STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BASIL GLINTON, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4023

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on April 23, 1985, at Miami, Florida.

APPEARANCES

For Petitioner: Robert L. McKinney, Esquire

Jackson Medical Tower

1500 Northwest 12th Avenue, Suite 1107

Miami, Florida 33125

For Respondent: Leonard Helfand, Esquire

Department of Health and Rehabilitative Services

401 Southwest 2nd Avenue, Suite 1070 Miami, Florida 33128

PRELIMINARY STATEMENT

The issue raised by these proceedings is whether the circumstances surrounding Petitioner's absence from his employment with Respondent, for a period in excess of three working days, constitute abandonment of his position, and resignation from the Career Service pursuant to Rule 22A-7.10(2), F.A.C.

At final hearing Petitioner testified on his own behalf. Petitioner offered Exhibit 1, and it was received into evidence. Respondent called Zoila Olivera, Raquel Lima, Roberto Zamora, and Carlos Babtist, as witnesses.

Respondent offered Exhibits 1-7, and they were received into evidence.

Respondent has submitted proposed findings of fact and conclusions of law, and they have been reviewed and considered. No proposed findings of fact and conclusions of law have been submitted on behalf of Petitioner. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as being subordinate, cumulative, immaterial, or unnecessary, or as being contrary to the facts as found in this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Basil Glinton (Glinton), was employed full time by the Respondent, Department of Health and Rehabilitative Services (Department) as a Public Assistance Specialist II. On September 14, 1984, as a result of a transfer, Glinton was scheduled to start work at the Department's Food Stamp Office, Unit 61, in Miami, Florida.

   
   

2. At 9:15 a.m., September 14, 1984, a Friday, Glinton reported to Unit

1. He requested and received his paycheck, and advised the acting supervisor that he had a doctor's appointment which would require his absence from the office for about one hour. Glinton did not return to the office that day.

   
   

   1. On Monday, September 17, 1984, Glinton reported to Unit 61 and worked from 8:12 a.m. to 5:00 p.m. On that date, the office supervisor, Raquel Tima, met with Glinton and spoke with him about his absence of September 14, 1984. Ms. Lima advised Glinton that she needed a doctor's statement to authorize that absence. No doctor's statement has been produced.

      
      

   2. Glinton failed to report for work the remainder of that workweek-- September 18-21, 1984. On September 21, 1984, Ms. Lima sent a warning letter, certified mail, to Glinton. The postal claim check reflects that Glinton was notified of the letter on September 24, 1984, September 29, 1984, and October 9, 1984, but failed to claim it.

      
      

   3. Glinton likewise failed to report for work the following week-- September 24-28, 1984. He did, however, appear at the office on Friday, September 28, 1984, to request his paycheck.

      
      

   4. On October 1, 1984, Glinton was personally delivered a letter dated September 28, 1984, which advised him that his absence from work since September 18, 1984 was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., he was deemed to have abandoned his position and resigned from the Career Service. The letter further advised Glinton of his right to petition the Department of administration for a review of the facts and whether they constitute abandonment.

      
      

   5. By letter dated October 4, 1984, Glinton timely petitioned the Department of Administration for review. In his letter, and at final hearing, Glinton claimed he was ill and under a doctor's care for the period of September 18-28, 1984, and that he had routinely called, or had someone else call, the office to advise them of his illness.

      
      

   6. While professing "illness" for a two-week period, Glinton failed to offer any evidence of the nature of his illness. He further failed to offer the testimony of his physician, or any other evidence supportive of his claim.

      
      

   7. While Glinton acknowledges familiarity with the Department's rule which requires that the supervisor be notified of absence due to illness, he made no attempt to contact his supervisor. The only time the office was notified of his absence was on September 19, 1984 when an unknown female telephoned and advised the switchboard operator, without explanation, that Glinton would not be coming to work on that date.

      
      

   8. Glinton's testimony that his absence from work during the period of September 18-28, 1984 was due to illness, and that he telephoned the office every day during his absence, is inherently improbable and unworthy of belief.

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

      
      

   10. Rule 22A-7.10(2), F.A.C., provides 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.

             
             

   11. The evidence establishes that Glinton was absent for nine consecutive workdays from his employment with the Department, and that no leave had been authorized for that period. Glinton asserts, however, that his absence was authorized because it was the result of illness.

       
       

   12. A state employee may utilize sick leave under limited circumstances. Rule 22A-8.11(2), F.A.C., provides in pertinent part:

       
       

       1. Use of earned sick leave

          * * *

          1. Sick leave shall be authorized only for the following purposes:

             1. The employee's personal illness, injury, or exposure to a contagious disease which would endanger others. Personal illness shall include disability caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery therefrom, and any sick leave credits used for these reasons shall be authorized only in accordance with Section

                22A-8.11(2)(d).

             2. The employee's personal appointments with a doctor, dentist, or other recognized practitioner when it is not possible to

                arrange such appointments for off-duty hours.

                * * *

          2. Notification of absence due to illness, injury, or exposure to a contagious disease shall be given to the appropriate supervisor by the employee or the employee's representative as soon as possible on the first day of absence.

          3. Upon request, an employee shall be allowed to use accrued sick leave credits as provided in this section:

          1. Prior to authorizing an employee to use sick leave credits, the agency head shall require the employee to certify that the absence was for reasons which are justified and provided in Section 22A-8.11(2)(b).

   13. Glinton's assertion that his absence was authorized because it was the result of illness is unpersuasive. The record is devoid of proof that Glinton suffered any personal illness or injury that necessitated his absence from his place of employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order that:

1. Petitioner, Basil Glinton, abandoned his position and resigned from the Career Service effective October 1, 1984.

   
   

2. Dismisses the petition of Basil Glinton with prejudice.

DONE AND ENTERED this 8th day of May, 1985, at Tallahassee, Florida.

WILLIAM J. KENDRICK

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 8th day of May, 1985.

COPIES FURNISHED:

Dniel C. Brown, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Leonard Helfand, Esquire Department of Health and

Rehabilitative Services

Suite 1070, 410 N.W. 2nd Avenue

Miami, Florida 33128

Robert L. McKinney, Esquire Suite 1107

Jackson Medical Tower 1500 N.W. 12th Avenue Miami, Florida 33125

Gilda Lambert, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-004023

Orders for Case No: 84-004023