STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUIS C. GERMAINE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2676

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on January 7, 1988, at Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: No Appearance

For Respondent: Morton Laitner, Esquire

Dade County Health Unit 1350 North West 14th Street Miami, Florida 33215

BACKGROUND AND PROCEDURAL MATTERS

This case began on May 11, 1987, when Petitioner was given notice that because he was absent without authorized leave for three consecutive work days he was deemed to have abandoned his position and resigned from career service. On May 31, 1987, Petitioner filed a request for a hearing and, on June 25, 1987, she case was forwarded to the Division of Administrative Hearings for formal proceedings.

Petitioner did not appear at the final hearing. Respondent offered the testimony of Frank Manning, Carmen Dominguez Frick, Carlos Batist, Barbara Moss, and John Purcell. Respondent's exhibits 1 through 9 were admitted into evidence.

No transcript was prepared of the proceedings. The parties did not submit proposed findings of fact.

ISSUE

The central issue in this cause is whether Petitioner abandoned his position and thereby resigned his career service position at Children, Youth, & Families Services.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. Petitioner was employed as a counselor working with the District XI Children, Youth, & Families (CYS) Services. Petitioner was assigned to monitor approximately twenty-five foster care children.

   
   

2. After some past employment disputes, Petitioner was reinstated by the Department effective March 31, 1987. Petitioner returned to work on April 17, 1987, however, he was not satisfied with the working environment. In a memorandum dated April 22, 1987, Petitioner alleged:

   
   

   The same pattern of capricious, arbitrary and discriminatory practices which led to my previous illegal dismissal from services at a time I was disable, as the result of an accident which had occurred while fulfilling my duties for this Department, are still present. All my fundamental rights have been thoroughly violated. Even workman compensation has been denied to me.

   
   

   With so painful experience and in light of outstanding losses I have consequently suffered, any idea of subsidizing HRS with my own car, car insurance, car repairs and advance funding for gasoline purchase as an obligatory condition for employment at CYF is being rejected as unfair practices; and violate the equal Employment Opportunity Laws.

   
   

   Various efforts made to have this abusive situation corrected have been met with the flagrant opposition of fierce administrators of this department, totally obstinated not to let fairness and logic prevail.

   
   

   In light of all these facts, it is my conclusion that my interests can be better preserved by my abstention from any involvement at HRS until these matters are properly attended by your diligence in the best of the delays, or by a court of law.

   
   

   In consequence effective Friday April 24, 1987 I have decided to temporarily not to be in attendance at Unit 462 Foster Care.

   
   

3. In response, the District Program Manager for Social Services, Frank Manning, wrote to Petitioner on April 23, 1987, and advised him that failure to report to work as scheduled would be cause for action pursuant to Chapter 22A- 7.010(2).

   
   

4. Petitioner failed to appear or to call in to work for hour consecutive work days, to wit: April 27-30, 1987.

5. Petitioner was not authorized to take leave during the time in question.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Rule 22A-7.010(2)(a), Florida Administrative Code, provides that an employee who is absent without authorized leave for three consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service.

   
   

8. In the case at issue, Petitioner announced he would temporarily not be in attendance. Petitioner did not have the authority to grant himself a leave of absence. Petitioner has offered no bona fide excuse for the absences. Moreover, Mr. Manning specifically notified Petitioner that his absence would not be excused.

RECOMMENDATION

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

That the Department of Administration enter a Final Order affirming the decision that Petitioner abandoned his position and thereby resigned from the Career Service.

DONE and RECOMMENDED this 5th day of February, 1988, in Tallahassee, Florida.

JOYOUS D. PARRISH

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 5th day of February, 1988.

COPIES FURNISHED:

Morton Laitner, Esquire Dade County Health Unit 1350 North West 14th Street Miami, Florida 33215

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Louis C. Germaine

308 Northeast 117th Street Miami, Florida 33161

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 87-002676

Orders for Case No: 87-002676