STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIOLA D. COOPER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3538

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on October 6, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Elizabeth Judd-Edwards

Assistant Regional Director 2171 Northwest 22nd Court Miami, Florida 33142

For Respondent: Julie Waldman

and

Caridad Planas, Esquire

401 Northwest 2nd Avenue, 5-424 Miami, Florida 33128

STATEMENT OF THE ISSUES

Whether the Petitioner was absent from work without authorization for three consecutive workdays so that she is deemed to have abandoned her position and to have resigned as a Career Service employee.

PRELIMINARY STATEMENT

By letter dated May 11, 1989, Respondent advised Petitioner that she was deemed to have resigned from the Career Service System by abandoning her position by virtue of her having been absent without authorization for three consecutive workdays, and Petitioner timely requested a formal hearing regarding that determination. The matter was referred to the Division of Administrative Hearings for appointment of a Hearing Officer and the conduct of formal proceedings.

The Petitioner Viola D. Cooper testified on her own behalf and presented the testimony of Emma Walker. Additionally, Petitioner's Exhibit numbered 1 was admitted in evidence.

Respondent presented the testimony of Elaine Olson, Barbara Butler, Edward Dixon, and Ethel Smalls. Additionally, Respondent's Exhibits numbered 1-10 were admitted in evidence.

Both parties filed post-hearing proposed findings of fact. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner Viola D. Cooper began her employment with Respondent Department of Health and Rehabilitative Services on October 19, 1987. She held the position of Support Service Aide at the Landmark Learning Center in Opa Locka, Florida. When she was hired, she was given a copy of the Department's Employee Handbook which contains attendance and leave policies. She signed a receipt for the handbook which acknowledged that she understood it was her responsibility to review the handbook in detail.

   
   

2. On several occasions, Petitioner was counseled by her immediate supervisor regarding the proper procedures to follow when Petitioner would be late reporting to work and when Petitioner wanted to use some of the leave time available to her. Additionally, on August 8, 1988, Petitioner received a written reprimand from her supervisor for being absent from work without authorized leave. That written reprimand recited that Petitioner was scheduled to work on July 5, 1988, and that she failed to come to work and failed to call. She was, accordingly, assessed eight hours of leave without pay for that particular day and was advised that a future violation of absence without authorized leave would result in disciplinary action ranging from a 10-day suspension to dismissal. She was further reminded in that written reprimand that she was required to request leave when she was going to take time off from work.

   
   

3. On May 3, 1989, Petitioner advised her then supervisor Barbara Butler that she intended to take off some time to visit her sick mother, that she did not know exactly when she would be doing that, and that she did not know how long she would be gone. She told Butler she did not want to use any of her annual leave (vacation) time available to her; instead, she wished to take leave without pay so as to not use her annual leave time for that purpose. Her supervisor again advised her as to the proper procedures and further advised her that if she wished to take leave without pay such a request must be presented in writing in advance to Edward Dixon, the Food Service Director at Landmark. Petitioner understood the instructions given to her by Butler. She advised Butler that she would attempt to finish working the rest of that week but that if she found out that she needed to go even in the middle of the night, she would do so.

   
   

4. Petitioner worked May 4 and May 5, 1989. During the time period of May

   3 when Butler advised her to follow the proper procedures and informed her, once again, as to what the proper procedures were, through May 5, her last day of work, Petitioner submitted no request for leave to her supervisor and made no request of Dixon for authorized leave without pay.

   
   

5. Petitioner was not scheduled to work on May 6 and 7, a Saturday and a Sunday.

   
   

6. From Monday, May 8, 1989, through Thursday, May 11, 1989, Petitioner failed to report to work. Petitioner had not requested that she be permitted to

   take leave from her work assignment, and no authorization had been given to her by anyone to not report for work on those days. Butler advised Dixon that Petitioner had stated that she might be taking time off to visit her mother, and Dixon's subsequent attempt to contact Petitioner to ascertain why she had failed to report to work for four consecutive days was unsuccessful.

   
   

7. By certified letter dated May 11, 1989, Dixon and Ulysses Davis, Superintendent at Landmark Learning Center, advised Petitioner that she had not called in or reported to work on May 8 through May 11 and, therefore, she had abandoned her position and was deemed to have resigned from the Career Service. They further advised Petitioner that her resignation would be effective on the date she received the letter or on the date that they received the undelivered letter directed to her.

   
   

8. Petitioner received that letter on May 19, 1989. Between May 8, 1989, and May 19, 1989, Petitioner had made no contact with anyone at Landmark Learning Center. By May 19, 1989, Petitioner had been absent without leave for

   10 consecutive workdays.

   
   

9. On May 19, Petitioner appeared at Landmark Learning Center to pick up her pay check. Although she went to the food service area while she was at Landmark, she did not speak to Butler, Dixon, or anyone else regarding her lengthy unauthorized absence or her failure to request leave in advance of failing to appear for work. Similarly, she failed to speak to anyone in Landmark's personnel office regarding her failure to request leave time.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

11. Rule 22A-7.010(2), Florida Administrative Code, provides as follows:

    
    

    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.

    
    

    Petitioner was absent without authorized leave for 10 consecutive workdays, and the Department correctly advised her on the fourth day that her absence for three consecutive workdays constituted abandonment of her position by operation of law resulting in her resignation from the Career Service System.

    Petitioner's reason for her unauthorized absence -- that she had to visit her sick mother in Georgia -- is irrelevant.

    
    

12. The thrust of Petitioner's evidence at hearing was that her oral advice to her supervisor that she would be taking some time off was sufficient and that it was her supervisor's responsibility to request time off for her and was not Petitioner's responsibility. As to the oral request for leave, there was no oral request to take time off for any specific number of days or on any specific dates. Further, there is no provision in the Department's rules and regulations or those of the Department of Administration for oral requests for leaves of absence. Rather, the rules and regulations are clear that all requests for leave must be submitted in writing in advance. Further, Petitioner was specifically advised by her supervisor Barbara Butler that her desire for

    taking leave of absence without pay must be specifically requested from Mr. Dixon in writing in advance. Petitioner simply failed to follow the proper procedures although she had been instructed regarding those procedures verbally on a number of occasions and had even received a written reprimand previously for failing to follow the same procedures.

    
    

13. Petitioner has failed to prove any basis for her argument that it was her supervisor's responsibility to request time off for her and not her own responsibility. In support of her argument, Petitioner testified that her supervisors usually filled out her time sheets for her. Her supervisors admitted at the final hearing that they frequently did so when she would come to them and ask them to help her fill in her time sheets because her handwriting was sloppy. Her supervisors' attempts to be helpful to her do not make her responsibility their own.

    
    

14. Similarly, Petitioner argues that her supervisors and Landmark Learning Center in general fail to follow Department procedures for leave requests since they had not previously required her to initial every request for leave in advance and had failed to always date her leave requests in the space for the affixed signatures approving those requests. An examination of the documents admitted in evidence reveals that Petitioner's argument is without merit. Most of the leave requests referred to by Petitioner were actually occasions when she would report to work late without calling first to say that she would be tardy, a situation in which her supervisors would be required to "dock" her for that time. Instead, her supervisors would credit her with some of her leave time for those small time periods in order that they would be able to pay her for them. Further, it is true that her supervisors neglected to date their own signatures on prior approvals of leave which appeared on the back of her timesheets. However, her supervisors testified that they dated the fronts of the timesheets instead of the backs, and an examination of the documents reveals that is true. Even if her supervisors' failure to date approvals of leave requests on the back of the form as well as on the front of the form constitutes a failure to follow Department policies on their own behalf, such dereliction is irrelevant to whether Petitioner failed to follow other procedures of which she had been specifically directed orally on a number of occasions and also in writing when she received the written reprimand for her earlier failure to follow the identical procedures.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner was

absent without authorized leave for three consecutive workdays and is therefore

deemed to have abandoned her position and to have resigned from the Career Service.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of December, 1989.

LINDA M. RIGOT

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 19th day of December, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3538

1. Petitioner's proposed findings of fact contained in her paragraphs numbered 1-3 have been rejected as being contrary to the evidence in this cause.

2. Respondent's proposed findings of fact numbered 1-4, and 7 have been adopted either verbatim or in substance in this Recommended Order.

3. Respondent's proposed finding of fact numbered 5 has been rejected as being contrary to the evidence in this cause.

4. Respondent's proposed finding of fact numbered 8 has been rejected as not constituting a finding of fact but rather as constituting recitation of the testimony.

COPIES FURNISHED:

Elizabeth Judd-Edwards Assistant Regional Director 2171 Northwest 22nd Court Miami, Florida 33142

Julie Waldman and

Caridad Planas, Esquire

401 Northwest 2nd Avenue 5-424

Miami, Florida 33128

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, General Counsel 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

Augustus D. Aikens, Jr., General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Aletta L. Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 89-003538

Orders for Case No: 89-003538