STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4179

)

LAVERN W. BURROUGHS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on November 29, 1988. Respondent appeared pro se. Petitioner filed no proposed recommended order.

Proposed findings of fact in respondent's proposed recommended order have been adopted, in substance, insofar as material and intelligible.

The petitioner was represented by counsel: Scott D. Leemis, Esquire

Post Office Box 2417 Jacksonville, Florida 32231-0083

In a letter dated July 28, 1988, Edgar L. Mathis, respondent's human services program administrator, advised petitioner:

You did not call in or report to work on July 22, 25, 26, 1988. Therefore, in accordance with the Personnel Rule 22A-7.010(2), you

are deemed to have abandoned your position and resigned from the Career S[e]rvice, effective 5:00 p.m., July 26, 1988.

By order accepting petition and assignment to the division of administrative hearings dated August 25, 1988, the Department of Administration referred the petition to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987), and identified the following

ISSUE:

Whether or not the petitioner abandoned her position and resigned from the career service?

FINDINGS OF FACT

1. The parties stipulated that respondent, Lavern W. Burroughs, began work with the Department of Health and Rehabilitative Services (HRS) on July 1, 1987, and that she was not present for work on July 22, 25, or 26 of 1988.

   
   

2. Between March 3, 1988, and July 7, 1988, Ms. Burroughs, a clerk typist, was absent on fourteen occasions. Each time "LW" was entered beside her name on an attendance and leave sheet. "LW" is used when an employee has used up all sick and annual leave, but is nevertheless authorized to take leave. The designation LW means leave without pay, but it does not indicate whether leave was authorized or unauthorized.

   
   

3. In December of 1987, Ms. Burroughs had received a "conference letter," HRS' Exhibit No. 1, after discussing her attendance problems with Mr. Weston and his immediate supervisor, Mr. Mathis. On April 15, 1988, Mr. Weston sent her a letter in 4 which he reprimanded her for being absent without leave. HRS' Exhibit No. 2. The letter stated:

   
   

   It is hoped that you will view this disciplinary measure in a constructive manner and there will not be a recurrence of this nature. However, you are cautioned that further offenses of this standard will result in more stringent disciplinary measure of a ten

   (10) days suspension without pay up to dismissal.

   
   

   Mr. Mathis testified that the ordinary practice, if petitioner's absenteeism had been handled as a career service matter, would have seen a ten (10) day suspension as HRS' next response, in the event of another unauthorized absence; and that dismissal would not have occurred, unless the ten (10) day suspension failed to cure the problem.

   
   

4. On Thursday, July 14, 1988, Ms. Burroughs went to work, as it turned out, for the last time. The next morning she called in, shortly after 9:00 o'clock, to report that she had received notice of judicial proceedings designed to foreclose on her house. Unable to reach Mr. Weston, she asked for his supervisor, Mr. Mathis. Unable to reach him, she spoke to Ms. Evan Gibson, Mr. Mathis' secretary, and told her that she would not be coming to work. Ms. Gibson said she would relay the message. Ms. Burroughs left for Georgia in an effort to obtain money from a cousin with which to retain a lawyer to represent her in the foreclosure proceedings.

   
   

5. The next Monday, July 18, 1988, Ms. Burroughs' daughter, Sheronda, telephoned HRS' Jacksonville offices. Apparently she spoke to Mr. Weston when she reported that Ms. Burroughs had trouble with her eye. On July 20, 1988, Ms. Burroughs telephoned herself. Again unable to reach Mr. Weston, she ended up telling Ms. Gibson that her eye was running and painful.

   
   

6. Also on July 20, 1988, she visited the Riverside Clinic, received a prescription for erythromycin, and filled it that day. A nurse filled out a form employee's medical excuse saying that Ms. Burroughs had been under the care of a doctor at the clinic "and may return to work on 7/21/88." Joint Exhibit No. 1.

7. Mr. Weston has never denied an employee's request for sick leave. Ms. Burroughs had been granted sick leave on more than three occasions and had produced a doctor's statement on each occasion.

   
   

8. On Thursday, July 21, 1988, Ms. Burroughs called and spoke to Mr. Weston. In a telephone conversation that lasted perhaps two minutes, she told him about the problem with her eye, and also spoke to him about the threatened foreclosure. She did not say when she would return to work, but it was clear that she was not coming in that day. After Mr. Weston responded, "Okay," his only contribution to the conversation, Ms. Burroughs said goodbye and hung up. She did not explicitly ask for leave, even as she had never done before.

   
   

9. Her eye stopped running on July 25, 1988, a Monday. On July 26, 1988, Ms. Burroughs set out for work, having spent, she testified, all her money, except for a quarter she had with her, on gasoline, for transportation to and from work that week. When her car overheated on 1-495 she was obliged to cut her journey short.

   
   

10. She used her only quarter to telephone her brother's house, where a sister also lived. She asked this sister to call work to tell them what had happened. Instead, a friend, Wanda Stewart, learned the circumstances from Ms. Burroughs' sister, and made the telephone call to report why petitioner would not be in that day. Anna Williams, who worked in Mr. Weston's unit last summer, took the call. Because he was not in the office, she relayed the message to Mr. Mathis' secretary. When Ms. Burroughs' called herself, on July 27, 1988, she was informed she no longer had a job.

    
    

    CONCLUSIONS OF LAW

    
    

11. HRS relies on Rule 22A-7.010(2), Florida Administrative Code, which creates a presumption, one that was held to be rebuttable in Clara M. Penney vs. Department of Insurance, No. 85-1530 (DOA; January 31, 1986), that an employee absent without leave for three days has given up his job. The rule is intended to strike a "fair balance" between "swift replacement of ineffective public employees," Hadley vs. Department of Administration, 411 So.2d 184, 188 (Fla. 1982) and "job security and retention." Id.

    
    

12. In upholding Rule 22A-7.10B, as the abandonment rule was then numbered, against the challenge that it was a stratagem to deprive covered employees of a hearing to which they were entitled before the Career Service Commission, the court in Cook vs. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978) pointed out that no such hearing was available to an employee who submitted' a written resignation and stated:

    
    

    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 22A-7.10B puts all Career Service employees on notice that absence without authorized leave for three consecutive days is tantamount to

    a formal resignation. The particular time period is less significant than the principle which provides for some term of absence being construed as a resignation.

    
    

    At 358. Petitioner here did not "simply fail to show up for work." Cook vs. Division of Personnel, Department of Administration, 356 So.2d 356, 358 (Fla. 1st DCA 1978). This case resembles more closely that of Michael J. Rodgers v. Department of Transportation, No. 87-3104 (DOA; Aug. 9, 1988), where Secretary Vila wrote:

    
    

    Under the presumption created by the abandonment rule, an employee who has been deemed to have abandoned his position is entitled to a "review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position." Rule 22A-7.010(2)(a), Florida Administrative Code.

    The reasonable scheme established by the abandonment rule is done considerable violence in circumstances where an employer knows that the absence is not caused Ab an 4 intent to resign, but uses the rule as a basis for taking "action . . . against an employee to separate him from the Career 4 Service." See Section 110.203(22), Florida Statutes. (emphasis supplied)

    
    

    The evidence suggests that Ms. Burroughs is less than the ideal employee; her spotty attendance is no doubt a real problem for her co-employees, whatever the cause and whether or not her various problems justify the absences.

    
    

13. But this is not a case where an employee has gone three days incommunicado so that his employer is left to draw his own inferences as to what the absence signifies. Nor is this case like State Department of Transportation

    v. Clancy, 521 So.2d 376 (Fla. 2d DCA 1988) where an employee had indicated an intention to take a vacation two to four months before the fact, but had never made the written request required by agency rules or discussed his plans further, and had, insofar as his supervisor could remember, never designated "any specific time period for this leave." Brian B. Clancy v. State Department of Transportation, No. 86-2893 (DOAH; Jan. 5, 1987) at page 4.

    
    

14. Nor, in light of the past dealings between Ms. Burroughs and her supervisor, the telephone conversation they had on July 21, 1988, and the message she sent after her car broke down, should the present case be controlled by the court's decision in Florida State University v. Brown, 436 So. 2d 287 (Fla. 1st DCA 1983). At the hearing, Ms. Burroughs claimed sickness on July 22 and 25, 1988, of the same kind she advised Mr. Weston of on July 21, 1988; and the evidence showed that she got word to the office of her car problems on the 26th. If these circumstances do not justify her absences, and perhaps they do not, career service proceedings may be appropriate, but "[t]he 4 reasonable scheme established by the abandonment rule is done considerable violence in circumstances where an employer knows that the absence is not caused by an intent to resign," Michael J. Rodgers v. Department of Transportation, No. 87- 3104 (DOA; Aug. 9, 1988), yet proceeds otherwise.

It is, accordingly, RECOMMENDED:

That the Department of Administration order HRS to reinstate Laverne W. Burroughs, and require HRS to pay back wages from July 27, 1988, until reinstatement, less any earnings from employment and any unemployment compensation payments she may have received during the same period.

DONE and ENTERED this 9th day of February, 1989, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

FILED with the Clerk of the Division of Administrative Hearings this 9th day of February, 1989.

COPIES FURNISHED:

Scott D. Leemis, Esquire

P. O. Box 2417 Jacksonville, FL 32231-0083

Gregory L. Coler, Secretary Department of

Health and Rehabilitative Services 1323 Winewood Boulevard

Building One, Room 407 Tallahassee, Florida 32399-0700

Lavern W. Burroughs 7841 Volvo Street

Jacksonville, FL 32244

Mr. Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

Docket for Case No: 88-004179

Orders for Case No: 88-004179