Findings Of Fact Respondent was employed by the Brevard County School District on January 15, 1990, as a Secretary III, Classified. She was assigned as secretary to Margaret Lewis, Director of Vocational Education. Classified employees are distinguished from certified employees who are teachers or administrators who hold teaching certificates. Respondent's duties included typing, handling and filing documents and correspondence, keeping budget and payroll records, copying and receiving incoming phone calls to the Department of Vocational Education. For approximately six months, Respondent and her supervisor had a good working relationship. Both were new to the Brevard County School District, and Margaret Lewis felt that together they could make positive changes in the unit. Respondent's personnel evaluation dated March 15, 1990, rates her in the "exceptional high" range in every category, with the highest possible rating being given in the categories, "work attitude," "cooperativeness," "personal appearance" and "tardiness." Something happened in the summer of 1990 around the time that the unit was moving from its office in Rockledge to the new district building in the Brevard County Governmental Center at Viera. The relationship between the two women rapidly deteriorated, a phenomenon observed by co-workers and the assistant superintendents, including Margaret Lewis' supervisor, Daniel Scheuerer. The circumstances were confusing, even to Jerry Copeland, Assistant Superintendent of Personnel Services. None could pinpoint the cause of the rift, although both Ms. Cooper and Ms. Lewis offered their own theories. Ms. Cooper described her supervisor arriving at work one morning crying and upset over some domestic situation. She went into Ms. Lewis' office with her and urged her to go home. Ms. Lewis eventually did leave and was gone for several days. Upon her return, Ms. Cooper felt that Ms. Lewis was very cool toward her and began communicating with her through notes or through messages to other staff. Ms. Lewis believes Ms. Cooper's work attitude changed radically after she was passed over for a secretarial position in the School Board attorney's office. On two occasions, Ms. Cooper approached Abraham Collinsworth, the Superintendent, with concerns she had about Margaret Lewis. Mr. Collinsworth referred the matter back to Dr. Scheuerer, Ms. Lewis' supervisor and the Assistant Superintendent for Instructional Services. Dr. Scheuerer told the superintendent that he had a very disruptive situation with loud conversations and people not feeling good about each other. During the several months period, July through September 1990, Dr. Scheuerer met with the women individually and together. Ms. Cooper complained that Ms. Lewis required her to make too many copies of things, that she communicated with her through yellow stickers, "post-it" notes, and that she, Ms. Lewis, would not tell her where she was going. Dr. Scheuerer counselled Ms. Cooper to adapt to her supervisor's way of doing things and also made suggestions to Ms. Lewis of ways to improve communications, for example, allowing her secretary to keep the calendar. The meeting he had with both women together was very unpleasant. It was obvious that there was a lot of hostility and animosity, tension and stress between the two. Generally, however, Ms. Lewis conducted herself in a professional manner. Ms. Cooper kept a tape recorder that she used to play subliminal tapes. Ms. Lewis felt that she was using the tape recorder to tape their conversations. Ms. Lewis felt that Ms. Cooper spent an inordinate amount of time away from her desk and abused break periods. Ms. Cooper said that she was making deliveries or copying. Ms. Lewis begin writing notes of their confrontations in order to avoid getting emotionally involved. This seemed to inflame Ms. Cooper. Ms. Cooper's reaction to direction was often either a sullen shrug or a verbal retort. Ms. Cooper felt Ms. Lewis gave her conflicting or serial requests. She also kept notes of their interactions. Early on the morning of October 8, 1990, several employees in the area of Ms. Cooper's and Ms. Lewis' office overheard a verbal confrontation between the two. Ms. Cooper had her voice raised and when Ms. Lewis asked her not to talk so loud, she replied she wanted everyone to hear. It was obvious to Daniel Scheuerer, who also overheard part of the confrontation, that Ms. Cooper was the one doing the yelling. On October 9, 1990, Ms. Lewis gave Ms. Cooper the following written reprimand: This is a formal letter of reprimand as a result of your unacceptable behavior on the morning of October 8, 1990. It is being issued as a result of your intentional (you stated that you wanted to be heard by everyone when I asked you to lower your voice) vociferous and disruptive shouting at me in your work area and the disrespect which you displayed toward me as your supervisor after I had made reasonable requests. This type of behavior is unacceptable, disturbing and disruptive to the work effort of the department and the entire area. This is to inform you that any similar outburst of this matter will result in your immediate termination. CC: Personnel File (Petitioner's exhibit No. 5) Sometime around the end of September, or early October, Karen Denbo, the district Equal Employment Opportunity Officer, had a secretarial position open that would have been a lateral transfer (same level, same pay) for Janice Cooper. She applied, and Dr. Scheuerer asked Ms. Denbo to interview Ms. Cooper. Ms. Denbo asked if he was telling her to hire Ms. Cooper. Dr. Scheuerer was given the impression by both Ms. Cooper and Ms. Denbo that they had misgivings about Ms. Cooper performing in a position requiring a lot of technical filings for which there would be no training. Ms. Cooper was not offered the transfer and no other efforts were made to find Ms. Cooper alternative employment. On October 26, 1990, Ms. Lewis gave Janice Cooper a memorandum titled "Job Expectations." It informed her that her supervisor had concerns regarding job performance, relationships with other employees, work attitude and failure to follow administrative directives. It directed her to take specified times for break and it stated she must be accurate, careful, effective and courteous. It stated that her performance was not satisfactory and warned that "failure to make necessary adjustments will result in additional disciplinary action." (Petitioner's exhibit No. 6) On November 1, 1990, near the end of the work week, Ms. Lewis needed some coping done and could not find Janice Cooper. She filled out a copy request form and put Ms. Cooper's name as the contact person. Ms. Cooper returned and Ms. Lewis asked if the form was completed properly. Ms. Cooper looked at it and then replied, "It if says what you want it to say, then its alright." After Ms. Lewis returned to her office, Ms. Cooper followed her in and said if she was going to use her name she needed to get her permission first. As Ms. Lewis began writing down Ms. Cooper's comments, Ms. Cooper reached across the desk, knocking off pencils and paper, and tore the paper out of her hand. Ms. Lewis reached for the phone and asked Dr. Scheuerer to come immediately. Ms. Cooper left and did not return until November 5th, after the weekend. In the meantime, Ms. Lewis met with Dr. Scheuerer; the Assistant Superintendent of Personnel, Jerry Copeland; and the Labor Relations Director, Bob Barrett. Upon Ms. Cooper's return to work, Ms. Lewis called her in to her office. Bob Barrett was also present. She was given this letter: November 5, 1990 Ms. Janice Cooper, Secretary Vocational Education Department Dear Ms. Cooper: This is to inform you that your employment with the School Board of Brevard County is terminated effective immediately, November 5, 1990. The reason for this termination is your unsatisfactory performance. You have been counseled and warned on several occasions regarding the need to improve your performance. On October 26, 1990, you were provided a memorandum which outlined your responsibilities and gave you direction for improving your performance. You were notified that your performance was unsatisfactory and that your failure to make the necessary adjustments would bring additional disciplinary action. Since October 26, 1990, your performance has continued to deteriorate to the point that your unwillingness to make the effort required to function as a Secretary III necessitates this action. Prior to your departure from the work site today, you should turn in any keys or other such School Board material which was issued to you to uses in your job. Sincerely, Margaret Lewis Director, Vocational Education (Respondent's Exhibit No. 2) (emphasis in original) When asked if she had anything to say, Ms. Cooper made no response and refused to acknowledge receipt of the letter. She was directed to collect her personal items and to leave the office. With guidance from the State Department of Education, the Brevard County School District has a policy of discipline of all employees which it calls, "NEAT." The acronym stands for the right to "Notice," followed by "Explanation," followed by "Assistance," within a reasonable "Time." If the deficiencies are not corrected at the end of this process, the employee may be terminated. The School Board's adopted rule 6Gx5-7.05, provides in pertinent part: Suspension/Dismissal. A certificated employee may be suspended or dismissed at any time during the work year pursuant to provisions set forth in Florida Statute 230.33(7)(h), 231.36(4)(6) and the Rules of the Educational Practices Commission. A classified employee may be dismissed for cause. The immediate supervisor shall suspend the employee and notify him/her in writing of the recommendation for dismissal, stating the cause. Termination Date. The effective date of any termination of employment or suspension shall be the last day on which the employee works. (Respondent's Exhibit No. 1) In addition to the above, the School Board's administrative staff acknowledge an employee's right to a pre-termination process that gives her an opportunity to explain why she should not be terminated. The record in this proceeding establishes that Janice Cooper was insubordinate on several occasions. She yelled at her supervisor, disrupting the workplace; she refused to follow instructions or was insolent; and finally, she virtually assaulted her supervisor when she grabbed the paper and tore it up. There is little specific evidence, however, of her poor job performance. Her only evaluation during the ten months of her employment was exceptionally positive. The "Job Expectations" memorandum was provided four days before the incident leading to Ms. Cooper's separation, which incident was plainly insubordination or misconduct, but not "poor job performance." The administrative staff make no apparent distinction between "termination" and "suspension" as both are separations from employment; and they do not view Ms. Lewis' letter, therefore, as a violation of the policy described in paragraph 18 above. Practically, there is no distinction, as no separation is final until the Board takes its action. In the meantime, the employee is no longer on the payroll. In Ms. Cooper's case, the time off of the payroll has been two years, most of which time has been the result of circumstances beyond the control of the School Board. Neither before, nor immediately after her termination by Margaret Lewis, was Janice Cooper offered reasonable opportunity to explain why she should not be terminated. She was given the letter and asked if she had a response. The letter states that termination is a fait accompli. She did not respond, and was told to leave. No evidence was presented as to the need to take immediate action. Both the district and Ms. Cooper could have benefited from a brief cooling off period; the district, by taking the time to draft a letter reflecting the proper cause for its action; and Ms. Cooper, by having an opportunity to reflect on her employment jeopardy and to prepare a response. The district presented evidence sufficient to support a finding of cause to terminate Ms. Cooper. It did not, however, prove that the cause was "poor performance." For that reason, and because the employee was not offered a reasonable opportunity to respond, the termination procedure was fatally flawed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Brevard County enter its final order reinstating Janice Cooper to full back pay and benefits from November 9, 1990, until and including October 7, 1992, and approving her termination effective October 7, 1992. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January 1993. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January 1993. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in Paragraph 1. Adopted in Paragraph 3. Adopted in Paragraph 4. Adopted in substance in Paragraph 7. Adopted in substance in Paragraph 10. Adopted in substance in Paragraph 8. Adopted in substance in Paragraph 10. Adopted in substance in Paragraph 11. With the exception of the October 26, 1990 memo, the facts proposed here are rejected as unsupported by the weight of evidence. Poor performance was not proven, nor was it proven that Respondent was taping conversations, rather than playing her own "subliminal tapes." Adopted in substance in Paragraph 14. Adopted in substance in Paragraph 16. Rejected as irrelevant and immaterial. Moreover, there was some mention of a grievance, but no evidence of what this process was or whether it was actually filed and withdrawn. Adopted in Paragraph 17. Rejected as contrary to the weight of evidence, as to unsatisfactory job performance, which is distinguished, according to the School Board's witness, from "insubordination" or misconduct. (Transcript, p. 70-71) Rejected as contrary to the weight of evidence. Respondent's Proposed Findings Adopted in Paragraph 1. Adopted in substance in Paragraph 16. Adopted in Paragraph 18. 4-8. Rejected as argument or conclusions, or summary of testimony rather than discrete findings of fact. Some of those arguments and conclusions have been adopted in the conclusions of law herein. COPIES FURNISHED: Harold T. Bistline, Esquire Building E 1970 Michigan Avenue Cocoa, Florida 32922 F. Michael Driscoll, Esquire Suite 58 3815 North Highway One Cocoa, Florida 32926 Abraham L. Collinsworth, Superintendent Brevard County School Board 2700 St. Johns Street Melbourne, Florida 32940-6699 Betty Castor, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner was employed by Respondent beginning in 1985 and, at all times material hereto, was supervised by Dr. Frank A. Coliazzi. Petitioner had been made aware of the rules and policy of the Respondent in regard to unauthorized leave of absence. Specifically, Petitioner was counselled in this regard on March 26, 1986, by Dr. Frank A. Colliazzi for his unauthorized leave of absence on March 25, 1986. Petitioner knew, or should have known, that un-authorized leave of absences could result in disciplinary action or the loss of employment through abandonment. Prior to April 14, 1986, Petitioner had a history of unauthorized leave of absences. In fact, Petitioner was absent without authorized leave on April 9 & 11, 1986, after being counselled as late as March 26, 1986 in this regard. Petitioner was absent without authorized leave on April 14, 15 & 16, 1986. Petitioner appeared briefly at the work place on April 15, 1986 but did not go to work and left immediately when requested to work by Dr. Colliazzi, with a promise to return to work the next morning, April 16; 1986, at 8:00 a.m. The Petitioner did not request a leave of absence at this time and did not return to work on April 16, 1986 as promised. Respondent's certified letter of April 16, 1986, informing Petitioner that Respondent considered him to have abandoned his position because of his three (3) consecutive days of unauthorized leave was not received by Petitioner until April 24, 1986 due to Petitioner's failure to notify Respondent of his change of address. However, Petitioner was made aware of the letter and its contents by Maxine Fields on April 21, 1986. Petitioner's failure to return to work on April 17 & 18, 1986, lends support to Respondent's contention that Petitioner had abandoned his job since Petitioner was not aware of Respondent's position on his abandonment until April 21, 1986. At no time relevant to this proceeding was leave requested by Petitioner or granted by Respondent. Although Petitioner received notice of the hearings, he failed to appear at either one and present evidence in rebuttal to Respondent's position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law recited herein, it is, RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Respondent in deeming the Petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action. RESPECTFULLY ENTERED and SUBMITTED this 25th day of November, 1986 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2604 The following constitutes my specific rulings pursuant to Section 120.59(1), 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 Petitioner: Petitioner did not submit any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by Respondent: 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 4. 4. Adopted in Finding of Fact 5 & 8. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 7. 7. Adopted in Finding of Fact 6 & 7. 8. Adopted in Finding of Fact 9. COPIES FURNISHED: Judy Waldman, Esquire General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611 Barbara Wingo, Esquire Associate General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611 James H. Foster 3216 Lancastor Lane Tampa, Florida 33619 Augustus D. Aikens, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Gilda Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue Whether or not Petitioner McCabe abandoned his position as an employee of the Department of Health and Rehabilitative Services. BACKGROUND AND EVIDENTIARY RULINGS Pursuant to case law, the employing agency bears the burden to establish job abandonment. Accordingly, the Department of Health and Rehabilitative Services (DHRS) presented its case first. DHRS presented the oral testimony of William Myrick and Joanne Register and had admitted two exhibits. In the course of DHRS' case in chief, Petitioner McCabe moved for a continuance so as to obtain legal counsel. Upon inquiry, Mr. McCabe did not demonstrate good cause for a continuance, and the motion was denied. Petitioner testified in his own behalf and had admitted two exhibits. Both of Petitioner's exhibits are letters from persons who did not take the stand to testify and who therefore were unavailable for cross-examination under oath; neither letter was established to be a "business record" either by appropriate predicate under Chapter 90 F.S. nor as commonly understood. The contents of each letter is therefore hearsay which can only be considered in these Section 120.57(1) F.S. proceedings to the extent set out in Section 120.58 F.S., and they are discussed in that context within the following findings of fact. Both parties waived the opportunity to file a transcript and proposed findings of fact and conclusions of law.
Findings Of Fact At all times material, Petitioner McCabe was employed by the Department of Health and Rehabilitative Services at the Palm Beach Detention Center. At all times material, William Myrick, presently Assistant Superintendent of the Detention Center, was Petitioner's immediate superior. He reviews and approves all personnel matters and is in charge of the center on a day to day basis. When Petitioner McCabe first began employment with the Detention Center on December 6, 1986, he signed a form acknowledging receipt of the agency June 1, 1986 Employee Handbook and also signing the State Oath of Loyalty. This handbook is also designated as, "HRS Pamphlet 60-1 (Employee Handbook including the Employee Standards of Conduct)". At page three of this handbook, the agency policy concerning absences is set out as follows: 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 of fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absence 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. Mr. Myrick had scheduled Mr. McCabe to work on June 16, 17, 18, 19, and 20, 1988 from 11:00 p.m. to 7:00 a.m. Mr. Myrick stated that in scheduling Mr. McCabe for those days, he relied on a telephone conversation he had had on June 15, 1988 with Mr. McCabe in which Mr. McCabe, who had been absent from work for some time, stated that he could not get a doctor's excuse but would be in to work on June 16, 1988. Mr. McCabe denies that in the telephone conversation he said he was coming back to work. Mr. McCabe did not call in again to say he would not be in to work; he did not report for work on any of the days scheduled; and he sent in no medical certification that he was unable to work on those days. Prior to June 15, 1988, the last day Mr. McCabe had worked had been May 17, 1988. There was no evidence submitted to inform the hearing officer whether or not Mr. McCabe was on any annual, sick, or disability leave during this period from May 17 to June 16 or whether accrued leave of any kind could have been applied to the days scheduled for him to work. On June 23, 1988, DHRS mailed a certified letter to Petitioner stating, in pertinent part, as follows: You failed to report to work as scheduled on June 16, 17, 18, 19, and 20, 1988 (from 11:00 p.m. to 7:00 a.m.) and made no effort to contact the agency to request leave. For the purpose of abandonment, the three consecutive work days are June 16, 1988 from 11:00 p.m. to 7:00 a.m. on June 17, 1988, June 17, 1988 from 11:00 p.m. to 7:00 a.m. on June 18, and June 18 from 11:00 p.m. to 7:00 a.m. on June 19,1988. At formal hearing, Mr. McCabe offered a June 6, 1988 letter (admitted as P-1) to Mr. William J. Myrick from Kenneth B. LeClerc, L.C.S.W., whom Mr. McCabe described as a "stress counsellor". He testified that this letter had been submitted by him to Mr. Myrick in lieu of a medical excuse on or about June 6, 1988. Neither party examined Mr. Myrick as to whether he received the letter or not and so Mr. McCabe's testimony that it was delivered by him to Mr. Myrick is unrefuted. This letter's contents support Mr. McCabe's testimony that he was being counseled on a weekly basis but does not support his testimony that he was unable to report to work or unable to work on the specific dates of June 16, 17, 18, 19, and 20, 1988. Mr. McCabe also presented a letter (admitted as P-2) dated September 1, 1988 addressed by a psychiatrist (medical physician) and psychologist to the attorney for DHRS. The writers were not available for cross-examination and Mr. McCabe admitted that the letter had never been presented, in a timely manner or otherwise, to anyone at DHRS. Although some portions of the letter may be considered as supporting Mr. McCabe's testimony that he is suffering and was suffering prior to June 21, 1988, from a variety of emotional/psychological ills, the timeframe contained in the letter does not support his contention that he was medically unable to report for work or to actually work on the June 16, 17, 18, 19, and 20, 1988. Mr. McCabe stated that "they" said they would not do anything about his job until something happened, but he was unclear about what that was going to be or who said that nothing would happen with regard to his job. The impression his somewhat disjointed testimony leaves is that he felt that because he was referred by the agency employee assistance program to LeClerc and from the program, or perhaps from LeClerc, to medical doctors on June 21 or 22 or 23, he was therefore entitled to have his supervisor freeze his job status until that time. However, he did not specifically claim that Mr. Myrick or anyone in authority over him at DHRS had made him that promise. He also seemed to accept that leave was not further authorized by Mr. Myrick after June 15 without a medical excuse.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the a final order be entered finding that Charles J. McCabe has abandoned his position with the Department of Health and Rehabilitative Services. DONE and RECOMMENDED this 17th day of November, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1988. COPIES FURNISHED: Adis Vila, Secretary Department of Administration Carlton Building Tallahassee, Florida 32399-1550 Charles J. McCabe 137 Southeast 27th Way Boynton Beach, Florida 33435 Laurel Hopper, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 32401 Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire Department of Administration Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Louis C. Germain, has been employed with the Department of Health and Rehabilitative Services, Foster Care Unit-452 since late 1984 or early 1985. On the morning of February 3, 1986, the Petitioner was involved in an automobile accident during the course of his employment while enroute to pick up a client who had a court appointment. As a result of the accident the Petitioner sustained several injuries, including a nose injury, back pains, headaches and blurred vision. The Petitioner was taken to his physician's office. At approximately 4:30 p.m. on February 3, 1986, the Petitioner called his immediate supervisor, Ms. Shelia Weiner, and advised her of the accident and of his injuries. On Friday, February 7, 1986, the Petitioner went to his office to pick up his pay check. The Petitioner spoke with Ms. Weiner and informed her that he did not know when his physician would allow him to return to work. On Monday, February 17, 1986, the Petitioner returned to the office once more to pick up a pay check. Ms. Weiner told the Petitioner that he had to report to work on Thursday, February 20, 1986. The Petitioner told Ms. Weiner that he was still suffering from injuries sustained in the February 3, 1986 accident and that he did not know when he would be able to return to work. On February 20, 1986, Ms. Weiner wrote the Petitioner a letter stating that his absence from work since February 17, 1986 had not been authorized. The letter stated in part that: "You are directed to report to work immediately and provide an explanation for your absences." The Petitioner received Ms. Weiner's letter on Saturday, February 22, 1986. On Tuesday, February 25, 1986, the Petitioner had an appointment with his physician and obtained a medical statement from her. The Petitioner's physician indicated in the medical statement that Petitioner had been under her care since the automobile accident of February 3, 1986, that Petitioner sustained multiple injuries in the accident and that Petitioner was now able to return to work. The Petitioner returned to work on February 25, 1986 and was advised that he needed to speak with Mr. Carlos Baptiste, supervisor of the personnel department. The Petitioner presented the letter from his doctor to Mr. Baptiste, but Baptiste was not satisfied with the doctor's statement and felt that it was "insufficient." Baptiste asked the Petitioner if he had a towing receipt or an accident report to confirm the accident of February 3, 1986. The Petitioner replied that he did not. The Petitioner was not allowed to return to work. At the final hearing, Mr. Baptiste stated that: "If Mr. Germain had produced an accident report, he would still be working with HRS." The Petitioner's leave and attendance record maintained by DHRS reflected that the Petitioner was given sick leave from February 3 to February 6, 1986. From February 7 to February 20, 1986 the Petitioner was placed on leave without pay. On March 3, 1986, Ms. Sylvia Williams notified the Petitioner by certified mail that due to his absence from work since "February 17, 1986", he was deemed to have abandoned his position and to have resigned from the Career Service.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Administration enter a final order reinstating Petitioner to his position with the Department of Health and Rehabilitative Services, Foster Care Unit-452 in Miami, Florida. DONE and ORDERED this 4th day of February, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3319 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as argument. Partially adopted in Finding of Fact 11. Matters not contained therein rejected as argument. Addressed in Conclusions of Law section. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as argument. Rejected as argument. Rejected as argument. Rejected as argument. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as a recitation of testimony and/or argument. Adopted in substance in Finding of Fact 6. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as mis- leading. Rejected as subordinate. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: Louis C. Germain 308 Northeast 117 Street Miami, Florida 33161 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue - Suite 790 Miami, Florida 33128 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue 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 At all times material to the issue of abandonment in these proceedings, Petitioner Bynoe was a Career Service Employee, and was employed by the Department of Corrections at Hendry Correctional Institution in Immokalee, Florida, as a Correctional Officer I. In February 1989, the Petitioner submitted a written request for annual leave from June 9, 1989 to June 17, 1989. The leave was approved by the Petitioner's supervisor, Captain Jody Davis. June 6, 1989, Petitioner Bynoe was informed by Captain Davis that he did not have enough hours of annual leave accrued to cover the vacation period which was to begin on June 9, 1989. The prior written approval to the Petitioner for annual leave was revoked as the previously anticipated hours of accrued annual leave did not exist. The Petitioner had only eight hours of annual leave accrued at the time the approval of annual leave was revoked by Captain Davis. In an attempt to accommodate the Petitioner, who had already scheduled vacation plans, Captain Davis told him that the work schedule could be rearranged to allow Petitioner Bynoe to have five days off in a row from June 7, 1989 through June 11, 1989. This work schedule would give Petitioner Bynoe his regular days off of June 7th and 8th. His regularly scheduled days off of June 14th and 15th could be moved to June 9th and 10th, and the eight hours of annual leave available to Petitioner could be used on June 11th. Thus, Petitioner could have time off from work, and Captain Davis could act within his supervisory authority with regard to his approval of leave requests from the Petitioner, who was under his direct supervision. During the discussion between the Petitioner and Captain Davis, the Petitioner requested that he be allowed to take the full vacation period previously scheduled, and that the time from June 12, 1989 through June 17, 1989, be granted as leave without pay. Captain Davis informed Petitioner Bynoe that he did not have the authority to approve such a request, and that such an approval would have to come from someone higher in command. Although the two men ended their conversation with the clear intention to discuss the matter later during the work period on June 6, 1989, they were unable to discuss the matter again on that date. After the Petitioner completed work on June 6, 1989, he left for South Carolina as he had originally planned. On June 9, 1989, Petitioner telephoned Colonel Page at Hendry Correctional Institute. As Colonel Page was on leave, the call was transferred to the personnel manager, Mr. Dick Vollmer. During the conversation, the decision made by Captain Davis to revoke the Petitioner's leave from June 12, 1989 to June 17, 1989, was discussed. Captain Davis' decision was not modified by Mr. Vollmer or anyone else at the correctional institution. The Petitioner did not return to work on June 12, 1989. No additional contact with the institution was initiated by Petitioner until June 19, 1989, when he informed Captain Davis that he was to begin jury duty on that date. The Petitioner was absent from work without an authorized leave of absence on his scheduled work days of June 12, 1989 through June 18, 1989. Captain Davis expected the Petitioner back to work on June 12, 1989. Petitioner Bynoe was scheduled to work from June 12, 1989 to June 20, 1989. The Petitioner did not report to work nor did he contact anyone at the institution until June 19, 1989, when he began jury duty on that date. The Petitioner was absent from work without an authorized leave of absence on his scheduled work days of June 12, 1989 through June 18, 1989.
Recommendation Based upon the evidence, it is RECOMMENDED: That the Secretary of the Department of Administration issue a Final Order finding that Petitioner Bynoe abandoned his position and resigned from the Career Service System. DONE and ENTERED this 9th day of February, 1990, 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 February, 1990. APPENDIX TO RECOMMENDED Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #2. Rejected. Contrary to fact. Accept that Captain Davis spoke with Petitioner. See HO #3 - HO #6. Reject the finding that Captain Davis had not informed the Petitioner that his previously approved leave request had been rescinded. Contrary to fact. See HO #3. Accepted. See HO #6. Accepted. See HO #7 and HO #8. Rejected. Contrary to fact. See HO #8. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer. Rejected. This testimony not believed by the Hearing Officer. Accepted. Accepted. Rejected. Irrelevant. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer. 19.-27. Rejected. Immaterial to these proceedings. Also, Daugherty's testimony was not believed by the Hearing Officer, and was rejected in full. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Accepted. Accepted. Accepted. See HO #4. Accepted. See HO #5. Accepted. See HO #6. Accepted. See HO #3. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Rejected. Contrary to fact. See HO #8. Rejected. Irrelevant. Accepted. Accepted. See HO #9. Accepted. See HO #9. Accepted. See preliminary statement. COPIES FURNISHED: Joan Stewart, Esquire Florida Police Benevolent Association, Inc. Post Office Box 11239 Tallahassee, Florida 32302 Perri M. King, Esquire Assistant General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
The Issue The issue is whether Ms. Khan abandoned her career service position by failing to report for work, or to apply for and obtain leave for three consecutive days.
Findings Of Fact Olwen B. Khan was employed by the Department of Health and Rehabilitative Services as a Public Assistance Specialist in the medically needed program in Broward County, Florida. Ms. Khan is Jamaican, and cares for her elderly father. In order to provide for his care, she arranged to go to Jamaica to sell some property there. On March 1, 1988, Ms. Khan requested, and was granted, 32 hours of leave for March 7 through the close of business on March 10, 1988. Ms. Khan had accumulated annual leave and sick leave so that the annual leave requested did not exhaust the leave available to her. Ms. Khan purchased an airline ticket to Jamaica which would have resulted in her return the evening of March 10, 1988. On March 9, 1988, it became clear that Ms. Khan's business could not be concluded by March 10 and she would have to remain in Jamaica a few more days. She was then in Maninbay, Jamaica, where telephone service is not sophisticated. She had to go to the local telephone company office to make an overseas call when a line was available. She did so at approximately 2:45 p.m. on March 9 but when she reached the HRS office, she was placed on hold for an extended period of time. She then terminated the call and attempted to place another call on March 10 but was not able to get through to the HRS office. The evening of the 10th she made a collect call to her home in Fort Lauderdale at about 5:45 p.m., Eastern Standard Time. The purpose of the call was to have her daughter request additional leave so she could conclude her business in Jamaica. Ms. Khan's ex-husband answered the phone, which surprised her. He agreed to make the request to the Department for additional leave. The following Tuesday Ms. Khan spoke with her ex- husband again, and he said that the message had been given and the additional leave had been taken care of. In fact, no one ever contacted the Department on Ms. Khan's behalf to explain her failure to report to work on Friday, March 11; Monday, March 14; or Tuesday, March 15, 1988. Ms. Khan's supervisor, Norma Levine, did ask one of Ms. Khan's coworkers if she knew where Ms. Khan was. The coworker, Judy Fiche, did not know. After three days had passed with no word from Ms. Khan, Ms. Levine discussed the matter with her supervisor, Mr. Moran. Mr. Moran recommended termination for abandonment of position because no one had heard from Ms. Khan since her approved leave had ended on Thursday, March 10, 1988. A memorandum setting out the facts was prepared for the personnel office, and through the personnel office a certified letter was sent to Ms. Khan on March 17, 1988, informing her that as of the close of business on March 15, 1988, her employment had been terminated for abandonment of her position. When Ms. Khan did return on March 16, she was informed that her position had been terminated. She attempted to see Mr. Moran that day but he was unavailable. She eventually did speak with him but was unsatisfied with his response and ultimately spoke with the personnel officer for HRS District X, Mr. Durrett, on March 30, 1988. Mr. Durrett maintained HRS's position that Mr. Khan had abandoned her job and was unmoved by her explanation that she had been out of the country to take care of a family problem and had thought that her message about needing additional leave had been relayed to the Department. When Ms. Khan was first employed by the Department, she signed a receipt for an employee handbook setting out its policies. The policy on absences requires that an employee who does not report to work notify the employee's supervisor by 8:30 a.m., and if that supervisor is not available, the employee is to notify another supervisor that the employee will not be in to work and state why. The employee performance appraisal for Ms. Khan completed in November 1988, was the last appraisal before her termination. It shows that she was regarded as achieving prescribed performance standards.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that under Rule 22A- 7.010(2)(a), Florida Administrative Code, Olwen B. Khan abandoned her position by being absent without authorized leave for three consecutive workdays. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of August, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. APPENDIX The burden of all proposed facts contained in Ms. Khan's proposed finding of fact have been adopted. COPIES FURNISHED: Larry Kranert, Jr., Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Lawrence D. Zietz, Esquire 8181 West Broward Boulevard #380 Plantation, Florida 33324 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact At all times pertinent to the issue of abandonment in these proceedings, the Petitioner was a Career Service employee. On January 13, 1988, while on leave from employment due to a work related injury, the Petitioner met with her new rehabilitation counselor, Irene Brzozowski. During the meeting, the Petitioner informed Ms. Brzozowski that she had an appointment scheduled with her physician at 5:00 p.m. on the following day. The purpose of the visit was to obtain a medical evaluation so that the Petitioner could return to work in a light duty capacity. The Petitioner incorrectly used the word "discharged" for the planned appointment. The counselor asserted that a "discharge" meant that the Petitioner had to return to work on Friday, January 15, 1988. The Petitioner said that her work shift began on Wednesday and that she would rather return to work on that day. The two women had different views over a decision which was a medical decision which neither woman was in a position to make. The discussion resulted from the Petitioner's misuse of a term that was accepted as a fact by the counselor. At the close of this meeting, the counselor said she would call D.H.R.S. to tell them that the Petitioner would be "discharged." The counselor went beyond what she told the Petitioner she was planning to do. On January 14, 1988, even before the medical appointment took place, the counselor misrepresented to Shirley Eaton, the administrative secretary at D.H.R.S., the following matters: That Ms. Brzozowski had seen a doctor's statement that the `Petitioner would be released on January 14, 1988. That Petitioner preferred to return to work on Wednesday, January 20, 1988, but based on the discharge, the counselor had instructed her to return to work on Wednesday, January 15, 1988. Based upon the counselor's misrepresentations, which appeared to Ms. Eaton to be predicated upon a doctor's written discharge and the Petitioner's personal knowledge that she had to return to work January 15, 1988, the Petitioner was placed on the work schedule for the following day. No one informed the Petitioner that she was scheduled for work on January 15, 1988, even before her doctor had rendered his opinion about her ability to return to work. On January 14, 1988, the Petitioner kept her doctor's appointment. During the examination, she told the doctor her work week began on Wednesday. As a result, the doctor told her he would give her a return to work date of January 20, 1988, for light duty activities. The return to work slip was partially prepared by Karen Nalewaik, a licensed practical nurse. She does not recall why she did not complete the note or why she put down the date of January 18, 1988, on the slip. The slip was signed by the doctor after it was completed by his staff and given to the Petitioner. January 15, 16, and 17 passed without the Petitioner's receiving notification that she had been scheduled to work those dates. Sometime after the Petitioner read the doctor's slip and before Monday, January 18, 1988, she noticed the return date was different from the one orally represented to her by her doctor. She did not inform her employer of the mistaken date. Instead, she returned to the doctor's office on Monday, January 18, to obtain a revised slip which accurately reflected his decision. Upon leaving the doctor's office, the Petitioner advised her employer of her return date. She was told she was unable to return because she had abandoned her position when she did not appear for work on January 15, 16 and A copy of her separation letter was given to the Petitioner on this date. The Petitioner did not abandon her employment. She had not been informed that she was to return to work without a medical evaluation. Her actions on January 18, 1988, manifest a clear intent to continue with her work duties for her employer. Her conduct between January 13, 1988, and January 18, 1988, was consistent in all respects with her testimony at hearing and her desire to remain a Career Service employee for the Respondent. The Respondent mistakenly relied on the new rehabilitation counselor who speculated, surmised, and erroneously substituted her own judgment for that of the attending physician who had been treating the Petitioner for related injuries for over three years. The doctor decided his patient could return to light duty work the following work week on January 18 or January 20 because that was when her work week began. His records show that she was not discharged and was still experiencing medical problems on January 14, 1988. Unfortunately, when the Petitioner tried to straighten this out with her employer after she was separated from her position, the counselor continued to be involved. The counselor had a new medical slip manufactured by a member of the doctor's staff on February 3, 1988, and presented it to the Respondent. The slip, which was never signed by the doctor, tended to support her prior misrepresentations that the Petitioner could return to work on January 15, 1988. Interestingly enough, the doctor's notes do not reflect the information placed on this third slip. It is also contrary to every other piece of credible evidence presented at hearing. Even during the statements under oath presented by the Respondent as the physician's deposition, the counselor was present. She interrupted the questioning at different times, educating the doctor on her version of the facts. Her slanting of the situation, as well as the endorsement of her version by Ms. Orser, a D.H.R.S. worker who also spoke during the deposition, make the doctor's deposition of April 22, 1988, unreliable. It is rejected by the Hearing Officer as incompetent and unreliable testimony due to the constant interjections of the two women with presumed facts and misinformation. The major mistake which kept reoccurring in this series of events was that various parties relied on everyone else but the attending physician to timely determine when the Petitioner could return to work. The doctor's first slip which was undated but was signed on January 14, 1988, is given great weight by the Hearing Officer. The second slip, dated only four days later, is given the greatest weight because it is consistent with all of the credible testimony presented as to why the Petitioner would be given a second note. As a result, abandonment could not have taken place on January 15, 16 and 17, 1988.
Findings Of Fact Respondent employs petitioner as a youth counselor II in Ft. Pierce, Florida. Petitioner attained permanent career service status in May of 1972. In addition to "carrying a normal caseload," i.e., supervising 85 to 88 youngsters in the customary fashion, petitioner met four times weekly with children who had been referred by courts or school authorities for intensive counseling. These groups counseling sessions began at six o'clock in the evening and lasted from one to one and a half hours. John B. Romano became petitioner's immediate supervisor on March 18, 1977. With the acquiescence of Mr. Romano's immediate predecessor, Ben Robinson, petitioner ordinarily reported for work between half past nine and half past ten in the morning. The week Mr. Romano started as petitioner's supervisor, he noticed that petitioner arrived for work between half past nine and ten in the morning. When he spoke to petitioner about this, petitioner told him of an accommodation that had been reached with Mr. Robinson, on account of petitioner's staying at work late to conduct group counseling. Mr. Romano told petitioner that he should report for work at half past eight in the morning, until a youth counselor's vacancy that then existed in the office could be filled. Subsequently, on at least one occasion before May 31, 1977, Mr. Romano spoke to petitioner about being late for work. On May 31, 1977, by which time another counselor had been hired, petitioner reported for work at approximately half past ten. On June 7, 1977, after petitioner had been suspended, Mr. Romano issued a written reprimand to petitioner, characterizing petitioner's arrival at half past ten on May 31, 1977, as "an insubordinate offense." Respondent's exhibit No. 5. One Harry Greene told Earl Stout, a service network manager for respondent and Mr. Romano's superior, that a boy whom petitioner had supervised had accused petitioner in open court of selling drugs and smoking marijuana. Messrs. Greene, Stout and Romano visited the facility at which petitioner's accuser was incarcerated and interrogated him. On May 13, 1977, a Friday, Mr. Romano told petitioner to meet him at nine o'clock the following Monday, but did not explain why. Present at the meeting on May 16, 1977, were petitioner, Mr. Romano, Mr. Greene and Mr. Stout. Petitioner was told of the accusations against him, but the accuser's identity was withheld. Mr. Stout gave petitioner the choice of resigning his position or taking annual leave for the duration of a formal investigation. Petitioner refused to resign. Mr. Stout instructed petitioner to tell no one that he had been asked to take leave or that he would be the subject of an investigation. When petitioner left this meeting he promptly told his fellow youth counselors that the had been suspended. For this petitioner received a written reprimand dated June 7, 1977. Respondent's exhibit No. 6. Petitioner subsequently availed himself of grievance procedures to raise the question whether he should have been permitted to take administrative leave instead of annual leave; and it was decided that he was entitled to take administrative leave. On June 8, 1977, Earl Stout wrote petitioner a letter which began "On June 1, you were advised by me that effective June 2, you were being suspended for insubordinate acts . . . ." This letter was sent to petitioner by certified mail. Mr. Stout testified without contradiction that blanket authority had been delegated to him to suspend employees under him.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the suspension be upheld. DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. J. Wayne Jennings, Esq. 2871 Forth-Fifth Street Gifford, Florida 32960 Mr. K.C. Collette, Esquire Forum 3, Suite 800 1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
Findings Of Fact Prior to her termination and at all times material hereto, Petitioner was employed as a Secretary Specialist for Respondent. In December 1988, Petitioner planned a trip to Haiti to be married and requested annual leave for the work period of December 9 through December 14, 1988, which was approved. Although she was aware of the political unrest in Haiti, Petitioner departed on December 16, 1988 with the intent to return on December 19, 1988. When she returned to the airport on December 19, 1988, she was told that she could not obtain a boarding pass and the next available flight was not until December 22, 1988. Realizing that the delay would result in her absence for three consecutive work days without approved leave and her possible termination, Petitioner attempted to telephone her immediate supervisor. She was told that outgoing calls were limited. At around 7:00 p.m. on December 9, 1988, she was successful in placing the call; however, her call was not answered. She next called her next level of supervisor who also did not answer. Finally, she reached her sister who was to relay the circumstances of her delay to Petitioner's supervisor. Yet, when Petitioner's sister attempted to call the supervisor, she was unable to reach him and did not try again. On December 22, 1988, Petitioner returned to Miami and was informed that she did not have a job. Although Petitioner's airline situation might have been considered an emergency which might have allowed her leave to be continued, reasonable notice to her supervisor of her plight was still required unless the prohibition of notice itself was the emergency. Here, notice by telephone was possible. Petitioner's attempts to contact her employer, although stringent under the circumstances, failed because she did not verify that her message had been received. Thus, Petitioner's absences on December 19 through 21, 1988, were unauthorized; Petitioner abandoned her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned her position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1184 Respondent's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed, in part, in paragraphs 2 and 4. Subordinate to the result reached. Subordinate to result reached. Addressed in paragraph 5. Addressed in paragraph 5. Not supported by competent and substantial evidence Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. COPIES FURNISHED: Ms. Doris B. Cantave Dorcilin 1238 N.E. Krome Terrace Apartment 1 Homestead, Florida 33030 Perri M. King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Alkens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 =================================================================
