STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIMOTHY W. BAKER, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5840

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on February 14, 1989, in West Palm Beach, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: No appearance For Respondent: Laurel Hopper

District Legal Counsel Department of Health and Rehabilitative Services District IX

111 Georgia Avenue

West Palm Beach, Florida 33401 BACKGROUND AND PROCEDURAL MATTERS

This case began on October 11, 1988, when the Department of Health and Rehabilitative Services (Department) gave notice to Petitioner that, pursuant to Rule 22A-7.010(2), Florida Administrative Code, he had been deemed absent from work without authorized leave for three consecutive workdays and had thereby abandoned his position and resigned from career service. Thereafter, Petitioner contested the Department's determination of abandonment and requested an administrative review. The Department of Administration forwarded the case to the Division of Administrative Hearings for formal proceedings on November 30, 1988.

At the hearing, the Department presented the testimony of the following witnesses: William Myrick, Petitioner's supervisor; Betty Webb, a supervisor at the Palm Beach Juvenile Detention Center; and JoAnn Register, personnel records custodian for District IX. Respondent's exhibits numbered 1 through 3 were admitted into evidence. The Petitioner did not appear and no evidence was offered in his behalf.

A transcript was not prepared in this case. Neither party filed a proposed recommended order.

ISSUE

The central issue in this case is whether Petitioner abandoned his position and thereby resigned from career service.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. Prior to October 11, 1988, Petitioner was employed as a detention care worker I at the Palm Beach Juvenile Detention Center (center).

   
   

2. During Petitioner's period of employment at the center, William Myrick was Petitioner's supervisor. At all times material to this matter, Mr. Myrick served as the Assistant Superintendent for the center.

   
   

3. Sometime prior to August 25, 1988, Petitioner requested leave. Mr. Myrick approved Petitioner's leave request for the period August 25 through September 14, 1988. Authorized leave past that period was not approved. Petitioner did request additional leave to afford time for some elective surgery, but that request was not approved due to the scheduling needs of the center. Further, Petitioner did not present a doctor's statement in connection with the leave request.

   
   

4. On September 14, 1988, Mr. Myrick advised Petitioner that a doctor's statement would be required to advise the Department of Petitioner's medical condition, and to set a tentative date that Petitioner would be allowed to return to work. Mr. Myrick requested that Petitioner furnish the information by September 16, 1988. The Petitioner did not furnish the doctor's statement, did not return to work, and did not respond to Mr. Myrick's letter.

   
   

5. On October 11, 1988, Robert D. Williams, the District IX Administrator, wrote to Petitioner to advise him that because he had failed to report to work for the three day period, September 21-23, 1988, he had abandoned his position and resigned from career service.

   
   

6. Petitioner was absent from his scheduled work from September 15, 1988 through September 23, 1988. Petitioner did not have approved leave for the period he was absent subsequent to September 15.

   
   

7. Employees of the Department requested medical documentation from Petitioner on at least three different occasions. Petitioner failed or otherwise refused to timely submit proper medical reports to justify the absences.

   
   

8. The only medical documentation was received on September 26, 1988, and indicated that the Petitioner had had the elective surgery, circumcision, performed on September 8, 1988. No complications related to the surgery were addressed. No explanation as to why the Petitioner was not medically able to return to work subsequent to September 15, 1988, was offered.

9. At the time of his employment with the Department, Petitioner was furnished an employee handbook which outlined the requirements regarding leave approval prior to being absent from work.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings had jurisdiction over the parties and the subject matter of these proceedings.

    
    

11. Rule 22A-7.010, Florida Administrative Code, provides, in pertinent part:

    
    

    (2)(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 to appeal to the Public Employees Relations Commission; however, any such employee shall have the right to petition the department for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

    
    

12. In this case, the Department has established the Petitioner was absent without authorized leave for 3 consecutive workdays. The Petitioner either ignored the Department's requests for medical documentation which would justify the leave or could not produce it since the surgery was elective in nature (as opposed to medically necessary). The Department was not required to approve leave which was not medically necessary since there were scheduling and staffing problems. Petitioner was not entitled to unilaterally schedule elective surgery without consideration of the employer's staffing needs. Further, given the date of surgery, September 8, 1988, there is no evidence that Petitioner was unable to return to work when his approved leave ended September 14, 1988. As it was, Petitioner was given until September 19, 1988, to provide adequate medical documentation. This he failed to do. Consequently, under the facts in this case, the Department has established circumstances constituting abandonment of position.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Administration enter a final order confirming the finding that the Petitioner abandoned his position and thereby resigned from the Career Service.

DONE and RECOMMENDED this 15th day of March, 1989, in Tallahassee, Leon County, Florida.

COPIES FURHISHED:

Timothy Baker

718 Douglas Avenue, Apt. #8 West Palm Beach, FL 33401

Laurel Hopper

District Legal Counsel Department of Health and

Rehabilitative Services District IX

111 Georgia Avenue

West Palm Beach, Florida 33401

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

R. S. Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1989.

Docket for Case No: 88-005840

Orders for Case No: 88-005840