STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES H. FOSTER, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2604

) UNIVERSITY OF FLORIDA )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before William R. Cave, a hearing officer of the Division of Administrative Hearings, on October 14, 1986 and October 23, 1986, in Gainesville, Florida. The issue for determination is whether, under the facts and circumstances of this case, Petitioner is deemed to have abandoned his position and resigned from the Career Service.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Barbara Wingo, Esquire

Associate General Counsel University of Florida Gainesville, Florida 32611

BACKGROUND

By letter dated April 16, 1986, Respondent notified the Petitioner that having been absent three (3) consecutive days without authorized leave of absence he was considered to have abandoned his position with the Respondent and to have volun- tarily resigned from the Career Service effective April 17, 1986. By letter dated May 1, 1986, Petitioner requested a formal proceeding before the Department of Administration. By Order dated July 15, 1986, the Department of Administration requested the assignment of a hearing officer from the Division of Administrative Hearings to conduct further proceedings.

On October 14, 1986, at the time set for hearing, the Petitioner contacted the undersigned and advised him that he would be unable to attend the hearing due to a wreck that had occurred on October 10, 1986 and left him without a way to travel from Tampa, Florida. However, Petitioner had advised the Respondent's counsel on October 31, 1986 that he would attend the hearing. Respondent objected to any continuance in this matter since Respondent's witnesses were present and had taken time from their work to attend and testify. The Petitioner's request to continue the hearing was denied with the understanding that the hearing would he adjourned upon the conclusion of Respondent's presentation to commence at a later date agreeable to both parties. In that phase of the hearing Petitioner would present his case. An Order was entered on October IS, 1986, rescheduling the hearing for October 23, 1986 at 9:00 a.m. in

Gainesville, Florida. In addition to mailing the Petitioner a copy of the order rescheduling the hearing, Petitioner was personally notified by the undersigned of the date, time and place of the hearing and expressed no objections. On October 23, 1986, at 9:00 a.m. Petitioner failed to appear or to make any contact concerning his absence.

At the hearing on October 14, 1986, Respondent filed an ore tenus motion for judgment on the pleadings. A ruling was reserved on that motion. After careful review of the argument of Respondent's counsel and a review of the record in this case, the motion is Denied. The Respondent presented the testimony of Dr. Frank A. Colliazzi, Dr. A. Lewis Leo and Maxine Fields.

Respondent's Exhibits A through C were received into evidence. Petitioner did not present any testimony or exhibits.

Only the Respondent submitted post-hearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

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

1. Petitioner was employed by Respondent beginning in 1985 and, at all times material hereto, was supervised by Dr. Frank A. Coliazzi.

   
   

2. Petitioner had been made aware of the rules and policy of the Respondent in regard to unauthorized leave of absence. Specifically, Petitioner was counselled in this regard on March 26, 1986, by Dr. Frank A. Colliazzi for his unauthorized leave of absence on March 25, 1986.

   
   

3. Petitioner knew, or should have known, that un-authorized leave of absences could result in disciplinary action or the loss of employment through abandonment.

   
   

4. Prior to April 14, 1986, Petitioner had a history of unauthorized leave of absences. In fact, Petitioner was absent without authorized leave on April 9 & 11, 1986, after being counselled as late as March 26, 1986 in this regard.

   
   

5. Petitioner was absent without authorized leave on April 14, 15 & 16, 1986. Petitioner appeared briefly at the work place on April 15, 1986 but did not go to work and left immediately when requested to work by Dr. Colliazzi, with a promise to return to work the next morning, April 16; 1986, at 8:00 a.m. The Petitioner did not request a leave of absence at this time and did not return to work on April 16, 1986 as promised.

   
   

6. Respondent's certified letter of April 16, 1986, informing Petitioner that Respondent considered him to have abandoned his position because of his three (3) consecutive days of unauthorized leave was not received by Petitioner until April 24, 1986 due to Petitioner's failure to notify Respondent of his change of address. However, Petitioner was made aware of the letter and its contents by Maxine Fields on April 21, 1986.

   
   

7. Petitioner's failure to return to work on April 17 & 18, 1986, lends support to Respondent's contention that Petitioner had abandoned his job since Petitioner was not aware of Respondent's position on his abandonment until April 21, 1986.

8. At no time relevant to this proceeding was leave requested by Petitioner or granted by Respondent.

   
   

9. Although Petitioner received notice of the hearings, he failed to appear at either one and present evidence in rebuttal to Respondent's position.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

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

    
    

12. Abandonment of Position--

    
    

    1. 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....

       
       

13. The evidence establishes that Petitioner, without authorized leave, was absent for three (3) consecutive work days from his employment. Petitioner failed to establish any basis which would have excused, or authorized, his absence from work during the period in question.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law recited herein, it is, RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Respondent in deeming the Petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action.

RESPECTFULLY ENTERED and SUBMITTED this 25th day of November, 1986 in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 25th day of November, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2604

The following constitutes my specific rulings pursuant to Section 120.59(1), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by Respondent:

COPIES FURNISHED:

Judy Waldman, Esquire General Counsel University of Florida

207 Tigert Hall Gainesville, Florida 32611

Barbara Wingo, Esquire Associate General Counsel University of Florida

207 Tigert Hall Gainesville, Florida 32611

James H. Foster 3216 Lancastor Lane

Tampa, Florida 33619

Augustus D. Aikens, Esquire General Counsel

Department of Administration

530 Carlton Building Tallahassee, Florida 32301

Gilda Lambert Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 86-002604

Orders for Case No: 86-002604