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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Prior to her termination on July 18, 1983, petitioner, Pacharee K. Hasper, was a member of the Senior Management Service employed as Chief of the Bureau of Research and Analysis with the Department of Labor and Employment Security, Division of Employment Security. She held this position for approximately one and a half years and her managerial effectiveness rating was "outstanding". In December of 1982, petitioner's request for maternity leave without pay from March 14, 1983 through July 15, 1983 was approved by her then Division Director, Katie Tucker. By letter dated February 28, 1983, Ronald Villella, the new Division Director, advised petitioner that her request for maternity leave was confirmed and that "we will search for a suitable position to which you can be appointed upon completion of the leave period. If successful, you will be returned from leave of absence to the new assignment. If a suitable position cannot be located, you will be returned from leave of absence for one workday and then separated from the Senior Management Service in accordance with Senior Management Rule 22SM-1.12. To avoid any unauthorized overlap in the Chief of Research and Analysis position, should you require use of sick leave during the maternity leave, we are requesting Secretary Orr to authorize a 30-day overlap in accordance with Senior Management Rule 22SM-1.06(A) and Chapter 22K-9 F.A.C." Director Villella had previously told petitioner that he needed her position for a person who had helped with the Governor's campaign. When petitioner returned to work from her maternity leave on Monday, July 18, 1983, she was not permitted to go to her prior office and was told that she would be terminated at the end of that day. Thereafter, she received a letter dated July 18, 1983, from Director Villella, reading in pertinent part as follows: "We have not been successful in locating a suitable position to which you could he appointed upon the expiration of your leave of absence. Therefore, in accordance with the terms of my letter to you dated February 28, 1983 (copy enclosed), you will be separated from the Senior Management Service in accordance with Senior Management Rule 22SM-1.12, F.A.C., effective 5:00 p.m. July 18, 1983. By copy of this letter, I am requesting our personnel officer to pay you for any unused annual leave in accordance with Senior Management Rule 22SM-1.12, F.A.C." Petitioner has filed a petition with the Department of Labor and Employment Security requesting a hearing pursuant to Section 120.57(1), Florida Statutes, and seeking reinstatement to her position as Chief of the Bureau of Research and Analysis with back pay and interest.
The Issue The issue presented is whether Petitioner is entitled to retirement service credit for certain additional periods of time.
Findings Of Fact Petitioner was employed by the Miami-Dade County Public Health Trust--Jackson Memorial Hospital (Dade County) in September 1970 as a full-time employee. As such, he was eligible to earn service credit for retirement. Dade County is an employer in the Florida Retirement System (FRS). Petitioner is a member of the FRS. There are approximately 870 employers within the FRS, and approximately 600,000 employees are members of the FRS. In the late 1990s the FRS began sending to each member an annual statement regarding that member's retirement account. The statement also advised that a member of the FRS could request an audit of that member's account at any time. The FRS sent these statements to the employing agency for distribution to that agency's employees who were members of the FRS. The procedure changed in 2000 after the FRS obtained member-employees' addresses. Statements were subsequently sent by the FRS directly to each member-employee. Prior to July 1, 1979, the employing agency determined which of its employees were eligible for membership in the FRS. On that date a new rule promulgated by Respondent became effective. Thereafter, the FRS determined which employees were eligible. At the time of the final hearing in this cause, Petitioner had 34.83 years of service for which he had obtained retirement service credit. He was not given retirement service credit, however, for the time periods of January 11, 1976, through May 1, 1976; August 22, 1976, through May 28, 1977; and May 29, 1977, through August 6, 1977. In this proceeding, Petitioner seeks retirement service credit for these additional three time periods. What benefits an employee receives is within the discretion of the employing agency. Similarly, how an employee is categorized, and what budgetary item or code an employee is paid from, is within the discretion of the employing agency. During the time periods in question Dade County used four different budget codes or statuses for paying its employees. Budget codes 1 and 2 signified regular full-time employees. However, budget codes 3 and 4 signified employees in temporary, part-time, or summer positions, the equivalent of the State of Florida's other personnel services category. Those employees within budget codes 1 and 2 received retirement service credit, but those within budget codes 3 and 4 did not and were not eligible. Petitioner's personnel file contains a copy of Dade County's Advice of Personnel Action form dated January 11, 1976, changing his status from full-time to part-time and placing him in budget status 3. Another Advice of Personnel Action form dated May 2, 1976, changed his status from part-time back to full-time and placed him in budget status 1. A third Advice of Personnel Action form dated August 22, 1976, changed Petitioner's status from full-time back to part-time and placed him in budget status 3. A Payroll--Employee Master Record shows that on May 29, 1977, Petitioner was promoted from a respiratory therapy tech 2 to a respiratory therapist, but his status remained part-time. A second Payroll--Employee Master Record shows that Petitioner was changed from part-time back to full- time on August 7, 1977. Petitioner admitted during the final hearing in this cause that there were times when he was given reduced hours of work at his request. His personnel file indicates the impact of his requests. Although he had been hired as a regular, full- time employee, during the time periods in question, he was only a part-time employee. Contrary to his testimony, Petitioner's personnel file reflects that he was aware at the time that his periods of part- time employment did not provide him with retirement service credit. His file contains a copy of a form enrolling him in the FRS signed by him on August 17, 1977. The form provides that Petitioner was employed by Jackson Memorial Hospital from September 14, 1970, through January 11, 1976, and again from May 16, 1976, through August 22, 1976. The file also contains a second FRS form which he signed on September 17, 1976, indicating that the reason he was submitting it was that he was going to full-time employment from part-time. Accordingly, Petitioner knew that he was not accruing continuous retirement service credit and understood that he needed to enroll in the FRS whenever he changed from part-time employment back to full- time. A one-page payroll register submitted by Petitioner as one of his exhibits in this proceeding covers one of the time periods in question. Although it shows that Petitioner paid for insurance and union dues, it does not reflect any information regarding retirement and, therefore, cannot support the implication that Petitioner suggests, i.e., that he is entitled to retirement service credit. Petitioner was careful to re-enroll in the FRS whenever he changed to full-time employment with Dade County. Similarly, Dade County changed the budget code each time Petitioner changed his employment status, which indicates an appropriate budget code was specifically selected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for retirement service credit for the time periods of January 11, 1976 through May 1, 1976; August 22, 1976, through May 28, 1977; and May 29, 1977, through August 6, 1977. DONE AND ENTERED this 27th of October, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 27th of October, 2006. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Luis J. Morrina 6211 Southwest 161 Avenue Southwest Ranches, Florida 33331 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Steven S. Ferst, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
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
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 The issue to be resolved in this proceeding concerns whether the Respondent abandoned his position in the career service employment system of the State of Florida in the manner envisioned by Rule 22A-7.010, Florida Administrative Code, and therefore, whether that employment position is any longer available to him.
Findings Of Fact The Petitioner, Thomas J. Atwell, was employed by the Department of Highway Safety and Motor Vehicles in its regional office in Tampa, Florida. Most of his employment duties were located in the Clearwater, Florida, area. His duties involved inspection of mobile homes at sites where those homes were manufactured. His immediate supervisor was Melvin Hinson, Sr., the Assistant Regional Administrator of the Division of Motor Vehicles Regional Office in Tampa, Florida. On October 19, 1988, the Petitioner injured his back while on duty in the process of jumping to the ground from the door of a mobile home he was inspecting. He was placed on disability leave and received worker's compensation benefits as a result of the injury which occurred within the course and scope of his employment. Sometime after being placed on disability leave, he began a course of treatment at Shands Hospital in Gainesville, Florida. At about the same time, he encountered marital discord with his wife, became separated from her, and moved to Tallahassee, Florida, to live with relatives. Upon arriving in Tallahassee, he began to be treated by Dr. Charles Wingo, who became his treating physician for worker's compensation purposes. Dr. Wingo ultimately notified his employer that he could return to light-duty work in a sedentary capacity, sitting and standing, without doing any carrying, if such work were available to him. This notification was by letter dated October 2, 1989. The Respondent, as a result of this communication, issued a letter to the Petitioner on November 3, 1989 advising him that he should report to the Tampa Regional Office of the Division of Motor Vehicles on November 13, 1989 to begin light-duty employment. The letter stated that the Petitioner would be "assisting in answering the telephone, filing, making xerox copies, and performing other light duties that may be assigned by your supervisor." According to the testimony of Buck Jones, the Respondent had a genuine need for someone to perform these duties and it was a true open position in the Tampa Regional Office. The Respondent did not have a need for someone to perform such light duties in the Tallahassee area, however. Indeed, there is no regional office in Tallahassee, with the closest regional office being in Ocala, Florida. In any event, a few days after the November 3, 1989 letter, the Petitioner telephoned Buck Jones, the Chief of the Bureau for Mobile Home and Recreational Vehicle Construction. The Petitioner told Mr. Jones that he could not get the required medical treatment in Tampa. Mr. Jones told the Petitioner that he would investigate the matter of the availability of medical treatment in Tampa. The Respondent later confirmed that medical treatment was indeed available in the Tampa area, which was suitable for the Petitioner's condition. On November 16, 1989, Mr. Jones wrote the Petitioner another letter stating that medical treatment was available in Tampa and requiring him to report for duty at the Tampa office on November 20, 1989. The letter also expressly stated that should the Petitioner fail to report for duty within three (3) days of that date, November 20, 1989, he would deemed to have abandoned his position and resigned from the Department. The letter invited the Petitioner to contact Mr. Jones should he have any questions about the matter. The Petitioner never contacted Mr. Jones before his employment reporting date of November 20, 1989. He did not report for work on November 20, 1989, as ordered, or at anytime thereafter. Around November 3, 1989, the Petitioner had called Mr. Hinson to discuss his worker's compensation case and his job and was told by Mr. Hinson that he should be contacting the Tallahassee office because he had already been told to call "headquarters." On November 27, 1989, the Respondent notified the Petitioner that he had been absent without authorized leave for three (3) consecutive workdays and was, therefore, deemed to have abandoned his position and resigned from the career service.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Department of Administration declaring that the Petitioner, Thomas J. Atwell, has abandoned his employment position and resigned from the career service. DONE AND ENTERED this 23rd day of August, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 23rd day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-7058 Respondent's Proposed Findings of Fact 1-15. Accepted. Accepted, but not material to resolution of disputed issues. Accepted. COPIES FURNISHED: Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, Esq. General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Thomas J. Atwell, pro se 2320-J Apalachee Parkway Box 455 Tallahassee, FL 32301 Michael J. Alderman, Esq. Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504
The Issue Consideration of the matter set forth in the September 22, 1977, letter of suspension served on Respondent, for events which allegedly transpired from September 13 through September 20, 1977, concerning the Respondent's fitness for duty and duty performance in the job position Pharmacist II, State of Florida, Department of Health and Rehabilitative Services.
Findings Of Fact Aldridge M. McMahan is a Career Service employee with the State of Florida, Department of Health and Rehabilitative Services. His specific employment is as a Pharmacist II, permanent status. This case concerns the action by the Petitioner, State of Florida, Department of Health and Rehabilitative Services, in which the Petitioner by letter of September 22, 1977, suspended the Respondent, Aldridge M. McMahan, for a period of thirty (30) days without pay, effective September 21, 1977. The suspension without pay was subject to being lifted upon receipt by the Petitioner of a satisfactory report prior to the end of the thirty (30) day suspension, on the question of the Respondent's fitness for duty. It was further stated in the letter of suspension that if such a satisfactory report was forthcoming, the Respondent would be afforded necessary sick leave to attend to his health needs, thus taking the amount of remaining time in the thirty day suspension out of the category of a disciplinary action without pay and placing it into sick leave status with pay, if the Respondent had earned sufficient sick leave time. The Respondent has disagreed with the conclusions drawn by the Petitioner and has appealed the action of suspension. To clearly understand the steps taken by Petitioner, it is necessary to consider the events of late 1976 and early 1977 pertaining to the Respondent's employment status. Beginning in October, 1976, the Respondent had occasions when he appeared to be groggy, was unable to speak intelligibly and had problems in filling prescriptions which was his primary duty within his employment position. Several alternatives were considered to assist Mr. McMahan with those difficulties including possible psychiatric counselling. In the beginning of 1977 the problems of Mr. McMahan intensified and he was required to see a psychiatrist. Eventually, Mr. McMahan was treated by David Hicks, M.D., a psychiatrist in Jacksonville, Florida. The contact began in earnest in March, 1977, and on April 19, 1977, Mr. McMahan was admitted to St. Luke's Hospital for assessment. At that point, Mr. McMahan was asking for tranquilizing medication for his condition. Mr. McMahan was discharged from the treatment with outpatient follow-up. The discharge occurred on May 3, 1977. On May 18, 1977, McMahan saw Dr. Hicks again and Mr. McMahan appeared very tired. Some of the tests that were performed in April of 1977 indicated that Mr. McMahan had been showing declining levels of long-acting barbiturates, specifically between April 19 and April 26, 1977. Dr. Hicks felt that the taking of barbiturates was consistent with the mannerisms of slurred speech and problems of communication. During the treatment with Dr. Hicks, and particularly from April 18, 1977, the Respondent by agreement with his employer was allowed to take sick leave to be treated for his condition and in fact took 160 hours of sick leave. When the Respondent returned, his work performance improved and there was no difficulty with his ability to perform his job, until September, 1977. The events in September, as stated before, give rise to the current action. Beginning in the middle part of September, 1977, identified as being September 13 through September 20, 1977, excluding the intervening weekend, McMahan was observed to have been hesitant in his walking and wavering in his walking, to have run into walls; to have evident slurred speech, to have appeared to have been dozing while sitting in the chair in his office, to have taken a number of pills and to have been extremely difficult to communicate with in the context of his job. All these matters occurred in the aforementioned period, September 13 through September 20, 1977, while Mr. McMahan was at work. He also evidenced a poor physical appearance in the sense of being gray in appearance, in terms of skin coloring. One of his coworkers who is a pharmacist in the same office felt that Mr. McMahan was rushing the prescriptions too quickly during this time sequence and it was also stated at the hearing that some complaints had been received about filling the prescriptions. Those complaints were rendered from outside sources other than by the Petitioner. It is significant that the symptoms observed by a number of employees who work with Mr. McMahan were the same symptoms that they had observed in April, 1977, when Mr. McMahan took leave to be treated for a problem with meprobamate. During the course of events between September 13 and September 20, 1977, no specific discussion was had with the Petitioner other than one occasion in which Embry Coalson, Chief of the Consumer Drugs and Devices Control Section of the State of Florida, Department of Health and Rehabilitative Services, made inquiry about why the Respondent had come to work on September 16 after his wife had called in saying that Respondent was ill. The Respondent had shown up for work looking very ill on that date. Nonetheless, after gathering all the facts and details of the events of September 13 through September 20, 1977, Mr. Coalson called the Respondent in to apprise him that he was being placed on suspension under the terms that are discussed above. Respondent indicated in the course of the discussion that was held on September 21, 1977, that he felt it was unfair treatment because he had been sick with diarrhea and had been taking Dramamine and Lomotil for this condition. In Respondent's mind this would appear to make him drowsy. Coalson suggested that a medical evaluation be made of the Respondent's condition and the Respondent suggested that he would be willing to have a blood test to show that there were no inappropriate drugs in his system. The conversation of September 21, 1977, ended with the Respondent being told that he could have a medical evaluation and blood test done and that of the report was satisfactory to the employer, the Respondent would be reinstated. The Petitioner was not willing to go with the Respondent on the date of the actual interview, i.e., September 21, 1977, to have tests done in the presence of the employer's representative. Coalson took the position that the responsibility to clear the matter resided with the Respondent and not the Petitioner. The attitude by the employer's representative was premised on the idea that the performance during the period of September 13 through September 20, 1977, on the part of the Respondent showed him to be unfit for duty and below standards in the duty performance; however, it allowed the punishment to be mitigated upon a satisfactory explanation of the Respondent's condition during the period in question. Beginning September 26, 1977, the Respondent went to see Dr. Hicks, the psychiatrist, who in his deposition in the course of the hearing indicated that he was convinced that McMahan's drowsiness was part of the physical ailment associated with nausea and diarrhea and not due to any drug-related problem. Dr. Hicks was of this persuasion although he administered no test for drugs and even though he had not observed Mr. McMahan's demeanor during the period of September 13 through September 20, 1977. A letter was written from Dr. Hicks to Mr. Coalson which was dated October 10, 1977, expressing the opinion of Dr. Hicks on the question of whether or not Mr. McMahan was suffering sensorial disturbance or other physical or psychiatric phenomenon suggesting any use of any chemical at the time of the initial interview with Dr. Hicks which took place on September 26, 1977. Mr. Coalson found this letter and explanation sufficient to reinstate the Respondent in is job position and Respondent remains in that position today. After analyzing all the facts in this cause, it is uncertain whether or not Mr. McMahan was truly ill at the time of September 13 through September 20, 1977, while he was at his work station. However, it is apparent that Mr. McMahan was unfit to perform duties of his position and performed those duties at such a substandard level that he was subject to the suspension that was entered against him, and not entitled to any reinstatement until the employer's representative received Dr. Hicks' letter and accepted it for purposes of establishing the reinstatement.
Recommendation It is recommended that the appeal of the Respondent be denied and that the suspension of September 22, 1977, be upheld. DONE and ENTERED this 2nd day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1978. COPIES FURNISHED: Robert M. Eisenberg, Esquire Post Office Box 2417F Jacksonville, Florida 32231 Thomas E. Crowder, Esquire 1320 Barnett Bank Building Jacksonville, Florida 32202 Dorothy Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
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
Findings Of Fact At all times material hereto, petitioner, Mary L. Kinlaw, was employed by respondent, Department of Labor and Employment Security, Division of Workers' Compensation, Bureau of Claims, as a Word Processing System Operator, and held permanent status in the Career Service System. As a Word Processing System Operator, her duties included typing, filing, and general secretarial work. Petitioner worked a total of seven (7) hours in January 1991, and last reported for work on January 18, 1991. She has not thereafter reported for work, requested a leave of absence, or contacted the respondent. By letter of May 10, 1991, the respondent notified petitioner that: . . . you have been dismissed from your Work Processing System Operator position, effective 5:00 p.m., May 20, 1991. This action is being taken in accordance with Rule 22A-7.010(2), Florida Administrative Code (F.A.C.) and is for the offense of abandonment of position. The predicate for such action was petitioner's failure to report for work since at least February 21, 1991, a period of more than 3 consecutive work days. By letter of June 12, 1991, filed with the Department of Administration on June 17, 1991, petitioner protested the respondent's action. Petitioner did not, however, appear at hearing, and no competent proof was offered for or on her behalf to demonstrate that her failure to report for work was other than a voluntary abandonment of her position. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Administration enter a final order sustaining respondent's determination that petitioner abandoned her Word Processing System Operator position with respondent, and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1991. WILLIAM J. KENDRICK 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 September 1991.
