STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

URISAIFO OMORUYI, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7183

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on January 29, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: William C. Robinson, Esquire

220 Courthouse Plaza

28 West Flagler Street Miami, Florida 33130

For Respondent: Jacqueline S. Banke, Esquire

201 West Broward Boulevard Room 513

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUE

Whether Petitioner abandoned his position of employment with the Department of Health and Rehabilitative Services and should be deemed to have resigned from the career service.

PRELIMINARY STATEMENT

Petitioner, a career service employee with the Department of Health and Rehabilitative Services (DHRS), was on authorized leave until October 1, 1990. During his leave, Petitioner traveled to Nigeria to visit his family.

Petitioner's wife did not accompany him, but remained in the Miami area. While in Nigeria, Petitioner became ill. Petitioner contacted his wife from Nigeria and caused her to call his supervisor on several occasions to advise that Petitioner would not be returning to work on October 1, 1990, as scheduled and the reasons for his absences.

Petitioner was absent from his employment without authorized leave on October 1, 2, 3, 4, 5, and 8, 1990. By letter dated October 8, 1990, Petitioner was advised that he was deemed to have abandoned his position because he had not returned to work as scheduled. Petitioner returned to the United States on

October 8, 1990. Upon reporting to work on October 9, 1990, he was advised that his employment had been terminated. He thereafter challenged Respondent's action in terminating his employment and this proceeding followed.

At the formal hearing, DHRS called seven witnesses and introduced nine exhibits, each of which was accepted into evidence. Petitioner testified on his own behalf, called his wife as his only other witness, and presented one exhibit, which was accepted into evidence.

No transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the hearing. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the conclusion of the hearing. Rule 22I-6.031, Florida Administrative Code. Neither party filed a post-hearing submittal.

FINDINGS OF FACT

1. At the times pertinent to this proceeding, Petitioner held a career service position with the Department of Health and Rehabilitative Services (DHRS). His job title was Public Assistance Specialist II.

   
   

2. On September 10, 1990, Petitioner requested authorization to use 120 hours of accumulated annual leave beginning September 17, 1990, through October 5, 1990. Because of the office work load, Petitioner's supervisor, Doreen Moskowitz, authorized him to take 80 hours of leave beginning September 17, 1990, through September 28, 1990. Petitioner accepted this authorization and agreed to return to work on the morning of Monday, October 1, 1990.

   
   

3. While on leave, Petitioner traveled to his native country of Nigeria to visit his mother who was ill. While in Nigeria, Petitioner became ill and was under the care of a doctor in Nigeria between September 27, 1990, and October 5, 1990. On October 5, 1990, Petitioner was determined by his doctor to be fit to travel. Because his travel plans had been disrupted by his illness, Petitioner had difficulty making arrangements to return to Miami. On Monday, October 8, 1990, Petitioner flew from London to New York and from New York to Miami. On Tuesday, October 9, 1990, Petitioner reported to work.

   
   

4. Petitioner's wife did not accompany him to Nigeria, but remained in the Miami area. Petitioner contacted his wife from Nigeria by telephone and caused her to call his supervisor on several occasions to advise that Petitioner would not be returning to work on October 1, 1990, as scheduled and the reasons for his absences. On October 1, 1990, Petitioner's wife called Ms. Moskowitz and informed her that Petitioner had fallen ill in Nigeria and would not be able to return to work as scheduled. Petitioner's wife was informed that Petitioner's leave was unauthorized. Petitioner's wife called Ms. Moskowitz again on October

   4 and on October 5, 1990, and informed her that Petitioner was still ill in Nigeria. Petitioner's wife also called Ms. Moskowitz on October 8, 1990, and told her that Petitioner was in London en route to Miami.

   
   

5. On October 1, 1990, Petitioner left a telephone message with a coworker, Shirley Franklin, advising that he was ill in Nigeria and hoped to return to work on October 5, 1990. Ms. Franklin, at Petitioner's request, gave this message to Ms. Moskowitz. Petitioner also called another coworker, Sylvester Onyemeziem, to advise him of his illness in Nigeria and asked that he

   contact Ms. Moskowitz and to make sure that Petitioner's wife had spoken to Ms. Moskowitz. Mr. Onyemeziem gave this information to Ms. Moskowitz and confirmed with Petitioner's wife that she had also contacted Ms. Moskowitz.

   
   

6. The DHRS Employee Handbook, dated October 1, 1988, advises employees at page 13 under the heading of Absences:

   
   

   If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absence without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned.

   
   

7. The standard procedure followed by this DHRS office is to require employees to make personal contact with his or her supervisor to advise the supervisor of any absences and to explain the reasons therefor. This standard procedure has not been adopted as a rule. In this instance, it was very difficult for Petitioner to call Ms. Moskowitz during her business hours because of his limited access to international telephone lines. (The telephone calls Petitioner made to his wife and to his coworkers were placed either before or after normal business hours.)

   
   

8. Petitioner was absent from his employment without authorized leave on October 1, 2, 3, 4, 5, and 8, 1990. On October 8, 1990, DHRS terminated Petitioner's employment as a career service employee. The letter of termination provided, in pertinent part, as follows:

   
   

   In accordance with Chapter 22A-7 of the State of Florida Career Service Rules and Regulations, since you did not report to work as scheduled October 4, 5, 8, 1990 and you have not reported to work since that time; you have abandoned your position of Public Assistance Specialist II. Your resignation

   was effective at the close of business October 4, 1990.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes. Neither party has challenged the jurisdiction of the Division of Administrative Hearings although this matter involves the termination of Petitioner's employment. Compare, Tomlinson v. Department of Health and Rehabilitative Services, 558 So. 2d 62 (Fla. 2d DCA 1990); and, Desilva v. Department of Transportation, 564 So.2d 216 (Fla. 4th DCA 1990).

10. Rule 22A-7.010(2), Florida Administrative Code, adopted by the Department of Administration, provides, in pertinent part, as follows:

    
    

    (2) Abandonment of Position.

    (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.

    
    

11. Rule 22A-7.010(2), Florida Administrative Code, creates a presumption that Petitioner abandoned his position by failing to secure authorize leave for three consecutive days during which he was absent. This presumption is rebuttable - it is not a conclusive presumption. Tomlinson v. Department of Health and Rehabilitative Services, supra, and Desilva v. Department of Transportation, supra. Petitioner has clearly rebutted the presumption in this case by the messages he sent to his supervisor to explain his absences. Even if the policy requiring an employee to personally contact his or her supervisor regarding unauthorized absences is presumed valid, it would be concluded that the presumption of abandonment has been rebutted under the facts of this case because Petitioner's inability to personally talk to his supervisor was caused by circumstances beyond his control. See, Department of Corrections v. Doub, 15

    F.L.W. 3029 (Fla. 1st DCA Dec. 21, 1990).

    
    

12. Petitioner is entitled to the reinstatement of his career service position with back-pay. See, Desilva v. Department of Transportation, supra.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner did

not abandon his career service position and which orders that Petitioner be reinstated with back-pay to his career service position with the Department of Health and Rehabilitative Services.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April, 1991.

CLAUDE B. ARRINGTON

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 4th day of April, 1991.

COPIES FURNISHED:

William C. Robinson, Esquire

220 Courthouse Plaza

28 West Flagler Street Miami, Florida 33130

Jacqueline S. Banke, Esquire Department of Health and

Rehabilitative Services

201 West Broward Boulevard, Room 513 Fort Lauderdale, Florida 33301

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris

Acting General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda Stalvey

Acting General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 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: 90-007183

Orders for Case No: 90-007183