Findings Of Fact Petitioner, Basil Glinton (Glinton), was employed full time by the Respondent, Department of Health and Rehabilitative Services (Department) as a Public Assistance Specialist II. On September 14, 1984, as a result of a transfer, Glinton was scheduled to start work at the Department's Food Stamp Office, Unit 61, in Miami, Florida. At 9:15 a.m., September 14, 1984, a Friday, Glinton reported to Unit He requested and received his paycheck, and advised the acting supervisor that he had a doctor's appointment which would require his absence from the office for about one hour. Glinton did not return to the office that day. On Monday, September 17, 1984, Glinton reported to Unit 61 and worked from 8:12 a.m. to 5:00 p.m. On that date, the office supervisor, Raquel Tima, met with Glinton and spoke with him about his absence of September 14, 1984. Ms. Lima advised Glinton that she needed a doctor's statement to authorize that absence. No doctor's statement has been produced. Glinton failed to report for work the remainder of that workweek-- September 18-21, 1984. On September 21, 1984, Ms. Lima sent a warning letter, certified mail, to Glinton. The postal claim check reflects that Glinton was notified of the letter on September 24, 1984, September 29, 1984, and October 9, 1984, but failed to claim it. Glinton likewise failed to report for work the following week-- September 24-28, 1984. He did, however, appear at the office on Friday, September 28, 1984, to request his paycheck. On October 1, 1984, Glinton was personally delivered a letter dated September 28, 1984, which advised him that his absence from work since September 18, 1984 was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., he was deemed to have abandoned his position and resigned from the Career Service. The letter further advised Glinton of his right to petition the Department of administration for a review of the facts and whether they constitute abandonment. By letter dated October 4, 1984, Glinton timely petitioned the Department of Administration for review. In his letter, and at final hearing, Glinton claimed he was ill and under a doctor's care for the period of September 18-28, 1984, and that he had routinely called, or had someone else call, the office to advise them of his illness. While professing "illness" for a two-week period, Glinton failed to offer any evidence of the nature of his illness. He further failed to offer the testimony of his physician, or any other evidence supportive of his claim. While Glinton acknowledges familiarity with the Department's rule which requires that the supervisor be notified of absence due to illness, he made no attempt to contact his supervisor. The only time the office was notified of his absence was on September 19, 1984 when an unknown female telephoned and advised the switchboard operator, without explanation, that Glinton would not be coming to work on that date. Glinton's testimony that his absence from work during the period of September 18-28, 1984 was due to illness, and that he telephoned the office every day during his absence, is inherently improbable and unworthy of belief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order that: Petitioner, Basil Glinton, abandoned his position and resigned from the Career Service effective October 1, 1984. Dismisses the petition of Basil Glinton with prejudice. DONE AND ENTERED this 8th day of May, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK 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 8th day of May, 1985. COPIES FURNISHED: Dniel C. Brown, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Leonard Helfand, Esquire Department of Health and Rehabilitative Services Suite 1070, 410 N.W. 2nd Avenue Miami, Florida 33128 Robert L. McKinney, Esquire Suite 1107 Jackson Medical Tower 1500 N.W. 12th Avenue Miami, Florida 33125 Gilda Lambert, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at tee hearing, the following findings of fact are made: On or about December 5, 1969, the Petitioner, Hugh G. Purkey became employed by the State of Florida, Department of Transportation. In 1984, Petitioner held the position of Engineer II, Area Engineer and was assigned to the North Dade Maintenance Yard (NDMY). In 1983, Petitioner executed a form which acknowledged he had received a complete copy of the DOT employee handbook. The acknowledgement specified that enployees are responsible to review the handbook in detail and to request any clarification needed from a supervisor. The handbook provided the following regarding job abandonnent: After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. On or about October 23, 1984, Petitioner filed a request for a medical leave of absence. This request was based upon Petitioner's pulmonary disorder which prevented him from performing his duties with the NDMY. Petitioner was to receive pay based upon his accrued annual and/or sick leave through Novenber 6, 1984, thereafter, he was to be on leave without pay for a period of four months. This leave request was approved by the Petitioner's supervisor, Clive Taylor. Mr. Taylor was the only supervisor or employee at the NDMY who was authorized to grant a leave of absence for Petitioner. On January 28, 1985, an extension of Petitioner's leave of absence was granted by Mr. Taylor. This extension authorized two additional months of leave and specified that Petitioner would return to work no later than May 6, 1985. Prior to the leave of absence described above, Petitioner had performed his duties with the NDMY in an above satisfactory manner. Prior to May 6, 1985, Petitioner had complied with the rules and regulations regarding requests for leave. Petitioner did not return to work on May 6, 1985. Petitioner did not file a request for a leave extension. Mr. Taylor did not approve an extension of the leave beyond May 6, 1985. Petitioner was absent without authorized leave on May 6, 7, and 8, 1985. On May 10, 1985, Mr. Taylor executed a form entitled "Resignation and Exit Interview Form." This form provided, in part: "Mr. Purkey is not available for signature" and "Mr. Purkey is pursuing regular disability retirement." Petitioner did not execute the form but was advised of its content by telephone. Sometime prior to April 30, 1985, Petitioner had applied for disability retirement benefits. That request was filed with the Department of Administration, Division of Retirement and was denied based upon a determination that Petitioner was not totally and permanently disabled from rendering useful and efficient service. When that determination was made, Petitioner elected to file for regular retirement since he had accrued over ten years with the State. Thereafter, Petitioner received retirement benefits which were granted and paid retroactively from February 1, 1985. On July 9, 1986, Petitioner received a physician's statement which provided: It is my professional opinion that this patient may return to work requiring no strenuous physical activity providing that the patient continue on his medication and return for regular checkups in any office. Upon receipt of the physician's statement, Petitioner contacted the NDMY to request that he be allowed to return to work. Petitioner was advised that he had been terminated from employment in May, 1985, based upon his failure to return to work following his leave of absence. On July 29, 1986, Petitioner wrote to John C. Gocdnight, Assistant Secretary of Transportation, and requested Mr. Goodnight's assistance to allow Petitioner to return to DOT. That letter admitted that Petitioner knew his position had been filled but claimed he had been on leave. Petitioner maintained that he was "much too young to retire." The letter failed to mention that Petitioner had already been receiving retirement benefits. Petitioner listed his address subsequent to November, 1984, as Dunnellon, Florida. There is no record in Petitioner's personnel file which confirms DOT sent, and Petitioner received, a notice of his termination from employment in May, 1985. Petitioner did not request a hearing to review that termination until January, 1989.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Administration enter a final order finding that the Petitioner, Hugh G. Purkey, abandoned his position and resigned from the Career Service. DONE and ENTERED this 7th day of December, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1989. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraph 1 is accepted. The first portion of paragraph 2 is accepted; the designation of his last actual day of employment is in error and is rejected as contrary to the weight of the evidence. The date indicated, January 20, 1984, was not his last day of actual employment. According to DOT exhibit 8 (the referenced citation) that date was the last date worked. Petitioner's last date of employment would have been calculated from May 5, 1985 (the last date of his authorized leave). With regard to paragraphs 3 and 4, it is accepted that Petitioner used his accrued sick and annual leave until they were exhausted. After the paid leave was used, Petitioner applied for and received, by filing the appropriate form, an authorized leave without pay. Paragraph 5 is accepted. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as comment, argument, or recitation of testimony which does not constitute a finding of specific fact. Paragraph 11 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as contrary to the weight of the credible evidence. Paragraph 14 is rejected as vague and ambiguous. It is accepted that Petitioner filed his original leave request and that Ms. Sellers assisted him. Paragraph 15 is rejected as incomplete and contrary to the weight of the evidence. Paragraph 16 is accepted to the extent that it provides that clerks would assist persons who requested such assistance. The first three sentences of paragraph 17 are accepted; the balance of the paragraph is rejected as argument or contrary to the weight of the evidence. The first sentence of paragraph 18 is accepted. The remainder of the paragraph is rejected as irrelevant or unknown. DOT did not establish that the form was sent and received by Petitioner. Paragraph 19 is accepted. Paragraph 20 is rejected as a provision of law. The parties have not disputed that the notice is required. Paragraph 21 is accepted to the extent that DOT cannot prove that such notice was provided to Petitioner. Paragraph 22 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 23 is rejected as irrelevant since Petitioner did not request that his medical leave be continued as required by the rule. Paragraph 24 is rejected as irrelevant. Further, the authorization to return was not without limitation. Paragraph 25 is rejected as contrary to the weight of the credible evidence. Paragraph 26 is rejected as irrelevant. Paragraph 27 is rejected as irrelevant. With regard to the letter to Goodnight, Petitioner admitted in that letter that he knew his position had been filled. Paragraph 28 is rejected as irrelevant. Paragraph 29 is accepted but is irrelevant. Paragraph 30 is accepted. Paragraph 31 is rejected as irrelevant or not covered by the record. With regard to paragraph 32, it is accepted that Petitioner's request for disability retirement was denied and that he ultimately elected to seek early retirement; otherwise, it is rejected as hearsay uncorroborated by direct evidence. Paragraph 33 is accepted. Paragraph 34 is rejected as irrelevant or contrary to the credible evidence. Paragraph 35 is rejected as irrelevant. Paragraph 36 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 37 is rejected as irrelevant. Paragraph 38 is rejected as comment, argument, or recitation of testimony. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is rejected as contrary to the weight of the credible evidence. Petitioner's section described as "Analysis" has not been considered findings of fact. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY DOT: 1. Paragraphs 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 24, and 25 are accepted. Paragraph 2 is rejected as Irrelevant. Paragraph 4 is rejected as irrelevant. Paragraph 19 is rejected as irrelevant. Paragraph 20 is accepted but is unnecessary. Paragraph 23 is rejected as unsupported by the record. DOT's section described as "Analysis" has not been considered findings of fact COPIES FURNISHED: Paul H. Field WICKER, SMITH, BLOMQVIST, TUTAN, O'HARA, McCOY, GRAHAM & LANE Grove Plaza Building, 5th Floor 2900 Middle Street Miami, Florida 33133 Charles Gardner Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Acting Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether Petitioner received a salary overpayment for the pay period ending November 9, 2000, for which the State of Florida is entitled to be reimbursed.
Findings Of Fact Petitioner was employed by the State of Florida, Department of Juvenile Justice (Respondent) as a Group Treatment Leader, Class Code 5721, for a four-month period ending on November 6, 2000. This is a career service position. Petitioner resigned from the Respondent on November 6, 2000, due to significant personal problems associated with his marriage. Petitioner's resignation was accepted by his supervisor on the same day. Petitioner was not a permanent career service employee on the date of his resignation. Petitioner received a final payment for work performed for the period October 27, 2000 through November 5, 2000, on approximately November 20, 2001. Petitioner was concerned about the possibility of overpayment and contacted his local personnel office to inquire about it. Petitioner was told by his office personnel officer not to be concerned about it. At that time, Petitioner believed the matter to be resolved and no longer an issue. By letter dated May 16, 2001, Petitioner received correspondence from Respondent alleging that he was overpaid and seeking reimbursement in the amount of $233.53 for 21.0 hours of earned annual leave that was not compensable. The notification was not prompt, but is was made in a timely manner. On May 21, 2001, Petitioner requested a formal hearing before the DOAH. On June 26, 2001, Respondent notified Petitioner that a further audit revealed that he was entitled to be paid for 8.0 hours of special compensation leave. Applying these hours to the overpayment left a balance of 13.0 hours, equaling $144.57 due. While this matter was pending before DOAH, that amount was garnished from Petitioner's wages by the Comptroller, without prior notification. Petitioner had 21.0 hours of earned annual leave while employed by Respondent. Due to excessive working hours and the critical nature of the position with Respondent, Petitioner had very limited opportunities to use his leave during the time he was employed by Respondent. Due to the short time that he was employed by Respondent, Petitioner's earned leave was not transferable to the Department of Heath, his current employer. Petitioner seeks to withdraw his original letter of resignation and substitute a new letter, to be effective November 20, 2000. This would allow him to use the annual leave and special compensatory leave to account for the period in question and cancel the garnishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary enter a final order authorizing the garnishment of Petitioner's wages in the amount of $144.57 for salary overpayment for the pay period ending November 9, 2000. DONE AND ENTERED this 1st day of November, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of November, 2001. COPIES FURNISHED: Richard D. Davison, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Sheldon S. Scrivener 5253 Jamaica Road Cocoa, Florida 32927-9058 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue in this case is whether Respondent’s employment should be suspended and terminated for the reasons set forth in the Amended Petition for Involuntary Resignation.
Findings Of Fact Respondent began her employment with Petitioner as a substitute teacher in November of 1997, and was later hired as a regular teacher in January of 2000. Respondent held a temporary teaching certificate which expired after the time period at issue in this case. Respondent was first assigned to teach at Santaluces High School and was later assigned to Bear Lakes Middle School, where she taught geography. On April 12, 2002, Respondent was injured in the line of duty while attempting to assist another teacher control unruly students. In that incident Respondent fell and injured both her back and her knee. Respondent was authorized by Petitioner’s workers’ compensation administrators to treat with both Dr. Wexler and Dr. Lichtblau for her injuries.1 Following the accident on April 12, 2002, Respondent continued to work at Bear Lakes Middle School until on or about November 11, 2002, when she was placed on a light duty assignment at another location. Respondent had been placed on light duty by Dr. Wexler because he felt it was medically necessary. Thereafter, Respondent was given several light-duty assignments to accommodate her physician-imposed work restrictions, including assignments to Conniston Middle School, Risk Management, JFK Middle School, Gold Coast Community, and the District’s substitute office. Respondent was placed on light-duty assignments by the Palm Beach County School Board (School Board) for a total of more than ten months. The light-duty assignments provided by the School Board are temporary assignments that are made available in lieu of workers’ compensation payments to employees who are able to perform light duty. They are not offered for an indefinite period of time, nor are they offered as a permanent employment option. Following some confused communications about Respondent’s certification status and some further confused communications as to whether Respondent had reached maximum medical improvement and could return to a seven-and-a-half hour per day classroom teacher position, Respondent was offered a job teaching full-time (seven-and-a-half hours per day) at Jeaga Middle School. Respondent was supposed to begin teaching at Jeaga Middle School in September of 2003. On September 10, 2003, Dr. Wexler, one of Respondent’s treating physicians wrote that he agreed with another physician’s assessment that Respondent had reached maximum medical improvement and could work eight hours per day with certain restrictions that could be accommodated in a classroom teaching setting. Later that month, Dr. Wexler explained that there had been some confusion on September 10, 2003, and that he was of the view that Respondent had not yet reached maximum medical improvement and that Respondent’s work hours should be restricted to four hours per day. Respondent declined the offer of the full-time teaching position at Jeaga Middle School and requested that the School Board offer further light-duty work assignments of no more than four hours per day. The School Board promptly informed Respondent that she would not be offered any further light-duty assignments and that if she was not going to accept the full- time position at Jeaga Middle School, she should apply for leave without pay in order to avoid being terminated by the School Board. At an earlier time following her April 12, 2002, injury, Respondent was on leave without pay for a period of time. During that period she received workers’ compensation benefits in lieu of wages or salary. During that period of time Respondent was dissatisfied with the workers’ compensation benefits she received. Because of that prior negative experience, Respondent did not want to again request leave without pay, which would require her to rely on workers’ compensation benefits until she reached maximum medical improvement. Respondent did not accept the full-time position at Jeaga Middle School and did not apply for leave without pay. Respondent did not apply for any other regular employment opportunities with the School Board. Respondent did continue to request assignment to a light-duty position for four hours per day. The School Board advised Respondent on several occasions that she would not be assigned to any further light-duty positions and that it would be in her own best interest to apply for leave without pay to avoid termination from the School Board. As a teacher employed by the School Board, Respondent is a member of a collective bargaining unit represented by the Classroom Teachers Association (CTA) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School Board and the CTA (CTA Contract). The subject of unpaid leaves is addressed at page 55 of the CTA Contract, which includes the following language: SECTION C - UNPAID LEAVES: GENERAL PROVISIONS All absences of employees from duty shall be covered by leave applications which are duly authorized, a copy of which shall be provided employees upon request. Except for short-term leaves of absence, and intermittent political leave, unpaid leaves shall be timed such that the employee returns at the beginning of a new grading period. Except for extenuating circumstances, Sick Leave without Pay for Personal Illness or Illness/death of a Family Member, for more than ten (10) days, also shall be timed so that the employee returns at the beginning of a grading period. An employee taking an approved unpaid leave shall retain the same contractual and salary credit status as he/she had upon taking such leave and shall be returned to the same school, and within certification, to the same assignment he/she held prior to taking the leave, if said leave is for a duration of twelve (12) months or less. However, an employee while on an unpaid leave shall be subject to the Excessing Procedure and the Lay-Off/Call-Back Procedure of this Agreement the same as if they were not on leave. If these procedures become operative and affect the employee on leave, he/she may not be returned to the same position he/she held prior to taking leave. Likewise, employees while on an unpaid leave maintain their rights to apply for transfers and/or reassignments as provided by this Agreement. * * * SECTION D - UNPAID LEAVES: SPECIFIC PROVISIONS Short Term Leave of Absence - Any employee desiring short term leave of absence shall make written application for such leave to the Principal or immediate supervisor. Except in emergency situation, such applications shall be approved in advance. Leave for emergencies may be deemed to be granted in advance, if prompt report is made to the proper authority. The first five (5) requested days of short term leave, whether covered by one (1) or more than one (1) request, will be approved. Requests for short term leave thereafter, regardless of length, will be granted or denied by the District in its discretion. Applications for more than five (5) working days will require that a reason be given and shall be subject to approval by the Superintendent. Employees shall not be gainfully employed during normal working hours while on such leave. Long Term Leave of Absence - A long term leave of absence is permission granted by the Board, at the District’s discretion, for an employee to be absent from his/her duties for specified periods of time with the right of returning to duty on expiration of the leave. Leave shall be officially granted in advance by the District and shall be used for the purpose set forth in the leave application. Such long-term unpaid leave, when granted, will be for the remainder of the school year, unless otherwise approved with the initial leave request. In addition, up to one (1) additional year of leave shall be granted upon receipt of a written request from the employee, unless the employee has not been reappointed in keeping with other provisions of the Agreement for the next school year. Such extension of long-term leave shall be timed such that the employee returns at the beginning of a new grading period. Once an employee has exhausted the leave privileges under this subsection (Long-term Leaves), the employee shall be required to return to duty for a full year before being eligible for another long-term unpaid leave. As a School Board employee, Respondent is subject to applicable School Board rules and regulations, including School Board Policy 3.80 and School Board Directive 3.27. School Board Policy 3.80 addresses unpaid leaves when an employee’s sickness has extended beyond all compensable leave. School Board Directive 3.27 addresses the general topic of separation from employment. Under the caption “Suspension/Termination” the directive provides: 3. The Principal/Department Head may recommend to the Assistant Superintendent for Personnel Relations disciplinary action against an employee if the employee commits one or more of the following offenses, including but not limited to: * * * b. Willful absence from duty without leave in violation of Section 231.44, Florida Statutes (now § 1012.67, Fla. Stat.). * * * e. Incompetent to perform regular work duties. Incompetency is defined as incapacity to perform due to lack of emotional stability or physical ability; or lack of adequate command of the designated area of work. Employees are also incompetent when they repeatedly fail to perform duties prescribed by law and by this district. [2] Respondent was personally advised on numerous occasions that if she did not apply for a leave of absence, she would be absent without approved leave and would be subject to termination. Respondent was absent without authorization.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent’s employment. DONE AND ENTERED this 20th day of April, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 20th day of April, 2005.
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
Findings Of Fact The Petitioner, William Thomas, was employed at times pertinent hereto as a permanent employee at the Duval Regional Juvenile Detention Center (Detention Center) operated by the Department of Health and Rehabilitative Services. His title was Detention Case Worker I. During the two week period beginning June 13, 1988, the time period relevant to this proceeding, he was working a so called "asymmetric workweek." This is a modified work schedule such that the Petitioner was working two work days on the weekends consisting of two sixteen hour shifts, one for each day, for a total of thirty-two hours of work scheduled to be performed by the Petitioner on June 18 and 19, 1988. Prior to the problem which arose in this situation, the Petitioner was also scheduled to work on Tuesday, June 21, but not on Monday, June 20. The Petitioner's immediate work supervisor was Wilson Reynolds, Jr., who testified on Petitioner's behalf. In addition to the Petitioner, Mr. Reynolds supervised twelve other employees who were working the asymmetric work week. This work week had been approved by the Department of Administration approximately two years previously, in 1986, at least as to this juvenile detention center. Pursuant to HRS rules, Mr. Wilson had authority to grant emergency leave when employees requested as, for instance, when an employee phoned in such a request when he was unable to come to work due to some emergency having arisen. Mr. Wilson also had authority to schedule employees to work shifts outside of their routine work schedule if the need arose. Mr. Wilson's employees, for instance, had been scheduled to work some extra duty in order to perform the duties of other employees who had to be absent from their normal work stations to attend training sessions. According to agency policy, in Mr. Reynolds' absence, the supervisor immediately on duty could grant tentative approval of emergency leave requests. In the event the supervisor on duty was unable to approve or deny the leave request, Mr. Reynolds had authority to approve leave requests "after the fact." It developed that some time during the week of June 13, the Petitioner became incarcerated. The Petitioner was unable to obtain access to a telephone for several days, and so, at his behest, his wife called the "Master Control" office at the detention center on June 16, 1988, to advise the Petitioner's employer that he would not be able to report to work, as scheduled, due to emergency reasons. On June 18, 1988, she again called that same "Master Control" office to advise that the Petitioner would be away from work until June 30, 1988, due to an emergency beyond his control. The Petitioner, after his last duty shift which he had performed, was not scheduled to work until June 18, 1988. He was then scheduled to work two eight hour shifts on June 18 and two eight hour shifts on June 19, which was a Sunday. On Monday, he was not scheduled to work. Then on June 21, Tuesday, he was scheduled to work an eight hour shift. Mrs. Thomas' reason for calling the employer's office was to put the employer on notice of his unavoidable absence from work. She was not aware of the rule requiring her to speak with the immediate supervisor. The immediate supervisor was not on duty on the day that she called in any event. She did speak with a staff member, a Mrs. Wavel Johnson, with whom she was acquainted, who advised her to have the Petitioner himself call in and request approval for the absences. Mrs. Thomas then revealed that her husband was incarcerated and would be incarcerated until June 30, 1988, which was why he was unable to call. This information was then conveyed to Mr. Reynolds, the Petitioner's immediate supervisor on June 19, 1988 at the beginning of the shift. On that day, during the morning, the Petitioner called and spoke with Mr. Reynolds, his supervisor. The Petitioner advised him of his incarceration and his anticipated release date of June 30, 1988, requesting that he use his accrued annual leave to cover this absence. Mr. Reynolds orally agreed to the request and approved it, pending the Petitioner's return to work and submittal of proof of the reason for the stated emergency basis for absence. Mr. Reynolds considered Mr. Thomas' incarceration as a sufficient justification for granting emergency leave. In the log book, Mr. Reynolds had a staff member, Mrs. Johnson, make a note that Mr. Thomas had called in requesting leave and that he "had no problem" granting emergency leave. He testified that he intended that notation to mean that he had approved the leave request. During Mr. Reynold's conversation with the Petitioner, he advised Petitioner that he would schedule him off duty for Tuesday, June 21, 1988, because he already had sufficient staff who would be present for duty to cover his assignment and would not need the Petitioner. Thus, for the eight hour shift he was originally scheduled to work on June 21, 1988, the Petitioner was not absent without approval either. The roster was changed so that he was not even scheduled to work that day. Andrea Cash is the superintendent of the Duval Regional Detention Center. On or about June 20, 1988, she read Mrs. Johnson's entry in the log book and concluded that Mr. Reynolds had not granted the necessary leave approval to cover the Petitioner's absence. Ms. Cash interpreted that entry to be that the leave approval was merely pending and that Mr. Reynolds had "no problem" with granting it. Ms. Cash, however, did not confer with Mr. Reynolds or Mrs. Johnson about what the entry meant nor seek any clarification as to the meaning of the entry or Mr. Reynolds' intentions with regard to the leave approval. Ms. Cash concluded that the leave had neither been approved nor denied, but did not communicate that position to the Petitioner. Instead, on June 23, 1988, she wrote the Petitioner advising him of his alleged job abandonment due to his absences of June 18th and 19th. She never discussed her plans to terminate the Petitioner, for alleged abandonment, with Mr. Reynolds. The approval granted during June or July 1986 to the Detention Center to implement an asymmetric work week was in accordance with Rule 22A-8.003(1), Florida Administrative Code. That rule provides that eight hours of work shall constitute a work day for all full-time employees, unless a different work day is specifically approved by the Secretary of Administration. The asymmetric work day had been so approved and implemented at times pertinent hereto. The Petitioner normally worked two 16 hour work days from 7 a.m. to 11 p.m. on Saturday and on Sunday plus one other eight hour work day. Thus, three calendar work days constituted Petitioner's normal work week of 40 hours. The Detention Center has a "Facility Operating Procedure on Leave and Attendance" which provides that an employee must contact the supervisor on duty in advance of the beginning of his shift and advise that supervisor of the nature of any emergency concerning which he asks for leave. The duty supervisor then has authority to tentatively approve or deny the request. The employee must personally speak with the supervisor who is on duty. Thereafter, on the first day the employee reports back to work an "HRS Form 84" must be completed and the immediate supervisor must provide final approval if the annual leave is to be approved due to the stated emergency. The procedure does not provide that the employee's supervisor is to discuss the request with higher levels of supervision prior to granting approval for use of annual leave to cover such an absence. This procedure and policy does not require that higher level supervisors review the request and give final approval or denial. In other words, the employee in this situation is using his own annual leave to make up for his absence for emergency reasons and the facility's policy gives the immediate supervisor himself or herself the authority to approve it or deny it without recourse to higher supervisory authority. The Petitioner's wife contacted the person or office she believed was appropriate to report the Petitioner's impending absence and to explain that it was for emergency reasons, not knowing that she should speak to his immediate supervisor. In any event, before the Petitioner had missed three consecutive days of work he himself contacted his immediate supervisor, Mr. Reynolds, during the morning of June 19, 1988, and obtained Mr. Reynolds' verbal approval for absence due to emergency reasons, to be "covered" by Petitioner's annual leave. Mr. Reynolds did not tell the Petitioner that his request did not comply with the Facility Operating Procedure on Leave and Attendance. Mr. Reynolds, rather, accepted the Petitioner's justification for the emergency leave and approved it.
Recommendation Having considered the foregoing findings of fact and 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 determining that the circumstances presented in this case, found and discussed above, did not constitute abandonment of position, as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code, and directing that the Petitioner be reinstated to his former position with backpay and reimbursement of related benefits. DONE and ORDERED this 20th day of March, 1989, in Tallahassee, 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 20th day of March, 1989. APPENDIX Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Respondent's Proposed Findings of Fact Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent immaterial. Accepted, but not in itself dispositive of material issues presented. Accepted, but not in itself dispositive of material issues presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as contrary to the preponderant weight of the evidence. COPIES FURNISHED: Linoria Anthony, Esquire 345 South Magnolia Drive & Suite F - 21 Tallahassee, FL 32301 Scott D. Leemis, Esquire P. O. Box 2417 Jacksonville, FL 32231-0083 Gregory L. Coler, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact At all times material, Petitioner was employed by the Department of Corrections as a full-time career service employee. On July 13, 1984, he was ranked as a Correctional Officer I at Florida State Prison (FSP). On March 2, 1990, Petitioner had been placed on workers' compensation due to a back injury. On Thursday, April 5, 1990, Dr. W. David Sikes of the Bradford Chiropractic Center signed a medical release permitting Petitioner to return to light duty on Monday, April 9, 1990. Dr. Sikes was apparently the authorized treating physician to whom the agency had currently obligated itself pursuant to Chapter 440 F.S. [The Florida Workers' Compensation Act]. A previous physician had released Petitioner for full-duty work on April 3, 1990. Petitioner was present in the office of Personnel Manager Marion Bronson on Friday, April 6, 1990. At that time, Mr. Bronson told Petitioner to report for work on the first shift (8:00 a.m. to 5:00 p.m.) on Monday, April 9, 1990. This meant Petitioner would be doing mail room duty during the day instead of his regular duties on his regular shift of midnight to 8:00 a.m. Petitioner told Mr. Bronson he could not work the first shift due to his needing to be home to take of his invalid wife. To this, Mr. Bronson replied that the first shift was the only light duty available. On Friday, April 6, 1990 Petitioner did not refuse to come in to work the first shift on Monday, April 9, and he did not tell Mr. Bronson that he was already signed out on annual leave for that date. Nonetheless, Mr. Bronson was left with the impression at the end of their meeting that Petitioner would not come back to light-duty work on Monday. Petitioner did not report for work on the first shift on April 9, 10, or 11, 1990 (Monday, Tuesday and Wednesday). On Wednesday, April 11, 1990, Mr. Bronson mailed Petitioner a letter that read, in pertinent part: You have been carried in unauthorized leave without pay status since April 9, 1990. You were also carried on unauthorized leave without pay on April 3, 1990. You are hereby instructed to return to duty at 8:00 a.m. the day after you receive this letter. If you do not return to duty on that date it will be deemed that you have abandoned your position at Florida State Prison and you will be dismissed. In the past, the FSP personnel office usually made further efforts to contact missing employees after such a letter had been sent, but no such attempts were made in this instance. Normally, FSP gives employees an opportunity to call in and rectify absentee problems but deems it abandonment if the employee does not respond. At no time subsequent to April 6, 1990 did Petitioner contact anyone at FSP regarding his absence. Petitioner did not actually receive the April 11 letter until Friday, April 13. Petitioner did not report for work on Saturday, April 14, Sunday, April 15, or Monday, April 16. Saturday would have been a regular workday for Petitioner. However, Petitioner's usual days off were Sunday and Monday, and nothing had been said by Mr. Bronson about altering Petitioner's workdays. On Monday, April 16, Mr. Bronson mailed Petitioner a letter that read, in pertinent part: This is to inform you that in accordance with Section 22A-7.010(2), F.A.C., you have been deemed to have abandoned your position as Correctional Officer I and resigned from the Career Service System effective April 14, 1990. A copy of Section 22A-7.010(2) is enclosed for your information. You have been absent from duty for at least three consecutive workdays without authorized leave as follows: April 10, 11, and 12, 1990. Please be advised that you have been dropped from the payroll effective the close of business April 14, 1990. Unbeknownst to Mr. Bronson, Petitioner had exercised preapproved annual leave for the period of April 10-14, 1990. None of Petitioner's superiors advised Mr. Bronson of this fact. There was no notation to this effect in Petitioner's personnel file in Mr. Bronson's office. It was Mr. Bronson's testimony that it was better personnel management and he would have preferred to have Petitioner drawing annual leave during this period than to be paying him full pay for makeshift light duty. If Petitioner had requested annual leave on April 6, 1990, Mr. Bronson would have granted it. As of April 14, 1990, Petitioner had "banked" 119.75 hours of annual leave time which would have been sufficient to cover his April 10-14, 1990 vacation or "no show" days. Additionally, he also had available 26.5 hours of sick leave but this sick leave was subject to certain deductions and adjustments which had allowed the agency to keep Petitioner on at full pay the previous week while technically he was only eligible for a reduced amount based on workers' compensation. In accord with standard FSP policy, Petitioner had previously submitted an annual leave request form on October 16, 1989 to request leave for the week of April 10 through April 14, 1990. This form had been approved by his immediate superior, who at that time was his shift supervisor, Officer Gaskin. Officer Gaskin was the correct superior to make such approval. Mr. Bronson has nothing to do with the approval of leave under such circumstances. Harry Tison, who became Petitioner's shift supervisor in April 1990 while Petitioner was still out on workers' compensation leave, was not aware of Petitioner's preapproved annual leave until Mr. Bronson's office began making inquiries after the April 16 letter, but at that time, Tison was able to refer to a leave calendar posted in his area which showed that Petitioner was expected to be out on annual leave on those days. From that information, Officer Tison, by reason of his familiarity with the FSP system and hierarchy, could infer that Petitioner's leave had been approved by FSP's highest command figure, "the Colonel." Some witnesses alluded to FSP policy that even preapproved annual leave requests constituted only tentative approval unless the employee checked with his supervisor a week before actually exercising his leave so as to be sure that the preapproved leave had not been revoked due to an employee crunch, but there is no such rule or printed policy of the Department of Corrections or FSP, and the evidence is insufficient to establish such a vague policy as uniform or binding on Petitioner. Also, in this instance, the week before, Petitioner was away from work most of that week on workers' compensation disability, and there is no evidence of any employee crunch which would have altered the prior annual leave approval.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order finding that Petitioner has not abandoned his position and returning him to the appropriate position with back pay and emoluments, subject to any appropriate setoffs under the Workers' Compensation Act and any mitigation from other employment. DONE and ENTERED this 19th day of August, 1990, at Tallahassee, Florida. ELLA JANE P. 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 19th day of August, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Petitioner has filed only a "Final Argument" and that is essentially legal argument and proposed conclusions of law as opposed to proposed findings of fact which are entitled to a ruling pursuant to Section 120.59(2) F.S. Moreover, the format does not lend itself to intelligible rulings since no sentence is numbered. Respondent's PFOF: 1-6 Accepted. Accepted except for the last sentence, which does not comport with the testimony heard. Accepted. Rejected in FOF 13, which reflects the greater weight of the credible evidence. Accepted but subordinate. - 15 Accepted. COPIES FURNISHED: Perri M. King Assistant General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Rodney W. Smith, Esquire Gloria W. Fletcher, Esquire 515 North Main Street, Suite 300 Post Office Box 1208 Gainesville, Florida 32602 William A. Frieder, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether, under the facts and circumstances of this case, petitioner is deemed to have abandoned his position and resigned from the Career Service.
Findings Of Fact Mr. Willie L. Claridy was an employee of the Department of Transportation for 2 or 3 years and was under the immediate supervision of Daniel E. Skinner at the Sarasota Maintenance Office for approximately a year, including March and early April of 1984. On or about Monday, March 26, 1984, while in the outside shop area at his place of employment, Mr. Claridy mentioned taking a vacation to some fellow employees. He said he was going home to a family reunion. The employees moved into the office area, and the conversation continued. Mr. Skinner, who was petitioner's supervisor, Mr. Campbell, Mr. Claridy, and two others were present in the office. During the conversation in the office, Mr. Claridy stated that he was going to take a vacation; however, he never specifically asked for leave, he was not told that he could have leave, and no specific dates were mentioned. 1/ Although Mr. Skinner could not recall the discussion regarding Mr. Claridy's vacation, he admitted that it could have taken place. However, Mr. Claridy never signed a leave slip requesting leave, and Mr. Skinner never signed a leave slip approving leave. Nevertheless, Mr. Claridy did not report for work on April 2nd, 3rd, 4th, or 5th, 1984, and did not contact his office during that time. The Employee Handbook, received by Mr. Claridy on April 20, 1983, clearly states that an employee must obtain the approval of his supervisor before taking leave. Neither the handbook nor the memorandum to employees of January 1982 states that prior approval must be in writing, although the language in the handbook implies that it should be. However, Mr. Claridy was fully aware of the procedure that he needed to follow in requesting leave. On two earlier occasions when Mr. Claridy had wanted time off he had submitted leave slips and received approval from his supervisor prior to his absences from work. Mr. Claridy's stated reason for not submitting a leave slip in this case in advance of his absence is neither accurate nor credible. He testified that he thought he might get called back to work during the course of his leave time due to a shortage of mechanics, and, if this occurred and he had submitted the leave slip, he would not have gotten paid for his time. 2/ However, the evidence at the hearing indicated that Mr. Claridy did not plan to be and was not in town during his absence from work, and therefore could not have been called into work. 3/ Further, Mr. Claridy stated that they might need him because they were short of help but also testified that "[w]e were caught up with all our work." Finally Mr. Claridy's return to work during a period of time when he was on authorized leave would not have adversely affected his pay or his annual leave time, and Mr. Claridy would have discovered this had he made any inquiries. Mr. Skinner did not approve Mr. Claridy's leave time nor did he inform Mr. Claridy that he could submit a leave slip after his vacation. Consequently Mr. Claridy's absence from work on April 2nd, 3rd, 4th, and 5th was unauthorized. Mr. Claridy had received the Employee Handbook and the memorandum of January 1982 which informed him that three consecutive absences without authorized leave would result in termination of employment. Mr. Claridy was properly informed by certified letter dated April 5, 1984, that having failed to report for work during the period in question and having failed to take action to notify his supervisor of the reasons for the absence he was deemed to have abandoned his position and resigned from the Career Service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Department of Transportation in deeming the petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action. DONE and ENTERED this 18th day of December, 1985, in Tallahassee, Leon County Florida. DIANE A. GRUBBS 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 18th day of December, 1985.
The Issue Whether the Petitioner received a salary overpayment from the Respondent for leave usage to which she was not entitled, as set forth in amended correspondence dated October 2, 2009, and, if so, the amount of any overpayment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Ms. Anderson was employed by the Department as a full- time Career Service employee until her separation on August 11, 2009. She had one year and four months' service with the State of Florida. As an employee of the Department, Ms. Anderson was paid biweekly. Based on her years of service, Ms. Anderson accrued four hours of annual leave and four hours of sick leave each biweekly pay period. Ms. Anderson used the People First System to complete her timesheets, request approval of leave, and review her leave balances. At issue is the amount of annual and sick leave used by Ms. Anderson during the pay period beginning February 6, 2009 and ending February 19, 2009. Ms. Anderson entered her time in the computerized People First timesheet as follows: February 6, 2009 8 hours' worked February 9, 2009 8 hours' sick leave February 10, 2009 8 hours' sick leave February 11, 2009 3.25 hours' sick leave 4.75 hours' annual leave February 12, 2009 8 hours' personal holiday February 13, 2009 8 hours' annual leave February 16, 2009 7.25 hours' annual leave February 17, 2009 8 hours' worked February 18, 2009 8.75 hours' worked February 19, 2009 4 hours' sick leave 4 hours' annual leave The Pay Period Overview in the People First System for the pertinent time period reflected the following: Beginning balance 2/06/09: 0 hours' annual leave 0 hours' sick leave 0 hours' personal holiday Accrual 2/19/09: 4 hours' annual leave 4 hours' sick leave 0 hours' personal holiday Used N/A : (24.00) hours' annual leave (23.25) hours' sick leave 0 hours' personal holiday Ending Balance 2/19/09: 0 hours' annual leave 0 hours' sick leave 0 hours' personal holiday The Department's Policies and Procedures for Attendance and Leave provides in pertinent part: III. Standards and Procedures * * * Annual Leave Method of Earning Annual Leave * * * Bureau of Personnel 1. Annual leave earned during any period shall be credited to the employee on the last day of that pay period or, in the case of separation, on the last day the employee is on the payroll. * * * Use of Earned Annual Leave Employee 1. Use of annual leave shall not be authorized prior to the time it is earned and credited and shall only be used with the prior approval of the proper authority. * * * Sick Leave Method of Earning Sick Leave * * * Employee * * * 4. Sick leave earned during any pay period shall be credited to the employee on the last day of that pay period, or in the case of separation, on the last day the employee is on the payroll. * * * Use of Earned Sick Leave Employee 1. Use of sick leave shall not be authorized prior to the time it is earned and credited to the employee and shall only be used with the approval of the proper authority. The Department keeps an official record of an employee's leave balances and accruals for each pay period, and it conducts audits of an employee's leave upon separation. The Department performed an audit of Ms. Anderson's leave and created an Employee Leave Record setting out annual and sick leave earned and used by Ms. Anderson up to her date of separation in August 2009. The audit revealed that Ms. Anderson had 20 hours of annual leave and 19.25 of sick leave available as of January 6, 2009, and that she accrued 4 hours of annual leave and 4 hours of sick leave on February 19, 2009, which could be used beginning February 20, 2009. As shown on the People's First timesheet prepared by Ms. Anderson and set out above, Ms. Anderson used 24 hours of annual leave and 23.25 hours of sick leave during the pay period beginning February 6, 2009, and ending February 19, 2009. Ms. Anderson, therefore, used four hours of annual leave and four hours of sick leave to which she was not entitled during the pay period extending from February 6, 2009, to February 19, 2009, and she was paid for these hours in the salary warrant issued February 27, 2009. In calculating the amount of the salary overpayment to Ms. Anderson, the Department made allowance for the one hour's annual leave balance Ms. Anderson had when she separated from the Department. The Department, therefore, calculated the salary overpayment based on seven non-compensable hours, and the balance owed by Ms. Anderson to the Department for the salary overpayment is $66.65.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order requiring Lillian Anderson to remit to the Department of Juvenile Justice the amount of $66.65. DONE AND ENTERED this 19th day of February, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2010. COPIES FURNISHED: Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399 Lillian Anderson 3617 Carambola Circle North Coconut, Florida 33066 Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether the Petitioner abandoned his position as a state employee.
Findings Of Fact At all times pertinent to the issue of abandonment in these proceedings, Petitioner William Grimsley was a Career Service Employee, employed by the Department of Health and Rehabilitative Services at Fort Myers, Florida, as a Public Assistance Specialist I. On January 4, 1989, the Petitioner learned that his father's brother had died in Georgia. Petitioner Grimsley requested one day of authorized leave from his supervisor in order to drive his father to the funeral in Colquitt, Georgia. The Petitioner's father was unable to drive himself to Georgia because of his heart condition, and the extreme stress he was under due to the fact that his wife's two children were in critical condition in Shand's hospital in Gainesville, Florida, during this time period. The Petitioner's father had recently suffered a heart attack, and was under doctor's orders not to drive alone for extended periods of time. When the Petitioner requested one day's leave for January 5, 1989, he anticipated that he would be able to return to work on January 9, 1989. The Petitioner was on a four-day work week, and the one day's leave gave him the opportunity to accomplish his task within a four-day time period. After the Petitioner and his father arrived in Georgia, they learned that there had been two other deaths in the family. On Saturday, January 7, 1989, the Petitioner attended his cousin's funeral. On Sunday, January 8, 1989, the Petitioner attended his uncle's funeral. On Monday, January 9, 1989, he attended his great aunt's funeral. As the family lives in a rural and impoverished area in Georgia, the Petitioner did not have access to a telephone until he drove into Bainbridge, Georgia, on January 9, 1989. The Petitioner was without money during his attempts to telephone his office from Bainbridge, Georgia. According to Petitioner, his money was stolen from his wallet by one of his deceased uncle's children during the funeral services. The Petitioner did not tell his father of the incident due to the current tension between his deceased uncle's children and the uncle's widow regarding the disposition of life insurance proceeds. The Petitioner's father was under enough stress, and the Petitioner believed he could contact his office without having to spend money. The Petitioner's attempt to charge the call to his home phone was unsuccessful because there was no one at his home to verify that he was authorized to charge calls to that telephone number. The Petitioner's attempt to place a collect call to his employer was unsuccessful because the Department refused to accept the collect call placed by the Petitioner. The Petitioner then placed a collect call to his mother's home in Fort Myers, Florida. Once his call was accepted, the Petitioner asked to speak to his sister, Iris Hill. Ms. Hill was instructed to contact the Petitioner's supervisor to inform her of the situation in Georgia. The Petitioner had to attend three funerals as opposed to one funeral, and his uncle's widow was in need of his father's assistance. No time frame was given to the Petitioner's sister regarding his anticipated return. His sister assured him that she would contact his supervisor to relay his message. The Petitioner's sister attempted to contact his supervisor by telephone several times, as she had been instructed. However, she was unsuccessful, and did not make contact until after her brother had returned to work on January 12, 1989. During her conversation with the supervisor, Petitioner's sister, Miss Hill, was surprised to learn that the Petitioner had returned to work that morning after driving from Georgia earlier that day. Upon his return to work, the Petitioner was informed that a Notice of Abandonment had been filed, and that he had been separated from his employment with the Department due to his absence without authorized leave for three consecutive work days. The Petitioner did not intend to abandon his position when he remained in Georgia for three additional days in order to assist his father in family matters. The Petitioner reasonably believed his supervisor had been informed of the reasons for his absence on Monday, January 9, 1989, and that he would return to work as soon as possible.
Recommendation Based upon the evidence, it is RECOMMENDED: That the Secretary of the Department of Administration issue a Final Order that Petitioner did not abandon his position in the Career Service System. That the Petitioner be reinstated to his position as a Public Assistance Specialist I with all rights and privileges attendant to that position before the dismissal date of January 11, 1989, and subsequent to that date. DONE and ENTERED this 9th day of August, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1183 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2 and #3. Accepted. See HO #2. Rejected. Irrelevant. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #5. Accepted. See HO #6 and #7 Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #9. Accepted. See HO #10. Accepted. Accepted. See HO #10. Accepted. See HO #10. Accepted. See HO #10. Accepted. See HO #11. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Improper summary. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #2. Accepted. See HO #3 and #4. Accepted. See HO #5, #6 and #8. Accepted. See HO #9 and #10. Accepted. Accepted. Accepted. Accepted that Petitioner arrived at work on January 12, 1989. The rest of paragraph 8 is rejected as improper summary. Rejected. Witness incompetent to make legal conclusion. Rejected. Irrelevant. COPIES FURNISHED: James A. Tucker, Esquire Florida Rural Legal Services 2209 Euclid Avenue Fort Myers, Florida 33901 Anthony N. DeLuccia, Jr., Esquire District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Andrew J. McMullian General Counsel Interim Secretary Department of Health and Department of Administration Rehabilitative Services 435 Carlton Building 1323 Winewood Boulevard Tallahassee, Florida Tallahassee, Florida 32399-0700 32399-1550 =================================================================
