STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

CAROL D. WHEELER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2364

) 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 July 24, 1991, in Miami, Florida, and on October 8, 1991, at South Florida State Hospital, Pembroke Pines, Florida.

APPEARANCES

For Petitioner: Carol D. Wheeler, pro se (No appearance was 5450 Flagler Street

made by Petitioner Hollywood, Florida 33021 at either formal

hearing.)

For Respondent: Colleen A. Donahue, Esquire

Department of Health and Rehabilitative Services

201 W. Broward Boulevard Suite 513

Fort Lauderdale, Florida

33301

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

Petitioner was employed by Respondent at South Florida State Hospital (SFSH) in a career service position. Following her unexplained and unauthorized absence from work for more than three days, Respondent notified Petitioner that she was presumed to have abandoned her position of employment and that she was presumed to have resigned from the career service. Petitioner timely protested Respondent's action and this proceeding followed.

On May 24, 1991, a Notice of Hearing was entered which scheduled the formal hearing in this proceedings at the Dade County Courthouse for July 24, 1991. A copy of this Notice of Hearing was mailed to Petitioner at the address that she had given in her letter requesting a formal hearing and a formal hearing was conducted on July 24, 1991, pursuant to that Notice of Hearing. No appearance was made by Petitioner at the formal hearing, although efforts were made to reach Petitioner by telephone and the start of the hearing was delayed to determine whether Petitioner would arrive late. At the hearing of July 24, 1991, Respondent elected to proceed with the presentation of its case and presented the testimony of Carmella Walsh, a Senior Registered Nurse Supervisor at SFSH, and of Laverne Bagle, a secretary at SFSH. DHRS also introduced five exhibits, each of which was accepted into evidence.

On August 21, 1991, the Petitioner filed a letter addressed to the undersigned Hearing Officer which was construed by the undersigned as being a motion to reopen the hearing. This letter followed a telephonic hearing during which Petitioner asserted that she had not received Notice of Hearing in this proceeding because she had been evicted from her apartment. A hearing was held on Petitioner's motion on September 6, 1991, in Fort Lauderdale, Florida, with both parties being present. Following the hearing, the undersigned entered the "Order Granting Motion to Reopen Hearing and Amended Notice of Hearing" on September 12, 1991. That order rescheduled the hearing, and notified the parties that the rescheduled hearing would be conducted at South Florida State Hospital on October 8, 1991.

Prior to the hearing of October 8, 1991, Respondent filed "Agency's Election Pursuant to Amended Notice of Hearing", which elected to treat the testimony presented at the hearing held July 24, 1991, as pre-filed evidence pursuant to Rule 22I-6.015(4), Florida Administrative Code. Respondent hand delivered to Petitioner a copy of the Order Granting Motion to Reopen Hearing and Amended Notice of Hearing, a copy of Agency's Election Pursuant to Amended Notice of Hearing, a copy of the transcript of the proceedings conducted July 24, 1991, and a copy of each exhibit. No appearance was made by Petitioner at the hearing held October 8, 1991, and no evidence was presented on her behalf. Respondent elected to present no additional evidence.

No transcript of the proceedings has been filed. No post-hearing submittal was filed by either party.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Petitioner was employed the Department of Health and Rehabilitative Services (DHRS) at South Florida State Hospital (SFSH) as a Human Services Worker I, a career service position.

   
   

2. Petitioner was absent without authorized leave or explanation on February 6, 7, 8, 9, 10, and 13, 1991. Petitioner was not at work on February

   11 and 12, 1991, but those were scheduled days off.

   
   

3. On February 13, 1991, David A. Sofferin, Hospital Administrator at SFSH, notified Petitioner by letter that DHRS had no choice but "... to consider you to have abandoned your Human Services Worker I position and resigned from the State of Florida Career Service at South Florida State Hospital. ..." This letter also advised Petitioner of her right to challenge this action.

   
   

4. Petitioner wrote DHRS a letter which was received by DHRS on February 25, 1991. In this letter Petitioner admitted that she had violated the personnel

   rules and asked for a second chance. Petitioner's letter stated that she had been abducted by a boyfriend on February 11, 1990 (sic), 1/ and taken to Bradenton. The letter did not attempt to explain her absences on February 6, 7, 8, 9, and 10. 1991.

   
   

5. Petitioner was provided a copy of DHRS' Employee Handbook on April 20, 1990. Petitioner had been previously advised of Respondent's attendance policies and she had been previously reprimanded for failing to adhere to those policies. The following is found on page 13 of the Employee Handbook under the paragraph entitled "Absences":

   
   

   If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absences without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your

   position and thus resigned. (Emphasis added.) CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

7. Rule 22A-7.010(2)(a), Florida Administrative Code, provides, in pertinent part, as follows:

   
   

   An employee who is 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 . ... .

   
   

8. The foregoing rule creates a rebuttable presumption. DHRS has established that Petitioner was absent without authorized leave so that she is rebuttably presumed to have abandoned her position of employment and to have resigned from the career service. Petitioner has failed to rebut that presumption.

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,

Carol Wheeler, has abandoned her position of employment with the Department of

Health and Rehabilitative Services and which further finds that she has resigned from the career service.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 13th day of November, 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 13th day of November, 1991.

ENDNOTES

1/ Petitioner's absences were in February 1991. There was no explanation as to why the letter referred to an incident in February 1990, but it is reasonable to assume that Petitioner intended to refer to February 1991. Even if that assumption is made, there was no attempt by Petitioner to explain her absences prior to February 11, 1991.

COPIES FURNISHED:

John Carlson, Esquire Senior Attorney

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Ms. Carol Wheeler 5450 Flagler Street

Hollywood, Florida 33021

Colleen A. Donahue, Esquire Department of Health and

Rehabilitative Services

201 W. Broward Boulevard Suite 513

Fort Lauderdale, Florida 33301

John A. Pieno, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1500

Augustus D. Aikens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1500

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

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: 91-002364

Orders for Case No: 91-002364