STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELEN CHAPPELL, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4183

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on November 17, 1989, in Winter Haven, Florida.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Jack E. Farley, Esquire

HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514

STATEMENT OF THE ISSUES

The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.

PRELIMINARY STATEMENT

By letter dated June 15, 1989, Respondent's representative informed Petitioner that her resignation from employment was being processed on the presumption that Petitioner had abandoned her position in the career service system.

Petitioner subsequently requested a formal administrative hearing regarding Respondent's action and the matter was transferred to the Division Of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

Petitioner did not appear at the formal hearing and no testimony or evidentiary exhibits were offered on her behalf. Respondent presented testimony of three witnesses and five evidentiary exhibits. A transcript of the final hearing was not requested. Proposed findings of fact submitted by Respondent

are addressed in the appendix to this recommended order. No proposed findings were timely submitted by Petitioner, and none had been received at the time of the preparation of this recommended order.

FINDINGS OF FACT

1. Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings.

   
   

2. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989.

   
   

3. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery.

   
   

4. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement."

   
   

5. By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989.

   
   

6. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter.

   
   

7. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989.

   
   

8. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.

   
   

   CONCLUSIONS OF LAW

   
   

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

10. Rule 22A-7.010(2)(a), Florida Administrative Code, provides in pertinent part that "an employee who is absent without authorized leave of absence for three (3) consecutive work days shall be deemed to have abandoned the position and to have resigned from the career service."

    
    

11. The proof establishes that Petitioner was absent for more than three consecutive work days from her position of employment with Respondent without authorized leave. As a result, Petitioner abandoned her position of employment as set forth in Rule 22A-7.010(2)(a), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989.

DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 6th day of December, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

None submitted.

Respondent's Proposed Findings.

1.-5. Adopted in substance.

1. Rejected, unnecessary.

2. Adopted in substance.

COPIES FURNISHED:

Jack E. Farley, Esquire

HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514

Helen L. Chappell Post Office Box 109

Lake Wales, Florida 33859

Larry D. Scott, Esquire Department of Administration

438 Carlton Building Tallahassee, Florida 32399-0450

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-0450

Aletta L. Shutes Secretary

Department of Administration

438 Carlton Building

Tallahassee, Florida 32399-0450

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 89-004183

Orders for Case No: 89-004183