Judges: K. N. AYERS
Agency: Office of the Governor
Latest Update: Nov. 13, 1986
Summary: Three days unauthorized absence evidence of abandonment of position.
86-3257.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SALLY REILLY, )
)
Petitioner, )
)
vs. ) CASE NO. 86-3257
) UNIVERSITY OF SOUTH FLORIDA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on October 16, 1986, in Tampa, Florida.
APPEARANCES
For Petitioner: Cynthia A. Bockstahler
c/o AFSCME AFL-CIO
204 E. Henderson Avenue Tampa, Florida 33602
For Respondent: Carla Jimenez, Esquire
University of South Florida Tampa, Florida 33620-6250
By letter dated July 2, 1986, Sally Reilly, Petitioner, requested an administrative hearing to contest the University of South Florida, Respondent's, contention that she abandoned her position as Clerk Specialist at the Florida Mental Health Institute.
At the hearing, Petitioner called two witnesses, her mother and herself.
Respondent called two witnesses, and three exhibits were admitted into evidence. There is no dispute regarding the facts in this case. Accordingly, proposed findings submitted by the parties are accepted. Petitioner's sole argument is that under the circumstances she should not be deemed to have resigned her position.
FINDINGS OF FACT
At all times relevant hereto, Petitioner was employed as a Clerk Specialist in the Medical Records Department of Respondent's Mental Health Institute and held permanent status in the Florida career service system.
On June 3, 1986, Petitioner received a telephone call from her mother relating the substance of a bizarre telephone call she had received the previous night from her son-in-law, Petitioner's estranged husband. This caused Petitioner to fear for the safety of her children and she left her job around
3:00 P.M., went to school and to a day nursery to pick up her children and took them to her mother's house where she stayed while away from work.
Petitioner frequently left the office during working hours but made up the time so lost by working through her lunch hour or before or after her regular working hours. Sometimes she took annual leave for this time off. Petitioner and her supervisor expected Petitioner to return to work June 4, 1986.
During the next few days Petitioner or her mother frequently called Petitioner's supervisor to report that Petitioner was still concerned about the safety of her children but would return to work.
On June 9, Petitioner spoke to the office supervisor, Carol Foster, who had just returned from a week long HRS convention in Miami, and told Foster that she would not return to work until Wednesday, June 11. Foster asked if she could come in and work that night (Monday), to which Petitioner agreed. Petitioner later called and said she could not come in that night.
On Tuesday, June 10, 1986, Petitioner's mother called in and advised Foster that Petitioner would not return to work until the following Monday, June 16, 1986. Foster replied that no leave was authorized and Petitioner was expected to report to work the following day, Wednesday, June 11, at 8:00 a.m. Later on this same day Foster repeated this message to Petitioner.
On Wednesday, June 11, 1986, Petitioner called Foster and said she could not come in to work. Foster replied that no leave was authorized.
On Thursday, June 12, 1986, Foster told Petitioner that unless she reported to work on Friday, June 13, 1986, she would have no choice but to consider Petitioner to have abandoned her job.
On Friday, June 19, 1986, Petitioner did not report to work and made no effort to contact Foster. On the morning of June 13, Petitioner attended a job interview for another position on Respondent's campus. Upon learning of this, Foster then prepared and sent to Petitioner by certified mail a letter containing notification that she was deemed to have resigned her position by abandonment and notifying Petitioner of her right to petition for review. (Exhibit 2)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 22A-7.010, Florida Administrative Code, provides: Abandonment of Position.
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 has career service status and 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 for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.
The abandonment rule is not a disciplinary rule but rather puts employees on notice that certain actions or non-actions will be construed as a form of unwritten resignation. Cook vs. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978). In Hadley vs. Department of Administration, 411 So.2d 184, 188 (Fla. 1982), the court stated:
The state and public ... have an interest in replacing public employees that [sic] do not work. Rule 22A-7.10(2)(a) recognizes that interest and, by facilitating elimination of those who do not report to work for a certain time, promotes it.
The material facts of this case are uncontroverted. Petitioner left her position before the close of work on the afternoon of June 3, 1986, and remained absent therefrom without ever formally requesting or being granted leave until after she received her notice of abandonment. Rule 22A-8.02(5), Florida Administrative Code, provides in pertinent part:
(5) Any leave of absence with or without pay shall be approved prior to the leave being taken, except in the case of an emergency where the employee must be absent prior to receiving approval from proper authority for the absence.
When prior approval cannot be obtained by the employee due to such emergencies,
the agency head shall take one of the following actions:
Grant the employee leave with pay, provided the employee has sufficient leave credits to cover the absence.
Place the employee on leave without pay for the absence, or
If the absence is for 3 consecutive workdays, consider the employee to have abandoned the position and resigned from the Career Service.
If an employee's request for leave of absence is disapproved and the employee takes unauthorized leave, the agency head
shall place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays shall consider
the employee to have abandoned the position and resigned from the Career Service.
Although Petitioner contends that she had to be absent from her position because of a family emergency, the exact nature of that emergency was never communicated to her supervisors or disclosed at the hearing.
Here Petitioner was specifically notified that she was on unauthorized leave and was given a time certain within which to return to work or be deemed to have abandoned her position. Despite this notification, Petitioner did not return to work and the finding that she had thereby abandoned her position was required by the rules above-quoted.
From the foregoing, it is concluded that Sally Reilly abandoned her position as Clerk Specialist in the Medical Records Department of the Mental Health Institute at the University of South Florida by being absent without authority for three consecutive days and thereby resigned from the career service system. It is
RECOMMENDED that a Final Order be entered finding that Sally Reilly was appropriately terminated for abandonment in accordance with Rule 22-7.010(2)(a), Florida Administrative Code.
ENTERED this 13th day of November, 1986, in Tallahassee, Florida.
K.N. AYERS 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 13th day of November, 1986.
COPIES FURNISHED:
Cynthia A. Bockstahler c/o AFSCME AFL-CIO
204 E. Henderson Avenue Tampa, Florida 33602
Carla Jimenez, Esquire
Office of the General counsel University of South
Florida
Tampa, Florida 33620-6250
Bryan Burgess, Esquire General Counsel University of South Florida
Tampa, Florida 33620-6250
Pamela Miles
Assistant General Counsel Department of Administration
438 Carlton Building Tallahassee, Florida 32301
Gilda H. Lambert Secretary
Department of Administration
435 Carlton Building Tallahassee, Florida 32301
Docket for Case No: 86-003257
Orders for Case No: 86-003257
