STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANET GRANT, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1984

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case on August 21, 1984, in Ft. Myers, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Janet Grant, Pro se

3125 Dora Street

Fort Myers, Florida 33901

For Respondent: Anthony N. Deluccia, Jr.

Post Office Box 06085

Fort Myers, Florida 33906

The issue is whether Petitioner, Janet Grant, abandoned her position of employment with the Department of Health and Rehabilitative Services (DHRS) or whether she was wrongly terminated.

The Petitioner presented the testimony of Janet Grant and Revonia Grant, sister of Petitioner and employee of DHRS. Petitioner also presented three exhibits, admitted as Petitioner' Exhibits 1-3. Respondent DHRS presented the testimony of Rudolph (Mickey) Jones, Petitioner's immediate supervisor; Irene R. Bernstein, Personnel Technician at DHRS Gulf Coast Center; and Amy Isaac, Personnel Technician at DHRS Gulf Coast Center. DHRS also admitted, DHRS Exhibits 1 and 2.

Respondent DHRS filed proposed findings of fact and conclusions of law as permitted by law. Petitioner had an opportunity to submit proposed findings and conclusions, but declined to do so. All proposed findings of fact and conclusions of law have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate cumulative, immaterial, unnecessary, or not supported by the credible evidence.

FINDINGS OF FACT

1. Petitioner was an employee of DHRS as a Human Services Worker I at Gulf Coast Center, Ft. Myers, Florida.

   
   

2. On March 8, 1984, Petitioner informed Ms. Bernstein, a Personnel Technician with duties as the Worker's Compensation coordinator at Gulf Coast Center, that she had a doctor's appointment on March 9, 1984, because of the recurrence of a worker's compensation back injury.

   
   

3. Petitioner was not at work on March 9, 1984, and she was scheduled for her regular off days on March 10 and 11, 1984. Petitioner did not call her immediate supervisor or the Personnel Office on March 12, 13, 14 or 15, 1984, even though she was scheduled to work and she did not appear at work.

   
   

4. Because Petitioner did not report for work or secure authorized leave for the absences on March 12, 13 and 14, 1984, on March 15, 1984, DHRS mailed Petitioner a letter by certified mail, return receipt requested, to Petitioner's last known address in her personnel record. The letter confirmed Petitioner's separation from employment with DHRS for absence without authorized leave for three (3) consecutive work days, which is deemed to be abandonment of the employment position and resignation from the Career Service System. The letter also advised Petitioner that in the event it was not her intention to resign from employment, she was instructed to immediately contact the Superintendent of Gulf Coast Center and provide a reasonable and acceptable explanation for the unauthorized absence from employment.

   
   

5. This letter was accepted and signed for on March 17, 1984 by Patricia Grant, sister of Petitioner. However, Patricia Grant did not give the letter to Petitioner until approximately two weeks after receipt.

   
   

6. On March 16, 1984, Petitioner provided to Ms. Bernstein a doctor's statement dated March 9, 1984, stating "no work for now" and a doctor's appointment card showing another appointment on March 16, 1984. Ms. Bernstein advised Petitioner of the March 15, 1984 letter regarding abandonment her position.

   
   

7. In April, 1984, Petitioner finally called the Personnel Office of Gulf Coast Center and requested an appointment with the personnel manager regarding her employment. On April 12, 1984, Petitioner appeared at that office with a union steward and spoke with Amy Isaac. Petitioner also had another doctor's statement dated March 16, 1984, showing that she was to go into the hospital on March 18, 1984 for treatment for her back injury. During this meeting, Petitioner acknowledged that she had not called the Superintendent's Office as instructed in the March 15, 1984 letter. Because Petitioner was already deemed to have resigned from her employment, Ms. Isaac was unable to give Petitioner her job back.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

9. Rule 22A-7.10(2), Florida Administrative Code, states in pertinent part:

   1. Abandonment of Position-

      1. 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 separates under such circumstances shall not have the right of appeal to the Career Service Commission; however, any such employee shall have the right to petition 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.

      2. Each employee separated under conditions of abandonment of position shall be notified in writing. Notification shall be given by delivering a copy of the writing to the employee or by mailing a copy of the writing by certified mail return receipt requested to the employee at his last known address. Such notification shall inform the employee of his rights to petition for review of the agency's action as provided in this rule.

         * * *

         
         

10. The evidence was clear that DHRS followed the procedures set forth and was in full compliance with the terms of Rule 22A-7.10(2).

    
    

11. The evidence is also clear that Petitioner did not notify her immediate supervisor or the personnel office of her absences from March 12-15. Abandonment is deemed to be absence without authorized leave for 3 consecutive days. In the present case it matters not that Petitioner may have had a valid reason for her absence. The rule requires that the leave be authorized. The meaning of authorized is not found in the applicable rules and, therefore, the common meaning must be relied on. Webster's Ninth New Collegiate Dictionary defines authorize to mean "to establish by or as if by authority: SANCTION; to invest esp. with legal authority: EMPOWER." Under these circumstances, it must be that absence without authorized leave encompasses the concept of authorization or permission before the fact.

    
    

12. It is concluded that Petitioner may have had a valid excuse for her absence, but she failed to seek and receive authority for her absence. She was therefore absent without authorized leave for 3 or more consecutive days. In fact, she failed to seek authority for the absence until April, 1984, and then she failed to follow the procedure set forth in the separation letter because she never contacted the Superintendent as instructed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that Petitioner, Janet Grant, be separated from her employment with DHRS for abandonment of her employment position.

DONE and ORDERED this 19th day of September, 1984, in Tallahassee, Florida.

DIANE K. KIESLING

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 19th day of September, 1984.

COPIES FURNISHED:

Daniel C. Brown, Esquire Department of Administration Carlton Building Tallahassee, Florida 32301

Ms. Janet Grant 3125 Dora Street

Fort Myers, Florida 33901

Anthony DeLuccia, Jr., Esquire District VIII Legal Counsel Department of Health and

Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906

Nevin G. Smith

Secretary of Administration

435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 84-001984

Orders for Case No: 84-001984