STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANET TRUETT, )

)

Petitioner, )

)

v. ) CASE NO. 85-2470

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, and ) DEPARTMENT OF ADMINISTRATION, )

)

Respondents )

)

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October 10, 1985, in Tampa, Florida. The issue for determination in this proceeding is whether petitioner abandoned her position and resigned from the Career Service.

APPEARANCES

For Petitioner: Robert Cox

Regional Director, ASCME 4404 Westmoreland Court

New Port Richey, Florida 33552

For Respondent: HRS: Claudia Isom-Rickert

District VI Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614

INTRODUCTION

After being advised by her Supervisor that her resignation was being processed for abandonment of her position, petitioner Janet Truett requested the Department of Administration to review the facts in accordance with Rule 22A-7.10(2)(a), Florida Administrative Code. The Department of Administration referred

the proceeding to the Division of Administrative Hearings, and the undersigned was designated as the Hearing Officer.

In support of its position that the petitioner abandoned her position and resigned from the Career Service since she was on unapproved leave for three consecutive work days, the respondent HRS presented the testimony of Merri Lyn Patterson, Daisy Hobbs and William F. Gorman. HRS's Exhibits 1 through 5 were received into evidence. The petitioner testified in her own behalf. The parties' prehearing stipulation was received into evidence as Hearing Officer's Exhibit 1. Neither party filed proposed findings of fact or other post-hearing documents.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Petitioner Janet Truett was a former vocational rehabilitation client due to a hearing problem. After successfully completing the program, she was employed as a secretary by the Office of Vocational Rehabilitation in Tampa, a position which she retained for approximately five years.

   
   

2. In 1983, petitioner often took annual leave, sick leave and leave without pay, usually calling in at the last minute.

   On October 13, 1985, her immediate supervisor advised her that "in the future, all leave must be approved in advance except for emergency sick leave." (HRS Exhibit 1).

   
   

3. Due to an automobile accident and gall bladder surgery, Mrs. Truett was absent from work approximately one-fourth of the time from mid-November of 1984 through mid-April of 1985.

   
   

4. On April 22, 1985, petitioner and her supervising counselor had a conference and discussed her continued use of leave without pay. Petitioner was advised that her absence put undue stress on the rest of the unit and that her physician was being consulted to determine if she was able to return to work on a full-time basis. Another conference was to be scheduled after receiving her doctor's response.

   
   

5. By letter dated April 30, 1985, Dr. Michael J. Wiley advised petitioner's supervisor that petitioner had been discharged from care after recovering from her surgery on March 18, 1985, but had come back to his office on April 3, 1985, complaining of abdominal pain. She was instructed to stay home

   and return for a follow-up visit the following week. She did not return to Dr. Wiley's office after April 3, 1985.

   
   

6. Petitioner received her annual performance evaluation on May 2, 1985, with an overall rating of "conditional". The areas of deficiency included dependability, quality of work and quantity of work. Petitioner was advised that her attendance at work would be monitored over the next sixty days and that she would

   
   

   "not be given any approved leave whether sick leave, annual leave or leave without pay without a written explanation. If she falls ill during the 60 days she must provide me with a doctor's report indicating her problem. If she is to take any other type of leave she must provide me with a written explanation. I will then make a determination as to whether or not I will approve this leave." (HRS Exhibit 3).

   
   

7. On May 17, 1985, petitioner called her supervisor and indicated she had car problems. She did not come in to work for the entire day. A counseling session was held on May 20, 1985, and petitioner was advised by her supervisor that she was expected to take the city bus or arrange for other transportation should she experience further car trouble.

   
   

8. On May 24, 1985, petitioner called her supervisor at 9:45 A.M. and requested leave because of an alleged family problem. She was told that her story would be verified and was reminded that she had been instructed to call in to request leave before 8:30 A.M. The stated reason for her absence on May 24, 1985 was not truthful. On May 28, 1985, petitioner called in at 8:20 A.M. and requested leave, stating that her car had broken down and that she had numerous family problems. She was told that the leave for May 24 and May 28, 1985, would not be approved. On May 29, 1985, she arrived to work late at 8:15

   A.M. Also on that date, she received a written reprimand from her supervisor for taking unauthorized leave on May 24 and May 28, 1985. She was instructed to be honest and to call in by 8:30 A.M. if she was going to be out for any reason.

   
   

9. On May 31, 1985, petitioner was granted approval for three hours leave in order to get her electricity turned on. On June 3, 1985, she called in requesting leave stating that she still had no electricity, that she had been up late the night

   before due to family problems and that she had no way to get to work anyway. Her daughter picked up some checks for her around 1:10 P.M. On June 4, she came to work but requested leave.

   This request was not approved and she received a second written reprimand for taking unauthorized leave on June 3, 1985. In this second reprimand dated June 4 but signed June 11, 1985, petitioner was advised that "further occurrences of unauthorized leave could result in a suspension or dismissal." (HRS Exhibit 5)

   
   

10. A counseling session was held with petitioner on June 4, 1985, to review her job performance since the time of her conditional performance rating. She was advised that her attendance problem had not improved. She was referred to the Employee Assistance Program and was advised that the only way she could obtain future approved sick leave was to provide her supervisor with a doctor's statement.

    
    

11. On June 14, 1985, a Friday, petitioner called in and requested sick leave. Her supervisor told her that in order for him to approve her sick leave, she must provide him with a doctor's report. On June 17 and 18, 1985, petitioner failed to report to work and failed to request additional leave. On June 19, 1985, she called in and said she was "too upset" to come to work. When asked if she had seen a doctor, she replied that she had not. Petitioner was then advised by her supervisor that he would not approve her leave for June 14, 17 or 18, 1985.

    
    

12. When petitioner was absent from work, other secretaries

    in the office were required to perform her duties, as well as their own. This created a hardship on the other secretaries, and petitioner's frequent absences impaired both the quantity and the quality of her own work.

    
    

13. By letter dated June 21, 1985, petitioner was advised that the Office of Vocational Rehabilitation was processing her resignation from her position as a secretary effective June 13, 1985 at 5:00 P.M. Citing Rule 22A-7.10, F1orida Administrative Code, it was assumed that petitioner had abandoned her position and resigned from the Career Service since she had been on unapproved leave for three consecutive work days.

    
    

    CONCLUSIONS OF LAW_

    
    

14. Rule 22A-7.10(2t(a), Florida Administrative Code, provides that

    
    

    "An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service."

    
    

    The evidence clearly demonstrates that petitioner's absence on June 14, 17 and 18, 1985, was not authorized. Petitioner does not even contend that it was authorized, but merely urges that it was not "reasonable" for her supervisor not to grant her retroactive approval for these absences.

    
    

15. Given the numerous amount of leave time utilized by the petitioner and the repeated warnings, both oral and written, concerning future absences, HRS's action can hardly be termed "unreasonable." Petitioner's supervisors and co-workers were aware that petitioner had medical and personal problems and attempted to work around those problems and provide help and counseling to her. Her absences were both disruptive to the operation of the office as a whole and affected the quality and quantity of her own performance. Petitioner was repeatedly advised and counseled concerning the problems her absences were causing and was instructed and warned of the proper procedure to follow should future absences be necessary. It is difficult to envision any further steps HRS could have taken to solve petitioner's problems with continued absences. She was fully aware of the consequences which would ensue should she fail to report to work without authorized leave. Nevertheless, she chose to do so in the face of two written reprimands within a one-week period, and the passage of less than ten days between the second written reprimand and June 14, the first of her three days of absence without authorized leave.

    
    

16. Rule 22A-7.10(2)(a), Florida Administrative Code; is clear and mandates the action to be taken when an employee is absent without authorized leave for three consecutive work days. A review of the facts of this case clearly supports the conclusion that petitioner abandoned her position with HRS and must be deemed to have resigned from the Career Service.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner Janet E. Truett be deemed to have abandoned her position with HRS and to have resigned from the Career Service.

Respectfully submitted and entered this 19th day of November, 1985, in Tallahassee, Florida.

DIANE D. TREMOR, 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 19th day of November, 1985.

COPIES FURNISHED:

Janet Truett 1605 East Kirby Apartment B

Tampa, Florida 33610

Robert Cox

Regional Director, ASCME 4404 Westmoreland Court

New Port Richey, Florida 33552

Claudia Isom-Rickert District VI Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614

Richard L. Kopel Deputy General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Gilda Lambert, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32301

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=

AGENCY FINAL ORDER

================================================================

=

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

JANET TRUETT,

Petitioner,

1. DOA Case No. AB-85-12

   DOAH Case No. 85-2470

   DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   The Recommended Order in this matter having been entered on November 19, 1985, and no party having filed exceptions thereto, it is hereby ORDERED:

   
   

   1. The Findings of Fact contained in the Recommended Order (Exhibit "A" attached hereto) are hereby adopted as the Findings of Fact of the Department of Administration.

   2. The Conclusions of Law contained in the Recommended Order (Exhibit "A") are adopted as the Conclusions of Law of the Department of Administration in this matter.

      
      

   3. The action of the Department of Health and Rehabilitative Services in deeming Janet Truett to have abandoned her position and resigned from the Career Service is sustained and the petition for review is hereby dismissed with prejudice.

      
      

   4. This Order constitutes final agency action. Judicial review of this proceeding may be instituted by the filing of a Notice of Appeal in the appropriate District Court of Appeal pursuant to Section 120.68, Florida Statutes. Such notice must be filed with the District Court of Appeal within thirty (30) calendar days of the date of this Order, or further review of this action will be barred.

So Ordered in Tallahassee, Florida this 10th day of December, 1985.

GILDA H. LAMBERT

Secretary of Administration Department of Administration

435 Carlton Building Tallahassee, Florida 32301 (904) 488-4116

Certificate of Clerk

Filed in the official records of the Department of Administration this 10th day of December, 1985.

Copies furnished to: Robert Cox

Regional Director, AFSCME 4404 Westmoreland Court

New Port Richey, Florida 33552

Janet Truett

1605 East Kirby, Apt. B Tampa, Florida 33610

Claudia Isom-Rickert District VI Legal Counsel 4000 W. Buffalo Avenue Tampa, Florida 33614

Diane D. Tremor, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

David H. Pingree, Secretary Department of Health and

Rehabilitative Services Oakland Building

1323 Winewood Blvd.

Tallahassee, Florida 32301

Docket for Case No: 85-002470

Orders for Case No: 85-002470