Judges: JAMES E. BRADWELL
Agency: Department of Management Services
Latest Update: Aug. 25, 1989
Summary: Whether Respondent should be deemed to have abandoned her employment with Petitioner and resigned from Career Service on March 10, 1989.Respondent abandoned her employment and resigned from career services.
89-2367STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 89-2367
)
NGUYET MACKAY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in the above-styled case on July 20, 1989, in Tampa, Florida.
APPEARANCES
For Petitioner: Shari N. Cortese, Esquire
Department of Health and Rehabilitative Services
701 94th Avenue, North
St. Petersburg, Florida 33702
For Respondent: Nguyet Mackay, pro se
6202 South Harold Avenue Tampa, Florida 33601
STATEMENT OF THE ISSUES
Whether Respondent should be deemed to have abandoned her employment with Petitioner and resigned from Career Service on March 10, 1989.
FINDINGS OF FACT
From March 31, 1987 through March 6, 1989, Nguyet Mackay, Respondent herein, was an employee of the Department of Health and Rehabilitative Services (Petitioner herein).
Petitioner's workday commences at 7:30 a.m. At approximately 9:30 a.m., on March 6, 1989, Respondent called Larry Blackburn, a supervisory employee and advised that she was in Ohio and requested leave without pay (LWOP). Blackburn was without authority to approve LWOP and so advised Respondent, but agreed to submit Respondent's request to personnel for consideration. Blackburn expressed skepticism about granting LWOP to Respondent since Respondent, at the time, was on special probation for failing to achieve the required standards in her department. During the conversation with Blackburn on March 6, Respondent advised Blackburn that she was enroute to
California to pick up her sister and other relatives and that she would again call the following day, i.e., March 7, to find out if her request for LWOP was granted.
Blackburn, in an effort to make sure that in the event Respondent called prior to his arrival at work the following morning, left specific instructions with Marilyn Ford, a unit supervisor, on whether to grant or deny Respondent's request for LWOP.
At approximately 8:30 a.m., on March 7, 1989, Respondent phoned to inquire whether her request for LWOP was approved. Ford inquired of Respondent the basis for her request for LWOP and determined that since it was not an emergency, Respondent was advised and placed on unauthorized LWOP and that disciplinary action was being contemplated. Ford further advised Respondent that she was to report to work the following day, March 8, 1989, at her regular reporting time. Respondent was cautioned that in the event that she failed to report to work by the close of business on Friday, March 10, 1989, her employment relationship with Petitioner would be severed for abandonment of position. Respondent advised supervisor Ford that she had flown to California from Ohio to meet with seven members of her family who were flying to California from Malaysia, a sister and brother-in-law and their five children, who had a language barrier and were unable to communicate in English.
Respondent understood the directives issued by Ford respecting her unauthorized LWOP and her duty to report to work on March 8. Respondent did not report to work by the close of business on March 10, and her only communication with Petitioner following the March 7, 1989 conversation with Marilyn Ford, was a phone call during the week of March 13 to give her new address and directions for mailing her final paycheck.
By letter dated March 13, 1989, Respondent was advised that she was deemed to have resigned from Career Service on March 10, 1989, based on her continuous absence from work without authorization during the period 7:30 a.m., Monday, March 6, 1989 through 4:00 p.m., Friday, March 10, 1989, since such absence without authorized leave for three consecutive work days constituted an abandonment of position. At the time of Respondent's employment on March 31, 1987, she received a copy of Petitioner's employee handbook and loyalty oath and acknowledged her responsibility to review the handbook in detail and request any clarification needed from either her supervisor or the personnel office. (Petitioner's Exhibit 4).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Petitioner is derived from Chapter 110, Florida Statutes.
Rule Chapter 22A-7.010(2)(a), Florida Administrative Code, provides in pertinent part:
...an employee who is absent without authorized leave of absence for three consecutive workdays shall be deemed to have abandoned the position and to have resigned from the career service.
Petitioner's unauthorized absence during the period March 6 through March 10, 1989, constitutes an abandonment of position within the purview of Rule 22A-7.010(2)(a), Florida Administrative Code. Petitioner therefore resigned from the Career Service on March 10, 1989, based on such abandonment.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:
The Department of Administration enter a Final Order denying Respondent's petition for review of the facts herein based on the determination that Respondent abandoned her position of employment with Petitioner on March 10, 1989.
DONE and ENTERED this 25th of August, 1989, in Tallahassee, Leon County, Florida.
JAMES E. BRADWELL
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 25th day of August, 1989.
COPIES FURNISHED:
Shari N. Cortese, Esquire Department of Health and
Rehabilitative Services 701 94th Avenue North
St. Petersburg, Florida 33702
Nguyet Mackay
6202 South Harold Avenue Tampa, Florida 33601
Larry D. Scott, Esquire Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1500
Augustus D. Aikens, Jr., Esquire General Counsel
Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
A. J. McMullian, III Interim 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: 89-002367
Orders for Case No: 89-002367
