Judges: DONALD D. CONN
Agency: Office of the Governor
Latest Update: Mar. 15, 1988
Summary: Petitioner's failure to follow the prescribed procedures for taking sick leave plus her failure to contact her supervisor shows that she abandoned her position.
88-0161.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PUBLIC SERVICE COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0161
)
NORMA D. SAABIR, )
)
Respondent. )
)
RECOMMENDED ORDER
A final hearing was held in this case in Tallahassee, Florida on February 26, 1988, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The issue in this case is whether Norma D. Saabir (Respondent) abandoned her career service position with the Public Service Commission (Petitioner).
The parties were represented as follows:
Petitioner: Harold McLean, Esquire
Public Service Commission Office of General Counsel
101 East Gaines Street Tallahassee, Florida 32399
Respondent: Norma D. Saabir, pro se
Post Office Box 5802 Tallahassee, Florida 32314-5802
At the hearing, the Respondent testified on her own behalf, and introduced one exhibit. An additional exhibit offered by Respondent was rejected as irrelevant and unnecessary to a determination of the issue in this case.
Petitioner called Jill Hurd, Bureau Chief, to testify, and also introduced eight exhibits. No transcript of the hearing was filed. The Appendix to this Recommended Order contains a ruling on each timely filed Proposed Findings of Fact.
FINDINGS OF FACT
Respondent was employed by Petitioner from December, 1982 to December, 1987 as a tariff clerk, a permanent career service position.
On September 23, 1987 Respondent became ill and left work without informing her supervisor, Jill Hurd, or her co-workers. Hurd was available on September 23 and 24, 1987 if Respondent had tried to explain her absence or request leave authorization.
Respondent presented Health Status Certificates to Petitioner signed by
M. R. Grate, Jr., M.D., dated October 30, November 11 and 18, 1987 which
certified her inability to return to work from October 27 through November 30, 1987, during which time she was under his care. On the basis of these certificates, Petitioner authorized her sick leave from October 27 to November 30, 1987.
Respondent did return to work on December 2, 1987, but was again absent on consecutive work days of December 3, 4 and 7, 1987.
On December 3, 1987, Respondent sent a note to Hurd, via her husband, stating she did not feel well and would not be in to work. On December 4, 1987 her husband again brought Hurd a note stating Respondent would not be in because her baby was ill.
Respondent's husband called Hurd on December 7, 1987 to state that she was still ill and would not be in to work. Hurd stated that Respondent needed to get back to work.
At no time did Respondent request leave for December 3, 4 and 7, 1987, nor was she approved for leave. She simply informed her supervisor, Hurd, through her husband that she was not coming to work each day.
Prior to these unauthorized absences in December, 1987, Respondent had received a memorandum from Hurd on January 14, 1987 setting forth specific instructions for calling in sick following a number of unauthorized absences. Respondent was specifically instructed to call her supervisor, Hurd, each morning by 8:30 a.m. when she wanted to take sick leave. Despite this instruction, Respondent never called Hurd on December 3, 4 and 7, 1987, but simply had her husband deliver notes and messages to Hurd on her behalf. This prevented Hurd from discussing with Respondent the extent of her illness and when she expected to return to work.
On November 25, 1987 Respondent had an appointment with Dr. Grate, who signed another Health Status Certificate for the period November 30 to December 11, 1987 indicating she remained under his care and was still unable to return to work.
However, despite the fact she did report to work on December 2, 1987 and had been given specific instructions about how to apply for sick leave, she never presented Dr. Grate's Health Status Certificate dated November 25, 1987 to Hurd, or anyone else associated with Petitioner, until the hearing in this case. Therefore, Respondent did not present proper medical certification of illness for December 3, 4 and 7, 1987, and instead simply failed to report to work, or to in any way attempt to personally contact her supervisor.
A letter dated December 7, 1987 notifying Respondent of her abandonment of position and of her right to a hearing was sent to Respondent from Petitioner's Executive Director by certified mail, return receipt requested. Respondent's husband signed for this letter on December 9, 1987, and Respondent acknowledges receipt.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.57(1), Florida Statutes.
Rule 22A-7.010(2)(a), Florida Administrative Code provides in pertinent part that:
Abandonment of Position -
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.
Likewise, Rule 22A-14.001(1), Florida Administrative Code, reads as follows:
(1) Abandonment of Position - The un- authorized absence by an employee from the employee's position for 3 consecutive workdays.
Rule 22A-7.010(2)(a), Florida Administrative Code, further provides that an employee who separates under such circumstances shall have the right to petition "for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position. The term "unauthorized absence" is not defined by statute or rule and, therefore, must be given its ordinary meaning and interpretation. It is clear, however, that an employee cannot be on sick leave unless the employee has applied for, and been "authorized" to take such sick leave. See the definition of the term "sick leave" at Rule 22A-14.001(39), Florida Administrative Code.
In this case, the evidence establishes that Respondent did not request sick leave, or any other type of leave, for December 3, 4 and 7, 1987. Although she had been on authorized sick leave before this time, and had her husband deliver notes and messages about her failure to report to work on the dates in question, Respondent totally failed to contact her Supervisor, Jill Hurd, and request leave, despite the fact she was at work on December 2, 1987 and her note of December 4, 1987 states her baby, and not her, was ill.
In Florida State University vs. Brown, 436 So.2d 287 (Fla. 1st DCA 1983), the Court reversed a Final Order finding the employee had not abandoned his position. Pointing to the fact that Brown "never contacted the employer to request an extension of leave", the court concluded that "the agency was not (due to its prior conduct) obligated to excuse the employee's failure to request an extended leave of absence". Similarly in the Department of Transportaion vs.
F. D. Morgan (DOAH Case No. 84-4026, Final Order issued June 21, 1985), the Department of Administration held an agency does not have an affirmative obligation to seek out an absent employee and inform him that he is on unauthorized leave, even though the agency knows where the employee is.
Rule 22A-7.010(2)(a), Florida Administrative Code, creates a presumption that an employee who is absent from work for three or more consecutive work days without authorized leave has abandoned her position in the career service. In Cook vs. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978), the Court reasoned the rule creates a means for dealing with employees who fail to show up for work without submitting a resignation to their former employer. By applying the rule, the State is able to provide for swift replacement of ineffective public employees. See also Hadley vs. Department of Administration, 411 So.2d 184 (Fla. 5th DCA 1982).
However, the presumption created by this rule is rebuttable. An employee having been deemed to have abandoned her position is entitled to a review of the facts in the case and a ruling as to whether those facts
constitute an abandonment of position. Rule 22A-7.010(2)(a), Florida Administrative Code. It is clear from the record in this case that the Respondent has not effectively rebutted the presumption that she intended to abandon her position. The employee did not demonstrate that she followed the procedures for taking sick leave that has been outlined by the agency in its memorandum of January 14, 1987. Nor did she explain why she made no attempt to personally contact her supervisor, or present the medical certification dated November 25, 1987, in a timely manner when she, in fact, worked on December 2, 1987. Respondent never submitted any request for leave for December 3, 4 or 7, 1987. Simply announcing one's intention, through notes and indirect messages, not to report to work does not constitute a request for leave.
RECOMMENDATION
Based upon the foregoing, it is recommended that the Department of Administration enter Final Order concluding that Respondent has abandoned her position with Petitioner in the career service due to her failure to report to work, or request leave, for December 3, 4 and 7, 1987.
DONE AND ENTERED this 15th day of March, 1988, in Tallahassee, Florida.
DONALD D. CONN
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 15th day of March, 1988.
APPENDIX
(DOAH Case No. 88-0161)
Rulings on Petitioner's Proposed Findings of Fact:
Adopted in Finding of Fact 1.
Adopted in Findings of Fact 4, 7.
Adopted in Findings of Fact 5, 6, 7.
Adopted in Findings of Fact 7, 8.
Adopted in Findings of Fact 5, 6.
Adopted in Findings of Fact 7, 8, 10.
Adopted in Finding of Fact 11.
Adopted in Finding of Fact 8.
Rulings on Respondent's Proposed Findings of Fact cannot be made since her post-hearing submission shows no indication that a copy was provided to counsel for Petitioner, despite specific instruction at hearing, and the narrative contained in her letter consists of serial unnumbered paragraphs which primarily present argument on the evidence rather than true proposed findings of fact.
COPIES FURNISHED:
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
Larry D. Scott, Esquire Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
William S. Bilenky, Esquire Public Service Commission
212 Fletcher Building Tallahassee, Florida 32399-0850
Harold McLean, Esquire Public Service Commission Office of General Counsel
101 East Gaines Street Tallahassee, Florida 32399
Norma D. Saabir
P. O. Box 5802
Tallahassee, Florida 32314-5802
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
PUBLIC SERVICE COMMISSION,
Petitioner,
v. DOA CASE NO. AB-87-47
DOAH CASE NO. 88-0161
NORMA D. SAABIR,
Respondent.
/
FINAL ORDER
This matter is before the Department of Administration for entry of a Final Order.
A Recommended Order was entered herein on March 15, 1988, by Donald D. Conn, Hearing Officer. The record in this case, including the exhibits received into evidence, has been reviewed. No exceptions to the Recommended Order were filed. It is therefore concluded:
The Findings of Fact contained in the Recommended Order (Exhibit "A", attached hereto) are adopted by the Department of Administration.
The Hearing Officer's Conclusions of Law contained in the Recommended Order (Exhibit "A"), except for the following noted herein, are adopted by the Department of Administration.
The conclusion that, "Respondent totally failed to contact her supervisor," is inconsistent with the Hearing Officer's findings that Respondent's husband on December 3, 1987, brought a note to her supervisor stating she would not be in because she was ill. On December 4, 1987, the Respondent sent another note via her husband that she would not be in because her baby was ill. However, an employee cannot be on sick leave unless the employee has applied for, and been authorized to take such sick leave. Rule 22A-14.001(39), Florida Administrative Code.
In Florida State University's v. Brown, 436 So.2d 287 (Fla. 1st DCA 1983), the Court reversed a Final Order finding the employee had not abandoned his position. Pointing to the fact that Brown never contacted the employer to request an extension of leave, the Court concluded that the agency was not (due to its prior conduct) obligated to excuse the employee's failure to request an extended leave of absence. Similarly in the Department of Transportation vs. F.
D. Morgan (DOAH Case No. 84-4026, Final Order issued June 21, 1985), the Department of Administration held an agency does not have, an affirmative obligation to seek out an absent employee and inform him that he is on unauthorized leave, even though the agency knows where the employee is.
Rule 22A-7.010(2)(a), Florida Administrative Code, creates a presumption that an employee who is absent from work for three or more consecutive work days without authorized leave has abandoned his position in the career service. In Cook vs. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978), the Court reasoned the rule creates a means for dealing with employees who fail to show up for work without submitting a resignation to their former employer. By applying the rule, the State is able to provide for swift replacement of ineffective public employees.
The record establishes that the Respondent did not rebut the presumption that she intended to abandon her position. The Respondent did not demonstrate that she followed the procedures for requesting sick leave that were outlined by the agency in its memorandum of January 14, 1987. Additionally, Respondent did not present medical certification in a timely manner.
The Respondent did not report to work on December 2, 3, 4, and 7, 1987, nor did she properly request sick leave for those days. Rule 22A-7.010(2)(a), Florida Administrative Code, provides that an employee who is absent from work for three consecutive workdays without authorized leave is deemed to have abandoned his position. The Respondent's leave was not authorized by her
supervisor. See Hadley v. Department of Administration, 411 So.2d 184 (Fla. 1982).
Under the circumstances presented, Respondent abandoned her position of employment and resigned from the Career Service System.
ORDER
It is therefore ORDERED that the action of the Public Service Commission in deeming Norma D. Saabir to have abandoned her position of employment and to have resigned from the Career Service System is SUSTAINED.
This Order constitutes final agency action. Judicial review of this proceeding may be instituted by filing a Notice of Appeal in the First District Court of Appeal pursuant to Section 120.08, Florida Statutes. Such notice must be filed with the District Court of Appeal within thirty (30) calendar days of the date this Order is filed in the official records of the Department of Administration, as indicated in the Certificate of Clerk below, or further review of this action will be barred.
DONE AND ORDERED in Tallahassee, Florida, this 7th day of June, 1988.
ADIS M. VILA, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 3239-1550 (904) 488-4116
Certificate of Clerk:
Filed in the official records of the Department of Administration this 7th day of June, 1988.
COPIES FURNISHED:
Donald D. Conn, Hearing Officer Division of Administrative Hearings
101 Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
Harold McLean, Esquire Public Service Commission Office of General Counsel
101 East Gaines Street Tallahassee, Florida 32399
William S. Bilenky, Esquire Public Service Commission
212 Fletcher Building Tallahassee, Florida 32399-0850
Ms. Norma D. Saabir Post Office Box 5802
Tallahassee, Florida 32314-5802
Larry D. Scott Senior Attorney
Department of Administration
438 Carlton Building Tallahassee, Florida 32399-1550
Docket for Case No: 88-000161
Orders for Case No: 88-000161
| Issue Date |
Document |
Summary |
|
Jun. 07, 1988 |
Agency Final Order
|
|
|
Mar. 15, 1988 |
Recommended Order
|
Petitioner's failure to follow the prescribed procedures for taking sick leave plus her failure to contact her supervisor shows that she abandoned her position.
|
