STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIRGINIA I. LEE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0070

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause on March 25, 1986, in Fort Myers, Florida, before Diane A. Grubbs, a hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Virginia I. Lee

1833 Lafayette Street

Ft. Myers, Florida 33901

For Respondent: Anthony N. DeLuccia Jr.

District Legal Counsel Department of Health and

Rehabilitative Services Post Office Box 06085

Ft. Myers, Florida 33906

ISSUE

Whether petitioner abandoned her position and is deemed to have resigned from the Career Service under the facts and circumstances of this case.

BACKGROUND

By a letter dated December 2, 1985, petitioner was informed that she had been separated from her employment as a Fiscal Assistant I at the District Eight Fiscal/Accounting Office of the Department of Health and Rehabilitative Services (HRS or Department). Petitioner was informed that the action had been taken in accordance with Rule 22A-7.10(2), Florida Administrative Code and she was advised of her right to petition for a review of the facts in the case. By letter dated December 11, 1985, petitioner requested review of the facts in the case and a ruling as to whether the circumstances constituted abandonment of position. On January 9, 1986, the matter was referred to the Division of Administrative Hearings for further proceedings.

The parties filed a prehearing stipulation on March 19, 1986. The parties stipulated that petitioner was absent from work on November 25, 26 and 27, 1985;

that petitioner knew of the procedure to notify her immediate supervisor during absences from work; and that petitioner had received a copy of HRS Pamphlet 60-

1. The parties agreed that the issue of fact which remained to be litigated was whether petitioner gave proper notification to her immediate supervisor regarding her absence from work.

   
   

   At the hearing HRS presented the testimony of four witnesses, and respondent's Exhibit 1 was admitted into evidence. Petitioner testified on her own behalf, and petitioner's Exhibit 1 and 2 were admitted into evidence.

   
   

   Neither the petitioner nor the respondent filed proposed findings of fact and conclusions of law.

   
   

   FINDINGS OF FACT

   
   

   1. The petitioner was first employed by the State of Florida with the Department of Health and Rehabilitative Services on May 2, 1980. At the time, the petitioner owned her own accounting firm. However because she intended to remain in State employment for a minimum of ten years and did not want to jeopardize her position with HRS, she closed out her accounting firm transferring her clients to another member of Florida State Accounting Association.

      
      

   2. On October 28, 1985, petitioner became ill with acute bronchitis. She did not return to work until November 8, 1985. During that period of time, she was on authorized leave.

      
      

   3. On Saturday, November 23, the petitioner had a relapse. After calling her doctor, petitioner resumed taking the medication that had previously been prescribed and stayed in bed.

      
      

   4. On November 25, 1985, Angela Gary, a co-worker, went by Petitioner's home to give her a ride to work. Petitioner informed Ms. Gary that she would not be going to work that day. Petitioner did not explain to Ms. Gary that she was ill and did not ask Ms. Gary to take any message to the petitioner's supervisor, Ms. Matson, or to the District Fiscal Officer, Mr. Fisher, who was in charge of the entire accounting section. 1/

      
      

   5. Mr. Fisher was aware that Ms. Gary was to provide a ride for petitioner on November 25, 1985. Therefore when petitioner did not report to work, Mr. Fisher asked Ms. Gary if she had remembered to go by petitioner's house. Ms. Gary told Mr. Fisher that she had remembered to go by the house but that petitioner said that she wasn't going to work.

      
      

   6. On Tuesday, November 26, Ms. Gary again went by petitioner's home to drive her to work. At that time, petitioner told Ms. Gary that she wouldn't be going to work and that Ms. Gary did not have to come by her house on Wednesday unless the petitioner called her. Because petitioner did not feel capable of returning to work on Wednesday, she did not call Ms. Gary. Therefore, Ms. Gary did not go by petitioner's house on Wednesday November 27, 1985.

      
      

   7. At no time during the three day period that she was absent from work did the petitioner telephone her supervisor to inform her of the situation. Prior to this three-day period, petitioner had been absent on several occasions and had always called her supervisor to inform the supervisor that she would be unable to report to work. She was quite familiar with the procedure that she needed to follow.

   8. Petitioner had received a copy of the HRS Employee Handbook, HRSP 60-1, which includes procedures to be followed to obtain authorized leave. The procedure for sick leave includes the following:

      
      

      As soon as possible on the first day of absence, it is your responsibility to notify your supervisor that the absence is due to illness....Your supervisor should also be given an estimate of the length of the absence. Medical certification may be required.

      
      

      Further, within the accounting section, the employees had been specifically advised that they had to speak directly to their immediate supervisor when calling in sick.

      
      

   9. Although petitioner was aware of the sick leave procedure, she did not attempt to call her supervisor at any time during the three-day period she was absent. Her only reason for not calling was that the medication she was taking made her "woozy" and that she slept most of the time. There was no evidence to suggest that petitioner was incapacitated to the degree that she was unable to call her supervisor.

1O. November 27-28 were holidays. On December 2; 1985, the following Monday, petitioner called her supervisor in the morning to inform the supervisor that she would be late to work. At that time, petitioner was informed that she was no longer employed.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes. The Department of Administration has authority to review the facts in abandonment cases and rule whether the circumstances constitute abandonment of position. Rule 22A-7.10(2)(a) Florida, Administrative Code.

   
   

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

   
   

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

   
   

   This rule, referred to as the abandonment ruled, creates a presumption that an employee who is absent from work for the prescribed period of time without authorized leave has abandoned his or her position and, in effect, has resigned from the Career Service. In Cook v. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978), the court explained the purpose of the rule as follows:

   
   

   While some employees go through the formal process of submitting a resignation in writing, others leave abruptly or simply fail to show up for work. There must be some

   point at which the Division may be able to say that the employee is not returning, process the paperwork and refill the vacant position.

   
   

3. Petitioner was absent from work for 3 consecutive days without authorized leave. Petitioner was aware of the procedure that had to be followed in order to obtain authorized leave, and she had followed this procedure on several previous occasions. Petitioner was not incapacitated by her illness to the degree that she could not comply with the required procedure. Thus under the facts and circumstances of this case, petitioner must be deemed to have abandoned her position and resigned from the Career Service pursuant to Rule 22A-7.10(2), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the

Department of Health and Rehabilitative Services in deeming Virginia I. Lee to

have abandoned her position and resigned from the Career Service.

DONE and ENTERED this 29th day of April, 1986, in Tallahassee 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 29th day of April, 1986.

ENDNOTE

1/ Petitioner testified that she specifically asked Ms. Gary to inform her supervisor of her illness; however, I accept Ms. Gary's testimony concerning petitioner's statement.

COPIES FURNISHED:

Anthony N. DeLuccia Jr. District Legal Counsel Post Office Box 06085 Fort Myers Florida 33906

Ms. Virginia I. Lee 1833 Lafayette Street

Fort Myers, Florida 33901

Augustus D. Aikens General Counsel

Department of Administration

435 Carlton Building Tallahassee Florida 32301

Docket for Case No: 86-000070

Orders for Case No: 86-000070