STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COLOMBA DESILVA, )

)

Petitioner, )

vs. ) CASE NO. 89-0764

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on April 18, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Colomba DeSilva, Pro se

2019 Southwest 29th Avenue Fort Lauderdale, Florida 33312

For Respondent: Charles G. Gardner, Esquire

Haydon Burns Building

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458 PRELIMINARY STATEMENT

The issue in this case is whether COLOMBA DESILVA (Petitioner) abandoned her career service position with the Florida Department of Transportation (Respondent).

At the hearing, Petitioner testified on her own behalf and called her husband, Edmund DeSilva, and her chiropractic physician, Dr. Brian M. Mitteldorf, as additional witnesses. Petitioner introduced one exhibit, which was accepted into evidence. Respondent called Theresa Bartelmo and Martha Anderson as witnesses. Respondent introduced six exhibits, which were accepted into evidence.

A transcript of the proceedings was filed. The Appendix to this Recommended Order contains a ruling on each timely filed Proposed Finding of Fact.

FINDINGS OF FACT

1. Petitioner was employed by Respondent as a clerical worker, a permanent career service position, at all times material hereto.

   
   

2. Prior to October 3, 1988, Petitioner experienced back problems which prevented her attendance at work.

3. Dr. Brian M. Mitteldorf, a chiropractic physician, treated Petitioner beginning September 25, 1988, and continuing through all times material hereto.

   
   

4. On October 3, 1988, Theresa (Terry) Bartelmo, Petitioner's supervisor, advised Petitioner in writing that Petitioner would be out of sick leave and annual leave the following day. Mrs. Bartelmo enclosed two copies of the form used to request a leave of absence and advised Petitioner that it was necessary to fill in all blanks and to return the form to her by no later than October 10, 1988. Respondent does not authorize any type of leave for unspecified or unlimited duration. Ms. Bartelmo further advised Petitioner that "... If I do not hear from you by that date, (October 10,1988) then I will assume you wish to terminate your employment with the Department and will process the necessary documentation."

   
   

5. On October 3, 1988, Petitioner's husband, Edmund DeSilva, met with Ms. Bartelmo. During the meeting, Ms. Bartelmo gave to Mr. DeSilva the letter she had written to Mrs. DeSilva, together with the forms for the leave of absence.

   
   

6. The form for leave of absence was signed by Petitioner on October 3, 1988. Mr. DeSilva hand delivered the form to Ms. Bartelmo prior to the deadline of October 10 set by Ms. Bartelmo. This form was forwarded by Ms. Bartelmo to Martha (Marty) Anderson, Respondent's district personnel manager. Ms. Bartelmo recommended that the leave of absence be granted. Ms. Anderson approved the leave of absence on October 13, 1988.

   
   

7. The leave of absence form submitted by Petitioner and approved by Respondent contained a tentative return-to-work date of November 23, 1988. On October 3, 1988, the date Petitioner signed the leave of absence form, it was uncertain when Petitioner would be able to return to work because of her medical condition.

   
   

8. On or about October 18, 1988, Ms. Bartelmo telephoned Petitioner to check on her progress. After Petitioner told Ms. Bartelmo that she did not feel well enough to talk, Ms. Bartelmo asked Petitioner to call her when Petitioner felt better. Ms. Bartelmo did not talk with Petitioner again until after Petitioner's employment was terminated.

   
   

9. Dr. Mitteldorf called Ms. Bartelmo on November 22, 1988, at approximately 3:30 p.m. Dr. Mitteldorf told Ms. Bartelmo during that telephone conversation that Petitioner was too ill to return to work. Ms. Bartelmo asked Dr. Mitteldorf for a letter stating his opinion as to when Petitioner could return to work. Dr. Mitteldorf's letter was dated December 13, 1988.

   
   

10. During their telephone conversation on November 22, 1988, Ms. Bartelmo did not tell or indicate to Dr. Mitteldorf that their conversation was tantamount to an extension of Petitioner's leave of absence. Ms. Bartelmo did not tell Dr. Mitteldorf that she was mailing to him the forms Petitioner needed to submit to request an extension of her leave of absence.

    
    

11. Ms. Bartelmo can recommend approval of a request for leave of absence, but she does not have the authority to grant the approval.

    
    

12. Ms. Bartelmo did not tell Petitioner or anyone acting on Petitioner's behalf, that Petitioner had any form of authorized leave after November 22, 1988.

13. Other than having Dr. Mitteldorf call Ms. Bartelmo, Petitioner made no effort to have her leave of absence extended.

    
    

14. Petitioner's authorized leave of absence ended on November 22, 1988. Petitioner was absent without authorized leave of absence beginning November 23, 1988, and continuing for more than 3 consecutive work days.

    
    

15. By certified mailing on December 2, 1988, Petitioner was advised that her career service position was terminated as of December 1, 1988.

    
    

16. Petitioner had been given a copy of Respondent's Employee Handbook on December 16, 1986, which provides in part:

    
    

    After an unauthorized absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policies.

    
    

17. Petitioner's request for a formal hearing was timely filed.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause.

    
    

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

    
    

    (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. ... (A)ny 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.

    
    

20. Rule 22A-8.002(5), Florida Administrative Code provides:

    
    

    1. 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 the proper authority for the absence.

       1. When prior approval cannot be obtained by the employee due to such emergencies, 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.

          
          

21. Petitioner did not request aid extension of her leave of absence and was absent for 3 consecutive workdays after the authorized leave ended. Petitioner knew or should have known that additional forms had to be processed and approved before the leave of absence was extended. Petitioner was not justified in assuming that a telephone call from her chiropractic physician to her supervisor would suffice to extend her leave of absence. While Petitioner acted in good faith in this case, the evidence is clear that Respondent did not mislead Petitioner. Respondent is not estopped to enforce its policies. See Florida State University vs. Brown, 436 So.2d 287 (Fla. 1st DCA 1983).

    
    

22. The abandonment rules have been upheld as reasonable rules that serve a valid public purpose. See Cook vs. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978) and Hadley vs. Department of Administration, 411 So.2d 184 (Fla. 5th DCA 1982).

RECOMMENDATION

Based upon the foregoing, it is recommended that the Department of Administration enter a Final Order concluding that Petitioner has abandoned her position with Respondent in the career service due to her unauthorized absence from employment for three consecutive workdays beginning November 23, 1988.

DONE and ENTERED this 17th day of May, 1989, in Tallahassee, Florida.

CLAUDE B. ARRINGTON

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 17th day of May, 1989.

APPENDIX

The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 11,

12, 13, 14, 17, 18 of Petitioner's proposed findings of fact are adopted in substance, insofar as material.

The findings of fact contained in paragraphs 9, 10, 15 and 16 of Petitioner's proposed findings of fact are unsupported by the evidence.

COPIES FURNISHED:

Larry D. Scott, Esquire Senior Attorney

Department of Administration Office of the General Counsel

435 Carlton Building Tallahassee, Florida 32399-1550

Thomas H. Bateman, III, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Colomba DeSilva

2019 Southwest 29th Avenue Fort Lauderdale, Florida 33312

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 89-000764

Orders for Case No: 89-000764