STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA DEJESUS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3258

)

STATE OF FLORIDA, ) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell held a public hearing in this case on October 16, 1986, in Fort Lauderdale, Florida. The parties were granted leave to submit post-hearing memoranda supportive of their respective positions. Both parties have submitted post-hearing memoranda which were considered by me in preparation of this Recommended Order. Petitioner's counsel submitted the deposition testimony of Bayla Lipsitz on December 18, 1986.

APPEARANCES

For Petitioner: Simons, Simons, and Tobin by:

Evelyn M. Merchant, Esquire 1222 Southeast 3rd Avenue

Fort Lauderdale, Florida 33316

For Respondent: Harold L. Braynon, Esquire

District Legal Counsel

201 West Broward Boulevard

Fort Lauderdale, Florida 33301 ISSUE PRESENTED

The issue presented for decision herein is whether or not Petitioner abandoned her employment and resigned from the career service system on June 17, 1986.

INTRODUCTION

By letter dated July 2, 1/ Petitioner, through counsel, requested a review of the facts surrounding her alleged abandonment of her position with Respondent, Department of Health and Rehabilitative Services, Economic Service AFDC Program, South Service Area (Fort Lauderdale). By letter dated August 15, the Department of Administration accepted Petitioner's petition for review of the decision that Petitioner had abandoned her position and resigned from career service.

On August 14, the Department of Administration, pursuant to Rule 22A- 7.O1O(2), Florida Administrative Code, accepted the petition and transferred this matter to the Division of Administrative Hearings with the request that a hearing officer from the Division of Administrative Hearings be assigned to conduct a formal hearing.

On September 17, the undersigned hearing officer noticed this matter for hearing on October 16, and the matter was heard as scheduled.

During the hearing, the undersigned hearing officer afforded Petitioner's counsel an opportunity to submit via deposition, the testimony of an unavailable witness, Bayla Lipsitz provided that the deposition was taken within seven (7) days of the date of bearing i.e., October 23. The deposition of Bayla Lipsitz was not taken until November 3, some ten (10) days later than allowed and Petitioner's counsel did not request an extension of time within which to take that deposition. Based on Respondent's counsel Motion to Strike that deposition as it was not taken within the time allotted, the deposition of Bayla Lipsitz is not considered by the under signed in preparation of this Recommended Order.

(TR-67 lines 5-8).

FINDINGS OF FACT

1. On approximately May 31, 1985, Petitioner, Maria Dejesus was employed as a public assistance specialist with Respondent, Department of Health and Rehabilitative Services.

   
   

2. Petitioner continued in that employment through early June, 1986.

   
   

3. On Friday, June 6, Petitioner and her children, while enroute to Petitioner's home, were injured in an automobile accident.

   
   

4. On Monday, June 9, at approximately 8:30 a.m., Petitioner called Brian Leverrier a public assistance liability supervisor and Respondent's supervisor during that period, and advised that "she had been in an automobile accident and that she would not be in that day because she had to take one of her children to the doctor; ... that she was positive or sure that she would be in to work the next day and that was the end of the conversation." (TR-13).

   
   

5. Petitioner did not return to work until the following Tuesday, June 17. During the period between June 9, and June 17. Petitioner did not report to work nor did she call and advise her supervisor on June 10, 11, 12, or 13, that she would not be reporting to work.

   
   

6. Petitioner relied on Bayla Lipsitz, a co-worker, to advise her supervisor that she would not be returning to work until Monday, June 16.

   
   

7. Mr. Leverrier denied that Bayla Lipsitz advised him that Petitioner would not be returning to work until June 16, and employee Bayla Lipsitz did not appear as a witness in these proceedings. 2/

   
   

8. On Monday, June 16, Petitioner telephoned her supervisor, Brain Leverrier to advise him that she would not return to work until Tuesday, June 17, because her ride did not pick her up.

   
   

9. Barbara Chattin, public assistance specialist supervisor, was fielding calls for Mr. Leverrier on June 16, and took Petitioner's phone call. When Petitioner advised Ms. Chattin that she would not return to work until the

   following day, June 17, Ms. Chattin advised her that she failed to call in everyday as she was supposed to although she (Chattin) would relay her message to Brian Leverrier.

   
   

10. On the following day, June 17, Petitioner reported for work and was directed to report to Patty Jolly, Human Services Program Administrator, South Services Area, Economic Services. Ms. Jolly is overall responsible for eight supervisors who in turn supervise approximately 60 odd employees including Petitioner.

    
    

11. When Petitioner reported to Ms. Jolly, she was advised that in accordance with personnel rules and regulations, she had abandoned her job based on her lack of contact with her supervisor for more than three days. (TR 37).

    
    

12. Petitioner did not offer any explanation or other reason for failing to advise her supervisor of her need to be absent from work.

    
    

13. All employees are provided with a copy of HRS's pamphlet entitled Personnel Employee Handbook. (Respondent's Exhibit 1). Respondent acknowledged receipt of that handbook by executing an acknowledgment. (Respondent's Exhibit 3).

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

15. Florida Administrative Code, Section 22A-7.O10(2)(a), provides in pertinent part:

    
    

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

    
    

16. Competent and substantial evidence was afforded herein to established that Petitioner, having failed to notify her supervisor that she would be absent from work from June 10 thru June 16, 1986, thereby abandoned her position of employment and resigned from career service within the purview of rule Section 22A-7,010(2)(a), Florida Administrative Code.

RECOMMENDATION

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

That the Department of Administration enter a Final Order denying Petitioner's petition for review.

RECOMMENDED this 24th day of February, 1987, in Tallahassee, Florida.

JAMES E. BRADWELL

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 February, 1987.

ENDNOTES

1/ Unless otherwise noted, all dates are in 1906.

2/ As stated in the Background section of this Recommended Order, Petitioner's counsel was afforded seven days following the close of the hearing to take the deposition testimony of Bayla Lipsitz. Inasmuch as Petitioner's counsel failed to take the deposition of Ms. Lipsitz within the time allotted, and in fact her deposition was not taken until approximately 17 days following the close of the hearing, in the absence of any extension having been granted to Petitioner's counsel to extend the date for the taking of Ms. Lipsitz testimony, that testimony was stricken from the record and was not considered by the undersigned in preparation of this Recommended Order.

COPIES FURNISHED:

Mr. Steven Huss, General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Harold L. Braynon, Esquire Department of Health and Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

Evelyn M. Merchant, Esquire 1222 S. E. Third Avenue

Fort Lauderdale, Florida 33316

William Page, Jr., Secretary Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 86-003258

Orders for Case No: 86-003258