STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA BURGAINS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5652

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 19, 1991, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ben R. Patterson, Esquire

1215 Thomasville Road Post Office Box 428989

Tallahassee, Florida 32315

For Respondent: Julie Waldman, Esquire

Department of Health and Rehabilitative Services

401 Northwest 2nd Avenue Suite S424

Miami, Florida 33128 STATEMENT OF THE ISSUES

The ultimate issue in the instant case is whether Petitioner abandoned her position with Respondent and resigned from the career service.

PRELIMINARY STATEMENT

On or about May 13, 1990, Petitioner filed a petition with the Department of Administration requesting review of Respondent's determination that Petitioner had abandoned her position with Respondent and resigned from the career service. By order issued July 12, 1990, the petition was accepted by the Department of Administration and referred to the Division of Administrative Hearings for the assignment of a Hearing Officer.

Four witnesses testified at hearing: Charlie Mae Lucas, a Human Services Supervisor II assigned to Respondent's Landmark Learning Center; Sylvia Davis, a Senior Residential Unit Specialist at Landmark; Elaine Olsen, a Personnel Technician III at Landmark; and Respondent. In addition to the testimony of these four witnesses, 13 exhibits were received into evidence.

The Hearing Officer advised the parties on the record before the close of the hearing on April 19, 1991, that their post-hearing submittals had to be filed no later than 21 days following the conclusion of the hearing. Petitioner and Respondent filed proposed recommended orders on May 14, 1991, and May 13, 1991, respectively. The proposed findings of fact contained in these post- hearing submittals have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made:

1. Petitioner was formerly employed by Respondent as a Human Services Worker assigned to the Landmark Learning Center, a residential facility located in Dade County. She began her employment on May 10, 1985.

   
   

2. On January 13, 1989, Petitioner received the following memorandum from the Residential Services Director of Facility I at Landmark:

   
   

   1. In reviewing your time and attendance record from August, 1988, I have observed that you are exhibiting excessive absences and/or tardiness. These frequent absences place an unfair burden on your coworkers and interfere with the operations of this center. Therefore they will no longer be tolerated.

   2. Effective on the date you receive this communication, the following restrictions will be in effect:

      1. As always, you are expected to have all leave time approved in advance by your immediate supervisor.

      2. You are expected to submit a doctor's statement justifying your absence prior to the approval of any sick leave, annual-sick leave, or family-sick leave.

      3. You will not be allowed to substitute any other type of leave for these absences.

   3. Failure to comply with the above restrictions will result in disapproved leave without pay for the dates in question, and a recommendation for disciplinary action based on absence without authorized leave. In addition a continued pattern of excessive absence could result in disciplinary action for excessive absence/tardiness.

   4. All disciplinary [action] will be in accordance with HRS-P-60-1, Employee's handbook.

   5. I am confident that you will correct this situation in a satisfactory manner.

      
      

      At no time prior to the termination of Petitioner's employment with Respondent were the "restrictions" imposed by this memorandum lifted.

3. In early 1990, Petitioner sustained an on-the-job injury. As a result of the injury, Petitioner was on authorized leave from February 25, 1990, until April 4, 1990.

   
   

4. When she returned to work on April 5, 1990, Petitioner was assigned to "light duty" in the field office of which Sylvia Davis, a Senior Residential Unit Supervisor, was in charge.

   
   

5. Petitioner's working hours were 6:00 a.m. to 2:30 p.m.

   
   

6. Petitioner was advised that Roberta Barnes would be her immediate supervisor during her "light duty" assignment.

   
   

7. On April 5, 1990, Petitioner worked six and a half hours. She was on authorized leave the remainder of her shift.

   
   

8. On April 6 and 7, 1990, she worked her full shift.

   
   

9. On April 8 and 9, 1990, Petitioner did not report to work. She telephoned the field office before the beginning of her shift on each of these days and left word that she would not be at work because she was experiencing pain in her lower back and right leg; however, she never received supervisory authorization to be absent from work on these days.

   
   

10. April 10 and 11, 1990, were scheduled days off for Petitioner.

    
    

11. At approximately 11:00 p.m. on April 11, 1990, Petitioner telephoned the field office and gave notice that, inasmuch as her physical condition remained unchanged, she would not be at work the following day.

    
    

12. Petitioner did not report to work on April 12, 1990. Although she had telephoned the field office the night before to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on April 12, 1990.

    
    

13. On April 13, 14, 15 and 16, 1990, Petitioner did not report to work because she was still not feeling well. She neither telephoned the field office to give advance notice of her absences, nor obtained supervisory authorization to be absent on these days.

    
    

14. April 17 and 18, 1990, were scheduled days off for Petitioner.

    
    

15. Prior to the scheduled commencement of her shift on April 19, 1990, Petitioner telephoned the field office to indicate that she would not be at work that day because she had a doctor's appointment, but that she hoped to return to work on April 20, 1990.

    
    

16. Petitioner did not report to work on April 19, 1990. Although she had telephoned the field office to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on that day.

    
    

17. On April 19, 1990, Petitioner was sent the following letter by the Superintendent of Landmark:

    
    

    You have not called in or reported to work since April 12, 1990 and therefore you have abandoned your position as a Human Services

    Worker II and are deemed to have resigned from the Career Service according to Chapter 22A-7.010(2)(a) of Personnel Rules and Regulations of the Career Service System.

    Your resignation will be effective on the date that you receive this letter or on the date we receive the undelivered letter advising you of your abandonment.

    You have the right to petition the State Personnel Director, 530 Carlton Building, Tallahassee, Florida 32304 for review of the facts. Such petition must be filed within twenty (20) calendar days after receipt of this letter.

    
    

18. At approximately 12:40 a.m. on Friday, April 20, 1990, unaware that she had been deemed to have resigned her position, Petitioner telephoned the field office to give notice that she would be out of work until after her doctor's appointment on Monday, April 23, 1990.

    
    

19. On April 23, 1990, Petitioner again telephoned the field office to advise that she had to undergo further medical testing and therefore would remain out of work until the required tests were performed. Petitioner's call was transferred to Elaine Olsen, a Personnel Technician II at Landmark, who told Petitioner about the letter the Superintendent had sent to Petitioner the previous Thursday.

    
    

20. Petitioner received the letter on April 30, 1990.

    
    

21. Petitioner did not report to work during the period referenced in the Superintendent's letter because she was not feeling well. She did not intend, by not reporting to work on these days, to resign or abandon her position. It was her intention to return to work when she felt well enough to do so.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Department of Administration has been given the authority by the Florida Legislature to "develop and administer the establishment of uniform personnel rules, records, and reports relating to employees and positions in the [state] career service." Section 110.201(1), Fla. Stat.

    
    

23. The Department has adopted such "uniform personnel rules." They are found in Chapter 22A, Florida Administrative Code.

    
    

24. Among the subjects addressed by these rules is a career service employee's abandonment of his position. Florida Administrative Code Rule 22A- 7.010(2)(a) provides as follows concerning this matter:

    
    

    An employee who is absent without authorized leave 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 to appeal to the Public Employees Relations Commission; however, any such employee shall have the right to petition

    the department for review of the facts and a ruling as to whether the circumstances constitute abandonment of position.

    
    

    Florida Administrative Code Rule 22A-8.002(5), which provides as follows, also addresses the subject of abandonment:

    
    

    Any leave of absence with or without pay shall be approved prior to the leave being taken, except in the case of an emergency where the employee must be absent prior to receiving approval from proper authority for the absence.

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

       1. Grant the employee leave with pay, provided the employee has sufficient accrued leave credits to cover the absence,

       2. Place the employee on leave without pay for the absence, or

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

    2. If an employee's request for leave of absence is disapproved and the employee takes unauthorized leave, the agency head shall place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays shall consider the employee to have abandoned the position and resigned from the Career Service.

    
    

25. These rule provisions establish a "regulatory presumption" that an employee who is absent without authorized leave for three consecutive workdays has abandoned his position and resigned from the career service. This "regulatory presumption," however, is a rebuttable, not a conclusive, one, which may be overcome by proof that the employee did not intend by his conduct to relinquish his career service position. See Department of Corrections v. Doub,

    571 So.2d 535 (Fla. 1st DCA 1990); DeSilva v. Department of Transportation, 564 So.2d 216 (Fla. 4th DCA 1990); Tomlinson v. Department of Health and Rehabilitative Services, 558 So.2d 62 (Fla. 2d DCA 1990).

    
    

26. Petitioner presented such proof in the instant case. While she may not have obtained authorization to be absent on the days referenced in the Superintendent's April 19, 1990, letter, it is evident from an examination of the circumstances surrounding these absences, including the telephone calls that she made to the field office concerning her situation, that she failed to report on these days because she did not feel well and that she had every intention of returning to work when she was able to do so. Inasmuch as the greater weight of the evidence demonstrates that Petitioner did not intend to relinquish her position, the Department of Administration should reject Respondent's determination that Petitioner abandoned her position and it should direct that Petitioner be reinstated with back pay.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department of Administration enter a final order (1) finding that Petitioner did not abandon her career service position, and (2) directing Respondent to reinstate Petitioner with back pay.

DONE and ORDERED in Tallahassee, Leon County, Florida, this 16th day of May, 1991.

STUART M. LERNER

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 16th day of May, 1991.

ENDNOTES

1/ Respondent's proposed findings of fact do not contain a proposed finding of fact 7.

APPENDIX TO RECOMMENDED ORDER

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings of Fact

1. Accepted and incorporated in substance, but necessarily repeated verbatim, in this Recommended Order.

2. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. First, third and fourth sentences: Accepted and incorporated in substance; Second sentence: Rejected as not supported by persuasive competent substantial evidence, to the extent that it suggests that Petitioner worked a full shift on April 5, 1990. Otherwise, it has been accepted and incorporated in substance; Fifth sentence: Rejected as unnecessary, to the extent that it states that Petitioner signed her attendance record on April 12, 1990. Otherwise, it has been accepted and incorporated in substance.

4. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

5. Rejected because it is a summary of testimony adduced at hearing rather than a finding of fact based upon such testimony.

6. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

7. First, second and third sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Fourth sentence: Rejected because it is a summary of testimony adduced at hearing rather than a finding of fact based upon such testimony.

8. Accepted and incorporated in substance.

9. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

10. Accepted and incorporated in substance.

11. First sentence: Accepted and incorporated in substance; Second, third and fourth sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

12-14. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

15. First sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony; Second sentence: Rejected because it constitutes argument concerning a matter that has no bearing on the outcome of this case.

Respondent's Proposed Findings of Fact

1. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. First and third sentences: Rejected because they are summaries of evidence adduced at hearing rather than findings of fact based upon such evidence; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is contrary to the greater weight of the evidence.

4-5. Accepted and incorporated in substance.

6. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is not supported by persuasive competent substantial evidence.

1. 1/ Accepted and incorporated in substance.

2. Rejected because it is not supported by persuasive competent substantial evidence.

10-11. Accepted and incorporated in substance.

1. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Rejected because it is a summary of testimony adduced at hearing rather than a finding of fact based upon such testimony.

COPIES FURNISHED:

Ben R. Patterson, Esquire 1215 Thomasville Road Post Office Box 4289

Tallahassee, Florida 32315

Julie Waldman, Esquire Department of Health and

Rehabilitative Services

401 Northwest 2nd Avenue S424

Miami, Florida 33128

John A. Pieno, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Linda Stalvey, Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407

Tallahassee, Florida 32399-0700

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: 90-005652

Orders for Case No: 90-005652