STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASSANDRA SWEET, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0724

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on May 2, 1988, in Fort Myers, Florida.

APPEARANCES

For Petitioner: John Zajac, Qualified Representative

204 East Henderson Avenue Tampa, Florida 33601

For Respondent: Anthony N. DeLuccia, Jr., Esquire

Post Office Box 06085 Fort Myers, Florida 33906

By letter dated January 19, 1988, the Respondent notified the Petitioner that she was separated from employment as a Human Service Worker I because she was absent without leave for three consecutive days and was therefore deemed to have abandoned her position and to have resigned from the Career Service System. The Petitioner requested a formal hearing to challenge the determination that she had abandoned her position.

Prior to the hearing, the Petitioner requested that John Zajac be allowed to act as her ,qualified representative in these proceedings. After diligent inquiry, it was determined by the Hearing Officer that Mr. Zajac had sufficient expertise in personnel matters and the administrative hearing process to assist the Petitioner. Mr. Zajac was allowed to appear in the proceedings as a qualified representative.

Another prehearing matter which came before the Hearing Officer was that the qualified representative was not given sufficient notice of the depositions of the medical personnel whose testimony was going to be introduced as pre-filed testimony before the proceedings began. It was agreed that the Petitioner would be given leave to review the depositions and respond to the testimony contained in the depositions by May 26, 1988.

During the hearing, the Respondent called two witnesses, filed the depositions of three additional witnesses, and submitted four exhibits which were admitted into evidence. The Petitioner testified in her own behalf and submitted three exhibits into evidence. An additional exhibit was sent to the Hearing Officer on May 13, 1988. This copy of a subsequent policy letter from

D.H.R.S. was rejected as an exhibit because it was not timely filed and because it dealt with subsequent policies which were not relevant and do not apply to this case.

A transcript of the proceedings was not ordered. The Petitioner did not submit proposed findings of fact. Rulings on the proposed findings submitted by the Respondent are contained in the attached Appendix.

FINDINGS OF FACT

1. At all times pertinent to the issue of abandonment in these proceedings, the Petitioner was a Career Service employee.

   
   

2. On January 13, 1988, while on leave from employment due to a work related injury, the Petitioner met with her new rehabilitation counselor, Irene Brzozowski. During the meeting, the Petitioner informed Ms. Brzozowski that she had an appointment scheduled with her physician at 5:00 p.m. on the following day. The purpose of the visit was to obtain a medical evaluation so that the Petitioner could return to work in a light duty capacity. The Petitioner incorrectly used the word "discharged" for the planned appointment.

   
   

3. The counselor asserted that a "discharge" meant that the Petitioner had to return to work on Friday, January 15, 1988. The Petitioner said that her work shift began on Wednesday and that she would rather return to work on that day. The two women had different views over a decision which was a medical decision which neither woman was in a position to make. The discussion resulted from the Petitioner's misuse of a term that was accepted as a fact by the counselor. At the close of this meeting, the counselor said she would call

   D.H.R.S. to tell them that the Petitioner would be "discharged."

   
   

4. The counselor went beyond what she told the Petitioner she was planning to do. On January 14, 1988, even before the medical appointment took place, the counselor misrepresented to Shirley Eaton, the administrative secretary at D.H.R.S., the following matters:

   
   

   1. That Ms. Brzozowski had seen a doctor's statement that the `Petitioner would be released on January 14, 1988.

      
      

   2. That Petitioner preferred to return to work on Wednesday, January 20, 1988, but based on the discharge, the counselor had instructed her to return to work on Wednesday, January 15, 1988.

      
      

5. Based upon the counselor's misrepresentations, which appeared to Ms. Eaton to be predicated upon a doctor's written discharge and the Petitioner's personal knowledge that she had to return to work January 15, 1988, the Petitioner was placed on the work schedule for the following day.

   
   

6. No one informed the Petitioner that she was scheduled for work on January 15, 1988, even before her doctor had rendered his opinion about her ability to return to work.

7. On January 14, 1988, the Petitioner kept her doctor's appointment. During the examination, she told the doctor her work week began on Wednesday. As a result, the doctor told her he would give her a return to work date of January 20, 1988, for light duty activities.

   
   

8. The return to work slip was partially prepared by Karen Nalewaik, a licensed practical nurse. She does not recall why she did not complete the note or why she put down the date of January 18, 1988, on the slip. The slip was signed by the doctor after it was completed by his staff and given to the Petitioner.

   
   

9. January 15, 16, and 17 passed without the Petitioner's receiving notification that she had been scheduled to work those dates.

   
   

10. Sometime after the Petitioner read the doctor's slip and before Monday, January 18, 1988, she noticed the return date was different from the one orally represented to her by her doctor. She did not inform her employer of the mistaken date. Instead, she returned to the doctor's office on Monday, January 18, to obtain a revised slip which accurately reflected his decision.

    
    

11. Upon leaving the doctor's office, the Petitioner advised her employer of her return date. She was told she was unable to return because she had abandoned her position when she did not appear for work on January 15, 16 and

1. A copy of her separation letter was given to the Petitioner on this date.

   
   

   1. The Petitioner did not abandon her employment. She had not been informed that she was to return to work without a medical evaluation. Her actions on January 18, 1988, manifest a clear intent to continue with her work duties for her employer. Her conduct between January 13, 1988, and January 18, 1988, was consistent in all respects with her testimony at hearing and her desire to remain a Career Service employee for the Respondent.

      
      

   2. The Respondent mistakenly relied on the new rehabilitation counselor who speculated, surmised, and erroneously substituted her own judgment for that of the attending physician who had been treating the Petitioner for related injuries for over three years. The doctor decided his patient could return to light duty work the following work week on January 18 or January 20 because that was when her work week began. His records show that she was not discharged and was still experiencing medical problems on January 14, 1988.

      
      

   3. Unfortunately, when the Petitioner tried to straighten this out with her employer after she was separated from her position, the counselor continued to be involved. The counselor had a new medical slip manufactured by a member of the doctor's staff on February 3, 1988, and presented it to the Respondent. The slip, which was never signed by the doctor, tended to support her prior misrepresentations that the Petitioner could return to work on January 15, 1988. Interestingly enough, the doctor's notes do not reflect the information placed on this third slip. It is also contrary to every other piece of credible evidence presented at hearing.

   4. Even during the statements under oath presented by the Respondent as the physician's deposition, the counselor was present. She interrupted the questioning at different times, educating the doctor on her version of the facts. Her slanting of the situation, as well as the endorsement of her version by Ms. Orser, a D.H.R.S. worker who also spoke during the deposition, make the doctor's deposition of April 22, 1988, unreliable. It is rejected by the Hearing Officer as incompetent and unreliable testimony due to the constant interjections of the two women with presumed facts and misinformation.

      
      

   5. The major mistake which kept reoccurring in this series of events was that various parties relied on everyone else but the attending physician to timely determine when the Petitioner could return to work. The doctor's first slip which was undated but was signed on January 14, 1988, is given great weight by the Hearing Officer. The second slip, dated only four days later, is given the greatest weight because it is consistent with all of the credible testimony presented as to why the Petitioner would be given a second note. As a result, abandonment could not have taken place on January 15, 16 and 17, 1988.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1) and Rule 22A- 7.010(2), Florida Administrative Code.

      
      

   7. This case revolves around the determination of the factual issue of whether the Petitioner abandoned her position by being absent for three consecutive days without authorized leave, contrary to Rule 22A-8.002(5)(a)3, Florida Administrative Code.

      
      

   8. The conduct of the Petitioner does not indicate an intention to abandon her position. She was never informed that she was expected at work on January 15, 1988, by her employer and she was not medically released until January 18, 1988, which became January 20, 1988, because of her shift schedule.

Based upon the evidence, it is RECOMMENDED:

1. That the Petitioner's separation from her employment effective January 19, 1988,, be REVERSED.

   
   

2. That the Petitioner be reinstated with back pay.

DONE AND ENTERED this 12th day of July 1988, at Tallahassee, Florida.

VERONICA E. DONNELLY, 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 12th day of July, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-0724

Respondent's proposed findings of fact are addressed as follows:

1. Accepted.

2. Accepted. However, Ms. Brzozowski's alleged unsuccessful attempts to locate the Petitioner between December 29, 1987, and January 3, 1988, are irrelevant and therefore rejected.

3. Rejected. Irrelevant.

4. Rejected. See H. O. #2 and #3.

5. Rejected. See H. O. #3, #4, and #5.

6. Rejected. See H. O. #15.

7. Rejected. See H. O. #8.

8. Rejected. See H. O. #10.

9. Accepted that the counselor was concerned about

   AFSCME's questions about professional insurance. (Petitioner's Exhibit #2). The rest of paragraph 9 is rejected. See H. O. #14.

10. Rejected. Speculative and calls for conclusions

    not supported by any credible evidence. See H. O. #6, #9, #10, 11, and #13.

11. Rejected. Improper conclusion of law which is not a factual matter.

12. Accepted that the Respondent relied upon Ms. Brzozowski's phone call. Reject the conclusion that the Petitioner had been released. Reject the conclusion of law that the Petitioner was attempting to obtain Workmen's Compensation to which she was not entitled. This is a conclusion without basis in law or fact presented at hearing. The rest of paragraph 12 is also rejected as contrary to the credible evidence presented at

hearing.

COPIES FURNISHED:

John Zajac, Qualified Representative

204 East Henderson Avenue Tampa, Florida 33602

Anthony N. DeLuccia, Jr., Esquire Post Office Box 06085

Fort Myers, Florida 33906

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

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 88-000724

Orders for Case No: 88-000724