STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARA HOBBS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3257

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on October 16, 1989 in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: No appearance FOR RESPONDENT: John R. Perry

Assistant District Legal Counsel

HRS District 2 Suite 200-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUES

Whether or not Petitioner may be presumed, pursuant to Rules 22A- 7.0l0(2)(a) and 22A-8.002(5)(a)3 F.A.C. to have abandoned her position and resigned from the State of Florida Career Service System.

PRELIMINARY STATEMENT

Upon due notice, this cause came on for formal hearing on October l6, 1989.

Petitioner Hobbs did not appear. The Respondent Department of Health and Rehabilitative Services was instructed to establish a prima facie case of abandonment. HRS presented the oral testimony of Shirley Greggly, Registered Nurse Supervisor at Florida State Hospital, Chattahoochee, and had four exhibits admitted in evidence.

HRS also had filed return of service of a subpoena to testify with regard to Daniel Bontrager, D.C., and Dr. Bontrager had failed to appear. Upon unopposed motion of HRS, formal hearing was continued pending filing, within 30 days, of the transcribed deposition of the missing witness, Dr. Bontrager.

Petitioner Hobbs was subsequently noticed for Dr. Bontrager's deposition, but she did not appear. The deposition went forward and was transcribed. The

transcription was filed with the Division of Administrative Hearings on November 16, 1989, and HRS simultaneously rested its case-in-chief.

By an order entered November 29, 1989, Petitioner Hobbs was given the opportunity to show cause why she should be permitted to present any testimony or exhibits. Petitioner did not timely show cause why she should be so permitted, and, accordingly, the record was closed by Order entered herein on December 14, 1989.

All timely filed proposed findings of fact have been ruled upon, pursuant to Section 120.59(2) F.S. in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner started working for Florida State Hospital, a residential facility owned and operated by HRS, on August 8, 1986.

   
   

2. On June 22, 1987, Petitioner was assigned to Unit 14, at Florida State Hospital, a unit which treated geriatric mentally ill patients. In that assignment, Petitioner's immediate supervisor was Senior Registered Nurse Supervisor Shirley Greggly.

   
   

3. It is an established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays.

   
   

4. During her employment, Petitioner had been a less-than-exemplary employee with regard to absenteeism, tardiness and timely notification and had been counselled prior to April 1989 that she should make contact with the Hospital within seven minutes of the time she was due on shift if an absence was necessary.

   
   

5. Only after review of such contact initiated by an employee can a superior determine to approve or disapprove the requested leave. If no contact were initiated by the employee, it was Ms. Greggly's standard procedure to attempt to initiate contact herself with the missing employee.

   
   

6. Failure of an employee to notify Ms. Greggly or delayed notification of Ms. Greggly by an employee creates great hardship for the patients who may receive delayed care as a result, and also it creates considerable administrative turmoil for Ms. Greggly in rounding up a substitute employee.

   
   

7. Petitioner had been disciplined with a ten-day suspension in September 1988 for failure to notify. She had received a prior written reprimand for absence without authorized leave in June 1988 and an oral reprimand for excessive absenteeism in December 1987. Petitioner had been frequently counselled in regard to these shortcomings.

   
   

8. During the first few months of 1989, Petitioner was absent from work due to a work-related injury and, if not already filed, a workers' compensation claim pursuant to Chapter 440 F.S. was at least imminent. Petitioner's primary treating physician was Daniel Bontrager, D.C. By April 1989, Dr. Bontrager had determined that Petitioner could return to light duty work.

9. On April 7, 1989 and again on April 13, 1989, Dr. Bontrager orally informed Petitioner that she could return to light duty work as of April 17, 1989. On April 13, 1989, Ms. Hobbs stated that she would not return to work. Dr. Bontrager communicated his advice to the Hospital.

   
   

10. The best diagnostic evidence obtainable by Dr. Bontrager indicated that there was no valid medical reason why Petitioner could not return to work.

    
    

11. Ms. Greggly expected Petitioner back at work on April 17, 1989. From that date until April 28, 1989, when Petitioner was deemed to have abandoned her position, Petitioner initiated no contact with her employer or Ms. Greggly, and therefore no leave was authorized for her.

    
    

12. On the dates between April 17, 1989 and April 28, 1989, inclusive, Petitioner neither appeared at work nor informed the hospital that she was going to be absent. This period constitutes in excess of three consecutive workdays of absence without approved leave.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause. See Section 120.57(l) F.S.

14. The governing rules provide, respectively, as follows: 22A-7.010(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 of 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.

    and

    
    

    22A-8.002(5)(a)

    When prior approval cannot be obtained by the employee due to such emergencies, the agency head shall take one of the following actions:

    * * *

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

    
    

15. It has been clearly demonstrated that Petitioner may legitimately be presumed, pursuant to the foregoing rules, to have abandoned her position and resigned from the Career Service.

RECOMMENDATION

Upon the foregoing Findings and Fact and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order ratifying its previous presumption that Petitioner has abandoned her position and resigned from the Career Service.

DONE and ENTERED this 4th day of January, 1990, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 4th day of January, 1990.

APPENDIX TO RECOMMENDED ORDER

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF):

Petitioner's PFOF:

None filed.

Respondent' PFOF:

COPIES FURNISHED:

Larry D. Scott, Esquire Department of Administration Office of the General Counsel

435 Carlton Building Tallahassee, Florida 32399-1550

Ms. Clara Hobbs Route l, Box 186B

Sneads, Florida 32460

John R. Perry, Esquire Department of Health and

Rehabilitative Services Suite 200-A

2639 North Monroe Street Tallahassee, Florida 32303-4082

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Aletta L. Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 89-003257

Orders for Case No: 89-003257