STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INEZ GRAY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6513

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 17, 1992, in Fort Lauderdale, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ben Patterson, Esquire

Patterson & Traynham 1215 Thomasville Road

P.O. Box 4289

Tallahassee, Florida 32315

For Respondent: Judith Engelberg

Acting District Legal Counsel Department of Health and

Rehabilitative Services

201 West Broward Boulevard Suite 513

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Inez Gray, abandoned her career service employment with the Department of Health and Rehabilitative Services and is properly deemed to have resigned from the career service pursuant to Rule 22A-7.010, Florida Administrative Code.

PRELIMINARY STATEMENT

By letter dated July 25, 1991, the Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as "HRS" or the "Department",) informed the Petitioner, Inez Gray, that she was deemed to have abandoned her position of employment with the Department pursuant to Rule 22A-7.010, Florida Administrative Code. In a letter dated August 19, 1991, the Department's Regional Director requested the Department of Administration to conduct a hearing on the determination. Pursuant to an October 10, 1991 Order Accepting Petition and Assignment to the Division of Administrative Hearings, the Secretary of the Department of Administration referred the case to the Division

of Administrative Hearings which noticed and conducted a formal hearing pursuant to Section 120.57, Florida Statutes.

At the commencement of the formal hearing, the parties agreed that Respondent would present its case first. Respondent called Petitioner as a witness and also presented the testimony of Sylvia Villafana, who was Petitioner's supervisor at the Broward County Public Health Unit ("BCPHU") during most of the time in question, and George Warren, a personnel technician employed by Respondent. The Respondent offered four exhibits into evidence, all of which were accepted.

Petitioner was recalled to testify on her own behalf and Petitioner offered four exhibits into evidence. All of those exhibits were accepted into evidence. Respondent objected to Petitioner's Exhibits 1, 3 and 4. Those exhibits consisted of notes and reports purportedly prepared by Dr. Love and one note from Dr. Murillo which Petitioner claims to have submitted to her supervisors.

These notes were not properly authenticated as having been prepared by Dr. Love and/or Dr. Murillo. The exhibits have been considered in accordance with Section 120.58(1)(a), Florida Statutes, and for the purpose of establishing the documents that were submitted by Petitioner to her supervisors.

No transcript of the proceeding has been filed. At the conclusion of the hearing, the parties agreed upon a schedule for filing proposed recommended orders. Petitioner timely filed Proposed Findings of Fact and Conclusions of Law. No post-hearing submittals have been received from Respondent. A ruling on each of Petitioner's proposed findings of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

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:

1. At all times pertinent to this proceeding, Petitioner was employed by HRS at the Broward County Public Health Unit ("BCPHU") as a Fiscal Assistant II, a career service position. Petitioner began working for HRS in approximately August, 1973.

   
   

2. From approximately July of 1986 through July of 1991, Petitioner's supervisor at BCPHU was Sylvia Villafana. During this time period, Ms. Villafana frequently counseled Petitioner regarding excessive absenteeism and tardiness which interfered with Petitioner's ability to meet necessary deadlines at work. Even before 1986, Petitioner's personnel record reflects excessive use of sick leave and problems with prompt and consistent attendance at work. These issues were discussed with Petitioner on several occasions.

   
   

3. In March of 1991, Ms. Villafana scheduled a meeting for March 21, 1991, with Petitioner and Jeff Keiser, the personnel manager for BCPHU. At that meeting, Ms. Villafana intended to issue a written reprimand to Petitioner regarding excessive absenteeism. The March 21, 1991, meeting was scheduled to begin at 2:00. Petitioner left the BCPHU building at approximately 1:00 p.m. that day and did not attend the meeting. Petitioner contends that she was having chest pains and went to the hospital that afternoon. Petitioner did not advise her supervisor that she was leaving the premises. Petitioner did advise at least one co-worker at BCPHU that she was leaving. The next day, Petitioner's daughter called Ms. Villafana and told her that Petitioner was in

   the hospital. Ms. Villafana told Petitioner's daughter that documentation would be needed of Petitioner's medical problems. No records of Petitioner's hospitalization were ever presented to Ms. Villafana or any other HRS supervisor. Petitioner was apparently discharged from the hospital on the evening of March 22, 1991.

   
   

4. Petitioner contends that she called Ms. Villafana on Monday, March 25, and told her that she was still under a doctor's care and that she would return to work as soon as he released her. Ms. Villafana contends that the telephone conversation did not occur until March 29, 1991. In any event, Petitioner did not ask for authorized leave. During the telephone conversation, Petitioner indicated that she had a doctor's appointment on April 2. Ms. Villafana told Petitioner that medical documentation of her problem would be necessary.

   
   

5. On April 3, 1991, Petitioner did not return to work. At this point, Ms. Villafana had virtually no information regarding Petitioner's alleged illness and/or condition. Ms. Villafana inquired of other employees regarding Petitioner's condition, but was unable to learn anything more.

   
   

6. On the afternoon of April 3, 1991, Petitioner contacted Ms. Villafana and indicated that she would be back to work on April 9, 1991. The April 3 conversation was acrimonious. Because there were several large project deadlines coming due, Ms. Villafana emphasized that medical documentation was needed to support Petitioner's claim of illness.

   
   

7. Petitioner did not show up for work on April 9, 1991. On April 10, 1991, Petitioner called and told Ms. Villafana that she was mailing in notes from her doctors and then hung up. On April 11, 1991, Ms. Villafana found notes from two doctors on her desk. The notes were submitted into evidence at the hearing, but were not authenticated by the physicians who purportedly authored them. One of the notes was allegedly from Dr. Murillo, a cardiologist. This note indicated that Petitioner would be able to return to work on April 15, 1991. The second note was from Dr. Love, an orthopedic surgeon, who indicated that he was scheduled to see Petitioner again on April 24, 1991, and that Petitioner was "unable to return to work" until then. No explanation was given as to the nature of Petitioner's injuries. At the hearing in this case, Petitioner contended that she was seeing Dr. Love in connection with injuries supposedly received during an automobile accident on February 20, 1991. No persuasive evidence was presented as to the nature and extent of those injuries. The car accident occurred on the evening of February 20 and Petitioner reported to work the next day. No evidence was presented to establish that Petitioner missed any work as a result of the car accident prior to the time she left work on March 20, 1991, complaining of chest pains.

   
   

8. Ms. Villafana advised Petitioner that the doctor's notes submitted on April 11 did not provide adequate documentation of her medical condition and/or inability to work.

   
   

9. Petitioner did not report to work on April 25, 1991, and did not contact her supervisor.

   
   

10. Neither Ms. Villafana nor the personnel office had a home phone number or current residence address for Petitioner. One of Petitioner's friends gave Ms. Villafana a P.O. Box number which Petitioner was using as a mailing address. On April 30, 1991, Ms. Villafana prepared a letter which was sent to Petitioner at her last known address and by certified mail to the post office box. That letter advised Petitioner that as of the close of business on Monday, April 29,

    1991, she was absent without authorized leave and was in jeopardy of being deemed to have abandoned her position. The letter noted that the last medical excuse from Dr. Love expired as of the end of the normal work day on April 24, 1991. The certified letter was not claimed.

    
    

11. On April 30, 1991, Petitioner spoke with Jeff Keiser who advised her that she would be receiving a letter regarding the possible abandonment of her position. Petitioner did not request and was not given authorized leave.

    
    

12. During one of their conversations over this period of time, Ms. Villafana advised Petitioner that she should document in writing a request for leave. No such written request was ever received. Also during one of these conversations, Petitioner acknowledged that she had received the April 30, 1991 letter.

    
    

13. On May 2, 1991, Ms. Villafana received two additional notes on Dr. Love's letterhead. One of the notes was dated April 24, 1991, and indicated that Petitioner was scheduled for a follow up visit on May 8, 1991. The second note was dated May 1, 1991, and indicated that Petitioner was unable to return to work for two weeks. The note on Dr. Love's letterhead dated May 1, 1991, included some information regarding Petitioner's alleged medical problems. However, Ms. Villafana advised Petitioner that she needed additional information regarding her condition.

    
    

14. On May 13, 1991, Petitioner provided Ms. Villafana with a note on Dr. Love's stationery dated May 8, 1991. This note indicated that Petitioner was unable to work for two more weeks and was scheduled for a follow up visit on May 22, 1991.

    
    

15. Ms. Villafana spoke with Petitioner on May 23, 1991. During that conversation, Petitioner indicated that she was returning to the doctor on May

    30 and hoped to be in the office on May 31.

    
    

16. Petitioner did not show up for work on May 31, 1991.

    
    

17. On June 3, 1991, Petitioner called Ms. Villafana and advised her that she was going to see the doctor and, if he released her, she would be back at work on Wednesday, June 5. Petitioner did not show up for work on June 5, 1991.

    
    

18. On June 20, 1991, Ms. Villafana received a note on Dr. Love's office letterhead indicating that Petitioner visited his office on June 14, 1991, and was unable to return to work for one week. Around this time, another note was received which indicated that Petitioner had an office visit on June 7, 1991, and was unable to return to work for one week.

    
    

19. In a letter dated June 21, 1991, Ms. Villafana advised Petitioner that

    her

    
    

    [C]ontinued actions have placed [her] employment with the HRS BCPHU in serious jeopardy.

    
    

    Leave of absence (sick leave and/or leave without pay) was never formally requested by you since your midday departure on 3/20/91 and was, therefore, not approved. Chapter 22A-8.002 of the State of Florida Career

    Service Personnel Rules and Regulations states that 'the granting of any leave of absence with our without pay shall be in writing and shall be approved by the proper authority within the agency.' This was not done.

    
    

    On various occasions, I requested that you inform me of your intentions in reference to your leave, which you did not communicate to me, your supervisor, of your plans. As of this date, you have been on unauthorized leave for three months...

    
    

    All avenues of communication to you have been exhausted; I am unable to call you because you state that you have no telephone; certified mailings to your P.O. Box and various addresses have been returned unclaimed; etc. On the few and far between telephone calls from you, I received the run around stating that medical notes are forthcoming in the mail. This practice will no longer take effect.

    
    

    You are therefore, Ms. Gray, to return to work on 8:00 a.m. on Monday, July 1, 1991...

    
    

20. The June 21, 1991 letter was sent to Petitioner by certified mail. Copies were also sent to Petitioner's P.O. Box and last known address in unmarked envelopes.

    
    

21. Petitioner did not show up for work on July 1, 1991.

    
    

22. During the hearing, Petitioner contended that she did not receive the June 21 letter until July 3, 1991. Petitioner contends that Dr. Love did not release her to return to work until July 10, 1991. Petitioner admitted during the hearing that she spoke to Ms. Villafana and Mr. Keiser on July 3, 1991. Neither of these supervisors gave her authorization for any additional leave. Petitioner contends that she told them that she would not return to work until released by her physician. There is no evidence that either Ms. Villafana or Mr. Keiser granted her leave to remain absent for any additional time.

    
    

23. On July 10, 1991, Petitioner contacted her supervisor about returning to work, but was told that she was deemed to have abandoned her position.

    
    

24. At the hearing Petitioner produced two typewritten notes on the stationary of Dr. Love dated June 21, 1991, and July 10, 1991 (Petitioner's Exhibits 4 and 2). Neither of these notes were properly authenticated and there is no evidence to establish who wrote them or when. As noted above, Dr. Love did not testify at the hearing. These alleged records of Dr. Love's treatment of Petitioner were not provided to Ms. Villafana or the BCPHU Personnel Office until after Petitioner as deemed to have abandoned her position. Petitioner contends that she provided the Personnel Office and/or her supervisors with a copy of Dr. Love's reports prior to receiving the June 21, 1991 certified letter. However, the more credible evidence established that from June 20 through at least July 10, neither Ms. Villafana nor the Personnel Office was

    provided with any documentation from any physician that Petitioner was unable to work.

    
    

25. The evidence established that from June 21, 1991, until July 10, 1991, Petitioner did not show up for work, did not provide any additional documentation regarding her absences and was not granted authorized leave.

    
    

26. During the time she was employed at BCPHU, 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. Ms. Gray should have been aware of the requirements regarding sick leave and leaves of absence and her need to provide documentation regarding her course of treatment to the BCPHU Personnel Office.

    
    

27. By certified letter dated July 25, 1991, Respondent advised Petitioner that she was deemed to have abandoned her career service position.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes (1991).

    
    

29. Ms. Gray has been deemed to have abandoned her employment with the Department because of her failure to report to work on three consecutive work days beginning July 1, 1991. The Department treated Ms. Gray as having abandoned her employment pursuant to the authority of Rule 22A-7.010(2)(a), Florida Administrative Code, (the "Rule") which provides in pertinent part:

    
    

    (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 [of Administration] for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

    
    

30. 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.

31. Rule 22A-7.010, Florida Administrative Code, was adopted pursuant to Section 110.217(6), Florida Statutes.

    
    

32. 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. In sum, other than by voluntary termination on the part of the employee, a Career Service employee may not be terminated unless dismissed for just cause.

    
    

33. There is some authority for the position that voluntary termination 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 Administration, supra.

    
    

34. The evidence in this case established that Petitioner left work on March 20 complaining of chest pains. She did not seek to return to work until approximately July 10, 1991. Other than to claim she was "under a doctor's care," Petitioner presented little evidence to support her claim that she was unable to work during this period. She never applied for and did not receive authorized leave. The evidence is clear that on or before July 3, 1991, Petitioner received the June 21, 1991 letter advising her that she was absent without leave and that the notes she had previously provided were not a justification for her continued absence. Petitioner failed to obtain approval for her absence for more than three consecutive days from July 3, 1991 forward.

    
    

35. 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 April, Dr. Murillo indicated that he saw no reason why Petitioner could not return to work. Respondent contends that Dr. Love had not cleared her to return to work at that time. However, information to justify this conclusion was only provided on an irregular basis even after Ms. Villafana advised Petitioner that more information was needed regarding her medical condition and/or claimed inability to work.

    
    

36. Respondent repeatedly sought further information regarding Petitioner's condition. Respondent's efforts to confirm Petitioner's medical problems were thwarted by Petitioner's attitude and failure to cooperate. Through no fault of Respondent, communication with Petitioner was very difficult. Petitioner did not have a phone and would not provide Respondent with her residential address. Petitioner often failed to claim mail sent to her

1. Box. The Respondent was extremely patient in attempting to insure 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.

   
   

   1. 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. 2d DCA 1990). In view of the repeated requests from Ms. Villafana for more information, no such reasonable basis was present in this case. Ms. Gray's actions in failing to obtain authorization for her

      absence from work for three days beginning on July 3, 1991 constitutes an abandonment of her position. Unlike the employee in Tomlinson, Ms. Gray failed to prove there was a reasonable basis for her failure to obtain authorization for her absence.

      
      

   2. Petitioner contends that she was unaware that her absence had to be authorized when she was under a doctor's care. However, it is clear that her supervisors continually sought more information regarding her condition which she failed to provide. Petitioner chose not to return to work and failed to take reasonable steps to keep Respondent apprised of the basis for her decision. The Respondent was justified in treating this decision as an abandonment of her position. Cf., Desilva v. Department of Transportation, 564 So.2d 216 (Fla. 4th DCA 1990) (authorized treating physician testified that employee was unable to work; therefore, the presumption of abandonment was rebutted.)

      
      

   3. The facts here are consistent with abandonment of position, even without utilization of the rebuttable presumption of resignation by abandonment found in Rule 22A-7.010(2), Florida Administrative Code. An agency must be able to replace an employee whose actions are consistent with abandonment of his/her position. From March 21, 1991, to July 10, 1991, there were several periods where the Department did not hear from Ms. Gray. After several such periods, it was reasonable to treat her absence as an abandonment. See, Cook v. Division of Personnel, Department of Administration, 356 So.2d 356, 358 (Fla. 1st DCA 1978), and Hadley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982).

   
   

   RECOMMENDATION

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order

   finding that Inez Gray abandoned her career service position with HRS and is not eligible to be reinstated or to receive any back pay.

   
   

   DONE and ENTERED this 7 day of August 1992, at Tallahassee, Florida.

   
   

   
   

   J. STEPHEN MENTON 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 7 day of August 1992.

   
   

   APPENDIX

   
   

   Only Petitioner submitted a proposed findings of fact. The following constitutes my rulings on those proposals.

   The Petitioner's Proposed Findings of Fact

   
   

   Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

   Reason for Rejection.

   
   

   1. Adopted in substance in Findings of Fact 1.

      
      

   2. Subordinate to Findings of Fact 7.

      
      

   3. Subordinate to Findings of Fact 3.

      
      

   4. Subordinate to Findings of Fact 4.

      
      

   5. Subordinate to Findings of Fact 7 and 24.

      
      

   6. Rejected as not supported by the weight of the evidence. This subject matter is addressed in Findings of Fact 24. The last note submitted was dated June 14, 1991 and indicated that Petitioner was unable to return to work for one week. This last note was received by Petitioner's supervisors on June 20, 1991.

      
      

   7. Adopted in pertinent part in Findings of Fact 19-22.

      
      

   8. Subordinate to Findings of Fact 22.

      
      

   9. Adopted in substance in Findings of Fact 33.

      
      

   10. The first sentence is subordinate to Findings of Fact 25 and 27. The second sentence is subordinate to Findings of Fact 26.

       
       

   11. Rejected as vague and unnecessary.

       
       

   12. Rejected as unnecessary and irrelevant.

COPIES FURNISHED:

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Larry Strong, Acting Secretary Department of Management Services 2737 Centerview Drive, Knight Building Koger Executive Center

Tallahassee, Florida 32399-0950

Augustus D. Aikens, Jr., Esquire Department of Management Services 2737 Centerview Drive, Knight Building Koger Executive Center

Tallahassee, Florida 32399-0950

Ben Patterson, Esquire Patterson & Traynham 1215 Thomasville Road

P.O. Box 4289

Tallahassee, Florida 32315

Judith C. Engelberg

Acting District Legal Counsel Department of Health and

Rehabilitative Services

201 West Broward Boulevard, Suite 513 Fort Lauderdale, Florida 33301-1885

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: 91-006513

Orders for Case No: 91-006513