STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY PIGATT, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1163

) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on June 3, 1988 in Miami, Florida. Thereafter, the parties were granted leave to file post-hearing memoranda supportive of their respective positions. Respondent's counsel has submitted a Proposed Recommended Order which was considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix attached hereto.

APPEARANCES

For Petitioner: Betty Pigatt, Pro se

3125 N.W. 65th Street Miami, Florida 33147

For Respondent: Suzanne G. Printy, Esquire

Assistant General Counsel Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A432 Tallahassee, Florida 32399-0504

ISSUE PRESENTED

Whether Petitioner abandoned her position and resigned from the career service.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings:

1. Petitioner, Betty Pigatt, was employed by the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles (Respondent) from February 22, 1983 until January 21, 1988.

2. Petitioner injured her lower back in an automobile accident on April 17, 1985. She was previously disabled from a work related injury and was awarded prior temporary total disability benefits. She returned to work on June 5, 1987. Her condition became progressively worse and she again ceased work on June 27, 1987. Petitioner complained of pain in her lower back going down her left leg and into her foot. She had limited ability to stand and sit, and complained of pain and limitation of motion in her neck.

   
   

3. Petitioner was treated by Dr. Rosabal who discharged her in late July, 1987. She thereafter was treated by Dr. William Bacon, who has treated her since August 17, 1987.

   
   

4. By letter dated September 24, 1987, Petitioner was advised by Respondent's Division Director, James H. Cox, (Cox) that her request for leave without pay was granted beginning September 2 thru November 30, 1987. She was further advised that Respondent "requested that she send a Doctor's statement to Mr. Richard Weaver, Bureau Chief of Field Operations, explaining your medical condition and an approximate date of when you will be able to return to work". (Respondent's Exhibit 1). Petitioner was aware that she was to submit a letter of explanation of her medical condition from her physician. Petitioner failed to submit such a letter.

   
   

5. Thereafter, Petitioner requested additional leave without pay and Cox advised Petitioner as follows:

   
   

   Your recent letter requesting additional leave without pay cannot be given favorable consideration until you furnish Mr. Richard Weaver, Bureau Chief of Field Operations, with a statement from your Doctor explaining your medical condition and an approximate date of when you will be able to return to work.

   
   

6. Respondent, by its Acting Regional Director, Martha A. Castro, advised Petitioner by letter dated January 21, 1988, that her request for an extension of leave without pay had been denied and she was directed to report for duty at her assigned office at 7:00 a.m., on January 13, 1988. Petitioner did not report to work as directed on either January 13, 14, or 15, 1988.

   
   

7. Respondent advised Petitioner by letter dated January 21, 1988, of Fred

   O. Dickinson, III, Deputy Executive Director of the Department of Highway Safety and Motor Vehicles, that as she had not reported to work for 3 consecutive work days, in accordance with Rule 22A-7.010(2), Florida Administrative Code, she was considered to have abandoned her position and to have resigned effective immediately.

   
   

8. Petitioner had received maximum medical improvement and was requested to return to work as of January 13, 1988. (Respondent's Exhibit 6).

   
   

9. Petitioner was familiar with her rights and obligations as an employee and was responsible for knowing the contents of the Driver License Examiner's Manual. On page 240 of the Examiner's Manual which was in use during Petitioner's employment is the requirement that leave without pay must be authorized by the Director of the Division of Driver Licenses. Petitioner did

   not obtain authorized leave without pay from the Director of the Division of Driver Licenses as required.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.

    
    

11. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

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

    
    

    An employee who is absent without authorized leave of absence for 3 consecutive work days shall be deemed to have abandoned the position and to have resigned from the Career Service.

    
    

13. Petitioner, by failing to justify her leave request when asked to do so by the Respondent and by failing to report for work as directed rendered Respondent unable to determine when, or if, she would return to work and the Respondent had reasons to logically conclude that she was not returning to work, her paper work was processed to separate her from employment and Respondent was authorized to refill the vacant position. See, Cook vs Division of Personnel, Department of Retirement 356 So.2d 356 (Fla. 1st DCA, 1978). Petitioner, by failing to report to work for three (3) consecutive work dads without authorized leave, voluntarily abandoned her position and thereby resigned from career service.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Final Order be entered finding that Petitioner abandoned her position and resigned from career service, and denying Petitioner's request that she be reinstated to her position of employment.

DONE and ORDERED this 17th day of October, 1988, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1163

Rulings on Petitioner's proposed factual findings:

1. Adopted as modified, paragraph 1, R.O.

2. Adopted as modified, paragraph 9, R.O.

3. Adopted as modified, paragraph 4, R.O.

4. Adopted as modified, paragraph 5, R.O.

5. Adopted as modified, paragraph 6, R.O.

6. Adopted, last sentence paragraph 6, R.O.

7. Adopted as modified, paragraph 7, R.O.

8. Adopted as modified, paragraph 8, R.O.

9. First sentence adopted and the remainder rejected as irrelevant.

COPIES FURNISHED:

Suzanne G. Printy, Esquire Assistant General Counsel Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A432 Tallahassee, Florida 32399-0504

Betty Pigatt

1262 Northwest 172nd Terrace Miami, Florida 33169

Michael Alderman, Executive Director Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399-0500

Enoch Jon Whitney General Counsel

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399-0555

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 88-001163

Orders for Case No: 88-001163