STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDDIE HARRIS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0289

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Bearing Officer, James E. Bradwell, held a public hearing in this case on June 23, 1987 in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Eddie Harris, Pro se

Post Office Box 9224

Riviera Beach, Florida 33419

For Respondent: K. C. Collette, Esquire

Department of Health and Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401 ISSUED PRESENTED

The issue presented for determination herein is whether or not Petitioner abandoned his position and resigned from career service based on his absence from employment on December 8, 9 and 10, 1986.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein,

1 make the following relevant factual findings.

FINDINGS OF FACT

1. Petitioner: was employed by Respondent as a counselor at the Palm Beach Juvenile Detention Center. In an effort to break up a fight among teenagers while employed on April 14, 1986, Petitioner was pushed against a wall at the Detention Center and sustained an impact injury to the upper portion of his right shoulder and its superior aspect.

   
   

2. When Petitioner commenced his employment with Respondent on July 18, 4983, he signed a statement acknowledging receipt of the Department's employee

   handbook and acknowledging his personal responsibility to review the contents thereof. (Respondent Exhibit 1). That handbook provided, in part, as follows:

   
   

   If you expect to be absent from work for any reasons, 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 hardship 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 disci- plinary action. If A you are absent for 3 consecutive work days without authorization, you may be considered to have abandoned your position and thus resigned.

   
   

3. Following the injury, Petitioner was referred for physical therapy consisting of, among other things, ultra sound and hot packs to the neck and back.

   
   

4. Petitioner convalesced from the time of injury during April, 1986 through November 13, 1986 at which time he was released and authorized to return to work by his treating physician. Also, on November 13, 1986, Workers Compensation advised Petitioner that based on his release by his physician, he would not therefore receive further compensation benefits and was therefore to return to work. Petitioner was advised to report for work on November 14, 1986. Petitioner did not heed that directive and report for work.

   
   

5. By certified letter dated November 25, 1906, Petitioner was again advised by Karen Christian, Assistant Detention Center Superintendent, that "if we do not hear from you within five (5) days after date of this letter, it will appear that you have abandoned your position". (Respondents Exhibit 3). Petitioner acknowledged receiving the referenced letter from Karen Christian.

   
   

6. Petitioner did not return to work as directed and was terminated from employment on December 10, 1986 based on his failure to report to work and his failure to obtain authorized leave from his supervisor to be absent from work.

   
   

7. Karen Christian would have offered Petitioner either reduced hours or sedentary duties to accommodate him if, as he contends, he was unable to stand for extended periods or to use his right upper extremity.

   
   

8. Petitioner contends that he was unable to report to work inasmuch as the injury he sustained during April, 1986 left him without use of his right arm.

   
   

9. Based on Petitioner's claimed loss of use of his right arm, he was referred to three physicians who conducted an extensive examination of Petitioner to determine evidence of any anatomical or physical impairment of Petitioner's upper extremity. All of the examining physicians found no anatomical defect consistent with Petitioner's clinical presentation.

   
   

10. Petitioner offered no believable explanation for his failure to report to work on December 8, 9 and 10, 1986 or to otherwise obtain authorized leave for the above-referred three consecutive work days.

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

13. Section 22A-7.10(2)(a), Florida Administrative Code, provides as follows:

    
    

    1. An employee who is absent without authorized leave of absence for 3 con- secutive work days 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 to appeal to the Career Service Commission; however, any such employee shall have the right to petition the Department of Administration for a re-

       view of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

       
       

14. Based on Petitioner's absence from work for three consecutive days on December 8, 9 and 10, 1986, it is concluded that he abandoned his position within the purview of Section 22A-10(2)(a), Florida Administrative Code. Petitioner's failure to report to work or to seek assistance in the form of either reduced work hours or the assignment of duties which would have been possible even if he sustained total loss of use of his right extremity, makes his other claimed disability incredible. It is so concluded.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Petitioner abandoned

his position of employment with Respondent and resigned from the career service.

RECOMMENDED this 8th day of July, 1987, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1987.

COPIES FURNISHED:

Eddie Harris

Post Office Box 9224

Riviera Beach, Florida 33419

K. C. Collette, Esquire Department of HRS

111 Georgia Avenue

West Palm Beach, Florida 33401

Adis Villa, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 87-000289

Orders for Case No: 87-000289