STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6226

)

EDITH ROGERS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Vero Beach, Florida on December 5, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Karen M. Miller, Esquire

DHRS, District 9

111 Georgia Avenue

West Palm Beach, Florida 33401

For the Respondent: Charles A. Sullivan, Jr., Esquire

Sullivan, Stone, Sullivan, LaJoie and Thacker

Post Office Box 2620

Vero Beach, Florida 32961-2620 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether the Respondent, Edith Rogers, abandoned her position with the Indian River County Health Department because of her unauthorized absence from work for more than 3 days.

PRELIMINARY MATTERS

By letter dated August 23, 1991, Dr. James T. Howell, acting District 9 Administrator for the Department of Health and Rehabilitative Services, (Department), advised Mrs. Rogers that her unauthorized absence for the period August 20, 21, and 22, 1991, and her failure to secure permission to be absent, rendered her as having abandoned her position with the Department and resigned from the Career Service. By letter dated September 9, 1991, Mrs. Rogers' counsel acknowledged receipt of that letter and contested the determination of abandonment, requesting an administrative hearing. By Order dated September 27, 1991, the matter was forwarded to the Division of Administrative Hearings for formal hearing, and on October 23, 1991, the undersigned set the case for hearing in Vero Beach on November 14, 1991. However, consistent with a request for continuance dated October 31, 1991 by the District's counsel, concurred in by Respondent's counsel, the undersigned, by Order dated November 5, 1991

continued the hearing until December 5, 1991 at which time it was held as scheduled.

At the hearing, Petitioner introduced the testimony of Gerry L. Waite, processing manager for the Indian River County Public Health unit and Respondent's supervisor, and JoAnn Register, employee relations supervisor in the Department's District 9 personnel office. Petitioner also introduced Petitioner's Exhibits 1 and 3 through 6. Petitioner's Exhibits 2 for identification was offered but not admitted. Respondent testified in her own behalf but introduced no documentary evidence.

A transcript was not provided. Subsequent to the hearing, only Petitioner's counsel submitted Proposed Findings of Fact which have been accepted and are incorporated herein as appropriate.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Respondent, Edith Rogers, was employed as a data operator with the Indian River County Health Unit, a sub-unit of the Department. She was hired by the Department on January 4, 1988 and began working for Gerry L. Waite as a data operator in October, 1988.

   
   

2. When employees are hired by the Health Unit, they are briefed on the unit's leave policies and procedures and are given a copy of the unit's personnel policies for which each employee is obligated to sign a receipt.

   
   

3. That portion of the handbook dealing with absences provides that when possible, employees requesting to be absent should request authorization from their supervisor in advance. If prior application is not possible, and absence is necessary, the employee is to call in at the earliest possible moment to let the supervisor know what is going on and approximately how long the employee will be absent. Respondent has complied with these policies on several occasions in the past.

   
   

4. On July 26, 1991, a Friday, the Respondent was at her place of employment and there was no indication given that she was experiencing any difficulty. The following Monday, however, July 29, 1991, she did not report for work and Ms. Waite, her supervisor, knew from an article which had appeared in the prior day's newspaper, that Respondent had been arrested. Respondent did not call in on that day, nor did anyone else call in for her.

   
   

5. Respondent remained in jail until August 19, 1991. Subsequent to Monday, July 29, 1991, Ms. Waite called the jail twice a week to check on the Respondent's statue. Each time the Respondent was there. At no time during that period did Respondent, or anyone else on her behalf, call her duty section and speak with her supervisor regarding the basis for her absence, nor did Respondent write a letter to explain, though she was able to do so.

   
   

6. Mrs. Rogers did not come to work on August 20, 1991, a Tuesday and the day after her release from jail, nor did she come in on August 21 or 22, 1991, the following Wednesday and Thursday. There was no contact from the Respondent, and her absence subsequent to her release had not been authorized.

   
   

7. Ms. Waite is satisfied that Respondent knew the abandonment provisions and the potential results of failing to appear for several days without authority since, in 1984, a similar action was taken regarding her employment

   with the Department in St. Lucie County, and she was deemed to have abandoned her position at that time.

   
   

8. Respondent was seen in Walmart by another Department employee on the morning of Tuesday, August 20, 1991. At that time she was buying clothes for her 13 year old son preparatory to getting him enrolled in middle school. She admits she did not call her office on that day, however, on Wednesday, August 21, 1991, after arranging to have the power to her residence turned on and taking care of some other personal affairs, she called a friend of hers, Mrs. Brenda Troutman, who works for the Health Unit in its vital statistics division, and explained where she was. Ms. Troutman, however, was not working in Respondent's division nor was she in any supervisory capacity over her. Though Ms. Rogers claims she asked Ms. Troutman to notify Ms. Waite of her status for her, Ms. Troutman declined to do so, suggesting Ms. Rogers make the contact herself.

   
   

9. On Thursday, August 22, 1991, Respondent did call her office and asked to speak with Ms. Waite. Unfortunately, she called at lunchtime, sometime between 1 and 1:15 PM, and neither Ms. Waite, nor anyone else in authority was there to speak with her. Respondent admits she did not leave her name at the time of that call.

   
   

10. The evidence is clear that at no time, from the time Ms. Rogers was placed in jail in July until Ms. Waite spoke with her on the evening of Friday, August 23, 1991, did Respondent, or anyone on her behalf, make any sincere effort to contact the Unit to explain, officially, to anyone in authority where she was, the reason for her absence, and when she would be back. At that time, Ms. Rogers advised Ms. Waite that she would be back to work on August 26, 1991, but Ms. Waite told her then it was too late as she had already been processed for abandonment of her position.

    
    

11. Ms. Waite is quite certain that Ms. Rogers is and was aware of the procedures to be used when an absence is anticipated or when it was unavoidable, because Respondent has taken advantage of these procedures and utilized them several times in the past during the period she has been working for the Department.

    
    

12. According to Ms. Register, the employee specialist with the Department's District office, there is a difference between an abandonment action and a termination for cause. The latter is a disciplinary action and is appealable through the Public Employees Relations Commission or through union grievance procedures. The abandonment is a determination made after an unauthorized absence with a provision for review, and is more a constructive action determined on the basis of the employee's failure to appear.

    
    

13. Respondent is quite insistent that she did not intend to abandon her position and intended to come back to work the Monday following her release, (August 26, 1991). She claims one of the reasons for her delay in going back to the office was her embarrassment in going back and facing her coworkers after having been in jail, but she contends that at all times she wanted her job back. She differentiates her situation in this case from that in the 1984 abandonment action. Then, she admits, she walked away from her job because of her addiction to cocaine. Here, she claims, this was not her intent, and she fully intended to go back to work just as soon as she was able to do so.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(10, Florida Statutes.

    
    

15. The Department has elected to determine that Respondent abandoned her position of employment with it because, without authority, she failed to report for duty on August 20, 21, and 22, 1991, after she had been released from jail. The Department does not take this position on the basis of the time Ms. Rogers was in jail.

    
    

    Rule A-7.010(2), F.A.C., provides:

    1. An employee who is absent without authorized leave of absence for 3 consecutive work days shall be deemed to have abandoned the position and to have resigned from Career Service . . . .

       
       

16. Consistent therewith, the Department's HRSP 60-1, a copy of which is furnished to each employee (and to Respondent here) provides:

    
    

    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 hardships 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.

    
    

17. As may be seen from the last sentence of the above-cited pamphlet provision, the "3 day rule" creates no more than a rebuttable presumption of abandonment. It requires the employee to show only a reasonable basis for absence to rebit that presumption. Tomlinson v. Department of Health and Rehabilitativ Services, 558 So.2d 62 (Fla. 2DVA 1990); Desilva v. Department of Transportation, 564 So.2d 216 (Fla. 4DCA 1990); Department of Corrections v. Doub, 571 So.2d 535 (Fla. 1DCA 1990).

    
    

18. The Department does not base its abandonment action on the time Ms. Rogers was in jail. Here the Department considers Ms. Rogers to have abandoned her position because, after her release from jail, she failed to come in to work on the first three consecutive work days thereafter without having either secured authorization in advance or, in the alternative, as soon as she was able after the absence.

    
    

19. The evidence clearly establishes that Ms. Rogers was available to come to work on August 20, 21, and 22, 1991 yet chose not to do so for reasons of her own. She made no effort to contact her supervisor until the Thursday after her absence, August 22, 1991, at which time she called during the lunch period and when she could not reach her supervisor or anyone in authority, failed to leave her name. Her prior contact with the Unit, with a friend in another section, with a request that that individual notify her supervisor for her, is inadequate and fails to meet the requirements of the rule.

20. It is conceivable that had Ms. Rogers contacted her supervisor and explained her need for a little more time, it might well have been granted. She did not do so, however, but instead, even though aware of what she had to do to protect herself, simply neglected her responsibilities to her employer and remained away from her job without either notice or approval. Under these circumstances, there is no possible way a reasonable man could conclude, as Respondent's counsel urged, that she was deprived of her due process rights. To be sure, she meets the criteria in the rule exactly and, under the terms thereof, may be considered to have abandoned her position and resigned from the Career Service.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered finding that Respondent, Edith Rogers, abandoned her position with the Indian River County Health Unit and resigned from the Career Service.

RECOMMENDED in Tallahassee, Florida this 24th day of January, 1992.

ARNOLD H. POLLOCK

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 24th day of January, 1992.

COPIES FURNISHED:

Karen M. Miller, Esquire DHRS, District 9

111 Georgia Avenue

West Palm Beach, Florida 33401

Charles A. Sullivan, Jr., Esquire Post Office Box 2620

Vero Beach, Florida 32961-2620

John Slye General Counsel DHRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Sam Power Agency Clerk DHRS

1323 Winewood Blvd.

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should b e filed with the agency which will issue the Final Order in this case.

Docket for Case No: 91-006226

Orders for Case No: 91-006226