STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TOMMIE MILLER, )
)
Petitioner, )
)
vs. ) Case No. 87-4136
) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
The formal administrative hearing in this case was held before William C. Sherrill, Jr., in Cocoa, Florida, on January 22, 1987. The issue in this case is whether the Petitioner abandoned her job with the Respondent. Appearing for the parties were:
For the Petitioner: Linoria Anthony
AFSCME Council 79
345 South Magnolia Drive, Suite F-21 Tallahassee, Florida 32301
For the Respondent: James A. Sawyer, Jr., Esquire
District VII Counsel Department of Health and
Rehabilitative Services
400 West Robinson Street Orlando, Florida 32801
Ms. Anthony was qualified to represent the Petitioner, and did so at the Petitioner's request.
The Petitioner presented 3 exhibits, which now have been admitted into evidence, and the testimony of the Petitioner. The Respondent presented 5 exhibits, which were admitted into evidence, and the testimony of Michele McKinley and Richard Bedson. The contents of R. Ex. 5 were determined to be hearsay. There is no transcript. Only the Petitioner filed proposed findings of fact and conclusions of law.
FINDINGS OF FACT
Prior to February 25, 1986, the Petitioner, Tommie Miller, was employed by the Respondent, the Department of Health and Rehabilitative Services (HRS) at the Brevard Regional Juvenile Detention Center as a detention child care worker
I. During the time relevant to this case, June and July, 1987, Ms. Miller's supervisor was Michele McKinley, detention center superintendent.
On February 25, 1986, Ms. Miller injured her lower back, injuring two nerves. The injury was job connected, and Ms. Miller was eligible for and received workers compensation benefits. Ms. Miller was receiving workers compensation benefits during the period relevant to this case, July 10 through 27, 1987.
With the exception of a brief time during the period of June 22 through 24, 1987, Ms. Miller was absent from work from February 1986 through August 10, 1987, and thereafter, for that matter. On June 24, 1987, she reinjured her back at work.
During the months she was out of work, Ms. Miller was treated in various rehabilitation programs. In June and July, 1987, she was receiving treatment from Woods Rehabilitation Services, Inc., and the rehabilitation nurse assigned to her case was Joan Patterson. R. Ex. 5.
Ms. Miller lives 25 miles from the detention center, and testified that in June and July of 1987, her back hurt too much to allow her to drive to work at the detention center.
Ms. Miller had exhausted her sick leave by July 22, 1987. It is inferred that she was on approved leave without pay by July 22, 1987. This inference is based on the fact that nearly a year and a half had elapsed from the date of the injury, and normal sick, annual, and compensatory leave would have been exhausted. This inference is also based upon the rules concerning the proper way to characterize the absence of an employee due to a job connected disability discussed in the conclusions of law.
It is inferred that on July 22, 1987, the period of approved leave without pay was indefinite. This inference is based on the findings of fact which follow and the lack of evidence of a definite period of approved leave without pay.
On June 22, 1987, Dr. Stanley Kaplan provided a written statement excusing Ms. Miller from work.
On June 29, 1987, Ms. Miller was again seen by Dr. Kaplan for evaluation. Dr. Kaplan performed the normal therapy he was then performing for Ms. Miller, but did not tell her she could return to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on June 29, 1987.
On July 17, 1987, Ms. Miller visited Dr. Stanley Kaplan for rehabilitative treatment. Dr. Kaplan did not tell Ms. Miller at that time that she could go back to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on July 17, 1987.
On July 22, 1987, Ms. McKinley wrote a certified letter to the Petitioner, Tommie Miller. R. Ex. I. The letter in its entirety stated:
I've been informed by Ms. Patterson of Woods rehabilitation that Dr.
Kaplan released you to return to work as of 7/10/87. She further reported that you stated you didn't understand that you could return to
work. In addition, we have had no further contact from you since 6/24/87.
I am now going to have to require you to report back to work on 7/27/87, by 9:00 a.m. If you do not report back to work on this date or provide the appropriate medical documentation as to your absence, we will have to assume that you have abandoned your position with HRS.
Thus, the letter of July 22, 1987, explicitly gave Ms. Miller two options: report to work at 9:00 a.m. on July 27, 1987, or "provide the appropriate medical documentation as to your absence."
From the contents of the letter, it is concluded that when the letter was written, Ms. McKinley thought that Dr. Kaplan had released Ms. Miller to return to work on July 10, 1987.
It is also concluded from the contents of the letter and from R. Ex. 5, which Ms. McKinley testified she had in her possession and was aware of when she wrote the July 22, 1987, letter, that Ms. McKinley was aware on July 22, 1987, that Ms. Patterson had said that Ms. Miller had said that she (Ms. Miller) did not understand that Dr. Kaplan had said she could return to work.
On July 22, 1987, Ms. Miller was examined by Richard P. Newman, M.D.
On July 24, 1987, Ms. Miller received the letter of July 22, 1987. As soon as she received the letter, Ms. Miller called Ms. McKinley on the telephone. Ms. Miller told Ms. McKinley that her current medical problem was an inability to drive to work, but that she could work if she was able to travel to work. Ms. McKinley told Ms. Miller that she had not received a written report from a physician concerning Ms. Miller's condition since June 24, 1987. Ms. McKinley told Ms. Miller that she (Ms. McKinley) still needed medical documentation, and that she could not authorize leave based on her oral report without medical documentation. Ms. Miller then told Ms. McKinley that Ms. Patterson at the Woods Rehabilitation Services was supposed to send the doctor's report to Ms. McKinley.
During the telephone call, Ms. McKinley did not ask her (Ms. Miller) to personally deliver the doctor's report, and did not tell Ms. Miller that reliance upon Ms. Patterson was inappropriate. Moreover, Ms. McKinley did not warn Ms. Miller that if Ms. Patterson fi1ed to deliver the report by July 27, 1987, that Ms. Miller would automatically forfeit her job.
At the time of the phone call from Ms. Miller, Ms. McKinley was in possession of R. Ex. 5. The top of page two of that document advised Ms. McKinley that Ms. Miller was scheduled for an evaluation by Dr. Newman on July 22, 1987. In the fourth paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Ms. Miller would attend the appointment with Dr. Newman. In the seventh paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Nurse Patterson felt that Dr. Newman's evaluation was important to an assessment of the current status of Ms. Miller's medical condition. These findings are based
upon what is in fact stated in R. Ex. 5 and known to Ms. McKinley as what Ms. Patterson had written. No finding is made as to whether what is stated in R. Ex. 5 is true.
It is concluded that during the telephone conversation with Ms. Miller on July 24, 1987, Ms. McKinley knew that Ms. Miller was to have been evaluated by Dr. Newman on July 22, 1987.
At the time of the phone call on June 24, 1987, Ms. McKinley did not ask Ms. Miller to tell her what Dr. Newman had determined concerning Ms. Miller's medical condition, and did not ask Ms. Miller about Dr. Newman's evaluation two days earlier.
As a result, during the July 24, 1987, telephone conversation, inexplicably neither Ms. McKinley nor Ms. Miller mentioned anything about Dr. Newman's evaluation on July 22, 1987.
R. Ex. 2A is the report of Dr. Newman with respect to the visit of July 22, 1987. The report indicates on its face that Woods Rehab Services and Ms. Tommie Miller are listed as recipients of the "cc."
The report of Dr. Newman of July 22, 1987, R. Ex. 2A, states in part:
At this time, my feeling would be that the drive to and from Titusville is causing her more harm than good. Since she works for the state, it would be in the best interest of all parties concerned to move her to a position in the Rockledge area because she will be able to commute a very short drive and would be quite capable of
performing this type of sedentary work.
On July 24, 1987, Ms. Miller called Dr. Newman to get another written report, and asked Dr. Newman to send that report to Ms. Patterson at Woods Rehabilitation Center. R. Ex. 2B is that report.
The report of July 24, 1987, shows that Woods Rehabilitation Services, Inc., but not Ms. Miller, was the recipient of a "cc."
The report of July 24, 1987, R. Ex. 2A states in part:
It is not the act of driving itself, but it is the riding in the car that is bothering her back and I do not think that she should be having to travel by car 25 miles in either direction to work when she could be doing a similar job virtually around the corner from her house.
It is concluded that the report of Dr. Newman, in written form, supported Ms. Miller's oral statement to Ms. McKinley that she was physically unable to drive to the detention center due to the distance. These findings of fact are
based upon what in fact is printed on the face of the reports, and is not a finding that the statements contained in the reports are true.
Ms. Patterson told Ms. Miller that she would send the report to Ms. McKinley. Ms. Patterson told Ms. Miller that she did communicate with HRS. No finding is made as to the truth of Ms. Patterson's statement, but only that Ms. Miller in fact heard Ms. Patterson make this statement to her. Ms. Miller thought Ms. Patterson would and did send the medical report of July 22, 1987, to Ms. McKinley.
Ms. Patterson did not send Dr. Newman's medical report to Ms. McKinley.
There was a prior pattern of dealing between the parties such that Ms. Patterson, with reasonable frequency, though not routinely, communicated to Ms. McKinley concerning the current medical status of Ms. Miller with respect to her ability to resume her job with HRS. This finding of fact is based upon the testimony of Ms. Miller, who stated that she relied upon Ms. Patterson to keep Ms. McKinley informed, and the testimony of Ms. Miller that on July 24, 1987, she told Ms. McKinley by telephone that Ms. Patterson would send the medical documentation. It is also based upon the testimony of Ms. McKinley, who testified that Ms. Patterson did, from time to time discuss with her Ms. Miller's medical condition and job alternatives. But most important, this finding is based on the letter of July 22, 1987, itself. The first sentence of that letter stated: "I've been informed by Ms. Patterson of Woods rehabilitation that Dr. Kaplan released you to return to work as of 7/10/87."
It is noted that R. Ex. 5, which Ms. McKinley testified was the only information she had on July 22, 1987, was an extensive report prepared by Nurse Patterson, and shows Michele McKinley in the "cc" list, from which it is inferred that Ms. Patterson routinely sent these medical evaluations to Ms. McKinley.
In the year between August, 1986, and July, 1987, there is no evidence that Ms. Miller had failed to provide HRS with medical documentation concerning her injury as may have been required by HRS, or that HRS had not been satisfied with the reports received from Nurse Patterson and her predecessors. In particular, there is no evidence that during this twelve month period HRS had discussed with Ms. Miller any problem of receipt of medical documentation, or had occasion to warn her that it was her personal responsibility to provide medical documentation, and that her failure to do so would result in loss of her job. Such a warning, it is inferred, would have been appropriate if Nurse Patterson had failed to send medical documentation that had been previously demanded by HRS. In short, during the period from July, 1986, to July, 1987, it must be concluded that whatever system of medical documentation was then required by HRS, if any, was complied with satisfactorily.
On July 28, 1986, Ms. Miller was warned by her supervisor that she had a personal responsibility to keep HRS informed concerning her medical condition. The warning on this date was prompted by the fact that HRS was then not receiving medical documentation that it needed. The relevance of this warning with respect to the period of June and July, 1987, is diminished for several reasons. First, this warning occurred a year before, and there is no evidence of any failure in the intervening 12 months by Ms. Miller to satisfy HRS's needs for medical documentation. Further, the July, 1986, incident occurred because Ms. Miller then did not have a rehabilitation nurse assigned to her case, and thus had no medical representative to send medical information to HRS for her. But more important, as discussed in the preceding paragraph, when Nurse Patterson and her predecessors were assigned to Ms. Miller, Ms. Miller relied
upon them to send medical information. The system apparently worked, since there is no evidence of a dissatisfaction by HRS with medical documentation after July, 1986, until the letter of July 22, 1987.
The medical documentation was still not received by Ms. McKinley on August 10, 1987.
Ms. Miller did not report to work in the period from July 22, 1987, to August 10, 1987.
On August 10, 1987, HRS by letter notified Ms. Miller that HRS concluded that Ms. Miller had abandoned her position.
Ms. Miller did not learn that Ms. McKinley had not received the medical documentation until she received the letter of August 10, 1987.
On August 18, 1987, Ms. Miller requested a formal administrative hearing concerning the conclusion that she had abandoned her position.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.57(1), Fla. Stat.
The request for formal administrative hearing was timely filed.
The Respondent objected that P. Exs. I, 2A and 2B could not be relied upon for an absence of entry because there was no predicate to establish the routine for recording entries. The objection is now sustained, and these exhibits will not be relied upon for that purpose.
The Respondent objected that evidence that the Petitioner was eligible for and receiving workers compensation benefits is irrelevant. That objection is overruled since Petitioner's workers compensation status is relevant to determine the type of her authorized leave of absence.
Rule 22A-7.010(2)(a), Florida Administrative Code provides in pertinent part that:
Abandonment of Position -
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. . . . (E.S. between *)
Rule 22A-14.001(1), Florida Administrative Code, defines "abandonment of position" as follows:
ABANDONMENT OF POSITION - The
*unauthorized* absence by an employee from the employee's position for 3 consecutive work-days. (E.S. between *)
In effect, rule 22A-7.010(2)(a), Florida Administrative Code, provides that an employee who is absent from work for three or more consecutive work days
without authorized leave has resigned his or her position in the career service. See Cook vs. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978).
Rule 22A-7.010(2)(a), Florida Administrative Code, further provides that an employee who separates under such circumstances shall have the right to petition "for a review of the facts in the case and a ruling as to whether the
*circumstances* constitute abandonment of position." (E.S. between *)
This issue in this case, therefore, is whether Ms. Miller was authorized by HRS to be absent from her job during the period from July 22, 1987, to August 10, 1987, when the letter confirming abandonment of position was sent. The issue must be determined by consideration of all the circumstances surrounding the events leading to the July 22, 1987, letter.
Ms. Miller had been authorized by HRS to be absent from her job for a very long time, from February, 1986, to July 22, 1987.
It is inferred that by July 10, 1987, and until July 22, 1987, Ms. Miller was on leave without pay. This has been inferred because Ms. Miller had exhausted her sick leave. It also has been inferred due to several rules governing disability leave and leave without pay which are discussed in the following paragraphs.
Rule 22A-8.012, Florida Administrative Code, provides procedures for authorized disability leave for employees. Subsection (1)(a) first provides disability leave if there is "job connected disability" and provides a method for leave with pay. That subsection provides that "[a]n employee who sustains a job-connected disability *that is compensable under the Workers' Compensation Law* shall be carried in full pay status for a period not to exceed 7 calendar days immediately following the injury . . . ." (E.S. between *) Subsection (1)(b) then provides that "[i]f, as a result of the job-connected injury, the employee is unable to resume work at the end of the period provide in paragraph
(a) of this subsection," several leave options are available: sick, compensatory, and annual leave. Subsection 2 of that subsection provides that the employee shall be placed on leave without pay if she has exhausted her paid leave options. Finally, subparagraph (1)(d) provides procedures for the agency, in its discretion, to return the employee to alternate duty "even if there is not an established position in which the employee can be placed."
The second kind of disability leave is provided in subparagraph (2) of rule 22A-8.012, Florida Administrative Code. This section first contemplates that the disability and inability to work will be determined by a medical examination. Subparagraph (b) provides that "the employee will be notified in
*writing of the duration* of the mandatory leave period and the conditions under which the employee will be allowed to return to the position." (E.S. between *) Finally, subparagraph (d) provides that if the employee is unable to return to work at the end of the mandatory leave period, the agency head has four enumerated options, one of which is to "dismiss the employee *for cause* based on the inability to perform assigned duties." Undoubtedly the agency would have to prove medical cause if the employee requested a formal administrative hearing.
Rule 22A-8.016(2), Florida Administrative Code, provides the procedure for leave without pay applicable in this case. It expressly provides that such leave shall be approved "for a period not exceeding 12 calendar months," but allows extension of such leave by the Department of Administration.
Since Ms. Miller's sick leave had been exhausted, and since there is no proof that Ms. Miller was on mandatory leave, it must be concluded that she was on leave without pay pursuant to rule 22A-8.012(1)(a), Florida Administrative Code. Further support of this inference is the fact that Ms. Miller's injury was job connected, and she was eligible for and receiving workers compensation benefits.
There is no evidence, however, as to the "period" for which HRS authorized leave without pay. As discussed in the findings of fact, the "period" was indefinite because there is no evidence of a termination date.
Ordinarily, the burden of securing authority to be absent from work is upon the employee, not the employer. Even where the employer takes steps to assist the employee in seeking permission to be absent, the burden remains upon the employee at all times to secure continued authority for absence. For example, in Florida State University vs. Brown, 436 So.2d 287 (Fla. 1st DCA 1983), the employee could not come to work because he was in jail. The state agency sent a personnel officer to the jail and assisted the employee to fill out a request for leave without pay. The leave without pay was granted, but only for 20 days. The leave that was granted thus was for a definite period. When the twenty days expired, the employee failed to ask for additional leave. The Court held that the employee had abandoned his position, and that the employer was not under a continuing obligation to seek a request for further authorized leave from the employee, or to assist the employee in obtaining such authority to be absent.
The circumstances of the instant case are different from those in the Brown case because Ms. Miller was on authorized leave without pay on July 22, 1987, and such leave did not have a definite termination date or a definite procedure for establishing a termination date.
In effect, by the letter of July 22, 1987, HRS attempted to provide an after-the-fact termination procedure for the previously granted authority for Ms. Miller to be on indefinite leave without pay.
While HRS undoubtedly has authority to rectify its failure to have established a definite period for the approved leave without pay, the circumstances surrounding its efforts to do so must be examined to determine whether the prior status quo had in fact been altered with sufficient clarity to result in (1) establishment of a method for terminating the leave without pay, and (2) a finding of "abandonment" when Ms. Miller failed to comply with the intended method.
The failure to deliver medical documentation by July 27, 1987, thus, is informative of the issue of the establishment of the method of terminating the indefinite leave without pay and, as a consequence, the issue of "abandonment," only to the degree that the record clearly establishes the duty upon Ms. Miller to, at her peril, provide such documentation by the deadline established by the letter of July 22, 1987.
The letter itself, considered alone, does explicitly set forth the duty, the deadline, and the consequences.
But the letter is not the only event that establishes the boundaries of the duty imposed upon Ms. Miller. A duty imposed must be clearly conveyed, especially when the duty is a new one, and radically alters the previous period
of approved indefinite leave without pay. Stated another way, a duty imposed but not conveyed to the employee with sufficient clarity, given the past lengthy pattern of behavior between the parties, may not be a sufficient justification for a conclusion of "abandonment" if the duty imposed is not obeyed.
First, it must be observed that upon receipt of the July 22, 1987, letter, Ms. Miller promptly called Ms. McKinley on July 24, 1987, explaining the current state of her injury, explaining why she had not been able to report to work, and stating that Ms. Patterson would send the medical documentation.
From this it is clear that Ms. Miller did not intend to abandon her position with HRS, and Ms. McKinley knew that fact before July 27, 1987.
It is also significant that in the twelve months preceding, August, 1986, to July, 1987, HRS apparently was satisfied with Ms. Miller's indefinite leave status at least to the extent that it apparently took no steps to establish a procedure for terminating the leave without pay authority. Further, there is no evidence that in the entire previous year Ms. Miller had failed to meet any medical documentation requirement imposed by HRS, despite the fact that she was absent from work this entire time. Either HRS was satisfied with the system of receiving reports from Nurse Patterson, or did not impose more stringent requirements upon Ms. Miller, or both. But in any event, until the letter of July 22, 1987, there is no evidence that Ms. Miller had been warned that the current system of medical documentation was inadequate. Or, more to the point, that she would automatically lose her job if she did not personally see that medical documentation was delivered by July 27, 1987.
In the telephone conversation on July 24, 1987, between Ms. Miller and Ms. McKinley, Ms. McKinley thus knew that Ms. Miller did not intend to abandon her job. Ms. McKinley also knew the following:
That Ms. Miller probably had been again examined by Dr. Newman only two days earlier, on July 22, 1987, and that Dr. Newman's report was probably a very important report to Ms. Miller if Ms. Miller was to meet the deadline imposed by the letter of July 22, 1987.
That Ms. Miller, as of July 24, 1987, was relying on Nurse Patterson to send the "medical documentation" to Ms. McKinley and thus relied upon prior methods of documentation to comply with the deadline imposed by the July 22, 1987, letter.
That Ms. Patterson had frequently in the past communicated directly with Ms. McKinley to tell Ms. McKinley the medical status of Ms. Miller and whether Ms. Miller could resume her job or some alternative job.
Even though Ms. Miller told her supervisor that Ms. Patterson would send the doctor's report, a report that Ms. McKinley had reason to believe then existed in the hands of Dr. Newman, and even though Ms. Miller's or Patterson's failure to do so was intended by Ms. McKinley and HRS to be the death knell for Ms. Miller's job, Ms. McKinley did not explicitly warn Ms. Miller that she would absolutely lose her job if Ms. Patterson failed to provide the medical documentation by July 27, 1987, as established by the letter of July 22, 1987. All that is reflected in the record is Ms. McKinley's reiteration that an oral report was not adequate, and that a written report was required, a fact known to Ms. Miller, since she stated that Ms. Patterson would send the report.
If there had been same prior inadequacy with Ms. Miller's reliance upon Ms. Patterson to send medical reports to Ms. McKinley, it would have been expected that Ms. McKinley would have told Ms. Miller so over the telephone when Ms. Miller stated that Ms. Patterson would send the report. In point of fact, there probably was no reason for Ms. McKinley to distrust Ms. Patterson on July 24, 1987, because Ms. Patterson, only three days earlier, had routinely sent to Ms. McKinley a "cc" medical report to Ms. McKinley, R. Ex. 5.
From the circumstances surrounding the prior relationship between the parties during the prior year, the method for termination of the indefinite leave without pay status was not established with sufficient clarity, under the circumstances, to cause the failure to physically deliver by July 27, 1987, the report of Dr. Newman--a report that existed, but which was simply not delivered-
-to constitute an effective termination of the leave without pay status, and thus to cause a finding of abandonment of position.
For these reasons, it is concluded pursuant to rule 22A-7.010(2)(a), Florida Administrative Code, that "the circumstances [in this case do not] constitute abandonment of position."
It is therefore recommended that the Department of Administration enter its final order finding that the Petitioner, Tommie Miller, did not abandon her position with the Department of Health and Rehabilitative Services by being absent from her job for three consecutive workdays without authorized leave.
DONE and RECOMMENDED this 17th day of March, 1988, in Tallahassee, Florida.
WILLIAM C. SHERRILL, JR.
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 17th day of March, 1988.
APPENDIX
To Recommended Order in Case No. 87-4136
The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used designate the unnumbered paragraphs used by the Petitioner, in sequence.
Findings of fact proposed by the Petitioner:
Fourth sentence, there is no transcript, and the Hearing Officer's notes do not record the testimony that the medical excuse "indicated that the estimated Date of Return to Duty as unknown." The Hearing Officer has no independent memory of such testimony sufficient to conclude that this proposed
finding of fact is true. The same is true with respect to the sentence: "Ms. Miller advised McKinley that she had been to see Dr. Richard P. Newman, M.D. on July 22, 1987." If the record reflected that Ms. Miller so testified, the Hearing Officer would make this finding of fact, since there was no reason to disbelieve Ms. Miller's testimony, and Ms. McKinley testified that she could not remember. Ms. Miller's testimony, as well as Ms. McKinley's testimony, appeared to be honest and straightforward, testifying to the truth both remembered at the time of testifying. The last sentence is not relevant.
The first and third sentences are rejected since no one from Woods Rehabilitation Services testified. There is no evidence in the record that Ms. Patterson in writing told Ms. Miller that she advised Ms. McKinley of Ms. Miller's continued disability, and thus that portion of the sixth sentence is rejected.
Findings of fact proposed by the Respondent:
None.
COPIES FURNISHED:
Linoria Anthony AFSCME Council 79
345 South Magnolia Drive Suite F-21
Tallahassee, Florida 32301
James A. Sawyer, Jr., Esquire District VII Counsel Department of Health and
Rehabilitative Services
400 West Robinson Street Orlando, Florida 32801
Sam Power, Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407
Tallahassee, Florida 32399-0700
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Miller, Esquire Acting General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407
Tallahassee, Florida 32399-0700
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
TOMMIE MILLER,
Petitioner
DOA CASE NO. AB-87-31
DOAH CASE NO. 87-4136
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/
FINAL ORDER
This matter is before the Department of Administration for entry of a Final Order.
An Order was entered herein on March 17, 1988, by William C. Sherill, Jr., Hearing Officer. The record in this case, including the exhibits received into evidence, has been reviewed. No exceptions to the Recommended Order were filed. It is therefore ORDERED:
The Findings of Fact contained in the Recommended Order (Exhibit "A", attached hereto) are adopted by the Department of Administration.
Rule 22A-7.010(2)(a) Florida Administrative Code, creates a rebuttable presumption that an employee who is absent from work for three consecutive workdays without authorized leave is deemed to have abandoned his position.
Rule 22A-8.012, Florida Administrative Code, provides procedures for authorized disability leave for employees. No evidence was produced by the agency to support a conclusion that the agency followed the guide lines for agency action authorizing disability leave.
The burden of securing authority to be absent from work is upon the employee, not the employer. Even where the employer takes steps to assist the employee in seeking permission to be absent, the burden remains upon the employee at all times to secure continued authority for absence. For example, in Florida State University vs. Brown, 436 So.2d 287 (Fla. 1st DCA 1983), the employee could not come to work because he was in jail. The state agency sent a personnel officer to the jail and assisted the employee to fill out a request for leave without pay. The leave without pay was granted, but only for twenty
(20) days. The leave that was granted was for a definite period. When the twenty (20) days expired, the employee failed to ask for additional leave. The Court held that the employee had abandoned his position, and that the employer
was not under a continuing obligation to seek a request for further authorized leave from the employee, or to assist the employee in obtaining such authority to be absent.
The circumstances of the instant case are different from those in the Brown case because Ms. Miller was on authorized leave without pay on July 22, 1987, and such leave did not have a definite termination date or a definite procedure for establishing a termination date.
Ms. Miller was not notified of the termination date of her authorized leave until she received the letter dated July 22, 1987. On August 10, 1987, Ms. Miller was notified by letter that the Department of Health and Rehabilitative Services had concluded that she had abandoned her position.
There is competent substantial evidence in the record to support a finding that the Petitioner did not abandon her position. Penny v. Department of Insurance, Case No. 85-1530 (DOA January 31, 1986).
The Conclusions of Law contained in the Recommended Order (Exhibit "A") are adopted by the Department of Administration.
Under the circumstances presented, Petitioner did not abandon her position and should be reinstated to her position.
ORDER Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the action of the Department of Health and Rehabilitative Services in deeming Tommie Miller to have abandoned liar position of employment from the Career Service System is REVERSED AND OVERRULED. The Petitioner shall be reinstated as of August 10, 1987, and shall receive all monies and benefits which she would have received if she had not been deemed to have abandoned her position, less any earnings from employment or unemployment compensation Petitioner may have received from the date of her separation from the agency until her reinstatement.
This Order constitutes final agency action. Judicial review of this proceeding may be instituted by filing a Notice of Appeal In the First or Fifth District Court of Appeal pursuant to Section 120.68, Florida Statutes, (1987). Such notice must be filed with the District Court of Appeal within thirty (30) calendar days of the date this Order is filed in the official records of the Department of Administration, as indicated in the Certificate of Clerk below, or further review of this action will be barred.
DONE AND ORDERED in Tallahassee, Florida, this 15th day of July, 1988.
ADIS M. VILA, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550 (904) 488-4116
Certificate of Clerk:
Filed in the official records of the Department of Administration this 15th day of July, 1988.
William C. Sherrill, Hearing Officer Division of Administrative Hearings
101 Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
Orlando, Florida 32801
Linoria Anthony AFSCME Council 79
345 South Magnolia Drive Suite F-21
Tallahassee, Florida 32301
James A. Sawyer, Jr., Esquire District VII Counsel Department of Health and Rehabilitative Services
400 West Robinson Street Orlando, Florida 32801
Larry D. Scott Senior Attorney
Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
| Issue Date | Proceedings |
|---|---|
| Mar. 17, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 15, 1988 | Agency Final Order | |
| Mar. 17, 1988 | Recommended Order | Petitioner's failure to deliver a doctor's report to her supervisor by a certain date does not establish an effective termination of leave or abandonment. |
