Judges: JOSE DIEZ-ARGUELLAS
Agency: Department of Management Services
Latest Update: Sep. 29, 1988
Summary: Evidence indicates that petitioner was absent from work for 3 consecutive days without receiving authorization, thus abandoning her career service postion.
88-1657.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ETHELDA STANYARD, )
)
Petitioner, )
)
vs. ) CASE NO. 88-1657
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case in Jacksonville, Florida, on August 30, 1988, before Jose A. Diez-Arguelles, a hearing officer with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: No appearance
For Respondent: Scott D. Leemis, Esquire
Assistant District Legal Counsel Post Office Box 2417 Jacksonville, Florida 32231-0083
BACKGROUND
By letter dated February 5, 1988, the Department of Health and Rehabilitative Services, Respondent, notified Ms. Ethelda Stanyard, Petitioner, that she had been deemed to have abandoned her position and resigned from the career service system because she had been absent from work for three consecutive days. By letter dated February 25, 1988, Petitioner appealed to the Department of Administration for a review of her case. By Order dated March 23, 1988, the Department of Administration requested the assignment of a hearing officer to conduct further proceedings.
At the hearing, Respondent presented the testimony of Ms. Gwendola E. Baker and Ms. Jessie Lester, and offered three exhibits which were accepted into evidence. Neither Petitioner nor anyone representing Petitioner appeared at the hearing. Neither party filed a post-hearing statement.
FINDINGS OF FACT
At all times relevant, Petitioner was employed as a Clerk Typist with Respondent.
Petitioner did not report to work on February 3, 4 and 5, 1988.
Respondent's leave policy is that leave should be requested in advance; if an employee gets sick, he or she needs to call in.
Petitioner had not requested leave prior to February 3, 1988.
On February 3, 1988, Ms. Lester, a co-worker of Petitioner's received a telephone call from a Ms. Williams who stated that Petitioner was in the hospital.
Ms. Baker, Petitioner's supervisor, called three hospitals in the area and none had a Ms. Stanyard listed as a patient. Also, she contacted Ms. Stanyard's brother and another person, neither of whom had any knowledge of Petitioner's whereabouts. Finally, Ms. Baker went to Ms. Stanyard's home, but could not find Ms. Stanyard.
As of the end of the day on February 5, 1988, Petitioner had not contacted her supervisor or her office.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57, Florida Statutes.
Rule 22A-7.010(2)(a), Florida Administrative Code (hereinafter referred to as "the Rule"), provides the following:
(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 review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.
The Rule creates a presumption that an employee who is absent from work for three days without authorized leave has abandoned her position. The presumption is rebuttable, since the Rule entitles an employee subject to the Rule to a review of the facts and a ruling as to whether the circumstances constitute abandonment. Penny v. Department of Insurance, Case No. 85-1530 (DOA January 31, 1986).
The Rule has been interpreted to be a substitute for a formal resignation:
While some employees go through the formal process of submitting a resignation in writing, others leave
work abruptly or simply fail to show up for work. There must be some point at which the Division [of Personnel] may be able to say that the employee is not returning, process the paper work and refill the vacant position.
Cook v. Division of Personnel, Department of Administration, 356 So.2d 356, 358 (Fla. 1st DCA 1978). Also, the Rule is intended to promote the state's interest in replacing public employees who do not work, "by facilitating elimination of those who do not report to work for a certain time." Hadley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982).
The evidence in this case shows that Petitioner was absent from work for 3 consecutive days without receiving authorization. Therefore, since Petitioner has not offered any evidence to rebut the presumption that she abandoned her position, she is deemed to have resigned from career service.
RECOMMENDATION
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Department of Administration issue a final order ruling
that Petitioner abandoned her position and resigned from the career service.
DONE and ORDERED this 29th day of September, 1988, in Tallahassee, Florida.
JOSE A. DIEZ-ARGUELLES
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 29th day of September, 1988.
COPIES FURNISHED:
Ms. Ethelda Stanyard 7855 Wilson Boulevard
Apartment 17
Jacksonville, Florida 32210
Scott D. Leemis
Assistant District Legal Counsel Post Office Box 2417 Jacksonville, Florida 32231-0083
Larry D. Scott, Esquire Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
Adis Vila, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
Agustus D. Aikens, Jr. 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: 88-001657
Orders for Case No: 88-001657
| Issue Date |
Document |
Summary |
|
Dec. 14, 1988 |
Agency Final Order
|
|
|
Sep. 29, 1988 |
Recommended Order
|
Evidence indicates that petitioner was absent from work for 3 consecutive days without receiving authorization, thus abandoning her career service postion.
|
