STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY L. CURRY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1974

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for formal administrative hearing, pursuant to due notice, on June 24, 1988, in Chattahoochee, Florida, before William F. Quattlebaum, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Kathy R. Newman, Esquire

Legal Services of North Florida, Inc.

211 East Jefferson Street Quincy, Florida 32351

FOR RESPONDENT: Dennis X. Crowley, Esquire

Florida State Hospital Administration Building Chattahoochee, Florida 32324

At the hearing, Petitioner presented the testimony of Tanya Hill and Perman Curry, and testified on his own behalf. Petitioner introduced and had admitted two exhibits. Respondent presented the testimony of Faye Alcorn, Dorothy Stinson, and Eileen Tharpe, and introduced and had admitted four exhibits. A prehearing stipulation submitted by the parties was. also admitted (Hearing Officer's Exhibit 1). The transcript of the proceeding was filed on July 11, 1988.

Proposed recommended orders were filed by the parties. The proposed findings of fact are ruled upon in the Appendix which follows and which is hereby made a part of this Recommended Order.

The issue in this case is whether Petitioner, Henry L. Curry, abandoned his job with Respondent, Florida State Hospital, Department of Health and Rehabilitative Services, and therefore resigned from his Career Service position.

During the hearing, Respondent's counsel directed towards Petitioner a series of questions related to the alleged timely mailing to, and receipt by, Petitioner of the 1987 earnings statement prepared by Respondent for income tax purposes. At the time the questions were asked, Petitioner's counsel objected

on grounds of relevance. Respondent stated that relevance would be shown. The Hearing Officer reserved ruling on the objection.

Review of the transcript fails to demonstrate the relevance of such questions. Accordingly the objections are sustained and the related questions and answers have been disregarded.

FINDINGS OF FACT

1. Petitioner, Henry L. Curry, was employed by Respondent, Department of Health and Rehabilitative Services, from October 26, 1970 to March 3, 1988.

   
   

2. Petitioner was employed at Florida State Hospital, Chattahoochee, as a Human Services Worker I, Forensics, Unit 20, during the winter of 1988. The position was part of the Career Service System in which the Petitioner had attained "permanent" status.

   
   

3. On February 1, 1988, Petitioner telephoned a person named Grady James, another employee at Florida State Hospital. (R-1) Petitioner informed Mr. James that, due to illness, Petitioner was not able to work and would bring a "sick slip" when he was able to return to work.

   
   

4. Petitioner had no further contact with Respondent until March 28, 1988, when Petitioner's letter, dated March 24, 1988, was received by Florida State Hospital. (P-1) In the letter, Petitioner stated that he was "an inpatient at the VA Medical Center" and that "a letter of verification" of his hospitalization was forthcoming.

   
   

5. On March 30, 1988, Florida State Hospital received a letter from the Atlanta Veterans Administration Medical Center's Alcoholism and Drug Dependence Treatment Unit in Decatur, Georgia. The letter, dated March 28, 1988, stated that Petitioner had been hospitalized March 16 - 28, 1988, in said unit. (P-2)

   
   

6. There is limited information indicating Petitioner's physical location or functional ability during the period of time between February 1, 1988, when he contacted Mr. James, and March 16, 1988, when he was hospitalized. Petitioner testified that he was not in his "right mind", that he "was possessed", "drugged out", and "couldn't cope". Petitioner slept "in the car, in the crack houses and everywhere". (Testimony of Petitioner) Petitioner was seen once during that time by his father in Quincy, Florida, (Testimony of Perman Curry) and apparently was hospitalized for unexplained reasons in "Montgomery" for some period (Testimony of Petitioner)

   
   

7. While Petitioner states that he did not intend to resign from his position, no contact was made with his employer from February 1, 1988 to March 28, 1988, a period of 56 days.

   
   

8. Prior to February 1, 1988, Petitioner had been counseled on several occasions, and his attendance had been closely monitored, due to unscheduled absences. (R-1)

   
   

9. On February 9, 1988, Dorothy N. Stinson, the supervisor of the unit in which Petitioner worked, sent by certified mail, appropriately addressed, a letter to Petitioner noting the lack of communication from Petitioner and stating that, unless medical certification for the unauthorized absence was provided within three days of receipt of the letter, Petitioner would be considered to have abandoned his position and resigned from employment. The

   letter was returned as "unclaimed" by the postal service on February 25, 1988, after two unsuccessful attempts to effect delivery. (R-3)

   
   

10. On March 4, 1988, Faye H. Alcorn, Deputy Hospital Administrator, sent by certified mail, appropriately addressed, a letter (dated March 3, 1988) to Petitioner which stated that due to his absence without authorized leave from February 2 - March 2, 1988, during which time there had been no contact with Petitioner, he was deemed to have abandoned his position and resigned from the state's career service system pursuant to rules related to separation from employment resulting from abandonment of position. The letter was returned as "unclaimed" by the postal service on March 20, 1988, after two unsuccessful attempts to effect delivery. (R-2)

    
    

11. In or around December, 1987, Ms. Stinson became aware that Petitioner had a substance abuse problem. Ms. Stinson testified that it is possible to take "leave without pay" for a period of up to one year and that such leave could possibly be granted to an employee who is ill due to a drug and alcohol addiction. A person seeking to take such leave would either submit a written letter of request or would submit medical certification indicating that the employee was unable to work.

    
    

12. Petitioner did not request to be placed on "leave without pay" status. The "leave without pay" status assigned to Petitioner during that period was assigned for administrative purposes and did not indicate that the leave had been authorized or approved.

    
    

13. The medical certification submitted by Petitioner is for the period of March 16 - 28, 1988. No medical certification was submitted for the period of February 1 - March 16, 1988.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this case. Section 120.57, Florida Statutes.

    
    

15. 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. Rule 22A- 8.002(5), Florida Administrative Code (emphasis added).

    
    

16. In this case the Petitioner did not obtain authorization for the leave of absence which began February 1, 1988. There was no request for leave; the sole contact with Respondent prior to the letter of March 24, 1988, was Petitioner's phone call to Mr. James, a co-worker, during which Petitioner stated he was too sick to work. There is no indication that any "emergency" existed which could excuse the requirement that leave be approved in advance. Petitioner's condition was not the type of sudden or unexpected occurrence requiring immediate action, such as could be termed an emergency. Further, even if the substance abuse problem were considered an "emergency", the hospital's options include the action which was taken in this instance. Rule 22A- 8.002(5)(a)(3), Florida Administrative Code.

    
    

17. A Career Service employee who is absent without authorized leave of absence for three consecutive days shall be deemed to have abandoned the position and to have resigned from the Career Service. Rule 22A-7.010(2)(a), Florida Administrative Code. The evidence in this case clearly shows an unapproved absence well in excess of three days.

18. Petitioner's counsel suggests that due to Petitioner's substance abuse problem he was unable to form the intent to resign from his position. However, the rule does not require, in addition to a continued unauthorized absence, that an absent employee further express an intent to resign. To the contrary, the rule is designed to permit the intent to be presumed from the continued unauthorized absence, and to permit the agency to assume that the employee is not returning, process the paper work and refill the vacant position. Cook v. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla.1st DCA 1978). While such a presumption of resignation may be rebuttable in some circumstances, Petitioner's claim that he did not mean to resign is insufficient to do so. There was no effort made to contact his employer for 56 days. Petitioner's unapproved absence prior to his admission to the VA Medical Center, extended for 43 days (February 2 - March 15, 1988). There was no evidence which would lead to the conclusion that Petitioner was unable to make contact with the employer during that period. Petitioner did have contact with his father and was at least somewhat mobile during that period. Yet at no point over the 56 day period did Petitioner make contact with his employer. The actions of the Respondent under these circumstances were entirely reasonable.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued concluding that the Petitioner

abandoned his position and resigned from the Career Service.

DONE and ENTERED this 2nd day of August, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 2nd day of August, 1988.

APPENDIX

The following constitute rulings on the proposed findings of fact submitted by the panties to this case.

Petitioner

1. Accepted.

2. Accepted, however, letter indicated that continued absence would constitute abandonment.

3. Accepted, insofar as the absence from 2/2/88 to 3/2/88, however, Petitioner did not notify Respondent of his situation until 3/28/88, (or 26 days following termination).

4. Accepted.

5. Accepted.

6. Rejected, irrelevant.

7. Accepted, however, such leave must receive prior approval.

8. Accepted.

9. Accepted.

10. Accepted.

11. Rejected, irrelevant.

12. Rejected. If Petitioner was unable, as counsel asserts, to form the intent to resign from his position he was likewise unable to form the intent to return.

Respondent

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

7. Rejected, irrelevant.

8. Accepted.

9. Accepted.

10. Accepted.

11. Accepted.

12. Rejected, unnecessary.

COPIES FURNISHED:

Kathy R. Newman, Esquire

Legal Services of North Florida, Inc.

211 East Jefferson Street Quincy, Florida 32351

Dennis X. Crowley, Esquire Florida State Hospital Administration Building Chattahoochee, Florida 32324

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 88-001974

Orders for Case No: 88-001974