STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DORIS B. CANTAVE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1184

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above styled case on May 9, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Ms. Doris B. Cantave Dorcilin, pro se

1238 Northeast Krome Terrace, Apartment 1

Homestead, Florida 33030

For Respondent: Perri M. King, Esquire

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500 STATEMENT OF THE ISSUES

Whether Petitioner abandoned her position with Respondent and resigned from the Career Service System within the meaning of Rule 22A-7.010(2)(a), Florida Administrative Code.

PRELIMINARY STATEMENT

By certified letter dated January 6, 1989, Petitioner requested review of the determination that she had abandoned her position with the Respondent, and by order dated March 2, 1989, the Department of Administration elected to request assignment of a Hearing Officer from the Division of Administrative Hearings to conduct further proceedings in this case.

At the formal hearing, Petitioner testified on her on behalf and offered ten exhibits, P-2 through P-10 were admitted into evidence. Respondent presented the testimony of three witnesses and offered four exhibits which were admitted into evidence.

A transcript of the proceeding was ordered and received on June 2, 1989.

Proposed findings of fact and conclusions of law were due on June 12, 1989. Respondent submitted proposed findings of fact and conclusions of law in a

timely manner, but Petitioner did not. A ruling on each proposed finding of fact has been made and is reflected in the appendix to this recommended order.

FINDINGS OF FACT

1. Prior to her termination and at all times material hereto, Petitioner was employed as a Secretary Specialist for Respondent.

   
   

2. In December 1988, Petitioner planned a trip to Haiti to be married and requested annual leave for the work period of December 9 through December 14, 1988, which was approved. Although she was aware of the political unrest in Haiti, Petitioner departed on December 16, 1988 with the intent to return on December 19, 1988.

   
   

3. When she returned to the airport on December 19, 1988, she was told that she could not obtain a boarding pass and the next available flight was not until December 22, 1988.

   
   

4. Realizing that the delay would result in her absence for three consecutive work days without approved leave and her possible termination, Petitioner attempted to telephone her immediate supervisor. She was told that outgoing calls were limited. At around 7:00 p.m. on December 9, 1988, she was successful in placing the call; however, her call was not answered. She next called her next level of supervisor who also did not answer. Finally, she reached her sister who was to relay the circumstances of her delay to Petitioner's supervisor. Yet, when Petitioner's sister attempted to call the supervisor, she was unable to reach him and did not try again.

   
   

5. On December 22, 1988, Petitioner returned to Miami and was informed that she did not have a job. Although Petitioner's airline situation might have been considered an emergency which might have allowed her leave to be continued, reasonable notice to her supervisor of her plight was still required unless the prohibition of notice itself was the emergency. Here, notice by telephone was possible. Petitioner's attempts to contact her employer, although stringent under the circumstances, failed because she did not verify that her message had been received.

   
   

6. Thus, Petitioner's absences on December 19 through 21, 1988, were unauthorized; Petitioner abandoned her position.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and over the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

8. Rule 22A-7.010(2)(a), Florida Administrative Code C provides the following:

   
   

   (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....

9. Rule 33-4.002(21), Florida Administrative Code which reads as follows:

   
   

   (21) Employees shall not be tardy, absent, or depart from work early without the permission of their supervisors and shall observe time limitations on rest and meal periods. Each employee shall notify his immediate supervisor or designated representative prior to his scheduled work shift in the event he expects to be absent from duty due to illness or other reason. (Emphasis added)

   
   

10. Emergencies may be considered ameliorating, however. In particular, Rule 22A-8.002(5)(a), Florida Administrative Code, provides in pertinent part:

    
    

    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 proper authorities 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 without pay...,

       2. Place the employee on leave without pay for the absence, or

       3. If the absence is for three consecutive workdays, consider the employee to have abandoned the position and resigned from the Career Service.

       
       

11. Thus, to rebut an abandonment determination made pursuant to Rule 22A- 7.010(2)(a), Florida Administrative Code, Petitioner must show that her leave was authorized. Authorization requires notice of intended absence be given, Rule 33-4.002(21), Florida Administrative Code, unless an emergency would have prevented the notice, Rule 22A-8.002(5)(a), Florida Administrative Code. Here, no emergency existed which would have prevented notice to Respondent's supervisor.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that

the Petitioner abandoned her position and resigned from the Career Service

System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June 1989.

JANE C. HAYMAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of June 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1184

Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3. Addressed, in part, in paragraphs 2 and 4.

4. Subordinate to the result reached.

5. Subordinate to result reached.

6. Addressed in paragraph 5.

7. Addressed in paragraph 5.

8. Not supported by competent and substantial evidence

9. Subordinate to the result reached.

10. Subordinate to the result reached.

11. Subordinate to the result reached.

12. Subordinate to the result reached.

COPIES FURNISHED:

Ms. Doris B. Cantave Dorcilin 1238 N.E. Krome Terrace Apartment 1

Homestead, Florida 33030

Perri M. King, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Alkens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

DORIS B. CANTAVE,

Petitioner,

1. DOA Case No. AB-89-11

   DOAH Case No. 89-1184

   DEPARTMENT OF CORRECTIONS,

   
   

   Respondent.

   /

   FINAL ORDER

   
   

   This matter is before the Department of Administration for entry of a Final Order. A Recommended Order was entered herein on June 28, 1989, by Jane C. Hayman, Hearing Officer. The record in this case, including the exhibits received into evidence, has been reviewed. No exceptions to the Recommended Order were filed. It is therefore ORDERED:

   
   

   1. The Findings of Fact contained in the Recommended Order (EXHIBIT "A", attached hereto), except for a portion of FINDINGS OF FACT paragraph 6 which states: "Petitioner abandoned her position" are adopted by the Department of Administration. That portion is rejected as being conclusionary and not supported by competent, substantial evidence.

      
      

   2. The Department of Administration rejects the Conclusions of Law in the Recommended Order and makes the following Conclusions of Law:

Section 22A-7.010, Florida Administrative Code, provides:

(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. An employee who has Career Service status and separates under such circumstances shall not have the right to appeal to of 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.

The rule is intended to be a "fair balance" between "swift replacement of an ineffective public employee," Hadley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982), and "job security and retention." Id. The rule creates a presumption that an employee who is absent without authorized leave for three days has resigned his position. That presumption, however, is rebuttable. A review of the facts may reveal the circumstances do not constitute abandonment of position.

According to the "Findings of Fact," Petitioner was prevented from boarding a plane to return to work. She was prevented from returning to work because of political unrest. Petitioner would not have missed three consecutive days of employment but for the political unrest. Faced with these circumstances, she utilized "stringent" attempts to contact her employer. Despite being told out- going telephone calls were limited, she attempted to telephone not only her immediate supervisor, but the next level of supervision. According to the findings, she was not able to place a telephone call until 7:00 P.M. on the night of December 19, 1988 (erroneously shown in the Findings of Fact as December 9, 1989). Unable to contact her supervisor, she involved a family member in a vain attempt to contact her employer. Under the circumstances, Petitioner did all she could to maintain her position in the career service system.

Petitioner did not abandon her position and should be reinstated to her position.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law it is ORDERED that the action of the Department of Corrections in deeming Doris

1. Cantave to have abandoned her position of employment and to have resigned

   from the Career Service is REVERSED AND OVERRULED. The Petitioner shall be reinstated effective as of December 22, 1988, and shall receive all monies and benefits which she would have received if she had not been deemed to have abandoned her position, less any earnings from employment or unemployment compensation Petitioner may have received from the date of her separation from the agency until her reinstatement.

   
   

   This Order constitutes final agency action. Judicial review of this proceeding may be instituted by filing a Notice of Appeal in the First or Third District Courts of Appeal located in Tallahassee and Miami, respectively, pursuant to Section 120.68, Florida Statutes. Such notice must be filed with the Clerk of the Department of Administration and with the District Court of Appeal within thirty (30) calendar days of the date this Order is filed in the official records of the Department of Administration, as indicated in the Certificate of Clerk below, or further review of this action will be barred.

   
   

   DONE AND ORDERED in Tallahassee, Florida, this 28th day of September, 1989.

   
   

   1. J. McMullian III Interim Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550 (904) 488-4116

Certificate of Clerk:

Filed in the official records of the Department of Administration this 2nd day of September, 1989.

Deputy Clerk

Copies furnished to:

Jane C. Hayman, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Ms. Doris B. Cantave Dorcilin 1238 N.E. Cream Terrace Apartment 1

Homestead, Florida 33030

Perri N. King, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Larry D. Scott, Esquire Senior Attorney

438 Carlton Building Tallahassee, Florida 32399-1550

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

DEPARTMENT OF CORRECTIONS NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

CASE NO. 89-2844

DORIS B. CANTAVE, DOAH CASE NO. 89-1184

Appellee.

/ Opinion filed September 27, 1990.

An appeal from an order of the Department of Administration.

Perri M. King, Assistant General Counsel, Tallahassee, for Appellant.

Richard Lee Ruben, Miami, for Appellee. PER CURIAM.

AFFIRMED. Appellee's petition for attorney fees is granted. If the parties are unable to agree on a reasonable attorney fee, the Department of Administrative Hearings is directed to take testimony and enter a recommended order setting the amount of the fee.

SMITH and ZEHMER, JJ., CONCUR. BOOTH, J., DISSENTS.

Docket for Case No: 89-001184

Orders for Case No: 89-001184