STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY B. WALKER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5813

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 13, 1990, a formal administrative hearing was held in this case in Winter Haven, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Jack Emory Farley, Esquire

Department of Health and Rehabilitative Services

400 W. Dr. M. L. King, Jr., Blvd. Room 500

Tampa, Florida 33614 STATEMENT OF THE ISSUES

Whether the Petitioner abandoned her position and resigned from the State Career Service.

FINDINGS OF FACT

1. In September, 1989, Shirley B. Walker (Walker), was a clerk-typist in the Bartow office of the Respondent, the Department of Health and Rehabilitative Services (HRS), District 6, Subdistrict B, Children, Youth and Families, Child Protection Services.

   
   

2. Walker was absent on Tuesday, September 5, 1989, and had a friend call her supervisor to say that Walker would not be at work until Friday, September 8, 1989, due to a medical condition. Walker reportedly had been in an altercation with her husband over the Labor Day weekend and had been injured to the extent that her neck was in a brace. The supervisor, Patricia Lawler, asked that the friend give Walker the message that she would need to bring a doctor's excuse with her on her return to work.

   
   

3. Walker did not return to work on Friday, September 8, 1989. Walker did not give, or arrange for, any notification to her supervisor or anyone in the

   office that she would not be at work that day. Since Walker had no home telephone, and the telephone number of a relative that had been given to her supervisor as a means of contacting her at home was obsolete by September 8, Lawler asked office friends of Walker to go to Walker's home during the lunch hour to check on her well-being and find out why she was not at work. When they did, they found no one at home.

   
   

4. Walker also did not go to work on Monday through Friday, September 11 through 15, 1989. Again, she did not give, or arrange for, any notification to her supervisor or anyone in the office that she would not be at work. No one at the office knew anything further about Walker or why she was not at work from Friday, September 8 through Friday, September 15, 1989.

   
   

5. When Walker began her work at HRS, she was given an employee handbook, part of which clearly states: "If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned."

   
   

6. At approximately 4:45 p.m. on Friday, September 15, 1989, Lawler hand- delivered to Walker at Walker's home a letter notifying Walker that she was being terminated from her employment with HRS for the consecutive unexcused and unauthorized absences, which were viewed as an abandonment of her employment and a resignation from the State Career Service.

   
   

7. Although Walker asked for a formal administrative hearing on the question whether she had abandoned her position, neither she nor anyone on her behalf appeared at the hearing.

   
   

   CONCLUSIONS OF LAW

   
   

8. F.A.C. Rule 22A-7.01(2)(a) provides:

   
   

   An employee who is absent without authorized leave of absence for 3 consecutive work days 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.

   
   

9. HRS proved that the Petitioner abandoned her position, both under the terms of Rule 22A-7.010(2)(a) and as a matter of ultimate fact. The Petitioner presented no evidence in her own behalf. Cf. Tomlinson v. Dept. of Health and Rehab. Services, 15 F.L.W. D324 (Fla. 2d DCA 1990).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Administration enter a final order finding that the Petitioner, Shirley B. Walker, abandoned her position and resigned from the State Career Service.

RECOMMENDED this 1st day of March, 1990, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 1st day of March, 1990.

COPIES FURNISHED:

Shirley B. Walker 1050 Golfview Avenue

Apartment 803

Bartow, FL 33830

Jack Emory Farley, Esquire Department of Health and

Rehabilitative Services

400 W. Dr. Martin Luther King, Jr., Boulevard Room 500

Tampa, Florida 33614

Aletta Shutes Secretary

Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Augustus D. Aikens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Docket for Case No: 89-005813

Orders for Case No: 89-005813