Petitioner a letter by certified mail, return receipt requested, directing Petitioner to report to work immediately. The letter was mailed to P.O. Box 22- 2825, Hollywood, Florida 33022. The body of the letter provided as follows: This letter is to notify you that your tax auditor II position in Fort Lauderdale, Florida is ready for you to return to work. Your return to work will be effective immediately upon your receipt of this letter. The Department of Revenue agreed to your request for a leave of absence without pay for 12 months or until EEOC in Miami had concluded its investigation of your EEOC charges, numbers 150-88-1234 [sic] and 150-87-1115. As you know, EEOC has now concluded its investigations and issued its findings in both cases. The Department considers the reason for granting the leave of absence to be expired. Please contact Mr. Bill Hammock, Chief of Audit Activity or Mr. Howard Maxwell, Field Audit Supervisor, immediately upon receipt of this letter concerning your intentions regarding your actual reporting to work in Fort Lauderdale. Their phone number is (904) 488-0310. Your immediate supervisor will be Ms. Mary Jane Myscich. Please report to her concerning any necessary details surrounding your reporting to work. If you do not contact either of the above individuals as instructed in this letter within three workdays from the date you receive this letter, the Department will consider that you have been on unauthorized leave without pay for that three workday period. Such unauthorized leave will be considered to be abandonment of position and a resignation from the Department of Revenue as outlined under Rules 22A- 7.010(2) and 22A-8.002(5). Please contact me at (904) 488-2635 if you have any questions concerning this matter. Efforts to deliver the letter to Petitioner were unsuccessful. It therefore was subsequently returned to Fritchman as "unclaimed." By letter dated May 7, 1989, but not mailed until May 10, 1989, Petitioner requested "an extension of leave without pay status for six additional months."/1 In support of his request, Petitioner erroneously stated the following in the letter: Findings and conclusions of both EEOC Charge Nos.:150871115 dated 5/13/87 and 150881243 are as EEOC has informed you are rendered but not final. The former charge is still under appeal. Petitioner's May 7, 1989, letter, as well as the envelope in which it had been sent, reflected that Petitioner's current mailing address was 8311 Dundee Terrace, Miami Lakes, Florida 33316. Accordingly, on May 12, 1989, utilizing a next- day delivery service, Fritchman sent to that address the following letter informing Petitioner of the denial of his leave request: I am in receipt of your letter sent May 10, 1989 to Mr. Bedonie. In your letter you request the Department to seek an extension of your leave without pay for an additional six months. For the reasons expressed in my letter to you dated May 5, 1989, copy attached, your approved leave of absence is concluded. Under the written agreement between you and the Department the two EEOC investigations have concluded; therefore the reason for your leave no longer exists. A copy of my letter to you dated May 5, 1989 is attached to this letter and incorporated by reference as if fully set forth. If you have already received a copy of that letter, then your return to work is effective on that date of your receipt. You are expected to resume your duties as a Tax Auditor II. Please contact me at (904) 488-2635 if you have any questions concerning this matter. The next-day delivery service unsuccessfully sought to deliver this letter and attachment to Petitioner at 8311 Dundee Terrace, Miami Lakes, Florida 33316. On May 18, 1989, the letter and attachment were returned to Fritchman. Later that same day, Fritchman attempted to contact Petitioner by telephone, but was unable to reach him. As of May 18, 1989, Petitioner had not yet returned to work, notwithstanding that he had not received authorization to be absent at any time subsequent to the expiration of the leave he had been granted pursuant to the May, 1988, memorandum of understanding and agreement. In view of Petitioner's failure to report to work, Fritchman sent to Petitioner's Hollywood post office box a letter dated May 19, 1989, informing Petitioner that, because he had been absent without authorized leave for three consecutive workdays, he was deemed to have abandoned his Tax Auditor II position with Respondent and resigned from the Career Service. Fritchman further explained in the letter as follows: You did not report to work on May 11, 1989 under the terms of your agreement with the Department. You were therefore on unauthorized leave without pay effective May 11, 1989 or on receipt of the May 5, 1989 letter, whichever occurred first. You have not reported to work as agreed in the May 11, 1988 agreement. You are not entitled to rely on a unilateral request for an extension of leave without reporting to work. Rule 22A-8.002(5)(b), F.A.C. states: "If an employee's request for leave is disapproved and the employee takes unauthorized leave, the agency head shall place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays shall consider the employee to have abandoned the position and resigned from the Career Service." You did not report to work on May 11, 1989 nor any day after that. The Department considers you have been on unauthorized leave of absence for three consecutive workdays. The Department considers that effective certainly no later than 5:00 p.m., Thursday, May 18, 1989 you have abandoned your position and resigned from the Career Service. The Department's records will indicate that this is a voluntary resignation from employment with the Department. It is this determination that Petitioner abandoned his position and resigned from the Career Service which is the subject of the instant controversy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order sustaining Respondent's determination that Petitioner abandoned his Tax Auditor II position with Respondent and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1989.
The Issue Whether the Petitioner abandoned his position as a state employee.
Findings Of Fact At all times pertinent to the issue of abandonment in these proceedings, Petitioner William Grimsley was a Career Service Employee, employed by the Department of Health and Rehabilitative Services at Fort Myers, Florida, as a Public Assistance Specialist I. On January 4, 1989, the Petitioner learned that his father's brother had died in Georgia. Petitioner Grimsley requested one day of authorized leave from his supervisor in order to drive his father to the funeral in Colquitt, Georgia. The Petitioner's father was unable to drive himself to Georgia because of his heart condition, and the extreme stress he was under due to the fact that his wife's two children were in critical condition in Shand's hospital in Gainesville, Florida, during this time period. The Petitioner's father had recently suffered a heart attack, and was under doctor's orders not to drive alone for extended periods of time. When the Petitioner requested one day's leave for January 5, 1989, he anticipated that he would be able to return to work on January 9, 1989. The Petitioner was on a four-day work week, and the one day's leave gave him the opportunity to accomplish his task within a four-day time period. After the Petitioner and his father arrived in Georgia, they learned that there had been two other deaths in the family. On Saturday, January 7, 1989, the Petitioner attended his cousin's funeral. On Sunday, January 8, 1989, the Petitioner attended his uncle's funeral. On Monday, January 9, 1989, he attended his great aunt's funeral. As the family lives in a rural and impoverished area in Georgia, the Petitioner did not have access to a telephone until he drove into Bainbridge, Georgia, on January 9, 1989. The Petitioner was without money during his attempts to telephone his office from Bainbridge, Georgia. According to Petitioner, his money was stolen from his wallet by one of his deceased uncle's children during the funeral services. The Petitioner did not tell his father of the incident due to the current tension between his deceased uncle's children and the uncle's widow regarding the disposition of life insurance proceeds. The Petitioner's father was under enough stress, and the Petitioner believed he could contact his office without having to spend money. The Petitioner's attempt to charge the call to his home phone was unsuccessful because there was no one at his home to verify that he was authorized to charge calls to that telephone number. The Petitioner's attempt to place a collect call to his employer was unsuccessful because the Department refused to accept the collect call placed by the Petitioner. The Petitioner then placed a collect call to his mother's home in Fort Myers, Florida. Once his call was accepted, the Petitioner asked to speak to his sister, Iris Hill. Ms. Hill was instructed to contact the Petitioner's supervisor to inform her of the situation in Georgia. The Petitioner had to attend three funerals as opposed to one funeral, and his uncle's widow was in need of his father's assistance. No time frame was given to the Petitioner's sister regarding his anticipated return. His sister assured him that she would contact his supervisor to relay his message. The Petitioner's sister attempted to contact his supervisor by telephone several times, as she had been instructed. However, she was unsuccessful, and did not make contact until after her brother had returned to work on January 12, 1989. During her conversation with the supervisor, Petitioner's sister, Miss Hill, was surprised to learn that the Petitioner had returned to work that morning after driving from Georgia earlier that day. Upon his return to work, the Petitioner was informed that a Notice of Abandonment had been filed, and that he had been separated from his employment with the Department due to his absence without authorized leave for three consecutive work days. The Petitioner did not intend to abandon his position when he remained in Georgia for three additional days in order to assist his father in family matters. The Petitioner reasonably believed his supervisor had been informed of the reasons for his absence on Monday, January 9, 1989, and that he would return to work as soon as possible.
Recommendation Based upon the evidence, it is RECOMMENDED: That the Secretary of the Department of Administration issue a Final Order that Petitioner did not abandon his position in the Career Service System. That the Petitioner be reinstated to his position as a Public Assistance Specialist I with all rights and privileges attendant to that position before the dismissal date of January 11, 1989, and subsequent to that date. DONE and ENTERED this 9th day of August, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1183 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2 and #3. Accepted. See HO #2. Rejected. Irrelevant. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #5. Accepted. See HO #6 and #7 Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #9. Accepted. See HO #10. Accepted. Accepted. See HO #10. Accepted. See HO #10. Accepted. See HO #10. Accepted. See HO #11. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Improper summary. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #2. Accepted. See HO #3 and #4. Accepted. See HO #5, #6 and #8. Accepted. See HO #9 and #10. Accepted. Accepted. Accepted. Accepted that Petitioner arrived at work on January 12, 1989. The rest of paragraph 8 is rejected as improper summary. Rejected. Witness incompetent to make legal conclusion. Rejected. Irrelevant. COPIES FURNISHED: James A. Tucker, Esquire Florida Rural Legal Services 2209 Euclid Avenue Fort Myers, Florida 33901 Anthony N. DeLuccia, Jr., Esquire District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Andrew J. McMullian General Counsel Interim Secretary Department of Health and Department of Administration Rehabilitative Services 435 Carlton Building 1323 Winewood Boulevard Tallahassee, Florida Tallahassee, Florida 32399-0700 32399-1550 =================================================================
The Issue Whether the Department of Juvenile Justice overpaid Christopher Stokes for pay periods ending May 25, 2000, for 34.5 hours amounting to $274.91; June 8, 2000, for 9.25 hours amounting to $73.81; and June 30, 2000, for 8.0 hours amounting to $63.71.
Findings Of Fact Petitioner, Christopher Stokes, was employed by the Department of Juvenile Justice (Respondent) as a painter at the Dozier School for Boys in Marianna during the period at issue, May 12, 2000, through June 30, 2000. Petitioner continues to be employed by Respondent in the same capacity. Respondent's Policy and Procedure 3.26 (FDJJ 3.26), which is available in hard copy at the workplace and via the internet, delineates the agency's Sick Leave Transfer Policy.1 FDJJ 3.26 is based upon the requirements and provisions of Rule 60L-5.030(3), Florida Administrative Code. FDJJ 3.26, Procedure A provides that in order to donate sick leave, the donor must complete the Interagency Sick Leave Transfer (Request to Donate) form and submit it to the Bureau of Personnel. FDJJ 3.26, Procedure B provides that in order to receive donated sick leave, the employee must complete the Interagency Sick Leave Transfer (Request to Use) form and submit it to the Bureau of Personnel.2 The Department of Juvenile Justice is a centralized agency and the Bureau of Personnel is located in Tallahassee. A request to donate or to use donated sick leave may be made directly to the Bureau of Personnel via U.S. Mail, courier, or fax. FDJJ 3.26, Procedure C provides that sick leave credits donated to the receiving employee shall be credited on the last day of the pay period. Transferred leave must be processed by the last day of the pay period in order to be credited to the employee. This includes checking to see if the donor has leave to transfer and is permitted to transfer it by the donor's employer. The Department of Juvenile Justice has 26 pay periods per year. Requests to donate leave to use donated sick leave that are timely submitted to the Department of Juvenile Justice, Bureau of Personnel, located in Tallahassee, will be accepted by the Department of Juvenile Justice even when the request may be incomplete or incorrectly submitted. Requests to donate leave or to use donated sick leave will be processed by the Department when the error or delay is attributable to the Bureau of Personnel. During the pay period ending May 25, 2000, Petitioner had a medical emergency requiring him to miss several days of work during that period and those that followed. Lynn R. Price, a Department of Children and Families employee, completed a request to donate 25.5 hours of sick leave to Christopher Stokes on May 24, 2000. Christopher Stokes submitted the Lynn Price Request to Donate Sick Leave Hours to the personnel office at Dozier School on May 25, 2000, the last day of the pay period. The Department of Children and Family Services, donator's agency, approved the donation of the leave on June 29, 2000, seven days after the last day of the three pay periods in question. The leave donated by Lynn Price was "not approved per criteria" by the Department of Juvenile Justice on September 12, 2000. This leave could not be credited to the employee's leave account for the next pay period. Earma J. Hendrix, Department of Children and Family Services employee, completed a request to donate 8 hours of sick leave to Christopher Stokes on June 8, 2000, the last day of the period. The Department of Children and Family Services, Donator's Agency, approved the donation of the leave on June 9, 2000, the day after the last of the second pay period at issue. The leave donated by Earma Hendrix was "not approved per criteria" by the Department of Juvenile Justice on September 11, 2000. This leave could not be credited to the employee's leave account for the next pay period. The Department of Juvenile Justice paid Christopher Stokes for 34.5 hours of donated sick leave during the pay period of May 12 through May 24, 2000. Because the attempt to donate sick leave by Earma Hendrix during that pay period was not approved as untimely submitted, Mr. Stokes should not have been paid for the 34.5 hours of donated sick leave, totaling $274.91, on the June 2, 2000, warrant. The Department of Juvenile Justice paid Christopher Stokes for 9.25 hours of donated sick leave during the pay period of May 26 through June 8, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 9.25 hours donated sick leave hours of donated sick leave, totaling $73.81, on the June 16, 2000, warrant. DJJ paid Christopher Stokes for 8 hours of donated sick leave during the pay period of June 9 through June 22, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 8 hours of donated sick leave, totaling $63.71, on the June 30, 2000, warrant.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order upholding the Agency's determination of a salary overpayment. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2001.
The Issue The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether the Petitioner abandoned his position and resigned from the Career Service under the facts and circumstances of this case. At the hearing the Respondent offered eleven exhibits into evidence and presented the testimony of two witnesses, Charles Crozier and Sam Visconti. The Petitioner offered two exhibits, both of which were rejected. The Petitioner did not call any witnesses to testify on his behalf. He expressly declined to be sworn as a witness and testify on his own behalf, even after being specifically advised of his right to do so and being specifically advised that no findings of fact could be made on the basis of his unsworn assertions.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the sworn testimony of the witnesses at the hearing, I make the following findings of fact. The Petitioner, Leroy Williams-El, commenced his employment with the Respondent, Florida School for the Deaf and the Blind, in 1977. His last position was Dorm Supervisor I, which position he had held since the 1980-81 school year. The position Petitioner held was somewhat critical in that not only did he have to oversee the portion of the dormitory that was assigned to him, but he was also specifically in charge of the care and safety of some ten or twelve students. The Petitioner was a permanent employee, but his work period coincided generally with the school year and ran for ten months, generally from August to June each year. The Petitioner's last official work day was June 11, 1985. He was not in a work status during the summer of 1985. The dorm supervisors were supervised by Charles Crozier, Director of Student Life. At the end of the 1985 school year, the dorm supervisors remained at the school for approximately a week after the students had left and the administration conducted a post-planning week. During the post-planning week, Crozier met with the employees, discussed the upcoming 1985-86 school calendar, and Petitioner and the other dorm supervisors were told that their date to report back to work was August 26, 1985. In addition to discussing the return date with the various employees at the June post-planning meeting, Crozier, under date of August 21, 1985, mailed a letter to the Petitioner at his last known address as it appeared in the school file, that is, 75 1/2 Lincoln Street, St. Augustine, Florida 32084, reminding the Petitioner that his return date for reporting back for work was August 26, 1985. The Petitioner did not return to work as instructed on August 26, 1985. On August 27, 1985, the Petitioner called Crozier and advised Crozier he had been unable to report to work on August 26, 1985. He was advised by Crozier that he must report to work on Thursday, August 29, at 8:00 a.m. (Exhibit 2) The Petitioner did not report to work on August 29, but instead again called Crozier. Crozier, at this point, got the personnel officer of the school, Sam Visconti, on the phone with him. During the conversation on August 29, 1985, the Petitioner requested that the school "transfer" him to a position with the Department of Health and Rehabilitative Services in Miami. Crozier and Visconti both explained to him that the school had no authority to "transfer" the Petitioner to another job with another agency in another city. He was told that he should report to work immediately or submit a request for leave without pay. At the time of Petitioner's telephone call on August 29, 1985, Crozier had already prepared a letter dated August 29, 1985, advising the Petitioner that inasmuch as he had failed to report to work on August 26 and had not reported on August 29 as directed, he was being given an official reprimand. He was further advised that if he did not contact Crozier by September 4, 1985, he would be suspended without pay and failure to report to work would result in his termination. The Petitioner did not report to work on September 4, 1985, as instructed. On September 6, 1985, Crozier received a call from Lynn Rowe, Visconti's assistant in the personnel office, relaying a telephone call from a lady purporting to be the Petitioner's sister. Ms. Rowe was inquiring whether or not Crozier had any instructions for the Petitioner. Crozier advised Ms. Rowe that the Petitioner was to report to work by the time his normal work week would start, which would be Sunday, September 8. The Petitioner did not report to work on September 8, September 9, or September 10, 1985. The Petitioner did not call in and make contact with Crozier or Visconti on any one of those days. When the Petitioner did not report to work for those three days, Crozier again contacted Sam Visconti, the personnel officer, and reported this fact to him. At no time during the period from August 26 through September 10, 1985, did the Petitioner request from Crozier or Visconti, the personnel officer, annual leave, leave without pay, or any other type of approved leave. The conversations he had with Crozier and Visconti concerned a request that he be "transferred" to a job with the Department of Health and Rehabilitative Services in Miami. On September 11, 1985, after Crozier advised Visconti of the Petitioner's failure to report to work, Visconti prepared a dismissal letter under the date of September 11, 1985. This letter summarized the chronology of events concerning Petitioner's failure to report to work and advised the Petitioner that he was considered to have abandoned his position. Petitioner was further told of his right to seek a determination and review of his abandonment. The letter of September 11, 1985, was mailed to the Petitioner's last known address in the personnel file, which was the St. Augustine address. Late in the afternoon of September 11, Petitioner called Visconti and informed him of the new address in Miami, Florida. Visconti then sent an additional copy of the same letter to Petitioner on September 13, 1985, to the Miami address. The Florida School for the Deaf and the Blind is a separate state agency and is not in any way connected with the Department of Health and Rehabilitative Services. Furthermore, the Florida School for the Deaf and the Blind has no offices or positions available in the Miami area. Visconti and Crozier discussed with Petitioner his repeated requests for a "transfer" on more than one occasion and repeatedly advised him the Florida School for the Deaf and the Blind had no authority to transfer him to a different job with another state agency. At no time did the Petitioner request a leave of absence from Visconti. Visconti advised the Petitioner of the critical nature of his position as a Dorm Supervisor I and explained to him the difficulties created by Petitioner's failure to return to work. Visconti further advised the Petitioner that if he wanted a leave of absence, the personnel officer had to receive the request for the leave of absence in writing and the president of the school would consider the request after it had been received. It was imperative, however, that the Petitioner either bring or mail in a written request for a leave of absence. The Petitioner did not send a request for leave of absence to the school. The last conversation Crozier had with the Petitioner occurred sometime in late October or November and concerned a request by the Petitioner that Crozier send a copy of the Petitioner's college transcripts to an HRS office in Miami. At that time the Petitioner did not request to be re-employed or to be reinstated. Crozier mailed the materials as requested. Williams did not report to the school for employment on or after August 26, 1985, and was considered to have resigned effective September 10, 1985.
Recommendation Based on all of the foregoing it is recommended that a Final Order be issued concluding that the Petitioner abandoned his position and that his petition should be dismissed. DONE AND ORDERED this 11th day of July 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July 1986. COPIES FURNISHED: Mr. Leroy Williams 1360 N.W. 199th Street Miami, Florida 33169 Mr. Leroy Williams-E1 10566 McLaurin Road Jacksonville, Florida 32216 Mr. Samuel R. Visconti Personnel Officer Florida School for the Deaf and the Blind 207 North San Marco Avenue St. Augustine, Florida 32084 Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32301 Gilda H. Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Richard L. Kopel, Esquire Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the findings of fact proposed by each of the parties. Findings proposed by Petitioner The rulings which follow immediately below refer to the five (5) unnumbered paragraphs which appear under the caption "Facts To Examine" in Petitioner's post-hearing document titled Order To Commence On Final Argument. The paragraphs are referred to in the order in which they appear. First paragraph on first page: First sentence is rejected as constituting a conclusion not supported by the evidence. The last sentence is accepted in substance. The remainder of this paragraph is rejected as not supported by competent substantial evidence. First paragraph on second page: The first two sentences are accepted in substance. The remainder of this paragraph is rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. Second paragraph on second page: This paragraph is rejected in its entirety as not supported by competent substantial evidence. Third paragraph on second page: This paragraph is rejected as constituting argument rather than proposed findings. Fourth paragraph on second page: This paragraph is rejected in its entirety as not supported by competent substantial evidence. Findings proposed by Respondent All of the findings proposed by the Respondent have been accepted with a few editorial modifications in the interest of clarity and accuracy. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION LEROY WTLLlAMS-EL, Petitioner, vs. DOA Case No. AB-85-18 DOAH Case No. 85-3600 FLORIDA SCHOOL FOR THE DEAF AND BLIND, Respondent. /
Findings Of Fact The Petitioner, John C. Scott, has been a Career Service employee with the Department of Transportation for approximately ten years, assigned to the Centerline Maintenance Office in Pompano Beach, Florida. During all times material to these proceedings, Petitioner's immediate supervisor was Allen Thomas. Robert Lucas, Highway Maintenance Supervisor in charge of the District III Centerline Crew, is the Petitioner's second-level supervisor. Thomas and Lucas are the only individuals at the Centerline Maintenance Office authorized to approve leave for Petitioner. On May 23, 1987, the Petitioner was arrested for D.U.I. and placed in jail for fifteen days. After the Petitioner was arrested, he called his mother and asked her to inform his supervisor at work that he had some personal business to attend to and would need annual leave. On May 26, 1987, the Petitioner failed to report to work and had not previously requested leave from any of his supervisors. On the morning of May 26, 1987, Ms. Scott, the Petitioner's mother, called Mr. Lucas and told him that her son would need a couple of days off from work because of personal business. Mr. Lucas informed Mrs. Scott that annual leave could not be authorized over the telephone for personal business but that leave could be granted for an emergency situation. Ms. Scott reiterated that the Petitioner had some personal business to take care of. Mr. Lucas advised her that annual leave could not be authorized over the telephone under those circumstances. On June 1, 1987, Mr. Lucas was informed by Mr. Oshesky, the District Personnel Supervisor, that Petitioner's attorney had called and told him that Petitioner was in jail. The Petitioner was absent from work on May 26, 27, 28, and June 1, 2, 3, and 4, 1987. May 29, 30 and 31, 1987 were non-work days for Petitioner. At the time, the Petitioner's work week consisted of four ten hour days from 7:30 a.m. to 5:30 p.m. The last day that Petitioner actually reported for work was Wednesday, May 20, 1987. However, on Thursday, May 21, 1987, the Petitioner was absent from work on authorized annual leave, May 22-24, 1987, were non-work days and on Monday, May 25, 1987, the Petitioner was absent from work due to an official holiday (8 hours) and authorized annual leave (2 hours). On June 5, 1987, the Respondent advised Petitioner by certified mail, return receipt requested, that he was being terminated effective May 20, 1987, (Petitioner's last day at work) for abandonment of his position. The Petitioner's absence from work and involvement with civilian authorities were related to an admitted alcohol problem. Since the Petitioner was released from jail, he has participated in a twenty-day in-patient substance abuse program at John F. Kennedy Hospital and is presently involved with a Fort Lauderdale after-care program. The Petitioner had been provided with a Department of Transportation Employee Handbook by his employers. The Handbook outlined the requirements for annual leave and leave of absences without pay. The Handbook provides in part as follows: Annual Leave - Get your supervisor's approval before taking leave. If an emergency develops, tell your supervisor of the emergency and ask verbal approval to use annual leave. When you return to work complete the leave request form, as appropriate. Leaves of Absence Without Pay - Upon request, you may be granted leave without pay ... for a period not to exceed twelve calendar months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Administration enter a final order finding that the Petitioner, John C. Scott, has abandoned his Career Service position with the Department of Transportation. DONE and ORDERED this 16th day of October, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2750 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Adopted in substance in Finding of Fact 3. Partially adopted in substance in Findings of Fact 5 and 6. Matters not contained therein are rejected as subordinate and/or unnecessary. Rejected as contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as argument and/or subordinate. Adopted in substance in Findings of Fact 3, 5, and 6. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 11. Adopted in Findings of Fact 7 and 9. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Hon. Kaye N. Henderson Department of Transportation Secretary Room 562 Burns Building Department of Transportation Tallahassee, Florida 32399-0450 605 Suwannee Street Tallahassee, Florida 32399-0458 Patrick J. Curry, Esquire Attn: Eleanor F. Turner, 200 Southeast Sixth Street M.S. 58 Suite 200 Ft. Lauderdale, Florida 32301 Adis Vila, Secretary Department of Administration Thomas H. Bateman, III, Esquire 435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Bldg. Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue is whether the Petitioner, a former employee of the Respondent, was overpaid in the amount of $1,165.76, and should be required to repay that amount to the Respondent.
Findings Of Fact The Petitioner was a career service employee of the Respondent and was initially employed on November 17, 1997. The Petitioner’s employment with the Respondent was terminated on June 30, 2003, due to layoffs created by the outsourcing of the Family Services Unit of the Respondent. The Petitioner’s annual rate of pay at the time of her termination was $19,797.44, paid bi-weekly. By letters dated August 26, 2003, October 14, 2003, and February 16, 2004, the Petitioner was informed that six separate salary overpayments had occurred. The Petitioner actually worked 56 hours during the pay period of June 20, 2003 through July 3, 2003, but was inadvertently paid for 80 hours of work. The Petitioner was inadvertently paid for working the days of July 1, 2, and 3, 2003, although her employment had been terminated effective June 30, 2003. The overpayment was for 24 hours, amounting to $183.79, based upon the Petitioner’s annual rate of pay. The Petitioner was no longer employed by the Respondent during the pay period of July 4, 2003 through July 17, 2003, but was inadvertently paid for 80 hours of work. The overpayment amounted to $601.70, based upon the Petitioner’s annual rate of pay. Following termination of employment, the Respondent’s Human Resources Department conducted an audit of the terminated employee’s leave. An audit was performed by the Respondent concerning the Petitioner’s leave. In the course and scope of the Respondent performing the audit of the Petitioner’s leave, the Respondent discovered that the Petitioner had been overpaid for four pay periods in 2003. Once an employee of the Respondent no longer has sick leave remaining, annual leave is used to cover any shortages in sick leave. Once an employee of the Respondent no longer has either sick leave or annual leave remaining, the employee cannot be paid for additional time taken as leave. The additional time becomes “leave without pay.” The Petitioner was overpaid in four separate pay periods when she had insufficient sick or annual leave as follows: 1/31/03-2/13/03: 16.50 hours 4/11/03-4/24/03: 22.75 hours 4/25/03-5/08/03: 4.25 hours 5/23/03-6/05/03: 4.75 hours The sum of the hours of overpayment is 48.25, which translates to the amount of $380.27 in overpayment to the Petitioner for the referenced pay periods. The total amount of the Respondent’s overpayment to the Petitioner, based upon the salary payments for July 1, 2, and 3, 2003, July 4 through 17, 2003, and the four pay periods in which the Petitioner was overpaid when her sick and annual leave had run out is $183.79 plus $601.70 plus $380.27, which totals $1,165.76. The Petitioner was not at fault for the overpayment. She did not falsify her leave reports or timesheets, nor was she accused by the Respondent of having done so. The Petitioner believed that the pay she received for July 4, 2003 through July 17, 2003, was severance pay since she had been terminated when her position had been eliminated. The Respondent does not issue severance pay to terminated employees. The Petitioner believes that some of the leave she had taken during the four pay periods when her sick and annual leave had run out should have been considered administrative leave which, according to the Respondent, was offered to employees in the Family Services Unit who were facing termination as an aid to finding new jobs. Administrative leave was available to employees whose positions were being eliminated to allow them to use the Internet while at the office to search for jobs, and to leave the office for interviews or any testing required for re- employment. The Petitioner failed to document leave time, if any, during the pay periods at issue in this proceeding, that she took for purposes of job testing or interviews. The Petitioner failed to properly designate administrative leave on the automated leave system, Time Direct, for the pay periods at issue in this proceeding, even though, as a secretary specialist for the Respondent for seven years, her duties included keeping track of leave for the people in her work unit. The Respondent offered several of the Petitioner’s timesheets that reflect the Petitioner’s having taken administrative leave on more than 30 occasions from October 2002 through May 2003. These time entries for administrative leave include time during each of the four pay periods at issue in this proceeding, January 31, 2003 through February 13, 2003, April 11, 2003 through April 24, 2003, April 25, 2003 through May 8, 2003, and May 23, 2003 through June 5, 2003.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order requiring the Petitioner to repay the Respondent $1,165.76. DONE AND ENTERED this 5th day of March, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2004. COPIES FURNISHED: Rosanna Boyd Apartment 162 3400 Townsend Boulevard Jacksonville, Florida 32277 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
