STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

MARY L. KINLAW, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3795

)

) DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on August 20, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: No appearance.

For Respondent: Edward A. Dion, Esquire

Assistant Attorney General Florida Department of Labor

and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189 STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioner abandoned her position of employment with respondent, and resigned from the Career Service.

PRELIMINARY STATEMENT

On or about June 17, 1991, petitioner filed a petition with the Department of Administration for review of respondent's decision that she had abandoned her position, and respondent's decision to dismiss her from her employment as a Word Processing System Operator. By order of June 18, 1991, the Department of Administration accepted the petition and referred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes.

At hearing, neither petitioner nor anyone on her behalf appeared.

Respondent called Curtis W. Williams as a witness, and its exhibits 1-10 were received into evidence. A transcript of the hearing was not ordered.

At the conclusion of the hearing, the parties were granted leave until August 30, 1991, to file proposed findings of fact. Respondent elected to file such proposals, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, petitioner, Mary L. Kinlaw, was employed by respondent, Department of Labor and Employment Security, Division of Workers' Compensation, Bureau of Claims, as a Word Processing System Operator, and held permanent status in the Career Service System. As a Word Processing System Operator, her duties included typing, filing, and general secretarial work.

   
   

2. Petitioner worked a total of seven (7) hours in January 1991, and last reported for work on January 18, 1991. She has not thereafter reported for work, requested a leave of absence, or contacted the respondent.

   
   

3. By letter of May 10, 1991, the respondent notified petitioner that:

   
   

   . . . you have been dismissed from your Work Processing System Operator position, effective 5:00 p.m., May 20, 1991. This action is being taken in accordance with Rule 22A-7.010(2), Florida Administrative Code (F.A.C.) and is for the offense of abandonment of position.

   
   

   The predicate for such action was petitioner's failure to report for work since at least February 21, 1991, a period of more than 3 consecutive work days.

   
   

4. By letter of June 12, 1991, filed with the Department of Administration on June 17, 1991, petitioner protested the respondent's action. Petitioner did not, however, appear at hearing, and no competent proof was offered for or on her behalf to demonstrate that her failure to report for work was other than a voluntary abandonment of her position. 1/

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

   
   

6. The Department of Administration has been given the authority by the Florida Legislature to "develop and administer the establishment of uniform personnel rules, records, and reports relating to employees and positions in the career service." Section 110.201(1), Florida Statutes.

   
   

7. The Department has adopted such "uniform personnel rules." They are found in Chapter 22A, Florida Administrative Code. Among the subjects addressed by these rules is a Career Service employee's abandonment of her position. Florida Administrative Code Rule 22A-7.010(2)(a) provides as follows concerning this matter:

   
   

   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 to appeal to the Public Employees Relations Commission; however, any such employee shall have the right to petition the [D]epartment [of Administration] for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

   
   

8. Such rule provision puts "all Career Service employees on notice that absence without authorized leave for three consecutive workdays is tantamount to a formal resignation," a consequence that has been held to be "sensible and inherently correct." Cook v. Division of Personnel, Department of Administration, 356 So.2d 356, 358 (Fla. 1st DCA 1978). The public has an interest "in replacing public employees that do not work." Florida Administrative Code Rule 22A-7.010(2)(a) promotes this interest "by facilitating elimination of those who do not report to work for a certain time." Hadley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982).

   
   

9. In a proceeding to review an agency's determination that one of its employees abandoned her position by failing to report to work for three consecutive workdays without authorized leave, the employing agency bears the burden of proving by a preponderance of the evidence the correctness of its determination. See Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 414-415 (Fla. 1st DCA 1974) (as a general rule, the burden of proof is "on the party asserting the affirmative of an issue before an administrative tribunal," and that party must prove its case by a preponderance of the evidence.)

   
   

10. Respondent has met this burden of proof in the instant case. The preponderance of the evidence establishes that petitioner was absent in excess of three consecutive workdays, and that she did not follow the necessary procedure to obtain permission to be absent on these days. Accordingly, respondent's determination that petitioner abandoned her Word Processing System Operation position with respondent, and resigned from the Career Service should be sustained.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Administration enter a final order

sustaining respondent's determination that petitioner abandoned her Word

Processing System Operator position with respondent, and resigned from the Career Service.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1991.

WILLIAM J. KENDRICK

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 12th day of September 1991.

ENDNOTES

1/ During the later part of 1989 and early 1990, petitioner reported several work related injuries to her employer, and missed an extended period of time from her employment. However, as of September 1, 1990, her treating physician had determined that she had reached maximum medical improvement and was released to return to work as of that date. Notwithstanding, petitioner was granted worker's compensation benefits through December 31, 1990. Petitioner has not filed any claims for additional benefits since that date.

On or about February 21, 1991, respondent received a note, through the mail, that purported to be signed by a Dr. Esaias Lee, suggesting that petitioner was still having physical and emotional problems. That note was the only information concerning petitioner that respondent received following her last day at work (January 18, 1991). Such note is, however, hearsay, and does not detract from the finding that there was no competent proof offered to demonstrate that petitioner's failure to report to work was other than a voluntary abandonment of her position.

APPENDIX TO RECOMMENDED ORDER

Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Subordinate.

3-8. Addressed in footnote 1; otherwise although supported by the proof, such is unnecessary detail which was not shown to be pertinent to the ultimate resolution of the issue in this case.

1. Addressed in paragraph 2.

2. Supported by the proof, but not shown by competent proof to be relevant.

3. Addressed in paragraph 3.

COPIES FURNISHED:

Ms. Mary L. Kinlaw

c/o Mrs. A. Richardson 729 Gladiola Terrace

Tallahassee, Florida 32304

Edward A. Dion, Esquire Assistant Attorney General Florida Department of Labor

and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189

John A. Pieno Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Linda Stalvey General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Frank Scruggs, Secretary Department of Labor and

Employment Security

2590 Executive Center Circle, East Tallahassee, Florida 3239-2151

Stephen Barron General Counsel

Department of Labor and Employment Security

307 Hartman Building 2012 Capital Circle, S.E.

Tallahassee, Florida 32399-0658

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: 91-003795

Orders for Case No: 91-003795