STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA FOUNTAIN, )

)

Petitioner, )

)

vs. ) CASE No. 87-3826

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 6, 1988, at Jacksonville, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

FOR PETITIONER: (No appearance)

FOR RESPONDENT: Scott D. Leemis, Esquire

Assistant District Legal Counsel Department of Health and

Rehabilitative Services Post Office Box 2417

Jacksonville, Florida 32231-0083 ISSUES AND INTRODUCTION

The basic issue in this case is whether the Petitioner abandoned her Career Service position with the Department of Health and Rehabilitative Services.

The Petitioner did not appear at the final hearing. The Respondent was present through counsel and presented the testimony of several witnesses and offered several exhibits, all of which were received in evidence. At the conclusion of the hearing, the Respondent waived the filing of a proposed recommended order. No transcript of the proceedings has been prepared.

FINDINGS OF FACT

Based on the evidence received at the final hearing, I make the following findings of fact.

1. The Petitioner, Patricia Fountain, was employed by the Department of Health and Rehabilitative Services as a Direct Services Aide working with the District Four Children, Youth, and Families (CYF) Services.

2. For some time prior to July 24, 1987, the Petitioner was under medical treatment and had been absent from work on one form or another of approved leave. On July 24, 1987, the Petitioner's physician released her from medical treatment to return to light duty. The physician's release was subsequently amended to effect the Petitioner's release to return to work on July 27, 1987.

   
   

3. The Petitioner's supervisor, in consultation with the Petitioner's physician, arranged a schedule of light duty work for the Petitioner to perform during the week beginning July 27, 1987. On July 27, 1987, the Petitioner reported to work as scheduled and submitted a written statement from a physical therapist to the effect that it would be in the Petitioner's best interest to have a leave of absence from work. The Petitioner was advised that the statement from the physical therapist was insufficient, and that the Petitioner would be expected to perform her duties. On July 28, 1987, the Petitioner resubmitted the statement from the physical therapist with some additional information added to the statement. On that same day, the Petitioner left a written request for leave without pay on the program administrator's desk and, without anyone's knowledge, left work without authorization. The Petitioner did not thereafter return to work. Her request for leave without pay was never approved.

   
   

4. The Petitioner's supervisor made several unsuccessful efforts to have the Petitioner attend a conference to discuss her unauthorized absence. On August 4, 1987, the Petitioner was contacted at home and served written notice that her absence was unauthorized and that she was expected to return to work on August 5, 1987. The Petitioner did not report to work on August 5, 6, or 7, 1987, nor did she report thereafter. The Petitioner did not contact her supervisor on August 5, 6, or 7, 1987, to explain her absence. A letter was mailed to the Petitioner advising her that by reason of her failure to report to work on August 5, 6, and 7, 1987, she was deemed to have abandoned her position and to have resigned from the Career Service, effective 5:00 p.m. on August 7, 1987. During August of 1987, the Petitioner did not have any sick leave or annual leave balance.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

6. Rule 22A-7.010 (2)(a), Florida Administrative Code, reads as follows:

   
   

   (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 Career Service Commission; however, any such employee shall have the

   right to petition the department for a review of the facts of the case and a ruling as to whether the circumstances constitute abandonment of position.

   
   

7. The effect of the foregoing rule provision was described as follows in the recommended order in Clara Penny v. Department of Insurance, DOAH Case No. 85-1530 (Recommended Order 12/26/85; adopted in Final Order 1/31/86):

   
   

   This 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 However, the presumption

   created by the abandonment rule is a rebuttable presumption.

   
   

   The Penny case, supra, also contains an extensive discussion of other cases which have construed Rule 22A-7.010(2)(a).

   
   

8. Rule 22A-8.002(5), Florida Administrative Code, reads as follows:

   
   

   1. 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.

      1. When prior approval cannot be obtained by the employee due to such

         emergencies, the agency head shall take one of the following actions:

         
         

         1. Grant the employee leave with pay, provided the employee has sufficient accrued leave credits to cover the absence.

         2. Place the employee on leave without pay for the absence, or,

         3. If the absence is for 3 consecutive workdays, consider the employee to have abandoned the position and resigned from the Career Service.

      2. 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.

         
         

9. The Petitioner in this case was absent without authorized leave for the three consecutive workdays of August 5, 6, and 7, 1987, which under Rule 22A- 7.010(2), Florida Administrative Code, constitutes job abandonment. The conclusion that such unauthorized absence constituted abandonment of position is further supported by the fact that on August 4, 1987, the Petitioner was

explicitly advised in writing that she was required to return to work the next day, as well as by the fact that the Petitioner was absent without authorized leave for a large part of the previous week. There is nothing in the record which justifies the Petitioner's failure to report to work on August 5, 6, aid 7, 1987. In sum: The Respondent acted in accordance with the requirements of Rule 22A-7.010(2), Florida Administrative Code, in concluding that the Petitioner had abandoned her position and voluntarily resigned from the Career Service due to her unauthorized absence of August 5, 6, and 7, 1987.

RECOMMENDATION

Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Patricia Fountain, was properly terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code.

DONE AND ENTERED this 17th day of June, 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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

17th day of June, 1988.

COPIES FURNISHED:

Assistant District Legal Counsel Department of Health and

Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417

Jacksonville, Florida 32231-0083

Ms. Patricia Fountain 2533 Wilmot Avenue

Jacksonville, Florida 32218

Pamela Miles, Esquire Assistant General Counsel Department of Administration

530 Carlton Building Tallahassee, Florida 32399-1550

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, Jr., General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 87-003826

Orders for Case No: 87-003826