STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SHARON HEILMANN, )
)
Petitioner, )
)
vs. ) CASE NO. 90-7794
)
DEPARTMENT OF EDUCATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, this cause came on for formal hearing in St. Augustine, Florida, on February 18, 1991 before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
FOR PETITIONER: Sharon Heilmann, pro se
2125 Deer Run Road, Suite #15 St. Augustine, Florida 32095
FOR RESPONDENT: Carl J. Zahner, Esquire
Department of Education The Capitol, PL-08
Tallahassee, Florida 32399-0400 STATEMENT OF THE ISSUES
Whether or not Petitioner abandoned her position in accordance with the terms of Rule 22A-7.010(2) F.A.C.
PRELIMINARY STATEMENT
The duty to go forward and the burden of proof in this cause is upon the Respondent, Department of Education, parent agency to the Florida School for the Deaf and the Blind (FSDB). Respondent presented the oral testimony of Sam Visconti, Stephanie Battle, and Robert Schopmann and had Exhibits A through E admitted in evidence. Petitioner testified in her own behalf and had Exhibits 1 through 5 admitted in evidence.
No transcript of proceedings was filed, but all timely- filed proposed findings of fact have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), F.S.
FINDINGS OF FACT
At all times material, Petitioner was employed as an FSDB groundskeeper. Robert "Curly" Schopmann, the Grounds Supervisor and Petitioner's immediate supervisor, considered her to be "a very good employee" during her two years of employment prior to June 19, 1990. Petitioner's performance ratings confirmed Mr. Schopmann's assessment that Petitioner's quantity and quality of work was excellent during that period of time.
Petitioner suffered an on-the-job accident on March 20, 1990 for which the employer and the Department of Insurance, Division of Risk Management accepted responsibility under Chapter 440 F.S., "The Florida Workers' Compensation Law." In June, 1990, Petitioner requested that the employer provide further medical treatment by an orthopedic physician, which further medical treatment was approved and provided. As a consequence thereof, Petitioner was off work from June 19 to mid-October 1990.
Dr. Charles, Petitioner's authorized treating orthopedic physician, prepared a list of "job limitations" dated October 3, 1990 (Heilmann Exhibit 2). There is no evidence Petitioner was provided with a copy of this until after her termination.
Sometime between October 1 and October 5, 1990, a rehabilitation consultant/specialist and registered nurse also prepared another, slightly more stringent list of limitations (DOE Exhibit B) which was not "verified" (approved) by Dr. Charles until October 29, 1990. Since Dr. Charles did not sign this second, more restrictive list until October 29, 1990, it must be assumed that neither Risk Management nor FSDB personnel saw it until after that date. Petitioner testified that she did not see it until after her termination.
Effective October 13, 1990, Dr. Charles formally released Petitioner to do light work. The day before, Petitioner received notification concerning her release for light work from Risk Management (DOE Exhibit A). In that October 12, 1990 letter, Risk Management notified Petitioner that she was to either return to her old job and do light work while receiving temporary partial disability payments under the workers' compensation law or she was to make a good faith job search among other employers as also contemplated by that law.
An abbreviated list of physical limitations based on Dr. Charles' October 3, 1990 list was also given by Risk Management to the Petitioner in its October 12, 1990 letter.
By mutual agreement with the FSDB personnel office, Petitioner reported for light duty work at FSDB on Thursday, October 18, 1990. Mr. Schopmann first suggested that Petitioner work at her own speed outside but acceded to Petitioner's rejection of the use of a scooter to get around and do outdoors groundskeeping when she told him the scooter was "too bumpy" for her injured back.
Either of Dr. Charles' job restrictions/physical limitations lists would have permitted Petitioner to work with hand-sized garden tools, a scooter, a riding mower, or a rolling seat for 80% of her day outside with only 20% of her day inside, provided she moved around and rested as needed with no lifting over 15 pounds and no squatting, crawling, bending, twisting, rotating, kneeling, or climbing inside or outside.
When she said she could not ride the scooter, Mr. Schopmann told Petitioner to pot plants and trim the plants in the pots inside the greenhouse and that when she got tired, she should sit down and answer phones in the office before returning to pot more plants in the greenhouse. This instruction was in accord with the limitations for light work placed on Petitioner by her doctor in his October 3, 1990 list of limitations. It also was within the parameters of the abbreviated list relayed to Petitioner in Risk Management's letter of October 12 and those of the more stringent list the doctor later approved on October 29, 1990.
At formal hearing, Petitioner admitted that she had understood that the supervisor's instructions included answering phones in the office and that she was otherwise assigned to the greenhouse. On Thursday, October 18 and Friday, October 19 and on October 22-24, she went to the greenhouse and office but did not restrict herself to just the jobs assigned by Mr. Schopmann. Instead, she tried to do all the usual work that is required of full-time, unimpaired greenhouse personnel. This additional work was considerably in excess of the limitations placed on her by her treating physician in either his October 3 or October 29 lists of limitations and was never directly assigned by her supervisor. The Petitioner asserted that she did this additional work because she was relying on the information provided in the October 12 Risk Management letter and in a telephone conversation she had had with Ms. Battle of FSDB's personnel office prior to October 18, and because she personally had never seen either of Dr. Charles' lists of limitations.
On Wednesday, October 24, 1990, Petitioner left work at noon saying that she had a doctor's appointment, which she in fact did not have. Instead, she went home to rest. On Thursday, October 25, 1990, she called in sick and, as it turned out, she did not return to work after that date.
The Petitioner testified that she did not return to work after October
24 because it was too painful for her to continue the work she had attempted.
On October 26, 1990, a letter was sent from FSDB by Ms. Stephanie Battle notifying Petitioner that she was expected to come to work unless she had received a doctor's statement and that she was expected to return to work no later than Tuesday, October 30, 1990. Because October 26, 1990 was a Friday, it was Ms. Battle's intention that Petitioner would receive the letter on Saturday, October 27 or on Monday, October 29, and would then be able to obtain a doctor's certificate before the employer's October 30 deadline, if, in fact, Petitioner were eligible to receive a doctor's certificate at all.
The October 26, 1990 letter sent by Ms. Battle provided in pertinent part:
You are required to return to your job
with the approved restrictions immediately. If you cannot return to work, you must provide this office with a letter from your attending physician saying why you are unable to perform your job, what the inclusive dates are that you cannot work and the approximate date of your return.
At the present time you are in an unapproved leave without pay status. I expect to hear from you no later than Tuesday morning, October 30, 1990.
On October 29, 1990, petitioner telephoned Stephanie Battle and informed her that she had received Ms. Battle's October 26, 1990 letter, that she could not work, but that Dr. Charles would not give her a "no work disability slip." At that time, Ms. Battle told Petitioner that she must return to work and asked if Petitioner had told her supervisor that she could not physically do the work assigned. Petitioner admitted to Ms. Battle that she had not yet discussed the problem with her supervisor.
Later on October 29, Petitioner spoke on the telephone with Mr. Schopmann. Mr. Schopmann told Petitioner that she had to come back to work on October 30 or bring a doctor's certificate saying that she could not work at all. At that time, Petitioner indicated to Mr. Schopmann that she was aware that if she did not come back to work or provide some doctor's certificate she would lose her job. Whether Petitioner was consciously aware of the abandonment rule or merely thought she would be fired for not coming to work is not clear from the record.
Petitioner asserted that she called Mr. Schopmann a second time on November 1, still seeking to retain her job; Mr. Schopmann denies that such a telephone call ever took place.
It does not appear that Petitioner and Mr. Schopmann ever had a meeting of the minds that Petitioner was attempting to do more strenuous work than Mr. Schopmann thought he had assigned her to do, but at no time did Mr. Schopmann urge Petitioner to work harder.
In her testimony, Petitioner blamed the employer far not making her fully aware of the limitations placed on her by her doctor. Petitioner also asserted that Ms. Battle had telephoned Dr. Charles on October 24, 1990 to see if the Petitioner's job assignments in the greenhouse and office exceeded his prescribed limitations for Petitioner and, further, that in so doing, Ms. Battle had misrepresented to the doctor the tasks that Petitioner was, in fact, doing and that Petitioner believed that it was due to Ms. Battle's misrepresentations that Dr. Charles would not give Petitioner a certificate of "no work." Ms. Battle confirmed that she had called Dr. Charles at some point and represented to him the type of light work that she understood from Mr. Schopmann that Petitioner was doing in the greenhouse and the office. However, at the time she telephoned Dr. Charles, Ms. Battle also did not know that Petitioner had physically attempted more than she had been assigned to do by Mr. Schopmann. At the time of her phone call, whenever it may have been, Dr. Charles told Ms. Battle [admissible hearsay pursuant to Section 120.58(1) F.S.] that Petitioner could do the light work described by her and assigned by Mr. Schopmann.
Petitioner admitted that she did not consult her doctor in his office on October 24-25, that she never spoke personally with Dr. Charles during this period of time or tried to get a "no work certificate" from him personally prior to October 30, 1990, and that she dealt with him solely through his receptionist. However, the doctor's October 29, 1990 list of limitations and Petitioner's recitation of what the receptionist told her [admissible hearsay pursuant to Section 120.58(1) F.S.] supports a finding of fact that at all times material, Dr. Charles felt Petitioner could continue to do the light work actually assigned by Mr. Schopmann, a description of which had been related to him by Ms. Battle, and that the doctor also felt that the Petitioner could do all the light work which the doctor later listed on his October 29, 1990 list.
Petitioner never presented a medical certificate to her employer. There was no evidence at formal hearing of whether or not the Petitioner had any accrued annual or sick leave that she could draw on, but it is clear that she never applied for authorized leave. The Petitioner never returned to work.
On November 1, 1990, Mr. Schopmann notified the FSDB personnel office that Petitioner had not returned to work for three consecutive days, that he considered her to have abandoned her position, and that he recommended her dismissal on that basis. (DOE Exhibit D)
In a letter dated November 2, 1990, Mr. Sam Visconti, FSDB Personnel Director, notified Petitioner that she was deemed to have abandoned her position due to her absence on October 29, 30, 31, and November 1 (sic, see Findings of Fact 12- 13), and that she was dismissed based on Rule 22A-7.010(2)(a), F.A.C. That letter reads in pertinent part:
You failed to report or call in to work
for four (4) consecutive work days on October 29, 30, 31, and November 1, 1990. In accordance with Chapter 22A-7.010(2), of the Florida Administrative Code, State Personnel Rules and Regulations, you have abandoned your position. Abandonment of position is considered and treated as a resignation from your job.
Your resignation is effective 12:01 a.m., November 2, 1990.
Petitioner had been on unauthorized leave without pay since October 24, 1990. However, due to the terms of Ms. Battle's October 26, 1990 letter, the only three days which could be legitimately counted against Petitioner under the abandonment rule were October 30 and 31, and November 1, 1990.
Petitioner is angry about the on-the-job accident and how it occurred. She testified that as of the date of formal hearing she continues to see Dr. Charles professionally and that she would not do so if she were not in pain and really injured, but she produced no medical evidence that she was physically unable to report for work at all on October 30 and 31, and on November 1, 1990 or that she was unable on those dates to do the jobs contained in Dr. Charles' October 29, 1990 list of limitations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.
Rule 22A-7.010(2) F.A.C. provides in pertinent part as follows:
An employee who is absent without authorized leave of absence for three consecutive work days shall be deemed to have abandoned the position and to have resigned 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 fact in the case and a ruling as to whether the circumstances constitute a of abandonment of position.
However, the rule creates only a rebuttable presumption, and in some instances the expressed conscious intent of the employee not to resign career service is sufficient to rebut the rule's presumption. See, Thomlinson v. Department of Health and Rehabilitative Services (Fla. 2nd DCA 1990).
Distilled to their essence, the facts in this case are that the Petitioner's immediate supervisor assigned Petitioner tasks within her capabilities based on the information the employer had from the primary treating physician at the time Petitioner was attempting to work in a "temporary partial" workers' compensation status (October 18-24), but the employee attempted to do far more than she had been assigned, and what she tried to do was in excess of the limitations set by the primary treating physician both before (the October 3 list) and after (the October 29 list) the Petitioner unilaterally chose to leave work on October 24. Despite being placed on unauthorized leave without pay and ordered to return to work no later than October 30, 1990, the Petitioner did not return to work.
The Petitioner testified that she physically could not do the work she had attempted to do, but she did not testify that she could not do the work assigned. Rather, she blamed the employer and Risk Management for not informing her fully of her medical restrictions and of telling her physician that she was doing less than she really was. In Ms. Battle's case, the latter accusation may be true, but if so, Ms. Battle's representations to the doctor were due to Ms. Battle being unaware, as was Mr. Schopmann, of all the work the Petitioner had attempted to do.
Upon the facts as found, the Petitioner cannot eschew all personal responsibility with regard to contacting her doctor and attempting to work within her limitations. Petitioner had a right under the workers' compensation law to request and receive copies of any medical reports. Apparently, she never made such a request. Before he released her on temporary partial disability status, Petitioner had the opportunity to speak with Dr. Charles and learn for herself what her restrictions for light work would be and apparently did not do so. Petitioner had a similar opportunity to explain to Dr. Charles what work she was actually doing when, after she had unilaterally absented herself from the workplace, the employer told her to come back to work or get a medical certificate. At that point, Petitioner made no attempt to breach the receptionist's barrier to her doctor or get a certificate from a different doctor. Instead, Petitioner simply did not return to work in any capacity.
It is crucial to a determination of abandonment herein that Petitioner did not rebut Respondent's credible evidence that the work assigned by the employer on October 18 was within the limitations "verified" by Dr. Charles on October 29. See, Thomas v. Dept. of Transportation, DOAH Case No. 89-0772 (RO entered July 31, 1989; FO entered October 31, 1989). In Thomas, an employee injured in successive non-work-related automobile accidents wanted to return to work but was unable to do so because the accidents had rendered him incapable of performing his duties as a ferry boat captain. In that case, all parties admitted that the employee could not physically perform the only job available to him, and the hearing officer determined that since the "employer cannot legitimately instruct an employee to do something which the employer knows is an impossibility," the employer could not utilize the three-day abandonment
presumption against the employee's verbalized intent to retain his job. Therefore, in Thomas, abandonment under Rule 22A- 7.010(2) F.A.C. had not occurred, and a determination of whether the facts constituted "just cause" under Rule 22A-7.010(7) F.A.C. (inability to do the work) was within the jurisdiction of the Public Employees Relations Commission and was not cognizable before the Division of Administrative Hearings.
The facts in the instant case differ significantly from the situation in Thomas, starting with the fact that the primary treating physician and the employer were in accord as to what light work the Petitioner could do. Also, herein, the employer proved that Petitioner could do the work assigned and the Petitioner did not rebut that proof. This Petitioner could have applied for leave, talked to the doctor herself, or returned to work and looked at the limitations in her file. Instead, with full knowledge of the consequences, she just stayed away from her job and asserted that subjective pain prevented her returning to the job.
Since the October 29, 1990 report says that the Petitioner could physically do the work assigned her by the employer October 18-24 and Petitioner has represented that her subjective pain was the only reason she could not do work which was more strenuous than the work actually assigned, the undersigned has also considered whether or not the physician's October 29, 1990 list of limitations might constitute the medical certificate required by the employer in its October 26, 1990 letter and October 29, 1990 phone calls, even though Petitioner was not responsible for creation or presentation of the October 29 list to the employer. However, that list did not conform to the requirements set out in the employer's letter, (see, Findings of Fact 12-13) and even if the employer had assigned Petitioner work beyond the limitations contained in the doctor's October 29 list, in order for Petitioner to rebut the 3- day presumption, she would still have had to demonstrate that the employer received the October 29 list on or before November 1, 1990 and that the October 29 list somehow excused her from returning to work at all on October 30 and 31 and November 1, 1990, which clearly it did not.
Petitioner's unsupported subjective statements that she was in pain and unable to perform the additional unassigned duties she attempted also is not determinative here. Even had she testified that she was unable to perform the duties actually assigned to her, that testimony without supportive direct medical evidence to the same effect would not be controlling. Unlike a hearing under the workers' compensation law wherein the construction of the law most favorable to the employee is mandated, in an abandonment case brought before the Division of Administrative Hearings under Section 120.57(1) F.S., the injured employee is not entitled to any special construction of evidence in her favor. Herein, Petitioner has shown no medical reason why she could not report for work on October 30 and 31 and November 1, 1990 or why she could not attempt some other light work when she got there. Therefore, she has shown no medical reason she could not return to work as required by the employer.
Petitioner asserted that merely telephoning the employer during the critical period made the language of Mr. Visconti's termination letter (See Finding of Fact 22) partially untrue and so abandonment had not occurred. It is regrettable that Petitioner did not convey to Mr. Schopmann how much she was trying to do and that he did not clarify for her how little he expected of her, but Petitioner, was able to do some light work, and had the obligation to return to the job and try to work at everything she was able to do. Admittedly, Petitioner did not realize that she was overworking and admittedly she telephoned the personnel office (Ms. Battle) and her supervisor (Mr. Schopmann)
on October 29. Although she gave them enough information that they knew she had not formed the conscious intent to abandon her job, she simultaneously told them she could not do the work she believed to be assigned her. At that time, both agents of FSDB told her to come back to work or bring a physician's certificate saying she could not report for work. Due to those phone calls, Petitioner knew that if she did not bring a medical certificate or return to work by October 30, she would lose her job. Apparently no one clarified exactly what was required of Petitioner in the way of light work if she returned, but it was clear she was required to return to the job and try to work at something. Assuming arguendo, but not finding or concluding that Petitioner again called Mr. Schopmann on November 1, the content of their conversation then was the same as on October 29, and as of the close of business on November 1, Petitioner's failure to appear on the FSDB premises or, alternatively, to provide a medical certificate ratifying her absence still meant that she had been absent three consecutive days without authorized leave.
Petitioner was on notice in writing and by telephone of her precarious status. At formal hearing, Petitioner did not assert that she had provided appropriate medical certification or that she had a reasonable basis for her failure to apply for another type of leave. Rather, Petitioner admitted she had done nothing to relieve herself of an unexcused absence status and that she had never returned to the job to work out the physical assignment/limitation problem. Having been effectively released by the doctor for light work, Petitioner's return to work on October 30 or 31, or November 1 would not have been detrimental to her rights under the workers' compensation law which requires her to provide evidence she belongs on total disability status or demonstrate her degree of wage loss by availing herself of light work offered by her employer or by doing a good-faith job search within her physical limitations.
Although Petitioner has continued to see Dr. Charles professionally since her termination, she presented no medical evidence at formal hearing that she was unable to report for work on October 30 and 31, and November 1, 1990 or was unable to do the work assigned on those days.
This case is not governed by any workers' compensation case which may deal with the same fact situation 1/ and although, despite the result of this proceeding, Petitioner may still have some recourse against the employer under the workers' compensation law, the instant case of abandonment is governed by the precedents enunciated in cases before the Division of Administrative Hearings.
In Pittman v. HRS, DOAH Case No. 90-2049 (RO entered February 4, 1991; FO entered February 26, 1991), the workers' compensation claimant returned to work on light duty but then unilaterally elected to stop work and go home.
After a new period of temporary total disability adequately documented by authorized physicians, a series of doctors told her she could return to her regular type of work. One doctor only told the employer and not the claimant. The claimant still did not return to work. Although she brought medical documentation from an unapproved chiropractor many months after the deadline announced by the employer, she was ruled to have abandoned her position despite the liberal construction of intent contained in Thomlinson, supra, largely because she had been on notice of the presumption of abandonment if she did not timely provide a new medical excuse or return to work.
In Atwell v. DHSMV, DOAH Case No. 89-7058 (RO entered August 23, 1990; FO entered September 28, 1990), a workers' compensation claimant was returned by his treating physician to a light-duty job that his state employing agency had available for him in the Tampa-Clearwater area, the geographic area in which he had originally sustained his workers' compensation injury. The employing agency had no other geographic location in which it could provide a light-duty job that met the physical limitations imposed by the treating physician, and the employee did not want to return to the Tampa-Clearwater area from his new home in Tallahassee. After being notified to return to work, the employee did not do so; he also failed to obtain approved leave for three consecutive days. Because the employee did not maintain that he was unable to perform the light duties assigned to him and the doctor's evidence showed that he was capable of doing them, the hearing officer concluded there was no rational or reasonable basis for his failure to report for the light-duty work offered him, and the career service abandonment rule presumption prevailed.
In Chappell v. HRS, DOAH Case No. 89-4183 (RO entered December 6, 1989), a workers' compensation claimant on notice of the career service abandonment rule reached maximum medical improvement and did not return to work and attempt to work within her medically-assigned physical restrictions. She was deemed to have abandoned her career service position.
In Florida School for the Deaf and the Blind v. Rockwell, DOAH Case No. 89-1188 (RO entered July 25, 1989; FO entered October 3, 1989), a workers' compensation claimant was released by the treating physician to perform all the duties in his job description and did return to work for a short time before unilaterally deciding to go home. Despite the doctor's release, the employee maintained that he was physically unable to perform his job duties as originally assigned or as modified by a job assignment change thereafter. He was advised of the three- day rule by telephone. He requested a change of physician but was denied. He did not request medical leave without pay to obtain a new doctor on his own. He did not present a medical certificate timely, and after three consecutive days' absence, he was deemed by the employer to have abandoned his position. At formal hearing, he did not present any direct medical evidence of physical inability to do either job assignment during the critical period, and the abandonment determination of the employer was ratified by the hearing officer.
In Vann v. HRS, DOAH Case No. 88-5538 (RO entered April 28, 1989; FO entered June 8, 1989), the treating physician had released a workers' compensation claimant as having reached maximum medical improvement with no restrictions according to the employer-furnished job description except for a short-term limitation on driving a car, which job duty was not an essential element of the regular duties of his job. The employer sent him a letter to report for work at a specified time and advised him that he was on unauthorized leave. He still did not return or respond. Since the employee's subjective statements that he had been in pain and unable to perform the duties of this job were not supported by medical evidence at the formal hearing on abandonment, he was deemed to have abandoned his position due to three consecutive days' absence.
In many of the foregoing cases, a significant factor was whether or not the agency had written a letter to the employee in advance telling the employee that he was subject to the abandonment rule and specifically which three days he must show up for work so as to avoid application of the career service abandonment rule. In some of the cases, the employee's specific prior notice of the career service rule was proved by introduction in evidence of a
receipt for a copy thereof signed by the employee at the commencement of his employment. However, in Rockwell and Vann, supra, clear knowledge in the employee that the employee's job was in jeopardy was held sufficient. In Rockwell, an advance verbal warning of the three-day abandonment rule was considered sufficient. In Vann, merely prior notification that the employee must return to work on a day certain and specification by the employer that the employee had been placed on unauthorized leave was sufficient to invoke the abandonment rule.
In the instant case, the Petitioner has failed to reasonably rebut the presumption established by the abandonment rule.
Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order finding that Petitioner abandoned her position by unreasonable absence on October 30 and 31 and November 1, 1990.
DONE and ENTERED this 30th day of April, 1991, in Tallahassee, Florida.
ELLA JANE P. 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 30th day of April, 1991.
ENDNOTE
1/ See, HRS v. Vernon, 379 So. 2d 683 (Fla. 1st DCA 1980); Loewy v. FSU, DOAH Case No. 88-3081 (RO entered October 5, 1989; dismissed by stipulation); Pobst
v. University of South Florida, DOAH Case No. 86-2155 (RO entered April 10, 1987; FO entered August 4, 1987).
APPENDIX TO RECOMMENDED ORDER CASE NO. 90-7794
Petitioner's PFOF: (The Petitioner's proposals are not numbered, therefore the rulings are set up in the form Petitioner used.) p.1.
Exhibit A - Nature of Clearance are covered in FOF 7-9, and 18. First paragraph Note: On Heilmann 2 and Note: On Heilmann 3 is covered in FOF 7-9, and 18.
Exhibit B is covered in FOF 3-4. Exhibits C, D, E are accepted in part and rejected in part upon the reconciliation of all credible testimony and exhibits as covered in FOF 14-17.
p.2. Is rejected upon reconciliation of all credible evidence.
Respondent' S PFOF: Accepted as modified and amplified to more closely and accurately reflect the credible record as a whole.
COPIES FURNISHED:
Sharon Heilmann
2125 Deer Run Road, Suite #15 St. Augustine, FL 32095
Carl J. Zahner, Esquire Sidney McKenzie, III, Esquire Department of Education
The Capitol, PL-08 Tallahassee, FL 32399-0400
Betty Castor, Commissioner of Education The Capitol
Tallahassee, FL 32399-Q400
Sydney H. McKenzie, General Counsel Department of Education
The Capitol, PL-08 Tallahassee, FL 32399-0400
John A. Pieno, Secretary Department of Administration
435 Carlton Building Tallahassee, FL 32399-1550
Linda Stalvey
Acting General Counsel
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.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SHARON HEILMANN, )
)
Petitioner, )
)
vs. ) CASE NO. 90-7794
)
DEPARTMENT OF EDUCATION, )
)
Respondent. )
)
)
CORRECTED RECOMMENDED ORDER
Upon due notice, this cause came on for formal hearing in St. Augustine, Florida, on February 18, 1991 before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
FOR PETITIONER: Sharon Heilmann, pro se
2125 Deer Run Road, Suite #15 St. Augustine, FL 32095
FOR RESPONDENT: Carl J. Zahner, Esquire
Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400
STATEMENT OF THE ISSUE
Whether or not Petitioner abandoned her position in accordance with the terms of Rule 22A-7.010(2) F.A.C.
PRELIMINARY STATEMENT
The duty to go forward and the burden of proof in this cause is upon the Respondent, Department of Education, parent agency to the Florida School for the Deaf and the Blind (FSDB). Respondent presented the oral testimony of Sam Visconti, Stephanie Battle, and Robert Schopmann and had Exhibits A through E admitted in evidence. Petitioner testified in her own behalf and had Exhibits 1 through 5 admitted in evidence.
No transcript of proceedings was filed, but all timely-filed proposed findings of fact have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), F.S.
FINDINGS OF FACT
At all times material, Petitioner was employed as an FSDB groundskeeper. Robert "Curly" Schopmann, the Grounds Supervisor and Petitioner's immediate supervisor, considered her to be "a very good employee" during her two years of employment prior to June 19, 1990. Petitioner's performance ratings confirmed Mr. Schopmann's assessment that Petitioner's quantity and quality of work was excellent during that period of time.
Petitioner suffered an on-the-job accident on March 20, 1990 for which the employer and the Department of Insurance, Division of Risk Management accepted responsibility under Chapter 440 F.S., "The Florida Workers' Compensation Law." In June, 1990, Petitioner requested that the employer provide further medical treatment by an orthopedic physician, which further medical treatment was approved and provided. As a consequence thereof, Petitioner was off work from June 19 to mid-October 1990.
Dr. Charles, Petitioner's authorized treating orthopedic physician, prepared a list of "job limitations" dated October 3, 1990 (Heilmann Exhibit 2). There is no evidence Petitioner was provided with a copy of this until after her termination.
Sometime between October 1 and October 5, 1990, a rehabilitation consultant/specialist and registered nurse also prepared another, slightly more stringent list of limitations (DOE Exhibit B) which was not "verified" (approved) by Dr. Charles until October 29, 1990. Since Dr. Charles did not sign this second, more restrictive list until October 29, 1990, it must be assumed that neither Risk Management nor FSDB personnel saw it until after that date. Petitioner testified that she did not see it until after her termination.
Effective October 13, 1990, Dr. Charles formally released Petitioner to do light work. The day before, Petitioner received notification concerning her release for light work from Risk Management (DOE Exhibit A). In that October 12, 1990 letter, Risk Management notified Petitioner that she was to either return to her old job and do light work while receiving temporary partial disability payments under the workers' compensation law or she was to make a good faith job search among other employers as also contemplated by that law.
An abbreviated list of physical limitations based on Dr. Charles' October 3, 1990 list was also given by Risk Management to the Petitioner in its October 12, 1990 letter.
By mutual agreement with the FSDB personnel office, Petitioner reported for light duty work at FSDB on Thursday, October 18, 1990. Mr. Schopmann first suggested that Petitioner work at her own speed outside but acceded to Petitioner's rejection of the use of a scooter to get around and do outdoors groundskeeping when she told him the scooter was "too bumpy" for her injured back.
Either of Dr. Charles' job restrictions/physical limitations lists would have permitted Petitioner to work with hand-sized garden tools, a scooter, a riding mower, or a rolling seat for 80% of her day outside with only 20% of her day inside, provided she moved around and rested as needed with no lifting over 15 pounds and no squatting, crawling, bending, twisting, rotating, kneeling, or climbing inside or outside.
When she said she could not ride the scooter, Mr. Schopmann told Petitioner to pot plants and trim the plants in the pots inside the greenhouse and that when she got tired, she should sit down and answer phones in the office before returning to pot more plants in the greenhouse. This instruction was in accord with the limitations for light work placed on Petitioner by her doctor in his October 3, 1990 list of limitations. It also was within the parameters of the abbreviated list relayed to Petitioner in Risk Management's letter of October 12 and those of the more stringent list the doctor later approved on October 29, 1990.
At formal hearing, Petitioner admitted that she had understood that the supervisor's instructions included answering phones in the office and that she was otherwise assigned to the greenhouse. On Thursday, October 18 and Friday, October 19 and on October 22-24, she went to the greenhouse and office but did not restrict herself to just the jobs assigned by Mr. Schopmann. Instead, she tried to do all the usual work that is required of full-time, unimpaired greenhouse personnel. This additional work was considerably in excess of the limitations placed on her by her treating physician in either his October 3 or October 29 lists of limitations and was never directly assigned by her supervisor. The Petitioner asserted that she did this additional work because she was relying on the information provided in the October 12 Risk Management letter and in a telephone conversation she had had with Ms. Battle of FSDB's personnel office prior to October 18, and because she personally had never seen either of Dr. Charles' lists of limitations.
On Wednesday, October 24, 1990, Petitioner left work at noon saying that she had a doctor's appointment, which she in fact did not have. Instead, she went home to rest. On Thursday, October 25, 1990, she called in sick and, as it turned out, she did not return to work after that date.
The Petitioner testified that she did not return to work after October
24 because it was too painful for her to continue the work she had attempted.
On October 26, 1990, a letter was sent from FSDB by Ms. Stephanie Battle notifying Petitioner that she was expected to come to work unless she had received a doctor's statement and that she was expected to return to work no later than Tuesday, October 30, 1990. Because October 26, 1990 was a Friday, it was Ms. Battle's intention that Petitioner would receive the letter on Saturday, October 27 or on Monday, October 29, and would then be able to obtain a doctor's certificate before the employer's October 30 deadline, if, in fact, Petitioner were eligible to receive a doctor's certificate at all.
The October 26, 1990 letter sent by Ms. Battle provided in pertinent part:
. . . You are required to return to your job with the approved restrictions immediately. If you cannot return to work, you must provide this
office with a letter from your attending physician saying why you are unable to perform your job, what the inclusive dates are that you cannot work and the approximate date of your return.
At the present time you are in an unapproved leave without pay status. I expect to hear from you no later than Tuesday morning, October 30, 1990. . . .
On October 29, 1990, Petitioner telephoned Stephanie Battle and informed her that she had received Ms. Battle's October 26, 1990 letter, that she could not work, but that Dr. Charles would not give her a "no work disability slip." At that time, Ms. Battle told Petitioner that she must return to work and asked if Petitioner had told her supervisor that she could not physically do the work assigned. Petitioner admitted to Ms. Battle that she had not yet discussed the problem with her supervisor.
Later on October 29, Petitioner spoke on the telephone with Mr. Schopmann. Mr. Schopmann told Petitioner that she had to come back to work on October 30 or bring a doctor's certificate saying that she could not work at all. At that time, Petitioner indicated to Mr. Schopmann that she was aware that if she did not come back to work or provide some doctor's certificate she would lose her job. Whether Petitioner was consciously aware of the abandonment rule or merely thought she would be fired for not coming to work is not clear from the record.
Petitioner asserted that she called Mr. Schopmann a second time on November 1, still seeking to retain her job; Mr. Schopmann denies that such a telephone call ever took place.
It does not appear that Petitioner and Mr. Schopmann ever had a meeting of the minds that Petitioner was attempting to do more strenuous work than Mr. Schopmann thought he had assigned her to do, but at no time did Mr. Schopmann urge Petitioner to work harder.
In her testimony, Petitioner blamed the employer for not making her fully aware of the limitations placed on her by her doctor. Petitioner also asserted that Ms. Battle had telephoned Dr. Charles on October 24, 1990 to see if the Petitioner's job assignments in the greenhouse and office exceeded his prescribed limitations for Petitioner and, further, that in so doing, Ms. Battle had misrepresented to the doctor the tasks that Petitioner was, in fact, doing and that Petitioner believed that it was due to Ms. Battle's misrepresentations that Dr. Charles would not give Petitioner a certificate of "no work." Ms. Battle confirmed that she had called Dr. Charles at some point and represented to him the type of light work that she understood from Mr. Schopmann that Petitioner was doing in the greenhouse and the office. However, at the time she telephoned Dr. Charles, Ms. Battle also did not know that Petitioner had physically attempted more than she had been assigned to do by Mr. Schopmann. At the time of her phone call, whenever it may have been, Dr. Charles told Ms. Battle [admissible hearsay pursuant to Section 120.58(1) F.S.] that Petitioner could do the light work described by her and assigned by Mr. Schopmann.
Petitioner admitted that she did not consult her doctor in his office on October 24-25, that she never spoke personally with Dr. Charles during this period of time or tried to get a "no work certificate" from him personally prior to October 30, 1990, and that she dealt with him solely through his receptionist. However, the doctor's October 29, 1990 list of limitations and Petitioner's recitation of what the receptionist told her [admissible hearsay pursuant to Section 120.58(1) F.S.] supports a finding of fact that at all times material, Dr. Charles felt Petitioner could continue to do the light work actually assigned by Mr. Schopmann, a description of which had been related to him by Ms. Battle, and that the doctor also felt that the Petitioner could do all the light work which the doctor later listed on his October 29, 1990 list.
Petitioner never presented a medical certificate to her employer. There was no evidence at formal hearing of whether or not the Petitioner had any accrued annual or sick leave that she could draw on, but it is clear that she never applied for authorized leave. The Petitioner never returned to work.
On November 1, 1990, Mr. Schopmann notified the FSDB personnel office that Petitioner had not returned to work for three consecutive days, that he considered her to have abandoned her position, and that he recommended her dismissal on that basis. (DOE Exhibit D)
In a letter dated November 2, 1990, Mr. Sam Visconti, FSDB Personnel Director, notified Petitioner that she was deemed to have abandoned her position due to her absence on October 29, 30, 31, and November 1 (sic, see Findings of Fact 12-13), and that she was dismissed based on Rule 22A-7.010(2)(a), F.A.C. That letter reads in pertinent part:
. . . You failed to report or call in to work for four (4) consecutive work days on October 29, 30, 31, and November 1, 1990. In accordance with Chapter 22A-7.010(2), of the Florida Administrative Code, State Personnel Rules and Regulations, you have abandoned your position.
Abandonment of position is considered and treated as a resignation from your job.
Your resignation is effective 12:01 a.m., November 2, 1990. . . .
Petitioner had been on unauthorized leave without pay since October 24, 1990. However, due to the terms of Ms. Battle's October 26, 1990 letter, the only three days which could be legitimately counted against Petitioner under the abandonment rule were October 30 and 31, and November 1, 1990.
Petitioner is angry about the on-the-job accident and how it occurred. She testified that as of the date of formal hearing she continues to see Dr. Charles professionally and that she would not do so if she were not in pain and really injured, but she produced no medical evidence that she was physically unable to report for work at all on October 30 and 31, and on November 1, 1990 or that she was unable on those dates to do the jobs contained in Dr. Charles' October 29, 1990 list of limitations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.
Rule 22A-7.010(2) F.A.C. provides in pertinent part as follows:
An employee who is absent without authorized leave of absence for three consecutive work days shall be deemed to have abandoned the position and to have resigned 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 fact in the case and a ruling as to whether the circumstances constitute a of abandonment of position.
However, the rule creates only a rebuttable presumption, and in some instances the expressed conscious intent of the employee not to resign career service is sufficient to rebut the rule's presumption. See, Thomlinson v. Department of Health and Rehabilitative Services (Fla. 2nd DCA 1990).
Distilled to their essence, the facts in this case are that the Petitioner's immediate supervisor assigned Petitioner tasks within her capabilities based on the information the employer had from the primary treating physician at the time Petitioner was attempting to work in a "temporary partial" workers' compensation status (October 18-24), but the employee attempted to do far more than she had been assigned, and what she tried to do was in excess of the limitations set by the primary treating physician both before (the October 3 list) and after (the October 29 list) the Petitioner unilaterally chose to leave work on October 24. Despite being placed on unauthorized leave without pay and ordered to return to work no later than October 30, 1990, the Petitioner did not return to work.
The Petitioner testified that she physically could not do the work she had attempted to do, but she did not testify that she could not do the work assigned. Rather, she blamed the employer and Risk Management for not informing her fully of her medical restrictions and of telling her physician that she was doing less than she really was. In Ms. Battle's case, the latter accusation may be true, but if so, Ms. Battle's representations to the doctor were due to Ms. Battle being unaware, as was Mr. Schopmann, of all the work the Petitioner had attempted to do.
Upon the facts as found, the Petitioner cannot eschew all personal responsibility with regard to contacting her doctor and attempting to work within her limitations. Petitioner had a right under the workers' compensation law to request and receive copies of any medical reports. Apparently, she never made such a request. Before he released her on temporary partial disability status, Petitioner had the opportunity to speak with Dr. Charles and learn for herself what her restrictions for light work would be and apparently did not do so. Petitioner had a similar opportunity to explain to Dr. Charles what work she was actually doing when, after she had unilaterally absented herself from the workplace, the employer told her to come back to work or get a medical
certificate. At that point, Petitioner made no attempt to breach the receptionist's barrier to her doctor or get a certificate from a different doctor. Instead, Petitioner simply did not return to work in any capacity.
It is crucial to a determination of abandonment herein that Petitioner did not rebut Respondent's credible evidence that the work assigned by the employer on October 18 was within the limitations "verified" by Dr. Charles on October 29. See, Thomas v. Dept. of Transportation, DOAH Case No. 89-0772 (RO entered July 31, 1989; FO entered October 31, 1989). In Thomas, an employee injured in successive non-work-related automobile accidents wanted to return to work but was unable to do so because the accidents had rendered him incapable of performing his duties as a ferry boat captain. In that case, all parties admitted that the employee could not physically perform the only job available to him, and the hearing officer determined that since the "employer cannot legitimately instruct an employee to do something which the employer knows is an impossibility," the employer could not utilize the three-day abandonment presumption against the employee's verbalized intent to retain his job. Therefore, in Thomas, abandonment under Rule 22A-7.010(2) F.A.C. had not occurred, and a determination of whether the facts constituted "just cause" under Rule 22A-7.010(7) F.A.C. (inability to do the work) was within the jurisdiction of the Public Employees Relations Commission and was not cognizable before the Division of Administrative Hearings.
The facts in the instant case differ significantly from the situation in Thomas, starting with the fact that the primary treating physician and the employer were in accord as to what light work the Petitioner could do. Also, herein, the employer proved that Petitioner could do the work assigned and the Petitioner did not rebut that proof. This Petitioner could have applied for leave, talked to the doctor herself, or returned to work and looked at the limitations in her file. Instead, with full knowledge of the consequences, she just stayed away from her job and asserted that subjective pain prevented her returning to the job.
Since the October 29, 1990 report says that the Petitioner could physically do the work assigned her by the employer October 18-24 and Petitioner has represented that her subjective pain was the only reason she could not do work which was more strenuous than the work actually assigned, the undersigned has also considered whether or not the physician's October 29, 1990 list of limitations might constitute the medical certificate required by the employer in its October 26, 1990 letter and October 29, 1990 phone calls, even though Petitioner was not responsible for creation or presentation of the October 29 list to the employer. However, that list did not conform to the requirements set out in the employer's letter, (see, Findings of Fact 12-13) and even if the employer had assigned Petitioner work beyond the limitations contained in the doctor's October 29 list, in order for Petitioner to rebut the 3-day presumption, she would still have had to demonstrate that the employer received the October 29 list on or before November 1, 1990 and that the October 29 list somehow excused her from returning to work at all on October 30 and 31 and November 1, 1990, which clearly it did not.
Petitioner's unsupported subjective statements that she was in pain and unable to perform the additional unassigned duties she attempted also is not determinative here. Even had she testified that she was unable to perform the duties actually assigned to her, that testimony without supportive direct medical evidence to the same effect would not be controlling. Unlike a hearing under the workers' compensation law wherein the construction of the law most favorable to the employee is mandated, in an abandonment case brought before the
Division of Administrative Hearings under Section 120.57(1) F.S., the injured employee is not entitled to any special construction of evidence in her favor. Herein, Petitioner has shown no medical reason why she could not report for work on October 30 and 31 and November 1, 1990 or why she could not attempt some other light work when she got there. Therefore, she has shown no medical reason she could not return to work as required by the employer.
Petitioner asserted that merely telephoning the employer during the critical period made the language of Mr. Visconti's termination letter (See Finding of Fact 22) partially untrue and so abandonment had not occurred. It is regrettable that Petitioner did not convey to Mr. Schopmann how much she was trying to do and that he did not clarify for her how little he expected of her, but Petitioner, was able to do some light work, and had the obligation to return to the job and try to work at everything she was able to do. Admittedly, Petitioner did not realize that she was overworking and admittedly she telephoned the personnel office (Ms. Battle) and her supervisor (Mr. Schopmann) on October 29. Although she gave them enough information that they knew she had not formed the conscious intent to abandon her job, she simultaneously told them she could not do the work she believed to be assigned her. At that time, both agents of FSDB told her to come back to work or bring a physician's certificate saying she could not report for work. Due to those phone calls, Petitioner knew that if she did not bring a medical certificate or return to work by October 30, she would lose her job. Apparently no one clarified exactly what was required of Petitioner in the way of light work if she returned, but it was clear she was required to return to the job and try to work at something. Assuming arguendo, but not finding or concluding that Petitioner again called Mr. Schopmann on November 1, the content of their conversation then was the same as on October 29, and as of the close of business on November 1, Petitioner's failure to appear on the FSDB premises or, alternatively, to provide a medical certificate ratifying her absence still meant that she had been absent three consecutive days without authorized leave.
Petitioner was on notice in writing and by telephone of her precarious status. At formal hearing, Petitioner did not assert that she had provided appropriate medical certification or that she had a reasonable basis for her failure to apply for another type of leave. Rather, Petitioner admitted she had done nothing to relieve herself of an unexcused absence status and that she had never returned to the job to work out the physical assignment/limitation problem. Having been effectively released by the doctor for light work, Petitioner's return to work on October 30 or 31, or November 1 would not have been detrimental to her rights under the workers' compensation law which requires her to provide evidence she belongs on total disability status or demonstrate her degree of wage loss by availing herself of light work offered by her employer or by doing a good-faith job search within her physical limitations.
Although Petitioner has continued to see Dr. Charles professionally since her termination, she presented no medical evidence at formal hearing that she was unable to report for work on October 30 and 31, and November 1, 1990 or was unable to do the work assigned on those days.
This case is not governed by any workers' compensation case which may deal with the same fact situation1 and although, despite the result of this proceeding, Petitioner may still have some recourse against the employer under the workers' compensation law, the instant case of abandonment is governed by the precedents enunciated in cases before the Division of Administrative Hearings.
In Pittman v. HRS, DOAH Case No. 90-2049 (RO entered February 4, 1991; FO entered February 26, 1991), the workers' compensation claimant returned to work on light duty but then unilaterally elected to stop work and go home.
After a new period of temporary total disability adequately documented by authorized physicians, a series of doctors told her she could return to her regular type of work. One doctor only told the employer and not the claimant. The claimant still did not return to work. Although she brought medical documentation from an unapproved chiropractor many months after the deadline announced by the employer, she was ruled to have abandoned her position despite the liberal construction of intent contained in Thomlinson, supra, largely because she had been on notice of the presumption of abandonment if she did not timely provide a new medical excuse or return to work.
In Atwell v. DHSMV, DOAH Case No. 89-7058 (RO entered August 23, 1990; FO entered September 28, 1990), a workers' compensation claimant was returned by his treating physician to a light-duty job that his state employing agency had available for him in the Tampa-Clearwater area, the geographic area in which he had originally sustained his workers' compensation injury. The employing agency had no other geographic location in which it could provide a light-duty job that met the physical limitations imposed by the treating physician, and the employee did not want to return to the Tampa-Clearwater area from his new home in Tallahassee. After being notified to return to work, the employee did not do so; he also failed to obtain approved leave for three consecutive days. Because the employee did not maintain that he was unable to perform the light duties assigned to him and the doctor's evidence showed that he was capable of doing them, the hearing officer concluded there was no rational or reasonable basis for his failure to report for the light-duty work offered him, and the career service abandonment rule presumption prevailed.
In Chappell v. HRS, DOAH Case No. 89-4183 (RO entered December 6, 1989), a workers' compensation claimant on notice of the career service abandonment rule reached maximum medical improvement and did not return to work and attempt to work within her medically-assigned physical restrictions. She was deemed to have abandoned her career service position.
In Florida School for the Deaf and the Blind v. Rockwell, DOAH Case No. 89-1188 (RO entered July 25, 1989; FO entered October 3, 1989), a workers' compensation claimant was released by the treating physician to perform all the duties in his job description and did return to work for a short time before unilaterally deciding to go home. Despite the doctor's release, the employee maintained that he was physically unable to perform his job duties as originally assigned or as modified by a job assignment change thereafter. He was advised of the three-day rule by telephone. He requested a change of physician but was denied. He did not request medical leave without pay to obtain a new doctor on his own. He did not present a medical certificate timely, and after three consecutive days' absence, he was deemed by the employer to have abandoned his position. At formal hearing, he did not present any direct medical evidence of physical inability to do either job assignment during the critical period, and the abandonment determination of the employer was ratified by the hearing officer.
In Vann v. HRS, DOAH Case No. 88-5538 (RO entered April 28, 1989; FO entered June 8, 1989), the treating physician had released a workers' compensation claimant as having reached maximum medical improvement with no restrictions according to the employer-furnished job description except for a short-term limitation on driving a car, which job duty was not an essential
element of the regular duties of his job. The employer sent him a letter to report for work at a specified time and advised him that he was on unauthorized leave. He still did not return or respond. Since the employee's subjective statements that he had been in pain and unable to perform the duties of this job were not supported by medical evidence at the formal hearing on abandonment, he was deemed to have abandoned his position due to three consecutive days' absence.
In many of the foregoing cases, a significant factor was whether or not the agency had written a letter to the employee in advance telling the employee that he was subject to the abandonment rule and specifically which three days he must show up for work so as to avoid application of the career service abandonment rule. In some of the cases, the employee's specific prior notice of the career service rule was proved by introduction in evidence of a receipt for a copy thereof signed by the employee at the commencement of his employment. However, in Rockwell and Vann, supra, clear knowledge in the employee that the employee's job was in jeopardy was held sufficient. In Rockwell, an advance verbal warning of the three-day abandonment rule was considered sufficient. In Vann, merely prior notification that the employee must return to work on a day certain and specification by the employer that the employee had been placed on unauthorized leave was sufficient to invoke the abandonment rule.
In the instant case, the Petitioner has failed to reasonably rebut the presumption established by the abandonment rule.
RECOMMENDATION
Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order finding that Petitioner abandoned her position by unreasonable absence on October 30 and
31 and November 1, 1990.
DONE and ENTERED this 30 day of July, 1991, in Tallahassee, Florida.
ELLA JANE P. DAVIS
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1991.
APPENDIX TO RECOMMENDED ORDER CASE NO. 90-7794
Petitioner'S PFOF: (The Petitioner's proposals are not numbered, therefore the rulings are set up in the form Petitioner used.)
p.1.
Exhibit A - Nature of Clearance are covered in FOF 7-9, and 18.
First paragraph Note: On Heilmann 2 and Note: On Heilmann 3 is covered in FOF 7- 9, and 18.
Exhibit B is covered in FOF 3-4.
Exhibits C, D, E are accepted in part and rejected in part upon the reconciliation of all credible testimony and exhibits as covered in FOF 14-17
p.2. is rejected upon reconciliation of all credible evidence Respondent'S PFOF:
Accepted as modified and amplified to more closely and accurately reflect the credible record as a whole
1 See, HRS v. Vernon, 379 So. 2d 683 (Fla. 1st DCA 1980); Loewy v. FSU, DOAH Case No. 88-3081 (RO entered October 5, 1989; dismissed by stipulation); Pobst
v. University of South Florida, DOAH Case No. 86-2155 (RO entered April 10, 1987; FO entered August 4, 1987).
COPIES FURNISHED:
Sharon Heilmann
2125 Deer Run Road, Suite #15 St. Augustine, FL 32095
Carl J. Zahner, Esquire Sidney McKenzie, III, Esquire Department of Education
The Capitol, PL-08 Tallahassee, FL 32399-0400
Betty Castor, Commissioner of Education The Capitol
Tallahassee, FL 32399-0400
Sydney H. McKenzie, General Counsel Department of Education
The Capitol, PL-08 Tallahassee, FL 32399-0400
John A. Pieno, Secretary Department of Administration
435 Carlton Building Tallahassee, FL 32399-1550
Linda Stalvey
Acting General Counsel
435 Carlton Building Tallahassee, FL 32399-1550
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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.
| Issue Date | Proceedings |
|---|---|
| Apr. 30, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 31, 1991 | Agency Final Order | |
| Apr. 30, 1991 | Recommended Order | Duty to go forward and burden of proof to prove abandonment of position met by agency where employee was offered light employment and medical excuse provided |
CASSANDRA SWEET vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 90-007794 (1990)
LEROY WILLIAMS vs. FLORIDA SCHOOL FOR THE DEAF AND THE BLIND, 90-007794 (1990)
KIMBERLY L. THOMAS vs. DEPARTMENT OF TRANSPORTATION, 90-007794 (1990)
LARRY WILLIAMS vs. DEPARTMENT OF TRANSPORTATION, 90-007794 (1990)
E. D. WIGGINS vs. GENERAL TELEPHONE COMPANY, 90-007794 (1990)
