STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED P. NOBLE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3390

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this cause on October 23, 1987, in St. Petersburg, Florida, before Diane A. Grubbs, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondent: Charles Gardner, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

ISSUE

Whether the petitioner abandoned his position and resigned from the Career Service under the facts and circumstances of this case.

BACKGROUND

By letter dated April 16, 1987, respondent was advised by the Department of Transportation that, since he had failed to report to work from April 10, 1987 to April 16, 1987, and had failed to notify his supervisor of the reasons for his absences, he had been deemed to have resigned his position in the Career Service. Petitioner was advised of his right to petition for a review of the facts of his case. Petitioner requested a hearing on May 1, 1987, and filed another letter with the Department of Administration on July 22, 1987, inquiring about the hearing. On August 13, 1987, the matter was referred to the Division of Administrative Hearings for further proceedings.

At the hearing, the Department of Transportation (DOT) presented the testimony of Frank E. Proch, DOT's Acting Resident Engineer, and introduced six exhibits into evidence. Petitioner did not appear at the hearing, and he has filed nothing since that time.

Neither petitioner nor respondent filed proposed findings of fact or conclusions of law.

FINDINGS OF FACT

2. On April 14, 1983, petitioner received a copy of the "Employee Handbook" published by the Department of Transportation. Job abandonment is explained in the Employee Handbook as follows:

After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current policy.

1. The petitioner was absent without authorized leave on April 13, 14 and 15, 1987. Petitioner did not appear for work on those days and did not call the office to explain or report his absence. On April 16, 1987, petitioner called the office at approximately 8:00 a.m. to say that no one had come to pick him up. A fellow employee sometimes furnishes petitioner's transportation. By the time petitioner called in to work, he had been absent three consecutive days without authorization.

   
   

2. Petitioner had previously been warned about his absenteeism. On March 17, 1987, petitioner was placed on unauthorized leave without pay due to his failure to report to work or notify his supervisor. On March 18, petitioner was sent a letter notifying him that he had to report by March 24, 1987, or he would be dismissed. Thus, petitioner was well aware that he had to notify his supervisor of any absences.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes. The Department of Administration has authority to review the facts in abandonment cases and rule whether the circumstances constitute abandonment of position. Rule 22A-7.010(2)(a), Florida Administrative Code.

   
   

4. Rule 22A-7.010(2)(a), Florida Administrative Code, provides, in part:

   
   

   An employee who is absent without authorized leave of absence for three consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service.

   
   

5. This rule, referred to as the abandonment rule, creates a presumption that an employee who is absent from work for the prescribed period of time without authorized leave, has abandoned his or her position and, in effect, has resigned from the Career Service. In Cook v. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978), the court explained the purpose of the rule as follows:

   
   

   While some employees go through the formal process of submitting a resignation in writing, others leave abruptly or simply fail to show up for work. There must be some

   point at which the Division may be able to say that the employee is not returning, process the paperwork and refill the vacant position.

   
   

6. Petitioner was absent from work for three consecutive workdays without authorized leave. Petitioner was aware of the procedure that had to be followed in order to obtain authorized leave. There was no evidence of any emergency which would have prevented petitioner from complying with the required procedure. Thus, under the facts and circumstances of this case, petitioner must be deemed to have abandoned his position and resigned from the Career Service pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code.

RECOMMENDATION

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

Department of Transportation and finding that Fred P. Noble abandoned his

position and resigned from the Career Service.

DONE AND ENTERED this 28th day of December, 1987, in Tallahassee, Leon County, Florida.

DIANE A. GRUBBS

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 28th day of December, 1987.

COPIES FURNISHED:

Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450

Mr. Fred P. Noble

2516 Queen Street South

St. Petersburg, Florida 33705

Pamela Miles, Esquire Assistant General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Adis M. Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 87-003390

Orders for Case No: 87-003390