STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUIS C. GERMAIN, )

)

Petitioner, ) CASE NO. 86-3319

)

vs. )

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on December 18, 1986 in Miami, Florida. The following appearances were entered:

For Petitioner: Louis C. Germain (pro se)

308 Northeast 117th Street Miami, Florida 33161

For Respondent: Leonard T. Helfand, Esquire

Department of Health

and Rehabilitative Services

401 Northwest Second Avenue, Suite 790 Miami, Florida 33128

The issue in this case is whether the Petitioner abandoned his career service position with the Department of Health and Rehabilitative Services.

PROCEDURAL BACKGROUND

By letter dated March 3, 1986, the Respondent advised the Petitioner that he was deemed to have abandoned his position and to have resigned from the Career Service. The Petitioner disputed the allegations of fact contained in the Respondent's March 3 letter and requested a formal administrative hearing.

This cause came on for final hearing on December 18, 1986. The Petitioner testified in his own behalf but submitted no documentary evidence. The Respondent presented the testimony of three (3) witnesses. In addition, Respondent's Exhibits 1 through 5 were duly offered and admitted into evidence. The parties have submitted post hearing proposed findings of fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:

   
   

2. The Petitioner, Louis C. Germain, has been employed with the Department of Health and Rehabilitative Services, Foster Care Unit-452 since late 1984 or early 1985.

   
   

3. On the morning of February 3, 1986, the Petitioner was involved in an automobile accident during the course of his employment while enroute to pick up a client who had a court appointment. As a result of the accident the Petitioner sustained several injuries, including a nose injury, back pains, headaches and blurred vision. The Petitioner was taken to his physician's office.

   
   

4. At approximately 4:30 p.m. on February 3, 1986, the Petitioner called his immediate supervisor, Ms. Shelia Weiner, and advised her of the accident and of his injuries.

   
   

5. On Friday, February 7, 1986, the Petitioner went to his office to pick up his pay check. The Petitioner spoke with Ms. Weiner and informed her that he did not know when his physician would allow him to return to work.

   
   

6. On Monday, February 17, 1986, the Petitioner returned to the office once more to pick up a pay check. Ms. Weiner told the Petitioner that he had to report to work on Thursday, February 20, 1986. The Petitioner told Ms. Weiner that he was still suffering from injuries sustained in the February 3, 1986 accident and that he did not know when he would be able to return to work.

   
   

7. On February 20, 1986, Ms. Weiner wrote the Petitioner a letter stating that his absence from work since February 17, 1986 had not been authorized. The letter stated in part that: "You are directed to report to work immediately and provide an explanation for your absences." The Petitioner received Ms.

   Weiner's letter on Saturday, February 22, 1986.

   
   

8. On Tuesday, February 25, 1986, the Petitioner had an appointment with his physician and obtained a medical statement from her. The Petitioner's physician indicated in the medical statement that Petitioner had been under her care since the automobile accident of February 3, 1986, that Petitioner sustained multiple injuries in the accident and that Petitioner was now able to return to work.

   
   

9. The Petitioner returned to work on February 25, 1986 and was advised that he needed to speak with Mr. Carlos Baptiste, supervisor of the personnel department. The Petitioner presented the letter from his doctor to Mr. Baptiste, but Baptiste was not satisfied with the doctor's statement and felt that it was "insufficient." Baptiste asked the Petitioner if he had a towing receipt or an accident report to confirm the accident of February 3, 1986. The Petitioner replied that he did not. The Petitioner was not allowed to return to work.

   
   

10. At the final hearing, Mr. Baptiste stated that: "If Mr. Germain had produced an accident report, he would still be working with HRS."

11. The Petitioner's leave and attendance record maintained by DHRS reflected that the Petitioner was given sick leave from February 3 to February 6, 1986. From February 7 to February 20, 1986 the Petitioner was placed on leave without pay.

    
    

12. On March 3, 1986, Ms. Sylvia Williams notified the Petitioner by certified mail that due to his absence from work since "February 17, 1986", he was deemed to have abandoned his position and to have resigned from the Career Service.

    
    

    CONCLUSIONS OF LAW

    
    

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

14. Rule 22A-7.10(2)(a), F.A.C. provides in pertinent part that: "(2) Abandonment of Position -

    1. 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 creates a presumption that an employee who is absent from work for the proscribed period of time without authorized leave has abandoned his or her position and resigned from the Career Service. However, the presumption created by the abandonment role is a rebuttable presumption. An employee having been deemed to have abandoned his position is entitled to petition for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position." Rule 22A-7.10(2)(a), F.A.C. The term "unauthorized absence" is not defined by sta ute nor rule and, therefore, must be given its ordinary meaning and interpretation.

       
       

15. The evidence established that the Petitioner has rebutted any presumption that he intended to abandon his position, if indeed, the presumption was ever legally created.

    
    

16. On February 3, 1986, the Petitioner was involved in an automobile accident which occurred during the course of his employment with DHRS. On the same day, the Petitioner notified his immediate supervisor of the accident and his injuries as required by Rule 22A-8.11(2)(c), F.A.C. This notification was the last time either party fully complied with the requirements for sick leave and absences due to illness specified in Rule 22A-8.11, F.A.C.

    
    

17. According to the rules governing absences due to illness, after three consecutive work days of absences, the employer may require a medical certificate of the employee's illness before authorizing any additional use of sick leave credits by the employee. After 10 consecutive days of absence, the employee is required to submit to his employer a medical certification from the attending physician before any additional use of sick leave credits may be authorized for the employee. If the employee continues to be absent, the employer may require further medical certification for each 30 consecutive days of absence. If, at any time, the medical certification furnished by the employee is not acceptable to the employer, the employer may require the

    employee to submit to a medical examination paid for by the agency. If the employee is then medically evaluated as fit for work, the employer may disapprove further use of sick leave credits and order the employee to report to work or be placed on unauthorized leave without pay. After an unauthorized leave of absence for 3 consecutive work days, the employer may consider the employee to have abandoned the position and resigned from the Career Service.

    See Rules 22A-8.02(5) and 8.11(2), F.A.C.

    
    

18. After the third day of the Petitioner's absence, the Respondent could have required him to produce a medical certification of his illness before authorizing any additional use of sick credits. There was no credible evidence in the record establishing that any such request was made, even though on the 4th day of Petitioner's absence, he was placed on leave without pay. After the tenth day of the Petitioner's absence, the Petitioner was required to submit to his employer a medical certification from the attending physician before any additional use of sick leave credits could be authorized. This, the Petitioner did not do, even though he went to the office on the 14th day of his absence to pick up a pay check. On the 17th day of Petitioner's absence, the Respondent mailed Petitioner a letter stating that he could remain employed with DHRS if he reported to work immediately and provided an explanation for his absences. On the second work day following the Petitioner's receipt of Respondent's letter, he attempted to return to work with a note from his attending physician. This note was determined to be "insufficient" by the personnel supervisor who stated that the medical statement would have been sufficient if accompanied by a towing receipt or an accident report. Thus, the Petitioner's continued employment with DHRS became dependent upon the personnel supervisor's subjective acceptance of the medical statement, which was rejected solely because of the absence of a police report or towing receipt.

    
    

19. The Petitioner has established by clear and convincing evidence that he did not abandon his position with DHRS. However, while it is the legal conclusion of the undersigned that Respondent has failed to technically prove the charge of abandonment, it is further concluded that the charge was occasioned by Petitioner's own negligence in failing to keep his employer adequately informed of his medical condition. In particular, he Petitioner failed to provide his employer with a medical certification of his inability to return to work after the 10th day of his absence. Thus, in view of such fault on the part of Petitioner and his seemingly casual attitude towards his absence, the employer had a reasonable basis for bringing the charge of abandonment and an award of back pay and benefits is neither legally justified, equitable nor appropriate.

RECOMMENDATIONS

Based on the foregoing findings of fact and conclusions of law, it is,

RECOMMENDED that the Department of Administration enter a final order reinstating Petitioner to his position with the Department of Health and Rehabilitative Services, Foster Care Unit-452 in Miami, Florida.

DONE and ORDERED this 4th day of February, 1987 in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3319

The following constitutes my specific rulings pursuant to Section 120.59(2), 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 the Petitioner

1. Adopted in substance in Finding of Fact 2.

2. Adopted in substance in Finding of Fact 3.

3. Adopted in substance in Finding of Fact 4.

4. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as argument.

5. Partially adopted in Finding of Fact 11. Matters not contained therein rejected as argument.

6. Addressed in Conclusions of Law section.

7. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as argument.

8. Rejected as argument.

9. Rejected as argument.

10. Rejected as argument.

Rulings on Proposed Findings

of Fact Submitted by the Respondent

1. Rejected as a recitation of testimony and/or argument.

2. Adopted in substance in Finding of Fact 6.

3. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as mis- leading.

4. Rejected as subordinate.

5. Rejected as contrary to the weight of the evidence.

COPIES FURNISHED:

Louis C. Germain

308 Northeast 117 Street Miami, Florida 33161

Leonard T. Helfand, Esquire Department of Health and

Rehabilitative Services

401 Northwest Second Avenue - Suite 790 Miami, Florida 33128

Gregory L. Coler Secretary

Department of Health

and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32301

John Miller, Esquire General Counsel Department of Health

and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32301

Docket for Case No: 86-003319

Orders for Case No: 86-003319