STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

LESTER L. SMITH, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3276

)

DEPARTMENT OF HEALTH ) AND REHABILITATIVE SERVICES, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 20, 1987, in Fort Lauderdale, Florida.

Petitioner Lester L. Smith was represented by Gary S. Israel, Esquire, Palm Beach, Florida; and Respondent Department of Health and Rehabilitative Services was represented by K. Stuart Goldberg, Esquire, West Palm Beach, Florida.

By letter dated July 10, 1986, Respondent advised Petitioner that his absence from work on July 7-9, 1986, was unauthorized and he was, therefore, deemed to have abandoned his position and to have resigned from the Career Service. Petitioner timely requested a formal hearing. Accordingly, the issue for determination herein is whether Petitioner has abandoned his position and resigned from the Career Service.

Petitioner testified on his own behalf and presented the testimony of Georgia S. Gilbert, Judith A. French, and by way of deposition, James M. Dudick. Respondent presented the testimony of Darlene Escarfullery, Emily J. Ferguson, Sheila Buckley, and Joann Register. Additionally, Petitioner's Exhibits numbered 1-6 and Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed by Respondent as a Public Assistance Specialist I at the Riviera Beach Food Stamp Office. When he commenced his employment with Respondent on February 7, 1985, he signed a statement acknowledging receipt of the Department's Employee Handbook and acknowledging his personal responsibility to review the contents thereof. That Handbook provides, in part, as follows:

   
   

   If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as

   possible, so that suitable disposition of your work may be made to avoid undue

   hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absence without approved leave is cause for disciplinary action.

   If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned.

   
   

2. According to Petitioner's annual employment evaluation covering the appraisal period from August 1, 1985, to June 30, 1986, his attendance during that period had been a problem. On June 13, 1986, he was counseled regarding the regulations governing leave and the requirement that he notify the Department when he was going to be absent. He was also warned that more severe disciplinary action could result from his continued behavior.

   
   

3. The first ten days of each month are unusually busy at the Food Stamp Office. The first business day following the long Fourth of July weekend in 1986 was Monday, the 7th. During the first hour of business, the switchboard at the Food Stamp Office was not functioning properly it did not ring although the lights on it lit up to reflect incoming calls. By 9:00 a.m., the switchboard had been repaired.

   
   

4. On July 7-9, 1986, Petitioner did not report for work. He had not requested leave, and he did not contact Respondent to advise that he would not be coming to work on any of those days. He was, therefore, absent for three consecutive days without authorization.

   
   

5. In defense of his failure to report to work and his failure to notify his supervisor that he would not be reporting for work, Petitioner maintains that he was unable to advise Respondent regarding his intentions since his absence was caused by an illness he contracted over the Fourth of July weekend and which rendered him totally incapacitated. He maintains he also suffered a minor epileptic seizure at 7:00 a.m. on Monday, July 7. Although the parties stipulated that Petitioner is epileptic, Petitioner did not visit a doctor or go to a hospital or emergency room facility as a result of that alleged seizure.

   
   

6. Petitioner further maintains that he was unable to notify Respondent of his illness because his telephone was not working, throughout the three days in question. He relies for corroboration of that testimony on the testimony of his close friend James M. Dudick. Mr. Dudick's deposition testimony contradicts Petitioner's contention in that Dudick testified that Petitioner's telephone allowed outgoing calls but not incoming calls. Further, Dudick personally repaired Petitioner's telephone on July 7th or 8th and returned the repaired telephone to Petitioner no later than the morning of July 9th. Additionally, Dudick left his own operative telephone at Petitioner's residence on two separate occasions during the three days in question. Yet, Petitioner made no attempt to use Dudick's working telephone to contact Respondent regarding his absence.

   
   

7. Petitioner's only attempt at notifying Respondent of his absence from work occurred when he walked 4 or 5 blocks to a public pay telephone at noon on Monday, July 7, the same day on which he was allegedly incapacitated due to his

   illness and his 7:00 a.m. minor epileptic seizure. When he received no answer, he ceased all attempts to notify Respondent.

   
   

8. One other indirect attempt to notify Respondent was made by Dudick on either July 8 or 9. Dudick was unable to contact Respondent's supervisor and may have left one message. The testimony of Respondent's witnesses is clear that no message was received although inquiries were made of all employees if any message had been received. The person who allegedly received the message is unknown since the switchboard operator Judith French had also failed to report to work on the days in question and was at home with Petitioner. Further, there was no testimony as to the contents of any message left by Dudick or any instructions given to Dudick regarding the message he was to deliver since Petitioner testified he was in the bedroom while Dudick and French discussed Dudick calling but French testified she was in the bedroom and that Petitioner and Dudick made those arrangements.

   
   

9. After the close of business of July 9, two of Respondent's employees out of personal concern went to the home of Petitioner and Judith French. Petitioner did not mention any physical problem he was having but simply advised the one employee to whom he spoke that he had already lost his job, apparently referring to his three consecutive days of unauthorized absence.

   
   

10. Petitioner offered no believable explanation for his failure to notify Respondent of his absence for three consecutive working days.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

12. Section 22A-7.10(2)(a), Florida Administrative Code, provides as follows:

    
    

    1. 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. An employee who separates under such circumstances shall not have the right of appeal to the Career Service Commission; however, any such employee shall have the right to petition the )Department of Administration for a review of the facts in the case and a ruling as to whether the

       circumstances constitute abandonment of position.

       
       

13. Further, Section 22A-8.11(2)(c), Florida Administrative Code, provides as follows:

    
    

    1. Use of earned sick leave

       (c) 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 representative as soon as possible on the first day of absence.

14. The evidence herein is clear that Petitioner, without notice or authorized leave, was absent from his employment for three consecutive workdays. Petitioner has failed to prove any believable defense to his failure to notify Respondent of his intended absence in spite of his admitted knowledge of that requirement and in spite of his being counseled regarding that requirement less than one month earlier.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner abandoned

his position of employment with the Respondent and resigned from the Career

Service.

DONE and ORDERED this 26th day of March, 1987, in Tallahassee, Florida.

LINDA M. RIGOT

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 26th day of March, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3276

Petitioner's unnumbered proposed findings of fact have been numbered by the undersigned and are ruled upon as follows:

1. Rejected as not constituting a finding of fact.

2. Adopted.

3. Adopted.

4. Rejected as not being supported by credible evidence.

5. Rejected as not being supported by credible evidence.

6. Adopted.

7. Rejected as not being supported by credible evidence.

8. Rejected as being subordinate.

9. Rejected as not being supported by credible evidence.

10. Rejected as not being supported by credible evidence.

11. Rejected as being contrary to the evidence.

Respondent's proposed findings of fact are ruled upon as follows:

1. Adopted.

2. Rejected as not constituting a finding of fact.

3. Rejected as not constituting a finding of fact.

4. Adopted.

5. Adopted.

6. Adopted.

7. Adopted.

8. Adopted.

9. Adopted.

10. Adopted.

11. Adopted.

COPIES FURNISHED:

Gary S. Israel, Esquire

230 Royal Palm Way Suite 424

Palm Beach, Florida 33480

K. Stuart Goldberg, Esquire

111 Georgia Avenue

West Palm Beach, Florida 33401

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gilda Lambert, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 86-003276

Orders for Case No: 86-003276