STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CELESTE H. TIEMSANGUAN, )

)

Petitioner, )

vs. ) CASE NO. 89-1187

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on August 29, 1989, in St. Petersburg, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Barbara McPherson, Esquire

District Legal Counsel 701 94th Avenue North St. Petersburg, FL 33702

STATEMENT OF THE ISSUES

The issue in this case is whether Celeste H. Tiemsanguan (Petitioner) abandoned her career service position with the Department of Health and Rehabilitative Services (Respondent).

PRELIMINARY STATEMENT

At the hearing, the Petitioner was not present, and therefore, no evidence on her behalf was offered. Since the Respondent was present, and had witnesses and exhibits which it desired to place on the record, it was allowed to call Betty Maddux, Petitioner's former immediate supervisor, James Saxton, personnel technician, and Arthur Edmondson, inspector general's office. Five exhibits were introduced on behalf of the Respondent. Official recognition was taken of Rules 22A-7.0l0(2) and 22A-8.016, Florida Administrative Code, as well as the calendar for the month of December, 1988.

No transcript of the final hearing was filed, and the filing of proposed recommended orders, including proposed findings of fact, was waived.

FINDINGS OF FACT

1. Petitioner was employed as a clerk specialist with Respondent from October, 1988 until the end of December, 1988, and during such employment was a member of the career service system.

2. The last day on which Petitioner worked was December 21, 1988. Petitioner brought a note to the home of her supervisor at 7:30 a.m. on December 22, 1988, stating that, "Effective this date I request six months maternity leave, with the Doctor's excuse to follow . . . ." Petitioner never provided a doctor's statement certifying her pregnancy, with specific beginning and ending dates for maternity leave, as required by the Respondent's Procedure No. 60-5 which governs leave without pay.

   
   

3. By letter dated December 22, 1988, the Respondent attempted to notify the Petitioner that she needed to submit a doctor's statement prior to her leave being approved. This letter was sent by certified mail, return receipt requested, to Petitioner's last known address. However, it was returned to the Respondent as undeliverable.

   
   

4. Petitioner did not report to work and made no further contacts with Respondent after December 22, 1988. She never provided a doctor's certification.

   
   

5. On December 29, 1988, Petitioner was deemed to have abandoned her position, and notice of her abandonment was mailed to her on that date by certified mail, return receipt requested. Again, this letter could not be delivered. It became known to the Respondent on January 3, 1989, that Petitioner was in jail, and personal service of this notice of abandonment was accomplished by Betty Maddux, her immediate supervisor, on that date. Petitioner refused to sign acknowledging receipt of this letter.

   
   

6. Petitioner did not properly request approval of maternity leave because she never provided a medical certification. She abandoned her position because she never received approval from Respondent for maternity, or any other type of leave. Therefore, between December 22 and December 29, 1988, Petitioner was absent without approved leave for three consecutive work days.

   
   

7. Notice of the final hearing was sent to Petitioner at her last known address of record, and was not returned as undelivered. In fact, the Petitioner ordered subpoenas from the Division of Administrative Hearings on July 13, 1989. The final hearing had previously been continued one time at the request of the Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Rule 22A-7.010(2)(a), Florida Administrative Code, provides that an employee who is absent without authorized leave for three consecutive workdays shall be deemed to have abandoned her career service position. Under such circumstances, the employee has the right to petition for a review of the facts in the case, and a ruling as to whether the circumstances constitute an abandonment. See also Rule 22A-14.001(1), Florida Administrative Code.

   
   

10. The term "unauthorized absence" is not defined by statute or rule, and therefore, it must be given its ordinary meaning and interpretation. It is clear, however, that an employee must do more than simply submit a leave request. The employer's approval of the leave request must also be obtained in order for the leave to be "approved", and further, in the case of maternity

    leave, the Respondent's Procedure No. 60-5 requires a medical certification, and specific beginning and ending dates. The note which Petitioner delivered to her immediate supervisor on December 22, 1988, states that a medical statement would be provided, but none ever was. This establishes that Petitioner was fully aware of the Respondent's policy for obtaining approval of maternity leave.

    
    

11. An agency has no duty to excuse an employee's failure to properly obtain approval for a leave request due to that employee's prior conduct. Florida State University v. Brown, 436 So.2d 287 (Fla. 1st DCA 1983). The burden is on the employee to properly obtain approval of her leave request. Rule 22A- 7.010(2)(a) creates a presumption that an employee who is absent from work for three or more consecutive days without authorized leave has abandoned her position in the career service. In Cook v. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978) the Court reasoned that this Rule creates a means for swiftly dealing with employees who fail to show up for work, and thereby allows the replacement of ineffective public employees. See also Hadley v. Department of Administration, 411 So.2d

    184 (Fla. 5th DCA 1982).

    
    

12. Since Petitioner did not appear at the final hearing and there is no evidence in the record to support her position, the presumption of abandonment, under the facts of this case, has not been rebutted. Petitioner did not follow the required procedures to obtain approval for six months maternity leave, and simply failed to report to work after December 21, 1988. She made no effort to further contact her employer, after delivering a note to her immediate supervisor's home on the morning of December 22, 1988, in which she acknowledged that she would also have to provide a medical statement. Petitioner was absent from her position without authorized leave for three consecutive work days, and therefore, abandoned her position in the career service.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Department of Administration enter a Final Order concluding that Petitioner has abandoned her position with Respondent in the career service system.

DONE AND ENTERED this 14th day of September, 1989 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1989.

COPIES FURNISHED:

Barbara McPherson, Esquire District Legal Counsel

701 94th Street North St. Petersburg, FL 33702

Celeste H. Tiemsanguan 628 88th Avenue North, #2 St. Petersburg, FL 33702

John Miller, Esquire General Counsel

1323 Winewood Blvd.

Tallahassee, FL 32399-0700

R. S. Power, Agency Clerk 1323 Winewood Blvd. Tallahassee, FL 32399-0700

Gregory Coler, Secretary 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

Larry Scott, Esquire

435 Carlton Building Tallahassee, FL 32399-1550

Augustus D. Aikens, Jr., Esquire General Counsel

435 Carlton Bldg. Tallahassee, FL 32399-1550

A. J. McMullian, III Interim Secretary

Dept. of Administration

435 Carlton Bldg. Tallahassee, FL 32399-1550

Docket for Case No: 89-001187

Orders for Case No: 89-001187