STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3391

)

THERESA L. BEADLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 23, 1987 in Miami, Florida.

APPEARANCES

For Petitioner: Carmen Sierra, Esquire

401 Northwest Second Avenue, Suite 790 Miami, Florida 33128

For Respondent: Theresa L. Beadle, pro se

13835 Northwest 23rd Avenue Opa Locka, Florida 33054

BACKGROUND

This matter arose when petitioner, Department of Health and Rehabilitative Services, issued proposed agency action on June 25, 1987 advising respondent, Theresa L. Beadle, that she was being terminated from her job with petitioner by virtue of her having been absent without authorized leave for three consecutive workdays. 1/ Respondent thereafter filed her request for hearing by letter received by the Department of Administration (DOA) on July 28, 1987. The matter was transmitted to the Division of Administrative Hearings by DOA on August 13, 1987 with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated September 4, 1987 a final hearing was scheduled on October 23, 1987 in Miami, Florida. At final hearing petitioner presented the testimony of James A. Sanders and Barbara Coles, both HRS employees, and offered exhibits 1 and 2 which were received in evidence. Respondent testified on her own behalf, presented the testimony of her two daughters, Terry Lynn Anderson and Wanda Samuels, and offered exhibits 1 and 2 which were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were due ten days after hearing, or November 2, 1987. None had been filed when this Recommended Order was prepared.

The issue is whether respondent abandoned her job by being absent from work on three consecutive workdays without authorization.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Theresa L. Beadle, began her employment with petitioner, Department of Health and Rehabilitative Services (HRS), on or about July 1, 1982. She held the position of clerk typist II with an AFDC unit at HRS' Miami district office. Her position was considered a "pivotal" one by HRS personnel because it was Beadle's responsibility to keep and maintain the unit's case records for recipients. Therefore, attendance was an important criterion for her position.

   
   

2. Beadle has suffered from coccygodynia (severe pain of the tailbone) and low back pain for at least three years and has been treated for this condition by both a chiropractor and a physician. According to one of her physicians (Dr. Shuflitowski), she should not engage in "heavy lifting (or) long-stretching of the arms." However, Beadle's job duties do not require these activities, and her physician confirmed in a letter to HRS on December 31, 1986 that "there is no justification for her being unable to perform her job as indicated."

   
   

3. In addition to her back ailment, Beadle has also suffered from depression principally caused by the recent death of both her mother and her only son in October, 1986 and January, 1987, respectively. She has been treated by a psychiatrist (Dr. Betancourt) for this condition.

   
   

4. After a brief absence from work in early October, 1986, caused by her mother's death, Beadle returned to work on or about October 4, 1986. On December 11, 1986 she left work saying her son was seriously ill in Connecticut. She did not formally obtain leave to do so. Around December 29, her daughter visited HRS' office and spoke with the program administrator, James Sanders, and told him that after speaking with her mother by telephone, she did not know when her mother would return to work.

   
   

5. On December 30, 1986 Sanders advised Beadle by certified mail that she was "directed to report to (her) official position by 8:30 a.m. on Thursday, January 8, 1987 . . . (or she would be) deemed . . . (to) have abandoned (her) position and to have resigned from the Career Service."

   
   

6. On January 4, 1987 Beadle's son passed away, and his funeral was held on January 8. Beadle eventually returned to Miami in mid-January. Although she did not return to work at that time, Beadle telephoned Sanders' supervisor, Barbara Coles, on January 15 and was told by Coles to either contact Sanders or her immediate supervisor, Albert Peart, concerning her situation by January 16. She did not contact either person. On January 20, Beadle's daughter telephoned Sanders to say her mother was unable to come to work.

   
   

7. On January 23, Beadle sent Sanders a "disability certificate" from a Dr. Ticktin, a Hialeah orthopedic surgeon, who attested that Beadle had been under his care since January 15 and would be "totally incapacitated" until February 5. However, he also wrote a cover letter stating that Beadle had an appointment on January 15 and could "return to work with no heavy lifting."

8. After receiving the above certificate, Sanders wrote Beadle by certified mail on January 23 advising that she was "directed to report to work immediately and provide an explanation for her absences." Again, Beadle did not directly respond to this letter but had Dr. Betancourt, a Miami Shores psychiatrist, send a letter to HRS on February 5 stating that Beadle was under his professional care and could not return to work until February 20. A disability certificate was later sent by Dr. Betancourt attesting that Beadle was "totally incapacitated from January 15 to February 19" and could not return to work until March 6, 1987.

   
   

9. Upon receipt of Dr. Betancourt's correspondence, Sanders sent Dr. Betancourt a letter on February 23 requesting further medical information to verify her medical condition. On February 27, Dr. Betancourt responded and advised that although Beadle was suffering from depression, she could "perform (her) duties without any limitations." He also suggested she be transferred to another position "with fewer environmental stressors."

   
   

10. On March 12, Beadle returned to work for a "few days," but left soon afterwards to go to Plant City for an undisclosed purpose. There is no evidence that she requested leave to do so. She never returned to work.

    
    

11. On March 30, 1987, Coles contacted Sanders about Beadle's absences, and told him he was in danger of being charged with negligence for not taking any action against Beadle. Up to this time, Sanders had not initiated disciplinary action because, in his words, he wanted to give Beadle a chance to return, was a "softie," and knew that being fired was a "traumatic" experience. However, now fearing for his own situation, Sanders wrote Beadle on April 15 requesting a medical certificate and advising her that unless her supervisor (Peart) received a certificate by April 22, all leave used by Beadle after that date would be "unauthorized."

    
    

12. Apparently responding to the above request, Beadle had Dr. Betancourt prepare a certificate stating that Beadle had been under his care from April 2 to April 20, but could return to work on April 20. This certificate was received by HRS on April 17. On April 21, Dr. Betancourt sent Sanders a letter stating that "Beadle would like to request a leave of absence for six months because of her emotional turmoil and recent trauma." During this same period of time, Beadle did not personally contact Peart, Sanders or Coles concerning a leave of absence.

    
    

13. Confronted with this maze of disability certificates and conflicting medical advice, HRS decided to have Beadle evaluated by another physician. It accordingly advised her by certified mail dated May 4 that she should contact a Dr. Gilmore and make an appointment for an examination. The letter was not picked up by Beadle and was returned to HRS unclaimed. Two other certified letters sent on May 12 and 14 to Beadle were also unclaimed. Beadle never made an appointment with nor was she examined by Dr. Gilmore.

    
    

14. On June 25, Beadle was advised by certified mail that in view of her failure to contact her supervisor since her last day of work on March 31, 1987, or to request leave, she was terminated effective upon receipt of the letter. Beadle received the letter, and thereafter requested a hearing to contest the action.

    
    

15. Beadle pointed out that she had experienced a series of problems with her supervisor (Peart) who continually harassed her after her return on October

1. She also stated her job evaluations were always good until she was

   transferred into Peart's unit, and that in her fragile emotional state caused by her recent tragedies, she could not cope with the job stress generated by Peart's harassment. She also pointed out that a request to Sanders to transfer units was ignored. She conceded that she had signed a statement acknowledging she had read and understood the employee's handbook. This handbook explains the unauthorized absence rule, and the need to obtain authorized leave before being absent from work. She also conceded she had been absent for more than three consecutive workdays since March 31, 1987 without having authorized leave.

   Beadle wishes to eventually return to work, but not in the same unit, and only after she is psychologically able to cope with job stress.

   
   

   CONCLUSIONS OF LAW

   
   

   1. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).

      
      

   2. In this proceeding, the agency (HRS) relies upon Rule 22A-7.010(2), Florida Administrative Code (1987) as a basis for its action. That rule reads in relevant part:

      
      

      (2) Abandonment of Position.

      (a) 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 Public Employees Relations 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.

      (Emphasis added)

      * * *

      
      

      Under this rule, the burden is on the agency to show by a preponderance of evidence that the employee has been "absent without authorized leave of absence for 3 consecutive workdays." If it can meet this burden, Beadle will have been deemed to have abandoned her job.

      
      

   3. The evidence reveals, and Beadle so concedes, that she was absent from work for three consecutive workdays after March 31, 1987 without authorized leave. Therefore, the agency has sustained its burden of showing that an abandonment of the position occurred within the meaning of Rule 22A-7.010(2), Florida Administrative Code (1987) 2/ This being so, Beadle is deemed to have abandoned her position as a unit clerk with HRS and to have resigned from the Career Service.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Theresa L. Beadle

abandoned her job with petitioner.

DONE AND ORDERED this 9th day of November, 1987, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 November, 1987.

ENDNOTES

1/ This case was originally styled with Beadle as petitioner. Since the agency bears the burden of proving that the employee abandoned her job, Beadle has been restyled as the respondent.

2/ Part of the blame herein must rest upon Beadle's supervisors who permitted her to stay absent for long periods of time without any real threat of disciplinary action, and without making her formally comply with HRS attendance policies. Nonetheless, this does not excuse her continued unauthorized absence after March 31, 1987.

COPIES FURNISHED:

Carmen Sierra, Esquire

401 Northwest Second Avenue Suite 790

Miami, Florida 33128

Ms. Theresa L. Beadle

13835 Northwest 23rd Avenue Opa Locka, Florida 33054

Adis M. Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Pamela Miles, Esquire

530 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 87-003391

Orders for Case No: 87-003391