vs. ) CASE NO. 90-2049
Respondent. )
Pursuant to notice, a formal hearing was conducted in this case on October 3, 1990, in Miami, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.
The issue in this case is whether Carolyn Pittman abandoned her career service employment with the Department of Health and Rehabilitative Services pursuant to Rule 22A-7.010, Florida Administrative Code.
By letter dated January 26, 1990, the Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as "HRS" or the "Department",) informed the Petitioner, Carolyn Pittman, that she was deemed to have abandoned her position of employment with the Department pursuant to Rule 22A-7.010, Florida Administrative Code. On March 2, 1990, Ms. Pittman filed an undated letter with the Department of Administration contesting the determination and requesting a review of HRS' action. On March 29, 1990, the Secretary of the Department of Administration issued an Order Accepting Petition and Assignment to the Division of Administrative Hearings. The Division of Administrative Hearings noticed and conducted a formal hearing pursuant to Section 120.57, Florida Statutes.
At the formal hearing, Ms. Pittman testified on her own behalf and offered seven exhibits into evidence. All of those exhibits were accepted into evidence. Respondent's objections to the hearsay contents of Petitioner's Exhibits 1 and 4 have been noted. The exhibits have been considered in accordance with Section 120.58(1)(a), Florida Statutes. In addition, Petitioner's Exhibit 7 consisted of notes purportedly prepared by Dr. Kaplan which were allegedly submitted by Petitioner to her supervisors. Those notes were not properly authenticated as having been prepared by Dr. Kaplan.
Therefore, Exhibit 7 was accepted only for the purpose of establishing the documents that were submitted by Petitioner to her supervisors.
Respondent presented the testimony of Elaine Olson, a personnel technician with Landmark Learning Center, ("Landmark") where Petitioner worked and which is operated by the Department. The Respondent offered five exhibits into evidence, all of which were accepted. Respondent's Exhibits 1 and 3 consist of hearsay statements which have been considered in accordance with Section 120.58(1)(a), Florida Statutes.
At the outset of the hearing, Respondent renewed a previously filed motion to dismiss this proceeding on the grounds that Petitioner's request for an administrative hearing was not timely filed. As set forth in an Order entered on August 29, 1990 by Hearing Officer Michael Parrish, ruling on the Motion to Dismiss had been deferred until after the formal hearing in this case in order to allow the parties an opportunity to present evidence on the issues raised in the Motion. At the hearing, both parties were permitted an opportunity to present facts regarding this Motion. Facts relevant to the Motion are included in the Findings of Fact below.
At the hearing, Petitioner did not have copies of her exhibits. At the conclusion of the hearing, she was granted leave to submit copies of her exhibits by mail. By letter dated October 11, 1990 and filed with the Division of Administrative Hearings on October 15, 1990, the Petitioner submitted a summary of her position in this case as well as copies of some of the documents that had been identified at the hearing as exhibits. One document identified at the hearing as part of Petitioner's Exhibit 7 was not included in the transmittal. That document was a handwritten note purportely prepared by Dr.
Kaplan on December 4, 1989. The unavailability of that document does not alter the facts or conclusions reached in this Recommended Order. A Notice of Exparte Communication was entered on October 19, 1990 regarding Petitioner's transmittal. No objections or further documentation were submitted by Respondent subsequent to this Notice.
A transcript of the proceeding has been filed. At the conclusion of the hearing, the parties agreed upon a schedule for filing proposed recommended orders. Aside from the letter from Petitioner which is discussed above, no post-hearing submittals have been received from either party. Petitioner's
letter contains a mixture of alleged facts and argument on those facts. Because proposed findings of fact can not be isolated, no specific ruling is made on the contents of that letter.
Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made.
Petitioner, Carolyn Pittman, is a single mother with three children.
At all times pertinent to this proceeding, Petitioner was employed by HRS at the Landmark Learning Center ("Landmark") as a Human Service Worker I. Petitioner began working at Landmark beginning sometime around 1980.
By certified letter dated January 26, 1990, Respondent advised Petitioner that she was deemed to have abandoned her career service position. That letter advised Petitioner that she had the right to petition the State Personnel Director for a review of the case and that any such petition for review had to be filed within twenty calendar days after the receipt of the letter. The return receipt for the certified letter was signed by Petitioner and indicates the letter was delivered on February 2, 1990.
Petitioner's handwritten request for a hearing was sent to the State Personnel Director and received on March 2, 1990. In her request, Petitioner indicates that she received the certified letter on February 14, 1990. However, the greater weight of the evidence established that the letter was received on February 2, 1990. Therefore, the request was not timely filed in accordance with the requirements set forth in the certified letter.
On March 29, 1990, the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings. That Order states that "This agency accepts the Petition and hereby elects to request the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct a fact finding hearing in this matter. The issue for resolution will be whether or not the Petitioner abandoned her position and is properly deemed to have resigned from the Career Service."
During the time she was employed at Landmark, Petitioner was presented with a copy of the HRS Employee Handbook. That Handbook advised employees that they could be deemed to have abandoned their position if they were absent for three consecutive work days without authorization.
While employed at Landmark, Petitioner has filed at least seven separate workmen's compensation claims. In addition, Petitioner has taken three leaves of absences totaling approximately one year. As a result, Ms. Pittman was aware of Landmark's requirements regarding workmen's compensation claims and leaves of absence and her need to provide documentation regarding her course of treatment to the Landmark Personnel Office.
On September 25, 1989, Petitioner was injured while at work. Petitioner was helping a nurse with a client and claimed to have sustained a back and/or neck injury. She was transported by ambulance to Palmetto General Hospital where she was examined and released. Petitioner was not required to stay over night at the hospital.
Whenever an accident occurs at Landmark involving one of the employees, the employee is referred by the Personnel Office to a physician who is on an approved list of doctors established by the Division of Risk Management. In the
case of a unique injury or special need, the administrative staff will request permission from the Division of Risk Management to use another physician. On September 27, 1989, Petitioner was sent by the Landmark Personnel Office to a Medical Clinic, the Worker's Compensation Medical Center, for follow-up treatment.
At the Worker's Compensation Medical Center, Petitioner was diagnosed as having a strain of the neck and back. She was given a neck collar, a prescription for drugs and advised to rest in bed.
After two weeks, Petitioner claimed there was no improvement in her condition. On October 11, 1989, the Landmark Personnel Office staff scheduled an appointment for Petitioner with an orthopedist, Dr. Steven Nadler.
Petitioner visited Dr. Nadler on October 17, 1989. After examining the patient, Dr. Nadler issued a report dated October 23, 1989. Dr. Nadler's report was sent to the Personnel Office at Landmark. Dr. Nadler found no spasm, no limitations, excellent range of motion, no neurological deficit, no fractures or dislocation and no signs of root irritation. The closing comment on Dr. Nadler's report states as follows:
It appears at this time that Ms. Pittman has sustained a soft tissue injury to the neck and possibly the lower back at the time of her accident in September of this year. At this time I find no evidence of neurologic deficit or signs of nerve root irritation on examination today. I find no objective findings to go along with her subjective complaint and is [sic] also interesting to know [sic] that merely touching of her skin causes her to complain of pain which is sometimes seen in patient's [sic] who are exaggerating their symptoms. I feel at this point that no treatment is needed from an orthopedic point of view. I would recommend that she return to her regular activities and work. I do not feel she has sustained any permanent disability from this injury.
After seeing Dr. Nadler, Petitioner requested a neurological examination. Because none of the previous treating physicians had found a need for a neurological consult, the Landmark Personnel Office initially denied Petitioner's request. However, the Personnel Office did offer to send Petitioner to a chiropractor or another orthopedist. One of the reasons for agreeing to send Petitioner to another doctor was to confirm whether a neurological examination was necessary. The Personnel Office scheduled an appointment for Petitioner with another orthopedic specialist, Dr. Kerness, on November 2, 1989. However, Petitioner did not keep this appointment.
After missing her appointment with Dr. Kerness, Ms. Pittman arranged on her own to see another orthopedic physician, Dr. Bermann. Dr. Bermann called for authorization to see the patient on November 3, 1989. Although Dr. Bermann was not on the Division of Risk Management's list of approved physicians, Landmark agreed to pay him for his treatment of the Petitioner. Dr. Bermann provided Petitioner with a slip indicating she should not work until November 10, 1989, after he was scheduled to see her. That slip was provided to the
Personnel Office. Petitioner was advised that she was required to provide the Personnel Office with documentation regarding her work status after that visit. Petitioner was also advised that she was required to keep her supervisor and the Personnel Office apprised of why she was not at work and that her reports should include a medical statement from an authorized physician.
On November 9, 1989, Dr. Bermann put Petitioner on a therapy program for two weeks and advised her not to return to work. After Petitioner completed therapy, Dr. Bermann approved her return to work on a light-duty status.
Petitioner returned to work on December 1, 1989. Petitioner was assigned to light duty work in the card shop pasting greeting cards together. After working for four days, Petitioner complained that she was unable to continue and left work on December 5, 1989.
Petitioner returned to Dr. Bermann on December 7, 1989. At the end of that visit, Dr. Bermann provided her with a note that indicated she was not to return to work until she returned to see him again on Friday, December 29, 1989. That note was provided to the Landmark Personnel Office.
Prior to the Petitioner's visit to Dr. Bermann on December 29, 1989, Elaine Olson, a personnel technician with Landmark, contacted Dr. Bermann. Dr. Bermann agreed to provide Ms. Olson with documentation as to Petitioner's ability to return to work after her next visit.
The Petitioner was seen by Dr. Bermann on December 29, 1989. In his report regarding that visit, Dr. Bermann noted "[f]rom the orthopedic point of view, patient can return to work on a trial basis. However she wants to see what the consultant will say." This report was sent to the Personnel Office.
Petitioner denies ever receiving a copy of Dr. Bermann's December 29, 1989 report indicating that she could return to work and there is no evidence indicating that she was provided with a copy of that report.
Although Dr. Bermann indicated that he saw no reason why Petitioner could not return to work, he requested permission from Landmark to refer her to a neurologist, Dr. Bader, to confirm his findings. Dr. Bader was not on the list of approved physicians prepared by the Division of Risk Management. However, Landmark arranged for authorization of Dr. Bader's treatment of Petitioner.
On January 9, 1990, Elaine Olson advised Petitioner that she had received the report from Dr. Bermann indicating that she was able to return to her job as of December 29. Ms. Olson was aware that Petitioner had an appointment with Dr. Bader scheduled for the next day. Ms. Olson advised Petitioner that if Dr. Bader did not find anything wrong with her, Petitioner would be removed from Workmen's Compensation and placed on unauthorized leave without pay and therefore could be subject to abandoning her position. Petitioner indicated that she intended to see another doctor whose name was not disclosed. Ms. Olson advised her that no other doctor had been approved and that Petitioner would be responsible for paying any other physician that she saw.
Dr. Bader saw the Petitioner on January 10, 1990. Following his examination of the patient, Dr. Bader advised Elaine Olson that he did not find any neurological problems with the Petitioner and that her complaints were inconsistent with her report of the accident. Dr. Bader indicated that he saw no neurological reasons why she should not be working, but that it was Dr. Bermann's role to decide when the patient could return to work.
Although Dr. Bader did not find anything wrong with her, Petitioner did not return to work on January 11 nor did she obtain authorization from her supervisors or provide any documentation to them regarding her absence on that date.
Beginning on January 11, 1990, Petitioner's absence from work was treated by Respondent as unauthorized leave without pay. From January 11 through January 26, 1990, Petitioner did not return to work and did not provide any documentation from any doctor stating that she was unable to work. Between January 10 and January 26, 1990, Ms. Olson attempted to contact Petitioner without success.
On January 26, 1990, Petitioner prepared its letter to Petitioner indicating that she was deemed to have abandoned her position.
Petitioner contends that she did not return to work because she never received a note from Dr. Bermann advising her that she should return to work. She claims that she thought she was supposed to return to Dr. Bermann after seeing the neurologist. The evidence established that Petitioner was advised that she was to return to work on January 11, 1990 unless Dr. Bader provided a report indicating that she was unable to work. Petitioner was also advised that her failure to return to work or provide medical authorization for her absence would result in her being considered absent without authorization.
There is some indication that Petitioner may have been seen at the Worker's Compensation Medical Center and by Drs. Nadler and Bermann on occasions other than those detailed above. However, no persuasive evidence was introduced to establish the dates and/or results of those visits. More importantly, Petitioner never provided any additional documentation to the Personnel Office that her physicians had advised her not to return to work.
At the hearing, Petitioner provided a handwritten note dated January 18, 1990 that indicates it is "from the desk of Dr. Stuart A. Kaplan." Dr. Kaplan is a chiropractic physician to whom Petitioner was apparently referred by her attorney. That note states that Petitioner had been receiving treatment from December 7, 1989 to January 18, 1990 and that she been unable to work due her back condition.
Petitioner also produced at the hearing a type written note on the stationary of Dr. Kaplan dated January 26, 1990. This second note states that Dr. Kaplan began treating Petitioner in October and that she was still unable to work due to her condition. Neither of these notes were properly authenticated and there is no evidence to establish who wrote them or when. Dr. Kaplan did not testisfy at the hearing.
Dr. Kaplan is not on the Division of Risk Management's approved physician list. Petitioner's visits to Dr. Kaplan were not approved by Landmark and Landmark had previously advised Dr. Kaplan that it would not be responsible for payment of his fees. No records of Dr. Kaplan's treatment of Petitioner were provided to the Personnel Office prior to February, 1990.
Petitioner contends that she provided the Personnel Office and/or her supervisors with a copy of Dr. Kaplan's reports prior to receiving the January 26, 1990 certified letter. However, the more creditable evidence established that from January 10 through at least January 26, 1990, the Personnel Office was not provided with any documentation from any physician that Petitioner was unable to work.
On February 21, 1990, Petitioner attempted to return to work, but was instructed that she was deemed to have abandoned her position.
On her February 21, 1990 visit to Landmark, Petitioner presented her supervisors with a form from Dr. Bermann's office which indicates that she was approved to return to work on a trial basis. This form was dated February 19, 1990. Petitioner contends that she had never previously received a "return to work slip" by Dr. Bermann. However, the evidence established that she was alerted at least by January 9, 1990, that Dr. Bermann did not believe she needed to stay home from work and that Dr. Bermann had cleared her to begin work as of December 29, 1989. In order for her absence from work subsequent to January 10, 1990 to be justified, Petitioner knew that she had to provide a physician's report indicating that she could not work. Petitioner did not present any further documentation to justify her refusal to return to work until some time after January 26, 1990. Even then, the only documentation was from an unapproved chiropractor.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).
Ms. Pittman has been treated as having abandoned her employment with the Department because of her failure to report to work on three consecutive work days beginning January 11, 1990. The Department treated Ms. Pittman as having abandoned her employment pursuant to the authority of Rule 22A- 7.010(2)(a), Florida Administrative Code, which provides in pertinent part:
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.
Rule 22-A-7.010, Florida Administrative Code, was adopted pursuant to Section 110.217(6), Florida Statutes.
Section 110.227, Florida Statutes, provides that any employee who has "permanent status in the Career Service may only be suspended or dismissed for cause." "Dismissal" is defined in the Chapter as "the action taken by an agency against an employee to separate him (or her) from the Career Service." Section 110.203(22), Florida Statutes. Other than by voluntary termination on the part of the employee, a Career Service employee may not be terminated unless dismissed for just cause.
The Rule creates a presumption that an employee who is absent from his or her job for more than three days has voluntarily given up his or her job.
The Rule is intended to strike a "fair balance" between "swift replacement of ineffective public employees," and "job security and retention." Hadley v.
Department of Administration, 411 So.2d 184 (Fla. 1982). Additionally, the Rule is intended to establish a point in time when an employer can assume that an employee is not returning to work. Cook v. Division of Personnel, Department of Administration 356 So.2d 356 (Fla. 1st DCA 1978). "The state and public ... have an interest in replacing public employees that do not work." Hadley, supra, at 188.
There is some authority for the position that abandonment involves an intent to abandon, i.e. the employee intends to leave his or her employment. See, (e.g.) Board of Regents v. Heuer, 332 So.2d 626 (Fla. 1st DCA 1976) (decided under an earlier version of the statute); Engel v. State Department of Transportation, 341 So.2d 1020 (Fla. 3d DCA 1977). However, it is clear that an employee's actions can prevail over a subsequent disclaimer of an intent to abandon. See, Hadley v. Department of Administrtion, supra.
The evidence in this case estabished that, after being notified to report to work on a date certain, unless the neurologist found something wrong with her, the Petitioner failed to comply. She also failed to obtain approved for her absence for more than three consecutive days from January 11, 1990 forward. While Petitioner contends that she did not deliberately intend to abandon her position, her actions speak louder than her words. See, Hadley, supra. As early as October, Dr. Nadler indicated that he saw no reason why Petitioner could not return to work. Nonetheless, the Respondent authorized Petitioner to see several other physicians to confirm these findings. None of these physicians could find any reason why Petitioner could not return to work after December 29, 1990. The Respondent was extremely patient in attempting to assure that Petitioner was not required to return to work too soon. However, the evidence indicates that Petitioner was attempting to take advantage of the situation. Even though Petitioner was advised that she was expected to return to work on January 10, 1990 if the neurologist did not find any additional problems, Petitioner chose not to return. The Respondent was justified in treating this decision as an abandonment of her position. Cf., Desilva v. Department of Transportation, 15 FLW D2809 (Fla. 4th DCA, July 11, 1990) (authorized treating physician testified that employee was unable to work; therefore, the presumption of abandonment was rebutted.)
As indicated above, the presumption created by Rule 22A-7.010, Florida Administrative Code, is a rebuttable one. One way to overcome the presumption of Rule 22A-7.010, Florida Administrative Code, is for an employee to prove that there was some reasonable basis for the employee's failure to obtain authorization for his or her absence. See, Tomlinson v. Department of Health and Rehabilitative Services, 558 So.2d 62 (Fla. 2nd DCA 1990). Given the unequivocal instruction by Ms. Olsen to Petitioner on January 9, 1990, no such reasonable basis was proven in this case. Ms. Pittman' actions in failing to obtain authorization for her absence from work beginning on January 10, 1990, constitutes an abandonment of her position. Unlike the employee in Tomlinson, Ms. Pittman failed to prove there was a reasonable basis for her failure to obtain authorization for her absence.
Although her presentation was somewhat confusing, it appears that one of Ms. Pittman's arguments is that her absence was authorized. The evidence failed to support this contention. The only evidence in support of Ms. Pittman's position was her own testimony. In this regard, that testimony was contradicted by the testimony of Ms. Olsen. The testimony of Petitioner is rejected and Ms. Olsen's testimony is credited.
In conclusion, it is noted that the evidence established that on February 2, 1990, the Petitioner received the notification that she was deemed to have abandoned her position. In accordance with the terms of that notification, Petitioner was required to request a hearing within twenty days from receipt. Petitioner's request for hearing as not received until March 2, 1990. Thus, her request for a hearing was not timely filed. The untimeliness of the request provides an independent basis for dismissing the Petitioner's request. See, Hadley v. Department of Administration, 411 So.2d 184 (Fla. 1982).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order
denying Carolyn Pittman's challenge to the determination that she abandoned her position of employment with the Department and dismissing the petition in this case with prejudice.
DONE and ENTERED this 4th day of February, 1991, at Tallahassee, Florida.
J. STEPHEN MENTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1991.
William A. Frieder, Esquire Senior Attorney
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
