STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDITH A. FRENCH, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3037

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on October 28, 1986, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Judith A. French, pro se

2815 Broadway, Apartment #1 West Palm Beach, Florida 33407

For Respondent: K. Stuart Goldberg, Esquire

Department of Health and Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401 PRELIMINARY STATEMENT

The issue raised by these proceedings is whether the circumstances surrounding Petitioner's absence from her employment with Respondent for a period of three consecutive working days constitute abandonment of her position and resignation from the Career Service pursuant to Rule 22A-7.10(2), Florida Administrative Code.

At final hearing the Petitioner testified on her own behalf, and called Lester L. Smith, Jr., as a witness. Petitioner's exhibit 2 was received into evidence. Respondent called Darlene Escarfullery, Evelyn Swigert, and Emily Farguson as witnesses.

Following the final hearing, the parties were granted leave until November 7, 1986, within which to file proposed findings of fact. Respondent elected to file proposed findings, and they have been addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Judith A. French (French), was employed full time by Respondent, Department of Health and Rehabilitative Services (Department), as a switchboard operator in Riveria Beach, Florida. On three consecutive workdays, to wit: July 7- 9, 1986, French was absent from her employment without authorized leave.

   
   

2. By certified letter dated July 10, 1986, the Department advised French that her absence from work since July 7, 1986, was unauthorized and that, pursuant to Rule 22A-7.10(2), Florida Administrative Code, she was deemed to have abandoned her position and resigned from the Career Service. The letter further advised French of her right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment.

   
   

3. French timely petitioned the Department of Administration for review. On August 13, 1986, the Department of Administration accepted French's petition and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing.

   
   

4. At hearing, French asserted that her absence was occasioned by a sudden and severe illness she contracted over the fourth of July weekend, which illness she averred rendered her totally incapacitated and unable to contact her employer the week of July 7, 1986. French offered no proof, however, of the cause or nature of her illness but merely testified that she was incapacitated, subject to profuse vomiting, and admitted to a hospital on July 14, 1906, where she was treated for a lack of potassium.

   
   

5. While unable to do so personally, French contended that efforts were made on her behalf to advise the Department of her illness. According to Lester Smith (Smith), French's live-in-boyfriend and co-worker at the Department's Riviera Beach office, he made on attempt to call French's supervisor at noon, July 7, 1986, but no one answered the Department's telephone. Smith asserted that his efforts to contact the Department on July 1986, were frustrated by an epileptic seizure he suffered that morning, and the fact that he had to use a pay phone since their phone was out-of-order. Smith did not contend that he was incapacitated by his seizure of July 7, 1986, and offered no further excuse for his failure to notify the Department that he and French would be absent that day.

   
   

6. On July 8, 1986, according to French and Smith, their friend Mr. Dudick offered to call the Department concerning their absence, and subsequently advised them that he had been unable to reach their supervisor but had left word with the Department that French and Smith were ill and their telephone out-of- order. Mr. Dudick did not testify at hearing, and there is no record of any such call having been received by the Department. On July 9, 1986, no effort was made to notify the Department that French would be absent from work.

   
   

7. The proof established that French's absence from her employment on July 7-9, 1986, was not authorized, and that the Department was not notified that she would be absent due to illness. Consequently, on no less than three consecutive business days her employer was left without the benefit of her services or the notice needed to secure a replacement to perform her duties. While French may have been ill, she offered no proof that would excuse her failure to promptly notify her employer of her incapacity.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings.

   
   

9. Rule 22-7.10, Florida Administrative Code, provides:

   
   

   (2) Abandonment of Position --

   (a) 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 ....

   
   

10. Pertinent to this proceeding, Rule 22A-8.02(5) provides:

    Any leave of absence with or without pay shall be approved prior to the leave being taken, except in the case of an emergency where the employee must be absent prior to receiving approval from proper authority for the absence.

    1. When prior approval cannot be obtained by the employee due to such emergencies, the agency shall take one of the following

       actions:

       1. Grant the employee leave with pay, provided the employee has sufficient accrued leave credits to cover the absence;

       2. Place the employee on leave without pay for the absence; or,

       3. If the absence is for 3 consecutive workdays, consider the employee to have abandoned the position and resigned from the Career Service.

       And, Rule 22A-8.11(2)(c), Florida Administrative Code, provides: Notification of absence due to illness,

       injury, or exposure to a contagious disease

       shall be given to the appropriate supervisor by the employee or the employee's representa- tive as soon as possible on the first day of absence.

       
       

11. The evidence established that French, without notice or authorized leave, was absent from her employment for three consecutive workdays. French failed to establish any basis which would have excused her failure to notify her employer of her intended absence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Department of Administration enter a final order finding that Petitioner, Judith A. French, abandoned her position and resigned from the Career Service.

DONE AND ENTERED this 10th day of November, 1986, in Tallahassee, Florida.

WILLIAM J. KENDRICK

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 10th day of November, 1986

APPENDIX

The Department's proposed findings of fact are addressed as follows

1. Addressed in paragraph 1.

2. Addressed in paragraph 1.

3. Addressed in paragraph 1.

4. Addressed in paragraphs 2-7.

COPIES FURNISHED:

Judith A. French

2815 Broadway, Apartment #1 West Palm Beach, Florida 33407

K. Stuart Goldberg, Esquire Department of Health and

Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401

William Page, Jr., Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Steven W. Huss, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 86-003037

Orders for Case No: 86-003037