STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3987

)

RANDOLPH SCOTT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on November 8, 1988 in Miami, Florida.

APPEARANCES

For Petitioner: Carmen Dominguez Frick, Esquire

401 N. W. 2nd Avenue, Suite 5424 Miami, Florida 33128

For Respondent: Jesse Jones, qualified representative 2171 N. W. 22nd Court

Miami, Florida 33142 BACKGROUND

This matter arose when petitioner, Department of Health and Rehabilitative Services (HRS), issued proposed agency action on June 13, 1988 advising respondent, Randolph Scott, that he was terminated from his job effective June 8, 1988 by virtue of having been absent without authorized leave since April 23, 1988. Thereafter, by letter dated July 21, 1988, respondent requested a formal hearing to contest the agency's action. The matter was transmitted to the Division of Administrative Hearings by the Department of Administration on August 16, 1988 with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated September 12, 1988 a final hearing was scheduled on September 27, 1988 in Miami, Florida. At the parties' request, the matter was rescheduled to November 8, 1988 at the same location. On September 23, 1988 the case was transferred from Hearing Officer James E. Bradwell to the undersigned.

At final hearing, petitioner presented the testimony of Dwight D. Coleman and Ernestine W. Thurston, both HRS employees, and offered petitioner's exhibits 1-8. All exhibits were received in evidence. Respondent testified on his own behalf 1/

There is no transcript of hearing. Both parties waived their right to submit proposed findings of fact and conclusions of law.

The issue is whether respondent abandoned his job by being absent from work on three consecutive workdays without authorization.

Based upon all the evidence, the following findings of fact are determined:

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Randolph Scott, began his employment with petitioner, Department of Health and Rehabilitative Services (HRS), on October 25, 1985. He held the position of detention child care worker 1 at the Dade Regional Juvenile Detention Center (Center) in Miami, Florida. When Scott began work, he was given a copy of HRS Pamphlet 60-1, the employee handbook which contained attendance and leave policies.

   
   

2. According to the Center's superintendent, Dwight D. Coleman, Scott had attendance and punctuality problems from the onset of his employment. Scott was disciplined on several occasions in 1986 and 1987 for missing work without authorization and being late to work. This is confirmed in various memoranda introduced into evidence as petitioner's exhibits 1-3 and 7.

   
   

3. To accommodate Scott and alleviate his attendance problems, Coleman reassigned Scott to a facility closer to his residence. This was because Scott had complained that the traffic congestion between his residence and the Center was responsible for him being late to work. However, the reassignment did not resolve the problems, and Scott eventually returned to the Center in March 1988.

   
   

4. After returning to the Center, Scott's attendance was "sporadic" at first but, after April 23, Scott never returned to work except to pick up his paycheck. On those occasions, Coleman asked Scott for an explanation of his absences but received no satisfactory reply. At no time after April 23 did Scott give a reason for his absence in writing or prepare and submit a written leave request as required by HRS rules. Also, Scott was never authorized by a supervisor to be absent from work. At hearing, Coleman explained that he continued to allow Scott to remain on the payroll after April 23 because he was trying to help Scott work out his problems and Scott was a career service employee. According to Scott, he was paid through May 27, 1988.

   
   

5. On May 27, 1988 Coleman sent Scott a letter by certified mail advising Scott that his absences since April 23 were not authorized, career service system rules provided that an employee was deemed to have abandoned his job after being absent three consecutive days without leave, and that he must "report to work immediately and provide an explanation for (his) absences." Scott denied receiving the letter since he maintained it was mailed to the wrong address. However, when Scott returned to the Center on June 8 to pick up a paycheck, he was given a copy of the letter. At that time, he declined to fill out a leave form as required by HRS rules and gave no valid reason for being absent. Although Scott made an oral request to take leave, no leave was authorized, and he did not return to work again.

   
   

6. On June 13, 1988 Coleman sent Scott a second letter by certified mail advising him that he had been deemed to have abandoned his job effective June 8

   by virtue of being absent for three consecutive workdays. Scott acknowledged that he received this letter. On July 21, 1988 Scott requested a hearing to contest the agency's decision.

   
   

7. Prior to his termination, Scott had numerous conferences with Coleman and Ernestine W. Thurston, personnel manager for the Center. Despite these meetings, and instructions by them that he comply with HRS leave and attendance policies, Scott never submitted a formal written request for leave.

   
   

8. At hearing Scott acknowledged that he did not attend work after April

   23 and that he did not fill out a leave request. He declared he had verbally asked for time off but that his assistant supervisor did not "understand" his problems. These problems included being evicted from his apartment, a fear of being arrested at the job site for failing to make child support payments and a death in his fiance's immediate family. Finally, Scott admitted receiving a copy of the employee handbook when he began employment and conceded he was aware of the agency's leave and attendance policies.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

10. As the party seeking to establish that Scott abandoned his job, HRS bears the burden of proving this allegation by the preponderance of the evidence.

    
    

11. In support of its decision, the agency relied upon Rule 22A-7.010(2), Florida Administrative Code (1987). That rule states in relevant part:

    
    

    (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 ...

    
    

12. By a preponderance of evidence the agency has established that Scott was absent from work without authorization from April 23 until the dismissal letter was mailed on June 13, 1988. Even if the agency's continued payment of Scott's salary from April 23 through May 27 can be construed to constitute an implied authorization to be absent, Scott was absent after May 27 for three consecutive workdays without his employer's approval. This being so, it is concluded that Scott is deemed to have abandoned his position and to have resigned from Career Service within the meaning of the above rule.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Department of

Administration concluding that respondent has abandoned his job.

DONE AND ORDERED this 18th day of November, 1988, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officers

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 18th day of November, 1988.

ENDNOTE

1/ Respondent was represented at hearing by a representative of the union to which he belonged.

COPIES FURNISHED:

Carmen Dominguez Frick, Esquire Mr. Randolph Scott

401 N. W. 2nd Avenue, S424 Post Office Box 013893 Miami, Florida 33128 Miami, Florida 31101

Mr. Jesse Jones Larry D. Scott, Esquire

2171 N. W. 22nd Court 435 Carlton Building

Miami, Florida 33142 Tallahassee, Florida 32399-1550

Adis Maria Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 88-003987

Orders for Case No: 88-003987