STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN BLACKFORD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2617

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 13, 1987, in Lecanto, Florida.

APPEARANCES

For Petitioner: John Blackford

3199 East Quail Court Inverness, Florida 32652

For Respondent: Don Royston, Esquire

Department of Health and Rehabilitative Services

District III

1000 Northeast 16th Avenue, Building H Gainesville, Florida 32609

PROCEDURAL STATEMENT

By letter dated April 30, 1987, the Respondent, the Department of Health and Rehabilitative Services, informed the Petitioner, John Blackford, that the Respondent considered the Petitioner to have abandoned his position with the Respondent. By letter dated May 19, 1987, the Petitioner contested the Respondent's proposed agency action and requested a formal administrative hearing. The Petitioner's letter was forwarded to the Division of Administrative Hearings by an Order Accepting Petition and Assignment to the Division of Administrative Hearings dated June 18, 1987.

At the formal hearing the Petitioner testified on his own behalf and offered two exhibits into evidence. The Petitioner's exhibits were marked as "Petitioner's" exhibits and were accepted into evidence.

The Respondent presented the testimony of David Porter, Shirley Barker, Barbara Jordan and Elyse Martinis. The Respondent also offered 9 exhibits into evidence. The exhibits were marked as "Respondent's" exhibits. Respondent's

exhibits 1 through 2 and 4 through 9 were accepted into evidence. A ruling on Respondent's exhibit 3 was reserved. That exhibit is hereby accepted into evidence.

The parties have timely filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

ISSUE

Whether the Petitioner should be treated as having abandoned his employment with the Respondent?

FINDINGS OF FACT

1. The Petitioner was a Career Service employee with the Respondent. The Petitioner received a copy of an Employee Handbook upon his employment with the Respondent. The Handbook informed the Petitioner of the rules governing absences from work, including the rule providing that an employee will be treated as having abandoned his position if absent for 3 days without authorized leave. The Petitioner was employed as an Investigator in the Child Support Enforcement Office of the Respondent in Inverness, Florida.

   
   

2. The Petitioner's immediate supervisor was Shirley Barker.

   
   

3. In June, 1986, the Petitioner suffered a seizure. The Petitioner subsequently underwent surgery for the removal of a brain tumor in June, 1986.

   
   

4. The Petitioner returned to work following his surgery on approximately September 15, 1986. Ms. Barker determined that the Petitioner's performance was not up to standard and discussed the need for additional leave with the Petitioner.

   
   

5. The Petitioner's physician agreed that it would be beneficial for the Petitioner to have additional time to recover from his surgery and recommended an additional six months leave of absence.

   
   

6. The Petitioner signed a Report of Personnel Action indicating that he was going to take leave without pay. The Petitioner's leave was effective October 13, 1986, "for a period of 6 months with return pending medical reevaluation." This leave of absence ended on April 13, 1987.

   
   

7. During the Petitioner's 6 months leave of absence he was given a monthly medical evaluation by his physician.

   
   

8. In December, 1986, the Petitioner met with Ms. Barker and told her that he planned on returning to his position with the Respondent when his physician approved his return. The Petitioner did not, however, tell Ms. Barker when he would return or request an extension of his 6 months leave of absence.

   
   

9. In March, 1987, the Petitioner met with Barbara Jordan, a supervisor in the Child Support Enforcement Office of the Respondent. This was the Petitioner's only meeting during 1987 with any employee of the Respondent. During this meeting the Petitioner did not indicate when he would return to work or request an extension of his 6 months leave of absence.

10. By letter dated April 16, 1987, Herbert R. Hildreth, Sr., Human Services Program Manager, and Ms. Barker's supervisor, informed the Petitioner that his 6 months leave of absence had expired. The Petitioner was also informed that he should advise the Respondent by April 26, 1987, of his intentions concerning his employment with the Respondent.

    
    

11. Mr. Hildreth's letter of April 16, 1987, was received by the Respondent on April 21, 1987.

    
    

12. The Petitioner did not respond to Mr. Hildreth's letter of April 16, 1987, prior to April 26, 1987.

    
    

13. By letter dated April 30, 1987, Judith Mesot, Deputy District Administrator of the Respondent, informed the Petitioner that the Respondent considered the Petitioner to have abandoned his Career Service position with the Respondent because the Petitioner had been on unauthorized leave since April 10, 1987.

    
    

14. By letter dated May 27, 1987, the Petitioner informed the Respondent that his physician had informed him during a May 20, 1987, appointment that he could return to work on a part-time basis.

    
    

15. At no time between October 13, 1986, and April 13, 1987, did the Petitioner inform the Respondent when he intended to return to work or request an extension of his 6 months leave of absence. The first time that the Petitioner informed the Respondent that he was ready to return to work was in his May 27, 1987, letter.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes, (1986 Supp.).

    
    

17. The Petitioner has been dismissed from his employment with the Respondent because of his failure to return to work following an approved 6 months leave of absence which began on October 13, 1986, or to request and receive approval of an extension of that leave of absence. The Respondent relies upon Rule 22A-7.010(2)(a), Florida Administrative Code, to support its dismissal of the Petitioner. Rule 22A-7.010(2)(a), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    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.

    
    

18. This portion of the Rule creates a presumption that an employee who is absent from his or her job for three days has given up his or her job. The Rule is intended to strike a "fair balance" between "swift replacement of ineffective public employees," and "job security and retention." Hadley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982).

19. The circumstances under which an employee may be absent with leave is governed by Chapter 22A-8, Florida Administrative Code. In particular, Rule 22A-8.002(5), Florida Administrative Code, provides, in pertinent part:

    
    

    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.

    
    

    Pursuant to this Rule, employees must generally obtain prior approval for any leave of absence unless the absence is caused by an emergency.

    
    

20. The evidence in this case proved that the Petitioner received prior approval of a leave of absence and was absent from his position with the Respondent for a period of 6 months beginning October 13, 1986. This absence began at the Petitioner's reguest, and ended on April 13, 1987. During this period of time the Petitioner informed his supervisor, Ms. Barker, in December, 1986, that he intended to return to his position. He did not, however, tell Ms. Barker that he planned to return to his position after his leave of absence ended. Nor did he tell Ms. Barker that he needed or wanted an extension of his leave of absence.

    
    

21. On April 13, 1987, the Petitioner's approved 6 months leave of absence ended. The Petitioner did not, however, return to work or take any action to request approval of an extension of his absence. On April 16, 1987, the Respondent informed the Petitioner that his approved leave of absence had ended and gave the Petitioner an opportunity to take steps to insure that he did not lose his position. Despite this effort by the Respondent, the Petitioner waited until May 27, 1987, to respond to the Respondent. The Respondent was, therefore, absence without leave after April 13, 1987.

    
    

22. The Petitioner has argued, among other things, that his approved leave continued until his return was approved by his physician. In support of this argument, the Petitioner relies upon the fact that his absence was approved "for a period of 6 months with return pending medical reevaluation." This interpretation of the leave of absence approved by the Respondent would render the language concerning a "6 months" period of leave meaningless. If the Respondent's interpretation had been intended, the Respondent could have simply approved the Petitioner's absence until he was medically able to return. The only reasonable interpretation of the Respondent's action in approving the Petitioner's leave of absence is that the Respondent approved a 6 months absence but recognized the possibility that the absence might have to be extended by indicating that the Petitioner would return "pending medical evaluation." The responsibility to take some action by the end of the 6 months absence was therefore placed on the Petitioner to inform the Respondent that he was able to return to work or that he needed additional time off based upon his medical evaluation. The Petitioner did not, however, take that action.

    
    

23. The Petitioner has also argued that he expressed his intent to return to his position to his supervisor "several times" and that his actions indicated that he intended to return to his position. The only actions the evidence proved were taken which the Petitioner relies upon were taken in September, 1986, before his leave of absence beginning October 13, 1986, was requested and approved. The evidence failed to prove that the Petitioner spoke to his supervisors after December, 1986, about his intention to return to his position.

    More importantly, it is not the Petitioner's intention which is at issue in this proceeding. What is at issue is whether the Petitioner took the necessary steps to obtain approval from the Respondent for a leave of absence without pay of more than 6 months from October 13, 1986. The evidence proved that the Petitioner did not take any such steps. Even when the Petitioner was warned by Mr. Hildreth that his 6 months leave of absence had expired the Petitioner took no steps to return to work or obtain approval of an additional period of leave. Instead, the Petitioner waited more than a month to even respond to the Respondent by requesting this proceeding.

    
    

24. Finally, the Petitioner has argued that the Respondent's letters of April 16 and 30, 1987, incorrectly indicate that his 6 months approved leave of absence ended on April 10, 1987, when in fact it ended on April 13, 1987. This argument ignores the fact that whether the 6 months period of leave ended on April 10, 1987, or April 13, 1987, the Petitioner has been absence well in excess of 3 days without leave.

RECOMMENDATION

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

John Blackford, has abandoned his position with the Respondent, the Department of Health and Rehabilitative Services.

DONE AND ORDERED this 15th day of January, 1988, in Tallahassee, Florida.

LARRY J. SARTIN

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 15th day of January, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2617

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1.

2 2.

13 and 14 To the extent that these proposed

facts were proved by the evidence and are relevant, see finding of fact number 9.

Most of these proposed findings

of fact are not relevant, however.

15 10 and 12.

16 13.

Respondent's Proposed Findings of Fact

COPIES FURNISHED:

Don Royston, Esquire Department of Health and

Rehabilitative Services District III

Building H

1000 Northeast 16th Avenue Gainesville, Florida 32609

John Blackford

3199 East Quail Court Inverness, Florida 32652

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Agustus D. Aikens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 87-002617

Orders for Case No: 87-002617