STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERMIA REID, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6315

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on April 16, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Richard E. Lober, Esquire

Slesnick & Lober

10680 N.W. 25th Street Suite 202

Miami, Florida 33172

For Respondent: Julie Waldman, Esquire

Assistant District Legal Counsel

Department of Health and Rehabilitative Services

401 N.W. 2nd Avenue, S-424 Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether Petitioner abandoned her position of employment and resigned from the career service.

PRELIMINARY STATEMENT

At the times pertinent hereto, Petitioner was employed by the Respondent as a career service employee. By letter dated July 23, 1990, Respondent notified Petitioner that she had not reported to work since July 10, 1990, that she had abandoned her career service position, and that she had been deemed to have resigned from the career service. Petitioner timely challenged Respondent's determination, and this formal administrative proceeding followed.

At the formal hearing, Petitioner testified on her own behalf and introduced eight exhibits, each of which was accepted into evidence. Respondent presented the testimony of two witnesses. At the request of Respondent, Official Recognition was taken of Chapter 22-A, Florida Administrative Code.

No transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Hermia Reid, began her employment with Respondent, Department of Health and Rehabilitative Services (DHRS) on April 29, 1985. At the times pertinent to this proceeding, she was a registered nurse and held the career service position of Senior Registered Nurse Supervisor at the Landmark Learning Center, a DHRS facility. Petitioner had been given a copy of the DHRS Employee Handbook which contained the pertinent attendance and leave policies.

   
   

2. Petitioner was on authorized annual leave for a vacation from June 25, 1990 through July 10, 1990. She was scheduled to return to work on July 11, 1990. For her vacation, Petitioner traveled to the State of New York to visit relatives.

   
   

3. On July 1, 1990, Petitioner received injuries to her neck and back from an automobile accident. On July 2, 1990, Petitioner was examined by Dr. Victor Brooks, a physician whose office is in Yonkers, New York. Dr. Brooks determined that Petitioner required therapy and bed rest for three to four weeks.

   
   

4. On Friday, July 6, 1990, Petitioner telephoned Claude Sherman, her supervisor, and told him of her injuries and of her inability to return to work as scheduled. Petitioner requested an extension of her leave. Mr. Sherman verbally granted a one-week extension of her authorized leave on the condition that Petitioner send him a letter from her doctor.

   
   

5. On July 9, 1990, Petitioner returned to Dr. Brooks and received a note from him which he dated July 2, 1990, the date of the initial visit. This note provided in pertinent part as follows:

   
   

   The above named individual was in a motor vehicle accident and suffered neck and back injuries. Due to her present condition, it was decided that she should receive therapy and bed rest over a period of 3-4 weeks.

   
   

6. On July 10, 1990, Petitioner gave the note from Dr. Brooks dated July 2, 1990, to her brother and asked him to mail it to Mr. Sherman by certified mail, return receipt requested. On July 20, 1990, Petitioner became concerned that the receipt for the certified mailing had not been returned and asked her brother about the mailing. Petitioner learned that her brother had forgotten to mail the note. Petitioner's brother mailed the note dated July 2, 1990, to Mr. Sherman on July 21, 1991.

7. On July 30, 1990, Ulysses Davis and Mr. Sherman, as Superintendent and as Executive Nursing Director of Landmark, respectively, mailed to Petitioner at her home address in Miramar, Florida, a letter which had been dated July 23, 1990. This letter provided, in pertinent part, as follows:

   
   

   You have not called in or reported to work since July 10, 1990, and therefore you have abandoned your position as a Senior Registered Nurse Supervisor and are deemed to have resigned from the Career Service according to Chapter 22A-7.010(2)(a) of Personnel Rules

   and Regulations of the Career Service System. Your resignation will be effective on the date you receive this letter or on the date we receive the undelivered letter advising you

   of your abandonment.

   
   

8. At the time the letter of July 23, 1990, was mailed to Petitioner, the note from Dr. Brooks dated July 2, 1990, had not been received by Mr. Sherman. Because Mr. Sherman did not receive a doctor's note from Petitioner prior to July 23, 1990, he did not authorize her leave after her authorized annual leave expired on July 11, 1990. Dr. Brook's note dated July 2, 1990, was received by Landmark on or about August 2, 1990. 1/

   
   

9. The letter from Mr. Sherman and Mr. Davis was mailed to Petitioner by certified mail, return receipt requested. Daphney Gaylord, Petitioner's neighbor, received this mailing on Petitioner's behalf and signed the return receipt. Petitioner did not receive the letter, nor was she made aware of its contents, until August 15, 1990.

   
   

10. On July 27, 1990, Petitioner returned to Dr. Brooks and received another note which provided, in pertinent part, as follows:

    
    

    The above named was examined by me today and as a result, I am requesting a follow up visit in two weeks as she is not ready to return to work.

    
    

11. Dr. Brook's note of July 27, 1990, was mailed by certified mail to Mr. Sherman by Petitioner's brother on August 2, 1990, and was received by Mr. Sherman on August 6, 1990.

    
    

12. After visiting Dr. Brooks on July 27, 1990, Petitioner attempted to reach Mr. Sherman by telephone to advise him of her status. Mr. Sherman was not available so Petitioner talked with Mr. Sherman's wife. Mrs. Sherman also worked at Landmark, but she was not Petitioner's supervisor. Mr. Sherman was unaware that Petitioner had spoken with his wife.

    
    

13. On August 13, 1990, Dr. Brooks discharged Petitioner from his care and authorized her to return to work after she had visited her physician in Florida. Dr. Brook's note of August 13, 1990, provided, in pertinent part:

    
    

    As per previous notes and as per complete physical examination today it is my feeling that the above named can return to work after seeing her regular M.D.

14. On August 14, 1990, Petitioner returned to Florida.

    
    

15. On August 15, 1990, Petitioner was examined by Dr. Sylvia Cohn, a physician practicing in Pembroke Pines, Florida, who advised that Petitioner would be able to return to work on August 20, 1990.

    
    

16. Also on August 15, 1990, Petitioner met with Mr. Sherman at Landmark. Mr. Sherman advised Petitioner that her employment had been terminated, asked whether she had received his letter dated July 23, 1990, and advised her to talk with Thelma Olifant, Landmark's personnel director. Petitioner went home after unsuccessfully attempting to locate Ms. Olifant.

    
    

17. After she returned home on August 15, 1990, Petitioner contacted her neighbor, Ms. Gaylord, and received from her the certified letter from Mr. Sherman and Mr. Davis dated July 23, 1990.

    
    

18. Petitioner had no history of discipline concerning abuse of leave policies.

    
    

19. Petitioner did not intend to resign her position with the career service.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes. Although Petitioner indicated that she wished to preserve her right to do so, neither party has challenged the jurisdiction of the Division of Administrative Hearings even though this matter involves the termination of Petitioner's employment. Compare, Tomlinson v. Department of Health and Rehabilitative Services, 558 So. 2d 62 (Fla. 2d DCA 1990); and, Desilva v. Department of Transportation, 564 So.2d 216 (Fla. 4th DCA 1990).

    
    

21. Rule 22A-7.010(2), Florida Administrative Code, adopted by the Department of Administration, provides, in pertinent part, as follows:

    
    

    (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 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.

    
    

22. Rule 22A-7.010(2), Florida Administrative Code, creates a presumption that Petitioner abandoned and resigned her position by failing to report for work for three consecutive days without authorized leave. This presumption is rebuttable - it is not a conclusive presumption. Tomlinson v. Department of Health and Rehabilitative Services, supra, and Desilva v. Department of Transportation, supra. Respondent has established that this rebuttable

    presumption was triggered by Petitioner's unauthorized absence from work. Petitioner established that she was absent from her employment as a result of the injuries she sustained in the automobile accident, not because she intended to resign from her employment. Petitioner rebutted the presumption that she intended to resign from the career service case by the telephone conversation she had with Mr. Sherman on July 10, 1990, and by her subsequent attempts to keep him advised as to her status.

    
    

23. Petitioner is entitled to the reinstatement of her career service position with back-pay. See, Desilva v. Department of Transportation, supra.

RECOMMENDATION

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

not abandon her career service position and which orders that Petitioner be reinstated with back-pay to her career service position with the Department of Health and Rehabilitative Services.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of May, 1991.

CLAUDE B. ARRINGTON

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 16th day of May, 1991.

ENDNOTES

1/ The exact date of receipt was not established even though the note had been mailed by certified mail, return receipt requested because the return receipt was not properly completed by the Post Office.

APPENDIX TO RECOMMENDED ORDER

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1-14 and 16-19 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 15 and 20 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1-4 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 5 are adopted in part by the Recommended Order. The reference to the date of July 23, 1991, is rejected as being a typographical error. The proposed finding that Ms. Gaylord received the July 23, 1990, letter on July 30, 1990, is rejected as being unsubstantiated by the evidence.

COPIES FURNISHED:

Richard E. Lober, Esquire Slesnick & Lober

10680 N.W. 25th Street Suite 202

Miami, Florida 33172

Julie Waldman, Esquire

Assistant District Legal Counsel Department of Health and

Rehabilitative Services

401 N.W. 2nd Avenue, S-424 Miami, Florida 33128

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris

Acting General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John A. Pieno Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Linda Stalvey

Acting General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 90-006315

Orders for Case No: 90-006315