STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MITCHELL M. GREEN, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1521

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal administrative hearing in this case on May 28, 1987, in West Palm Beach, Florida. The hearing was reported, but a transcript was not ordered, and the parties waived the right to submit proposed findings of fact and conclusions of law.

APPEARANCES

FOR PETITIONER: Mitchell M. Green, pro se.

M-306 Norwich Street

West Palm Beach, Florida 33417

FOR RESPONDENT: K. C. Collette, Esquire

DHRS Legal Counsel

111 Georgia Avenue

West Palm Beach, Florida 33401

By certified letter dated March 20, 1987, the Department of Health and Rehabilitative Services notified Mitchell M. Green that he was terminated from his employment because he failed to report for work for three consecutive work days. Mr. Green requested a formal administrative hearing to contest his termination from employment. The issue to be resolved is whether Mitchell M. Green abandoned his position and resigned from the Career Service, pursuant to Rule 22A-7.010(2), Florida Administrative Code.

FINDINGS OF FACT

1. In March of 1987, the Petitioner, Mitchell M. Green, was employed with the Department of Health and Rehabilitative Services as a child support enforcement investigator. He had been employed by the Department since 1982.

   
   

2. On March 17, 18 and 19, 1987, the Petitioner did not report for work, and did not call in to any of the persons who supervised him to explain his absence. Previously, the Petitioner had not requested leave for March 17-19, and leave had not been authorized.

3. On March 20, 1987, the Department notified the Petitioner that his failure to report for work on March 17, 18 and 19 when he was scheduled to work, without contacting his supervisor, and without authorized leave, constituted abandonment and resignation from the position under Rule 22A-7.010(2), Florida Administrative Code, and that his employment was terminated.

   
   

4. The Petitioner was aware of the abandonment provision in the Department's rules. He had acknowledged receipt of a copy of the Department handbook containing these rules on July 8, 1986.

   
   

5. The testimony of the Petitioner, his father, and his mother established that the Department had given the Petitioner an "Exceeds Performance Standards" rating on his last evaluation, that the Petitioner had been diagnosed as having cancer in February of 1985, that the Petitioner had requested leave in January, 1987, but was refused because he had no more leave, and that the Petitioner was upset about conditions at work. These factors are irrelevant, however, because they do not excuse or justify a failure to report to work without obtaining authorized leave or notification that assigned work will not be performed because of absence.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Rule 22A-7.010, Florida Administrative Code, provides:

   
   

   (2) Abandonment of Position--

   (a) An employee who is absent without authorized leave of absence for 3 con- secutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service.

   
   

8. The Petitioner's failure to report to work for three consecutive workdays on March 17, 18 and 19, 1987, without authorized leave of absence, constitutes abandonment of his position and resignation from the Career Service, pursuant to Rule 22A-7.010(2), Florida Administrative Code. There was presented no evidence from which it could be determined that the Department's termination of his employment was either improper or unjustified.

RECOMMENDATION:

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

terminating the employment of the Petitioner, Mitchell M. Green, from his position as a child support enforcement investigator with the Department of Health and Rehabilitative Services, for abandonment of the position and resignation from the Career Service.

THIS RECOMMENDED ORDER entered this 9th day of June, 1987 in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

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 9th day of June, 1987.

COPIES FURNISHED:

Mitchell M. Green

M-306 Norwich Street

West Palm Beach, Florida 33417

K. C. Collette, Esquire DHRS Legal Counsel

111 Georgia Avenue

West Palm Beach, Florida 33401

Sam Power

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

John Miller, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Adis Vila Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 87-001521

Orders for Case No: 87-001521