STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY R. BENNETT, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4188

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 15, 1985.

APPEARANCES

For Petitioner: Petitioner was neither

present nor represented.

For Respondent: Claudia Isom-Rickert, Esquire

Department of Health and Rehabilitative Services

4000 West Buffalo Avenue Tampa, Florida 33614

By letter dated November 7, 1984, Shirley R. Bennett, Petitioner, requested a hearing to contest the determination of the Department of Health and Rehabilitative Services (DHRS), Respondent, that they were processing her resignation from her position as Detention Case Worker I by reason of abandonment of the position by Petitioner. As grounds therefor Petitioner alleges that following an injury she received at work she was unable to return to her job and was calling in every day to report her total temporary disability.

At the hearing Respondent called two witnesses and one exhibit was admitted into evidence.

FINDINGS OF FACT

1. At all times here relevant Shirley R. Bennett was employed by DHRS as a Detention Care Worker I. In August 1982 Bennett was injured at work while breaking up a fight between two inmates at the Detention Center. She was placed on workers' compensation and remained off duty until the doctor treating her said she was able to return to work.

   
   

2. Petitioner remained away from her work station and called in to say she was too sick to come to work. On October 10, 1984, Jerry McDonald, Assistant

   Detention Superintendent, called Bennett and told her that for sick leave to be granted she had to bring in a certificate from a doctor. Bennett indicated she would do so. On October 11, 1984, McDona1d again called Bennett and repeated his message about her needing a doctor's certificate for sick leave to be granted. On October 16, 1984, McDonald again called Bennett about needing a doctor's certificate for sick leave to be granted and that if she remained on unauthorized absence for three consecutive days she would be terminated for having abandoned her position. At this time Bennett said she was too sick to come in. McDonald told her to mail in the doctor's certificate. No such certificate was ever received by the Respondent. October 16, 1984, was a workday for Petitioner and she was scheduled to be off duty on the 17th but to work October 19 through 22, inclusive. Petitioner failed to report for work on any of those days and never presented a doctor's certificate saying she was unable to work because of illness.

   
   

3. By letter dated October 24, 1984, sent to Petitioner by certified mail, Petitioner was notified by Respondent that her resignation by reason of abandonment was being processed and of her right to petition for review within

   20 days. Petitioner's request for review dated November 7, 1984, was timely filed.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Rule 22A-8.11(2)(d), Florida Administrative Code, provides in pertinent part:

   
   

   1. After 3 workdays of absence in any 30 day period, the agency head may require a medical certification of the employee's illness before authorizing any additional use of sick leave credits by the employee. * * *

   2. After 10 consecutive days of absence, the employee shall submit to the agency head a medical certification from the attending physician before any additional use of sick leave credits can be authorized for the employee. * * * Such medical certification must state that the employee is unable to perform the regularly assigned duties if sick leave is to be authorized by the agency head.

      
      

5. Rule 22A-7.10(2), Florida Administrative Code, provides in pertinent part:

   
   

   (a) An employee who is absent without authorized leave of absence for three consecutive workdays shall be deemed to have abandoned the position and to have resigned from the career service. An employee who separates under such circumstances shall not have the right of appeal to the Career

   Service Commission; however, any such employee

   
   

   shall have the right to petition the Department of Administration for a review of the facts in the case and a ruling as to

   whether the circumstances constitute abandonment of the position.

   
   

6. While evidence was not submitted showing when Petitioner received her injury and was placed on workers' compensation, the record is clear that Petitioner was not present at work from October 10 until she was terminated on October 24, 1984. Petitioner was at least twice notified that she needed to present medical certification before she could be granted additional sick leave and such certification was not forthcoming. Petitioner was also advised that if she remained absent from her position without authorization she would be deemed to have abandoned her position. Despite these warnings, Petitioner remained on unauthorized absence for more than three consecutive workdays.

From the foregoing it is concluded that Shirley R. Bennett remained on unauthorized absence from October 10 through October 24, 1984, and thereby abandoned her position as Detention Care Worker I with the Department of Health and Rehabilitative Services. It is

RECOMMENDED that the appeal by Shirley R. Bennett from the determination that she resigned from the Career Service by reason of abandonment of her position as Detention Care Worker I be dismissed.

ENTERED this 24th day of May, 1985, at Tallahassee, Florida.

K. N. AYERS 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 24th day of May, 1985.

COPIES FURNISHED:

Shirley R. Bennett

1205-A East 99th Avenue Tampa, Florida 33612

Claudia Isom-Rickert, Esquire Department of Health and

Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Gilda Lambert, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301

Daniel C. Brown, Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 84-004188

Orders for Case No: 84-004188