STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2577

)

OLWEN B. KHAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Larry Kranert, Jr., Esguire, Fort Lauderdale, Florida for Department of Health and Rehabilitative Services. Lawrence D. Zietz, Esguire, Plantation, Florida, for Respondent.

This matter was heard by William R. Dorsey, Jr., on Thursday, July 14, 1988, in Fort Lauderdale, Florida. The Respondent has filed proposed findings of fact and conclusions of law. Rulings on proposed findings of fact are made in the appendix to this Recommended Order.

At the hearing Norman Levine, James Robert Moran, and Charles Bruce Durrett testified for the Department and Ms. Khan testified in her own behalf. Four exhibits were admitted into evidence including a request for annual leave, employee performance appraisal, a telephone bill and a Air Jamaica Airline ticket.

ISSUES

The issue is whether Ms. Khan abandoned her career service position by failing to report for work, or to apply for and obtain leave for three consecutive days.

FINDINGS OF FACT

1. Olwen B. Khan was employed by the Department of Health and Rehabilitative Services as a Public Assistance Specialist in the medically needed program in Broward County, Florida.

   
   

2. Ms. Khan is Jamaican, and cares for her elderly father. In order to provide for his care, she arranged to go to Jamaica to sell some property there.

   
   

3. On March 1, 1988, Ms. Khan requested, and was granted, 32 hours of leave for March 7 through the close of business on March 10, 1988.

   
   

4. Ms. Khan had accumulated annual leave and sick leave so that the annual leave requested did not exhaust the leave available to her.

5. Ms. Khan purchased an airline ticket to Jamaica which would have resulted in her return the evening of March 10, 1988.

   
   

6. On March 9, 1988, it became clear that Ms. Khan's business could not be concluded by March 10 and she would have to remain in Jamaica a few more days. She was then in Maninbay, Jamaica, where telephone service is not sophisticated. She had to go to the local telephone company office to make an overseas call when a line was available. She did so at approximately 2:45 p.m. on March 9 but when she reached the HRS office, she was placed on hold for an extended period of time. She then terminated the call and attempted to place another call on March 10 but was not able to get through to the HRS office.

   
   

7. The evening of the 10th she made a collect call to her home in Fort Lauderdale at about 5:45 p.m., Eastern Standard Time. The purpose of the call was to have her daughter request additional leave so she could conclude her business in Jamaica.

   
   

8. Ms. Khan's ex-husband answered the phone, which surprised her. He agreed to make the request to the Department for additional leave.

   
   

9. The following Tuesday Ms. Khan spoke with her ex- husband again, and he said that the message had been given and the additional leave had been taken care of.

   
   

10. In fact, no one ever contacted the Department on Ms. Khan's behalf to explain her failure to report to work on Friday, March 11; Monday, March 14; or Tuesday, March 15, 1988.

    
    

11. Ms. Khan's supervisor, Norma Levine, did ask one of Ms. Khan's coworkers if she knew where Ms. Khan was. The coworker, Judy Fiche, did not know.

    
    

12. After three days had passed with no word from Ms. Khan, Ms. Levine discussed the matter with her supervisor, Mr. Moran. Mr. Moran recommended termination for abandonment of position because no one had heard from Ms. Khan since her approved leave had ended on Thursday, March 10, 1988.

    
    

13. A memorandum setting out the facts was prepared for the personnel office, and through the personnel office a certified letter was sent to Ms. Khan on March 17, 1988, informing her that as of the close of business on March 15, 1988, her employment had been terminated for abandonment of her position.

    
    

14. When Ms. Khan did return on March 16, she was informed that her position had been terminated. She attempted to see Mr. Moran that day but he was unavailable. She eventually did speak with him but was unsatisfied with his response and ultimately spoke with the personnel officer for HRS District X, Mr. Durrett, on March 30, 1988.

    
    

15. Mr. Durrett maintained HRS's position that Mr. Khan had abandoned her job and was unmoved by her explanation that she had been out of the country to take care of a family problem and had thought that her message about needing additional leave had been relayed to the Department.

    
    

16. When Ms. Khan was first employed by the Department, she signed a receipt for an employee handbook setting out its policies. The policy on absences requires that an employee who does not report to work notify the employee's supervisor by 8:30 a.m., and if that supervisor is not available, the

    employee is to notify another supervisor that the employee will not be in to work and state why.

    
    

17. The employee performance appraisal for Ms. Khan completed in November 1988, was the last appraisal before her termination. It shows that she was regarded as achieving prescribed performance standards.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1987).

    
    

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

    
    

    1. Abandonment of position.

       1. 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.

          
          

          The rule creates a presumption that an employee absent from work without authorized leave for three days has resigned from the Career Service. The purpose of the rule was explained in Cook v. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978), in the following way:

          
          

          While some employees go through the formal process of submitting a resignation in writing, others leave abruptly or simply fail to show up for work. There must be some point at which the Division may be able to say that the employee is not returning, process the paper work and refill the vacant position. Rule 22I-7.10B [now renumbered as 22A-7.010] puts all Career Service employees on notice that absence without authorized leave for three consecutive days is tantamount to resignation. The particular time period is less significant than the principle which provides for some term of absence being construed as a resignation. 356 So.2d

          at 358.

          
          

20. The presumption created by the abandonment rule is a rebuttable presumption. Rule 22A-7.010(a)(2), Florida Administrative Code, entitles the employee to a "review of the facts in the case and a ruling as to whether the circumstances constituted abandonment of position."

    
    

21. Ms. Khan maintains that she was away due to an emergency, and made a reasonable attempt to inform her employer that she would be absent. Rule 22A- 8.002(5), Florida Administrative Code, provides:

    
    

    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.

    (a) When prior approval cannot be obtained by the employee due to such emergency 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.

    
    

22. The employing agency has discretion in treating unauthorized absences, and the Department's decision to treat Ms. Khan's absence for three work days as a resignation is one of the approved options. In Florida State University v. Brown, 436 So.2d 287 (Fla. 1st DCA 1983), the court reversed an order of the Department of Administration which had reinstated an employee who had been absent for more than three days. The employee had been placed in the county jail. A personnel officer from the University visited the employee in jail, and had him sign a form requesting a leave of absence without pay for 20 days, which the University granted. When the employee failed to post bond for release pending trial, he remained in jail past the 20 days for which leave had been granted, and after three more days absence he was deemed to have resigned from the Career Service and was terminated. A notice to that effect was mailed to his regular address. The Department of Administration took the position that the University was obligated to contact the employee in jail to give him the opportunity to request further leave. The District Court of Appeal disagreed and held that the employee had resigned by failing to request any further leave of absence after the first period of leave had expired. Similarly, in Department of Transportation v. Clancy, 521 So.2d 376 (Fla. 2d DCA 1988), the Court of Appeals reversed an order of the Department of Administration which had reinstated an employee who had been away from work for more than three days.

    The employee had orally discussed taking leave with his supervisor, but had not requested leave in writing because the Department usually prepared the paperwork for the employee. The court found that the employee was required to obtain written authorization for an absence, and the Department's prior practice of preparing the paperwork for the employee created no estoppel permitting an employee to take leave without signing leave papers. In Clancy, the supervisor knew of the employee's intention to use leave. Here, the Department never heard anything from Ms. Khan after her approved leave expired.

    
    

23. The appellate decisions in Brown and Clancy indicate that an employee's belief that leave has or would be granted will not prevent an employee's unauthorized absence from being deemed an abandonment of position under Rule 22A-7.010, Florida Administrative Code.

    
    

24. The choice made by the Department to treat the absence as an abandonment is textually permitted, both by the abandonment rule, Rule 22A- 7.010, and the rule governing emergency leave, Rule 22A-8.002(5)(a)3.,Florida Administrative Code. By failing to actually contact the Department, request and

obtain leave, Ms. Khan resigned from the Career Service as a matter of law on March 15, 1988.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that under Rule 22A- 7.010(2)(a), Florida Administrative Code, Olwen B. Khan abandoned her position by being absent without authorized leave for three consecutive workdays.

DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of August, 1988.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

(904) 488-9765

Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988.

APPENDIX

The burden of all proposed facts contained in Ms. Khan's proposed finding of fact have been adopted.

COPIES FURNISHED:

Larry Kranert, Jr., Esquire Department of Health and

Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301-1885

Lawrence D. Zietz, Esquire

8181 West Broward Boulevard #380

Plantation, Florida 33324

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

John Miller, Esquire Acting General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 88-002577

Orders for Case No: 88-002577