STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES J. McCABE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3854

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon Notice of Hearing issued August 25, 1988, this cause came on for formal hearing on October 25, 1988 in West Palm Beach, Florida, before Ella Jane

1. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: Charles J. McCabe, pro se

   137 Southeast 27th Way Boynton Beach, Florida 33435

   
   

   For Respondent: Laurel Hopper, Esquire

   Department of Health and Rehabilitative Services

   111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 32401

   
   

   ISSUE

   
   

   Whether or not Petitioner McCabe abandoned his position as an employee of the Department of Health and Rehabilitative Services.

   
   

   BACKGROUND AND EVIDENTIARY RULINGS

   
   

   Pursuant to case law, the employing agency bears the burden to establish job abandonment. Accordingly, the Department of Health and Rehabilitative Services (DHRS) presented its case first. DHRS presented the oral testimony of William Myrick and Joanne Register and had admitted two exhibits.

   
   

   In the course of DHRS' case in chief, Petitioner McCabe moved for a continuance so as to obtain legal counsel. Upon inquiry, Mr. McCabe did not demonstrate good cause for a continuance, and the motion was denied.

   
   

   Petitioner testified in his own behalf and had admitted two exhibits. Both of Petitioner's exhibits are letters from persons who did not take the stand to testify and who therefore were unavailable for cross-examination under oath; neither letter was established to be a "business record" either by appropriate

   predicate under Chapter 90 F.S. nor as commonly understood. The contents of each letter is therefore hearsay which can only be considered in these Section 120.57(1) F.S. proceedings to the extent set out in Section 120.58 F.S., and they are discussed in that context within the following findings of fact.

   
   

   Both parties waived the opportunity to file a transcript and proposed findings of fact and conclusions of law.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material, Petitioner McCabe was employed by the Department of Health and Rehabilitative Services at the Palm Beach Detention Center.

      
      

   2. At all times material, William Myrick, presently Assistant Superintendent of the Detention Center, was Petitioner's immediate superior. He reviews and approves all personnel matters and is in charge of the center on a day to day basis.

      
      

   3. When Petitioner McCabe first began employment with the Detention Center on December 6, 1986, he signed a form acknowledging receipt of the agency June 1, 1986 Employee Handbook and also signing the State Oath of Loyalty. This handbook is also designated as, "HRS Pamphlet 60-1 (Employee Handbook including the Employee Standards of Conduct)". At page three of this handbook, the agency policy concerning absences is set out as follows:

      
      

      If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship of fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absence without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned.

      
      

   4. Mr. Myrick had scheduled Mr. McCabe to work on June 16, 17, 18, 19, and 20, 1988 from 11:00 p.m. to 7:00 a.m. Mr. Myrick stated that in scheduling Mr. McCabe for those days, he relied on a telephone conversation he had had on June 15, 1988 with Mr. McCabe in which Mr. McCabe, who had been absent from work for some time, stated that he could not get a doctor's excuse but would be in to work on June 16, 1988. Mr. McCabe denies that in the telephone conversation he said he was coming back to work.

      
      

   5. Mr. McCabe did not call in again to say he would not be in to work; he did not report for work on any of the days scheduled; and he sent in no medical certification that he was unable to work on those days. Prior to June 15, 1988, the last day Mr. McCabe had worked had been May 17, 1988. There was no evidence submitted to inform the hearing officer whether or not Mr. McCabe was on any annual, sick, or disability leave during this period from May 17 to June 16 or whether accrued leave of any kind could have been applied to the days scheduled for him to work.

   6. On June 23, 1988, DHRS mailed a certified letter to Petitioner stating, in pertinent part, as follows:

      
      

      You failed to report to work as scheduled on June 16, 17, 18, 19, and 20, 1988 (from

      11:00 p.m. to 7:00 a.m.) and made no effort to contact the agency to request leave.

      
      

      For the purpose of abandonment, the three consecutive work days are June 16, 1988 from 11:00 p.m. to 7:00 a.m. on June 17,

      1988, June 17, 1988 from 11:00 p.m. to 7:00

      a.m. on June 18, and June 18 from 11:00

      p.m. to 7:00 a.m. on June 19,1988.

      
      

   7. At formal hearing, Mr. McCabe offered a June 6, 1988 letter (admitted as P-1) to Mr. William J. Myrick from Kenneth B. LeClerc, L.C.S.W., whom Mr. McCabe described as a "stress counsellor". He testified that this letter had been submitted by him to Mr. Myrick in lieu of a medical excuse on or about June 6, 1988. Neither party examined Mr. Myrick as to whether he received the letter or not and so Mr. McCabe's testimony that it was delivered by him to Mr. Myrick is unrefuted. This letter's contents support Mr. McCabe's testimony that he was being counseled on a weekly basis but does not support his testimony that he was unable to report to work or unable to work on the specific dates of June 16, 17, 18, 19, and 20, 1988.

      
      

   8. Mr. McCabe also presented a letter (admitted as P-2) dated September 1, 1988 addressed by a psychiatrist (medical physician) and psychologist to the attorney for DHRS. The writers were not available for cross-examination and Mr. McCabe admitted that the letter had never been presented, in a timely manner or otherwise, to anyone at DHRS. Although some portions of the letter may be considered as supporting Mr. McCabe's testimony that he is suffering and was suffering prior to June 21, 1988, from a variety of emotional/psychological ills, the timeframe contained in the letter does not support his contention that he was medically unable to report for work or to actually work on the June 16, 17, 18, 19, and 20, 1988.

      
      

   9. Mr. McCabe stated that "they" said they would not do anything about his job until something happened, but he was unclear about what that was going to be or who said that nothing would happen with regard to his job. The impression his somewhat disjointed testimony leaves is that he felt that because he was referred by the agency employee assistance program to LeClerc and from the program, or perhaps from LeClerc, to medical doctors on June 21 or 22 or 23, he was therefore entitled to have his supervisor freeze his job status until that time. However, he did not specifically claim that Mr. Myrick or anyone in authority over him at DHRS had made him that promise. He also seemed to accept that leave was not further authorized by Mr. Myrick after June 15 without a medical excuse.

      
      

      CONCLUSIONS OF LAW

      
      

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

   11. Rule 22A-7.010(2), Florida Administrative Code, provides:

       
       

       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 ...

       
       

       This portion of the rule creates a rebuttable presumption that an employee who is absent from his or her job for three days has given up his or her job.

       The presumption is a rebuttable one. Claire M. Penney v. Department of Insurance, DOAH Case No. 85-1530 (DOA January 31, 1986). It is intended to strike a "fair balance" between "swift replacement of ineffective public employees," and "job security and retention." Hadley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982).

       
       

   12. This case would be clearer and more easily decided had there been evidence of specific prior written or oral notice to the Petitioner individually that he would be presumed to have abandoned his position if he did not present himself for work on the days specified, however, under the circumstances of this case, his receipt of the employee handbook upon date of employment is sufficient.

       
       

   13. In the absence of any suggestion by Petitioner that he had Mr. Myrick's authorization for absence on the days in question or leave saved to which he might be entitled for that period or any emergency situation, and in the presence of Petitioner's apparent understanding that he needed a medical excuse to obtain Mr. Myrick's authorization, DHRS has established by a preponderance of the evidence that Petitioner was absent without leave for three consecutive workdays, and he may be presumed to have abandoned his position.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the a final order be entered finding that Charles J. McCabe has abandoned his position with the Department of Health and Rehabilitative Services.

DONE and RECOMMENDED this 17th day of November, 1988, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 17th day of November, 1988.

COPIES FURNISHED:

Adis Vila, Secretary Department of Administration Carlton Building

Tallahassee, Florida 32399-1550

Charles J. McCabe

137 Southeast 27th Way Boynton Beach, Florida 33435

Laurel Hopper, Esquire Department of Health and

Rehabilitative Services

111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 32401

Larry D. Scott, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, Jr., Esquire Department of Administration 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: 88-003854

Orders for Case No: 88-003854