STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CALVIN SLOAN, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3181

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause on September 11, 1987, in St. Petersburg, Florida, before Diane A. Grubbs, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Calvin Sloan, pro se

1207 25th Street East Palmetto, Florida 33561

For Respondent: Frederick Wilk, Esquire

Department of Health and Rehabilitative Services

District VI

4000 West Buffalo Avenue, Room 520

Tampa, Florida 33614 ISSUE

Whether petitioner abandoned his position and is deemed to have resigned from the Career Service under the facts and circumstances of this case.

BACKGROUND

By letter dated June 27, 1987, respondent was advised by the Department of Health and Rehabilitative Services (HRS) that, since he had failed to report to work for three consecutive days, June 22, 25 and 26, 1987, and had failed to notify his immediate supervisor of his absences, he had abandoned his position and resigned from the Career Service. Petitioner was advised that the action was being taken in accordance with Rule 22A-7.010, Florida Administrative Code, and he was advised of his right to petition for a review of the facts in the case. By letter dated July 17, 1987, petitioner indicated that he wished to have such a review. On July 31, 1987, the matter was referred to the Division of Administrative Hearings for further proceedings.

At the hearing, HRS presented the testimony of John Simpson, Assistant Superintendent of the Manatee Regional Juvenile Detention Center; Dorothy Clark,

the 11:00 p.m. to 7:00 a.m. Shift Supervisor at the Manatee Regional Juvenile Detention Center; and Margaret Laird, of the District VI personnel office.

Respondent's Exhibits 1-6 were admitted into evidence. Petitioner testified on his own behalf, and petitioner's Exhibits 1-3 were admitted into evidence.

A transcript of the hearing has not been filed, and neither petitioner nor respondent filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. In August 1986, petitioner was employed as a Detention Care Worker I at the Manatee Regional Juvenile Detention Center. On August 6, 1986, petitioner received a copy of HRS Pamphlet 60-1, entitled "Employee Handbook." The HRS policy concerning absences is set forth in the handbook 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. On May 4, 1987, petitioner received a written reprimand for an absence without authorized leave which occurred on April 9, 1987. Petitioner was reminded that he had to call his immediate supervisor for approved leave prior to the beginning of his shift. On May 4, 1987, petitioner also received an oral reprimand for his excessive absences.

   
   

3. By May 28, 1987, petitioner had accumulated 41 hours of leave without pay that were due to absences from work that were not approved in advance. Ms. Clark, petitioner's Shift Supervisor, held a conference with petitioner to discuss the problems he was having. As a result of the discussion with petitioner, Ms. Clark decided to retroactively grant petitioner leave with pay, or annual leave, for all of the hours of absences for which he had annual leave available. After using all of petitioner's accumulated annual leave, petitioner still had eight hours of "short time," which was treated as leave without pay.

   
   

4. On May 29, 1987, petitioner was advised by written memorandum from John Simpson, the Assistant Superintendent of the facility, that petitioner had to personally call his shift supervisor for any future leave requested. He was also advised that such request might not be approved and that he should be prepared to report to his assigned shift.

   
   

5. On June 12, 1987, petitioner did not go to work. He did not request leave, but his wife called to say that he would not be at work.

   
   

6. The Manatee Juvenile Detention Center is a secured facility. Detention care workers must be present at the facility at all times and work in shifts. Due to the nature of the work, it is vital that a detention care worker notify

   his supervisor in advance of any proposed absence so that arrangements can be made for a substitute to take his shift.

   
   

7. Petitioner appeared for work as scheduled at 11:00 p.m. on June 18, 1987, and worked until 7:00 a.m., June 19, 1987. He was scheduled to work again at 11:00 p.m. on June 19, 1987. He did not call, and he did not report for work. He also was scheduled to work the night of June 20th. At about 6:00 p.m. on June 20, he stopped by the facility to say that his wife was having a baby. He did not report to work that night. On June 21, petitioner called Ms. Clark at home at about 9:50 p.m. He said that he was at the hospital with his wife and baby. He indicated that his wife and baby were fine, although the baby was about five weeks premature.

   
   

8. Petitioner testified that he asked Ms. Clark for five days off and that Ms. Clark agreed. Ms. Clark testified that petitioner asked that he be given leave for the night of June 21. Since petitioner did not have annual leave accumulated, the leave had to be without pay. A shift supervisor is not authorized to grant over one day of leave without pay. Ms. Clark was a credible witness, she clearly recalled the conversation she had with the petitioner, and her testimony is accepted. It is therefore found that petitioner was granted leave for the shift beginning at 11:00 p.m. on June 21 and ending at 7:00 a.m. on June 22, 1987. No additional leave was authorized.

   
   

9. Petitioner was scheduled to work the shift beginning at 11:00 p.m. on June 22, 1987. He did not appear for work and did not call. Petitioner was not scheduled to work the nights of June 23 or June 24, 1987. On Thursday, June 25, 1987, petitioner was scheduled to work the 11:00 p.m. shift. He did not call and did not report to work. On Friday night, June 26, 1987, petitioner was scheduled to work. He did not call and did not report to work.

   
   

10. On June 27, at about 5:30 p.m., petitioner called Ms. Clark to inform her that he was returning to work. Ms. Clark told petitioner that he needed to talk to Mr. Simpson. Mr. Simpson went to the facility to meet with petitioner. Petitioner did not report to work.

    
    

11. On June 28, 1987, petitioner went to work. He was told that he had to see Mr. Simpson. Mr. Simpson gave petitioner the termination letter which advised petitioner that he had been absent from work on June 22, 25 and 26, 1987, without authorization, and that he was deemed to have resigned from his position as Detention Care Worker I effective 7:00 a.m. on June 27, 1987.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes. The Department of Administration has authority to review the facts in abandonment cases and rule whether the circumstances constitute abandonment of position. Rule 22A-7.010(2)(a), Florida Administrative Code.

    
    

13. Rule 22A-7.010(2)(a), Florida Administrative Code, provides, in part:

    
    

    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.

14. This rule, referred to as the abandonment rule, creates a presumption that an employee who is absent from work for the prescribed period of time without authorized leave has abandoned his or her position and, in effect, has resigned from the Career Service. In Cook v. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978), the court explained the purpose of the rule as follows:

    
    

    While some employees go through the formal process of submitting a resignation in writing, others leave abruptly or simply fail to show up for work. There must be some point at which the Division may be able to say that the employee is not returning, process the paperwork and refill the vacant position.

    
    

15. Petitioner was absent from work for three consecutive workdays without authorized leave. Petitioner was aware of the procedure that had to be followed in order to obtain authorized leave. There was no evidence of any emergency which would have prevented petitioner from complying with the required procedure. Thus, under the facts and circumstances of this case, petitioner must be deemed to have abandoned his position and resigned from the Career Service pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the

Department of Health and Rehabilitative Services and finding that Calvin Sloan

abandoned his position as Detention Care Worker I and resigned from the Career Service.

DONE AND ENTERED this 18th day of December, 1987, in Tallahassee, Leon County, Florida.

DIANE A. GRUBBS

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 18th day of December, 1987.

COPIES FURNISHED:

Mr. Calvin Sloan

1207-25th Street East Palmetto, Florida 33561

Frederick Wilk, Esquire Department of Health and Rehabilitative Services District VI

4000 West Buffalo Avenue Room 520

Tampa, Florida 33614

Adis M. Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Pamela Miles, Esquire Assistant General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

R. S. Power, Esquire Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

Docket for Case No: 87-003181

Orders for Case No: 87-003181