Judges: JANE C. HAYMAN
Agency: Department of Management Services
Latest Update: Jun. 05, 1989
Summary: Whether Petitioner abandoned her position with Respondent and resigned from the Career Service System within the meaning of Rule 22A-7.010(2)(a), Florida Administrative Code.Petitioner did not establish that she offered her health condition as a reason to request for leave and that her health neccessitated the leave requested.
89-1185STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NANCY M. MORRISON, )
)
Petitioner, )
)
vs. ) CASE NO. 89-1185
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above styled case on April 27, 1989, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Ms. Nancy H. Morrison, pro se
5306 Southwest 76th Avenue Davie, Florida 33328
For Respondent: Charles G. Gardner, Esquire
Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street
Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES
Whether Petitioner abandoned her position with Respondent and resigned from the Career Service System within the meaning of Rule 22A-7.010(2)(a), Florida Administrative Code.
PRELIMINARY STATEMENT
By certified letter dated January 17, 1989, Petitioner petitioned for review of the determination that she had abandoned her position with the Respondent and requested reinstatement. The Department of Administration elected to request assignment of a Hearing Officer from the Division of Administrative Hearings to conduct further proceedings in this case.
At the formal hearing, Petitioner testified on her on behalf and offered nine exhibits, P-1 through P-9. P-1 and P-5 through P-9 were admitted into evidence. P-1 was admitted, over a hearsay objection, to the extent that the exhibit is corroborative of competent proof. P-9 was admitted only to the extent that it shows a letter was written by the signatory. P-2 through P-4 were excluded from evidence on sustained objections as to authenticity.
Respondent presented the testimony of one witness and offered six exhibits into evidence, R-1 through R-6 were admitted into evidence.
A transcript of the proceeding was ordered and received & on May 8, 1989.
Proposed findings of fact and conclusions of law were due on May 18, 1989. Respondent submitted proposed findings of fact and conclusions of law in a timely manner, but Petitioner did not. A ruling on each proposed finding of fact has been made and is reflected in the appendix to this recommended order.
FINDINGS OF FACT
Prior to her termination and at all times material hereto, Petitioner was employed as a Senior Clerk for Respondent.
At sometime prior to December 19, 1988, Petitioner purchased a nonrefundable airline ticket departing on December 23, 1988, and returning on December 30, 1988. Thereafter, Petitioner requested 40 hours of annual leave for the workdays of December 23, 1988, and December 27-30, 1988 and requested her personal holiday for the workday of December 28, 1988.
On December 19, 1988, Petitioner was informed that she had 21.2 hours of available annual leave and was granted 16 of those hours for the workdays of December 23, 1988, and December 27, 1988. Petitioner's request to take her personal holiday on December 28, 1988 was denied, as was her request for annual leave for the period of December 28-30, 1988 denied.
Upon being advised that a portion of her leave request had been denied, Petitioner told her supervisor about the airline ticket and that she "could not afford to lose my investment of my air-fare." Her supervisor, in turn, advised Petitioner that if she were absent December 28-30, 1988 she would be deemed to have abandoned her position.
Notwithstanding such knowledge, Petitioner was absent from work without authorized leave for the three consecutive workdays of December 28-30, 1988.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and over the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
Rule 22A-7.010(2)(a), Florida Administrative Code provides the following:
(2) Abandonment of Position.
(a) 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. An employee who has Career Service status and separates under such circumstances shall not have the right of appeal to the Public Employees Relations Commission; however, any such employee shall have the right to petition the department for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position. (Emphasis added).
Here, Petitioner was absent from work for three consecutive work days without authorized leave and, therefore, abandoned her position.
At hearing, Petitioner argued that Respondent abused its discretion by denying her leave request without considering the health reasons for her requested leave. Yet, no competent or substantial evidence was presented to show that the Petitioner offered her health condition as a reason for her request for leave nor was competent or substantial evidence presented to demonstrate that her health necessitated the leave requested. Thus, Respondent did not abuse its discretion by denying her leave request for health reasons and Petitioner's argument fails on that point.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that
the Petitioner abandoned her position and resigned from the Career Service
System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June 1989.
JANE C. HAYMAN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of June 1989.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1185
Petitioner's proposed findings of fact are addressed as follows:
Addressed in paragraph 1.
Addressed in paragraph 2.
Addressed in paragraph 3.
Addressed in paragraph 3.
Not pertinent nor necessary to result reached.
Addressed in paragraph 4.
Addressed in paragraph 3.
Not supported by competent and substantial evidence.
Not pertinent nor necessary to result reached.
Not pertinent nor necessary to result reached.
Addressed in paragraph 4.
Addressed in paragraph 5.
Addressed in paragraph 5.
Addressed in paragraph 4.
Not pertinent nor necessary to result reached.
Not pertinent nor necessary to result reached.
COPIES FURNISHED:
Larry D. Scott, Esquire Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
Thomas H. Bateman, III., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Ms. Nancy M. Morrison 1925 Coolidge
Hollywood, Florida 33020
Adis Vila, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Thomas H. Bateman, III, Esquire General Counsel
Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Augustus D. Aikens, Jr., Esquire Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
Docket for Case No: 89-001185
Orders for Case No: 89-001185
| Issue Date |
Document |
Summary |
|
Aug. 18, 1989 |
Agency Final Order
|
|
|
Jun. 05, 1989 |
Recommended Order
|
Petitioner did not establish that she offered her health condition as a reason to request for leave and that her health neccessitated the leave requested.
|
