STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMILY D. McGEE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5355

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on November 8, 1990, in New Port Richey, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Emily D. McGee

Post Office Box 1223 Port Richey, Florida

For Respondent: Thomas W. Caufman, Esquire

Assistant District Legal Counsel

Department of Health and Rehabilitative Services 701 94th Avenue North St. Petersburg, Florida

STATEMENT OF THE ISSUES

Whether Petitioner, pursuant to Rules 22A-7.010(2)(a) and 22A-8.002(5)(a)3, Florida Administrative Code, abandoned her position and resigned from the State of Florida Career Service System.

PRELIMINARY STATEMENT

By letter dated July 27, 1990, Michael C. Becker, District Administrator for District Five, Department of Health and Rehabilitative Services, notified the Petitioner that the Department considered her to have abandoned her position as a Public Assistance Specialist II with the Department and to have resigned from career service, effective the close of business on Friday, July 20, 1990, as a result of her absence from to work without authorization on July 18, 19 and 20, 1990. On August 9, 1990, Petitioner responded to this letter denying she had abandoned or resigned her position and requesting a formal hearing before the Public Employees Relations Commission (PERC). By Order Dismissing Appeal and Transferring Case to Department of Administration, dated August 15, 1990,

PERC held that it did not have subject matter jurisdiction in abandonment cases, dismissed it and transferred the appeal to the Department of Administration. On August 28, 1990, the Secretary of Administration accepted the petitioner for formal hearing and assigned it to the Division of Administrative Hearings. This hearing followed.

At the hearing, Petitioner testified in her own behalf and offered three exhibits in evidence and one exhibit offered was not admitted. Respondent offered the testimony of one witness, Dorothy White, Public Assistance Specialist Supervisor, Petitioner's former supervisor and five exhibits were admitted in evidence.

A transcript was not provided and neither party submitted proposed findings of fact or conclusions of law.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Emily D. McGee, was employed by the Respondent, Department, as a Public Assistance Specialist II in the Department's Medically Needy Unit #87 in New Port Richey, Florida. In that assignment, Petitioner's immediate supervisor was Public Assistance Specialist Supervisor Dorothy White.

   
   

2. It is established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays.

   
   

3. On April 13, 1990, Petitioner was overcome with job stress and was admitted to a residential mental health care facility for four days, which was drawn against Petitioner's earned sick leave.

   
   

4. Subsequent to her release, she received outpatient psychological therapy at the Center for the Treatment of Depression in New Port Richey, Florida, with Howard L. Masco, M.D., as her treating physician.

   
   

5. On April 20 and again on April 25, 1990, Petitioner was advised by White that in order to properly draw against earned sick leave she must provide a doctor's statement that she was disabled and unable to perform her duties and the projected date of her return to work.

   
   

6. On April 25, 1990, a doctor's statement was received, but it did not contain a projected date of return.

   
   

7. On April 26, 1990, Petitioner applied to draw against the District V Sick Leave Pool, beginning on May 1, 1990 for an indeterminate period of time. This request was denied by the Committee Administrator.

   
   

8. On May 9, 1990, White advised the Petitioner, telephonically and in writing, that her request to draw against the sick leave pool was denied. If she was unable to return to work, Petitioner must submit a written request for leave without pay for her current absence from work, with a beginning date of

   May 4, 1990 and a projected date of return to work. A physician's statement would also be required.

   
   

9. After a period of misunderstanding, a written request with a physicians' statement was submitted by the Petitioner and Leave Without Pay was approved on June 18, 1990 retroactive to May 4, 1990. The physician's statement, dated May 18, 1990, stated that Petitioner has been unable to work since her hospitalization on April 13, 1990 and was still unable to work at the present time. Dr. Masco indicated that he was unable to determine when Petitioner would be able to return to work but that the present diagnosis was depression. Petitioner was advised, in writing, that additional leave could not be granted beyond July 17, 1990 and that Petitioner was required to return to work with medical certification at that time as to her ability to perform her assigned job functions.

   
   

10. On the dates between July 18 and July 20, 1990, inclusive, Petitioner neither appeared at work nor informed her supervisor or anyone at HRS that she was going to be absent or was medically unable to return to work. No leave was authorized for her. This period constitutes in excess of three consecutive workdays of absence without approved leave.

    
    

11. By letter dated July 27, 1990, Petitioner was advised in writing by the District Administrator that her failure to return to work on July 18 and thereafter constitutes abandonment of position.

    
    

12. At the hearing, Petitioner attempted to show that her disability continued beyond July 20, 1990 and up to the present day, and that she had no intention of abandoning her position. That in fact she was physically unable to perform her duties due her continuing stress and depression.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

14. The governing rules of the Florida Administrative Code provide, respectively, as follows:

    
    

    22A-7.010(2)(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.

    and

    22A-8.002(5)(a)

    When prior approval cannot be obtained by the employee due to such emergencies, the agency head shall take one of the following actions:

    * * *

    3. If the absence is for 3 consecutive work- days, consider the employee to have abandoned the position and resigned from the Career Service.

    
    

    The Department has taken the position that Petitioner abandoned her position as a Career Service Employee since she absented herself from her job without authority and without legal justification for a period in excess of three consecutive days.

    
    

15. This rule has been held by the courts to create a presumption that by absenting herself as stated, an employee indicates a desire to terminate her relationship with her employer without giving her reasons therefor in writing. Cook v. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978).

    
    

16. The above-cited rule does not, however, operate automatically. To base a personnel action upon that provision, the agency must notify the employee in writing that it considers her to have abandoned her position and give her the opportunity to rebut the presumption of abandonment. That is the basis of the action here. The Department contends that having been notified orally and in writing of her responsibility to report to work on July 18, 1990, her failure to report and her continued absence on the three consecutive workdays, without legitimate excuse or justification, constitutes an abandonment of her position.

    
    

17. Petitioner did not successfully claim that she provided appropriate medical certification for her condition or that she had a reasonable basis for her failure to seek authorization for her absence. Petitioner was advised orally and in writing by Mrs. White that it was her responsibility to obtain a medical certificate that provided an anticipated date of return to work and whether she could perform her assigned job functions and present it to her supervisor. This was not done.

    
    

18. Assuming that the April through July 1990 absences were because of her disability, meaning the Petitioner could not come to work, that prior absence can be considered as having been excused. However, there is neither justification nor excuse for Petitioner's absence from July 18 to July 20, 1990, the day her absence was considered to constitute abandonment. Had she come back to work during that period without the required medical certificate, while other disciplinary action might have been available to the Department, her return to the workplace would have tolled the running of the absence period which, under the present circumstances, clearly constitutes abandonment. See: Tomlinson v. Department of Health and Rehabilitative Services, 558 So.2d 62 (Fla. 2nd DCA 1990).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Petitioner, Emily D.

McGee, abandoned her position with the Department of Health and Rehabilitative Services and resigned from the Career Service when, on July 18, 19 and 20, 1990, without authority, she absented herself from her workplace for three consecutive days.

DONE AND ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 1st day of February, 1991.

COPIES FURNISHED:

Emily D. McGee

Post Office Box 1223 Port Richey, Florida

Thomas W. Caufman, Esquire Assistant District Legal

Counsel

Department of Health and Rehabilitative Services 701 94th Avenue North St. Petersburg, Florida

John Pieno, Jr.

Secretary

Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Linda Stalvey

Acting General Counsel Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005355

Orders for Case No: 90-005355