STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FELICIANO DEL OLMO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-358

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this case was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 6, 1983, in Coral Gables, Florida.

Petitioner Feliciano del Olmo appeared on his own behalf, and Respondent Department of Health and Rehabilitative Services was represented by Leonard Helfand, Esquire, Miami, Florida.

On July 23, 1982, Respondent advised Petitioner that his failure to report to work from an unauthorized leave of absence constituted abandonment of his position and therefore he was deemed to have resigned from his employment with Respondent and from the Career Service. Petitioner petitioned the Department of Administration for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position. Accordingly, the issue for determination is whether Petitioner has abandoned his position.

The Petitioner testified on his own behalf. The Respondent presented the testimony of Hector Villardebo, Lucian Bledsoe, Joann Frazier, James A. Sanders and Betty J. Parks. Additionally, Joint Exhibit numbered 1 and Respondent's Exhibits numbered 1 through 6 were admitted in evidence.

Respondent submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. Petitioner was employed by Respondent as a Public Assistance Eligibility Specialist I in its Refugee Assistance Program for approximately one year. In early 1982, it became necessary to terminate the positions of many eligibility workers in that program due to budget cuts. Petitioner's position was one of those abolished.

2. Petitioner was reassigned to an eligibility worker position in Respondent's Aid to Families with Dependent Children Program. He was assigned to a unit supervised by Joann Frazier, which operated in a different work location than Petitioner worked at when he was assigned to the Refugee Assistance Program.

   
   

3. Petitioner reported to his new job location on March 31, 1982. Since he had not been trained in his new duties at the Aid to Families with Dependent Children Program, Petitioner was not immediately given a caseload. Instead, he was assigned to some miscellaneous duties until the training class commenced on April 8, 1982.

   
   

4. On April 1, 1982, Petitioner did not report to his new assignment and did not contact that office. Rather, he returned to his old work assignment, where he was specifically advised by the network manager of the Refugee Assistance Program to immediately report to his new assignment. Petitioner went hone instead.

   
   

5. On April 2, 1982, Petitioner did not report to his new position until after lunch. Frazier met with Petitioner and advised him regarding his duties and regarding the training session he would attend the following week. Petitioner told Frazier that he was having a problem with his hand and requested permission to leave work early that day. Frazier granted that permission.

   
   

6. On April 5 and 6, Petitioner failed to report to his new assignment and failed to contact that office. On April 7, Petitioner reported for work after lunch.

   
   

7. On April 8, 1982, the first day of the training class, Petitioner telephoned the staff development and training office to advise that he would not attend the training class and that he was going to the hospital to undergo surgery on his hand. Petitioner never again reported for work in the Aid to Families with Dependent Children Program.

   
   

8. In the meantime, Petitioner located another employee of Respondent who had been transferred from Petitioner's new work location to Petitioner's old work location. The two employees agreed they would request that they be allowed to exchange positions. That request was not granted due to the administrative difficulties Respondent was already encountering in reassigning employees because of the current and anticipated additional budget cuts in order to avoid if possible having to lay off any of Respondent's employees.

   
   

9. By the time Petitioner stopped reporting for work, he had nearly exhausted both his sick leave and his annual leave. Frazier credited him for the amount of sick and annual leave he had left, and, effective April 14, 1982, she placed Petitioner on "leave without pay" status.

   
   

10. On April 16, 1982, Frazier received a letter from Petitioner's psychiatrist stating that Petitioner should take a two-week vacation because he was feeling depressed. Frazier refused to grant Petitioner authorized leave time based on that letter, since the psychiatric recommendation of a two-week vacation contradicted Petitioner's earlier advice that he was going into the hospital for surgery on his hand.

    
    

11. On May 4, 1982, Frazier's supervisor, James A. Sanders, wrote to Petitioner advising him that he had been on unauthorized leave since April 8, 1982, for failure to report to work. Sanders further advised Petitioner that

    the letter from Petitioner's psychiatrist was not sufficient to fulfill an earlier directive that Petitioner provide a statement from his physician certifying the need for hospitalization and Petitioner's absence from work. The letter directed Petitioner to report to Frazier by May 7, 1982, at 8:00 a.m. and further advised him that failure to report to work would be deemed to constitute an abandonment by Petitioner of his position. Petitioner did not report to work as directed. Rather, he sent Respondent a letter from his psychiatrist dated May 11, 1982, advising that Petitioner should extend his vacation for another two weeks, since he was still depressed.

    
    

12. Petitioner spoke by telephone with Sanders on Friday, May 14, 1982. Sanders advised Petitioner that unless he reported to work at 8:00 a.m. on May

    17 at Frazier's unit, Respondent would consider Petitioner in an abandonment status. Petitioner advised Sanders that he would rather resign than be deemed to have abandoned his position and that he would come to Sanders' office on Monday morning with his resignation letter. Petitioner did appear at Sanders' office; however, he did not leave a resignation letter.

    
    

13. On July 16, 1982, Sanders directed another letter to Petitioner reminding him that he was still on unauthorized leave and directing him to report to work by July 23, 1982, at 8:00 a.m. or be deemed to have abandoned his position and to have resigned from the Career Service. Petitioner did not report to work, and on July 23, 1882, a letter was sent by Respondent to Petitioner officially advising him that he had resigned from his position as a Public Assistance Eligibility specialist I and from Career Service.

    
    

14. On August 10, 1382, Petitioner appeared at Respondent's offices and filled out an application for employment. On that application, he stated that he had been on unauthorized leave of absence.

    
    

15. At the formal hearing in this cause, Petitioner admitted that he never requested or was granted an authorized leave of absence by Frazier, by Sanders, by anyone in the Refugee Assistance Program, by anyone in the District Personnel Office, or by anyone on behalf of Respondent.

    
    

16. Petitioner took an unauthorized leave of absence from his employment with Respondent from April 2, 1982, until August 16, 1982, when he appeared at Respondent's offices requesting employment.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).

    
    

18. Section 22A-7.10(2)(a), Florida Administrative Code, provides that "[a]n 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." By virtue of Petitioner's failure to report to work from April 8, 1982, until August 16, 1982, although he admits that no one on behalf of Respondent granted him leave, Petitioner has clearly been absent without authorized leave for more than three consecutive workdays. Petitioner's only defense of his refusal to work is his opinion that the letters from his psychiatrist recommending vacation for Petitioner's depression should have automatically entitled him to stop working. Under Petitioner's theory, an employee should be able to take vacation any time the employee wishes without approval of the employer and without regard to whether the employee is entitled

to any vacation time. Such an argument is totally without merit. Even if there were merit to Petitioner's argument, the two letters only pertained to four weeks out of Petitioner's 18-week-long unauthorized leave of absence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Petitioner to have

abandoned his position with the Department of Health and Rehabilitative Services

as a Public Assistance Eligibility Specialist I and to have resigned from the Career Service.

DONE and RECOMMENDED this 12th day of October, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1983.

COPIES FURNISHED:

Mr. Feliciano del Olmo

610 South Ninth Avenue, #22

Miami, Florida 33130

Leonard Helfand, Esquire Department of Health and

Rehabilitative Services Ruth Rhode Building, Suite 1040

401 North West Second Avenue Miami, Florida 33128

Daniel C. Brown, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Nevin G. Smith, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 83-000358

Orders for Case No: 83-000358