STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4563

)

MARY JANE CLARK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on January 15, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The representatives of the parties were as follows: For Petitioner: James A. Sawyer, Esquire

District Legal Counsel

Department of Health and Rehabilitative Services

400 West Robinson Street, Suite 911 Orlando, Florida 32801

For Respondent: Mary Jane Clark, pro se

911-C West Concord Street Orlando, Florida 32805

BACKGROUND

On September 4, 1987, Petitioner informed Respondent by letter that she had been separated from Career Service with the State of Florida by reason of abandonment of position, effective as of 5:00 p.m. on that date. The letter recited as the reason the failure of Respondent to report to work on September

1. , 1987, coupled with the failure of Respondent to notify Petitioner properly of her absence.

   
   

   On September 23, 1987, Respondent requested in writing a formal hearing on whether she had abandoned her position with Petitioner. On October 13, 1987, the Department of Administration filed an Order accepting the petition and stating the issue for resolution as whether Respondent abandoned her position and resigned from career service.

   
   

   Petitioner presented four witnesses and offered into evidence four exhibits. All were admitted. However, Petitioner's exhibit number four was admitted upon the condition that it was not for the purpose of proving Respondent's use of alcohol. Such use or non-use of alcohol was entirely

   irrelevant to the issue of abandonment. Respondent presented one witness, herself, and offered into evidence two exhibits. Both were admitted.

   
   

   Neither party filed a proposed recommended order.

   
   

   FINDINGS OF FACT

   
   

   1. Until terminated by Petitioner's letter of September 4, 1987, cited above, Respondent had permanent status in the career service of the State of Florida. At the time of her termination, Respondent was a clerk-typist working for Petitioner at 832 West Central Avenue, Orlando, Florida. She had been working for Petitioner for seven months at the time of her termination.

      
      

   2. Respondent's duties called for her to meet the public. She dealt with visitors to the Orange County Health Department who needed information from Petitioner concerning its Immunization and School Health Project.

      
      

   3. Respondent's supervisor was Betty C. Connelly. Ms. Connelly had observed Respondent while on duty and felt that she had difficulty dealing with people, especially crowds. Respondent was and is a very nervous person. Ms. Connelly was worried that Respondent's performance would suffer further when school resumed. The beginning of the school year is one of the busiest times of the year for the Immunization and School Health Project and, thus, for Respondent.

      
      

   4. On August 19, 1987, Ms. Connelly and Respondent had an Employee- Supervisor Conference. At this time, Ms. Connelly discussed with Respondent her problems at work and the possibility of a change of duty that would involve less public contact. The change of duty would not entail a change in the rate of pay for Respondent.

      
      

   5. Respondent became upset at this conference and left work at lunch that day. She did not return to work following this conference for the next four workdays. By August 26, 1987, she had exhausted her hours of leave with pay. On that date, Petitioner allocated six hours of leave to unspecified leave without pay. Respondent reported to work for the next three work days.

      
      

   6. On August 27, 1987, when Respondent returned to work, Ms. Connelly and Respondent had another Employee-Supervisor Conference. Ms. Connelly reminded Respondent of Petitioner's policies concerning unauthorized absences and requiring that she notify her supervisor personally when she was going to be missing work.

      
      

   7. On Tuesday, September 1, 1987, Respondent again failed to show up for work. Tuesdays were clinic days and very busy for the Immunization and School Health Project. Respondent's absence meant that someone else had to be found on short notice to serve as the intake person for Petitioner.

      
      

   8. Neither Ms. Connelly nor her immediate supervisor, Betty Dawson, received a telephone call from Respondent on September 1, 1987. However, Respondent did call into work early in the morning and spoke with a co-worker, Marion Prather. During this call, Respondent failed to inform Ms. Prather that Respondent would not be in for the entire day. Ms. Prather judged from the conversation that Respondent would be in to work later in the day.

      
      

   9. Neither Respondent nor anyone on her behalf contacted anyone at Petitioner's office again until September 3, 1987, when Robert H. Clark,

      Respondent's husband, called Petitioner on his wife's behalf. He spoke with Ms. Dawson, who was Ms. Connelly's supervisor. Ms. Dawson happened to answer the incoming telephone because the receptionist was away from her desk. Mr. Clark informed Ms. Dawson that his wife would not be at work that day because she was not feeling well. Ms. Dawson responded that, if Respondent was not at work by 5:00 p.m. that day, she would be considered to be on unauthorized leave and fired. The conversation ended abruptly at this point. At no time did Mr. Clark indicate during this conversation that his wife was going to see a doctor. No one heard anything further from Respondent or her husband on that day.

      
      

   10. Neither Respondent nor her husband contacted Petitioner on Friday, September 4, 1987. There was no further contact between Petitioner and Respondent until Tuesday, September 8, 1987. At that time, Respondent called Ms. Dawson and asked whether Respondent still had a job. Ms. Dawson told her that a letter was in the mail informing her that she had been terminated.

       
       

   11. Respondent claimed that she was absent from work unavoidably. She testified that Monday evening, August 31, 1987, she drove the family car, a 1976 Chevrolet Nova, to pick up her husband at work; that when she and her husband returned to the car, it refused to start; and that she and her husband then spent the next two evenings sleeping in the car.

       
       

   12. Respondent's testimony concerning two nights spent in a passenger automobile in the middle of summer in Orlando strains credulity. She claims that she and her husband did not have enough money with them for both repairs and alternative transportation. The car broke down in the Greater Orlando area, but Respondent claims that she could devise no way to return home even after the first night.

       
       

   13. The repairs required the replacement of a battery and starter, plus some unspecified "shimmying" of the "flywheel" by Mr. Clark to make the car start. Mr. Clark testified that he walked somewhere and purchased a battery on Tuesday, September 1, 1987, but, when the car still would not start, he returned the battery and called another supplier the following morning. The second supplier, which was located in downtown Orlando not far from where Respondent worked, delivered the battery to the disabled car. It is unclear why the second battery came from this supplier. Under the circumstances that he described, Mr. Clark would not likely have had the opportunity to comparison shop. It is equally unlikely that the supplier of the battery would have been unable to give Respondent a ride either to work or home. Respondent never adequately explained why she was unable to ask for a ride from someone at work.

       
       

   14. In any event, Respondent testified that she and her husband were able to drive the car on Wednesday, September 2, 1987. Although she was supposedly too nervous to return to work, she was not sufficiently nervous to have to visit a physician until Friday, September 3, 1987. The resulting doctor's note that Respondent produced at the hearing states no more than that she may return to work on September 8, 1987. It says nothing about her absence prior to September 4, 1987, and provides no diagnosis. In short, it fails to provide any reason why Respondent was absent from work.

       
       

       CONCLUSIONS OF LAW

       
       

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

   16. The Department of Administration has jurisdiction to review cases of this nature. An employee who is absent without authorized leave for three consecutive workdays shall be deemed to have abandoned his or her position and resigned from career service. Rule 22A-7.010(2)(a), Florida Administrative Code.

       
       

   17. Even though Respondent must initiate the present action, the burden of proof is on Petitioner, which has the affirmative of the issue that Respondent abandoned her position. Petitioner must meet its burden of proof by a preponderance of the evidence. Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974).

       
       

   18. Respondent was absent without leave from her clerk-typist position from September 1-4, 1987. She did not have her supervisor's permission to be absent during these workdays. Nor did she ever provide suitable documentation or justification for her absence. When Mr. Clark informed Ms. Dawson of Respondent's absence on September 3, 1987, she told him that his wife's absence was without authorization. Respondent's failure to comply strictly with Petitioner's policy with regard to unauthorized absences came within days after an Employee-Supervisor Conference at which Ms. Connelly emphasized to Respondent the importance of compliance with Petitioner's attendance policies.

       
       

   19. It is impossible to believe Respondent's version of why she was unable to report to work during the days in question. Her credibility as a witness is suspect. Her recollection of dates and events was poor. She had reacted poorly to her previous Employee-Supervisor Conference by imprudently exhausting her remaining leave time. It is reasonable to assume that she did not react well to her second conference, although she did not immediately rush from work as she did previously. In any event, Respondent's version of events as they transpired from the evening of August 31, 1987, through September 2, 1987, is implausible. Even if she had been "trapped" in her car during this period of time, she never offered a credible explanation of why she could not get to work by some other means, especially after the car resumed operating on September 2, 1987. If her health were so impaired by two nights' confinement in the car, then she and her husband presumably would have spent the available cash on getting her home rather than first fixing the car.

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Administration enter a Final Order determining that Respondent has abandoned her position in the career service of the State of Florida.

DONE and RECOMMENDED this 27th day of January, 1988, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1988.

COPIES FURNISHED:

James A. Sawyer, Esquire District General Counsel Department of Health and

Rehabilitative Services

400 West Robinson Street Suite 911

Orlando, Florida 32801

Mary Jane Clark, pro se 911-C West Concord Street Orlando, Florida 32805

John Miller General Counsel

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

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Adis Villa Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 87-004563

Orders for Case No: 87-004563