COLOMBA DESILVA, APPELLANT,
v.
DEPARTMENT OF TRANSPORTATION, APPELLEE
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Mrs. DeSilva appealed her termination for abandoning her position at the Department of Transportation after failing to return from medical leave. The court reversed the termination, finding sufficient evidence that DeSilva's physician communicated her inability to return to work to her supervisor, providing a reasonable basis for her failure to seek a formal extension.
Yes. The court concluded that DeSilva presented sufficient evidence rebutting the abandonment presumption through her physician's testimony that he contacted the supervisor to inform her of DeSilva's inability to return and promised to send necessary forms. Because DeSilva reasonably relied on these representations, she had a reasonable basis for failing to seek a formal extension.
[1] An employee's failure to provide written authorization for an absence does not automatically constitute abandonment of their position if they provide reasonable notice of…
[2] An employee may rebut the presumption of abandonment by presenting evidence that they relied on representations from their employer regarding the process for extending an…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the physician called her supervisor to let her know that Mrs. DeSilva was not ready to return to work. He claims that the supervisor stated she would send him the necessary forms to explain Mrs. DeSilva's further absence. More important, Mrs. DeSilva relied on those representations.”
Establishes the factual basis for rebutting the abandonment presumption—the physician's communication and the supervisor's apparent promise, upon which DeSilva reasonably relied
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Join FLexlaw to unlock all legal intelligenceDeSilva requested a leave of absence for a non-work-related back injury with a tentative return-to-work date of November 23, 1988. On November 22, 198…
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PER CURIAM.
Mrs. DeSilva appeals an order of the Department of Administration. The order upheld the hearing officer’s recommended order that Mrs. DeSilva abandoned her position. We reverse.
Mrs. DeSilva requested a leave of absence from her position at the Department of Transportation for a non-work related back injury. The request form contained a tentative return-to-work date of November 23, 1988. Her supervisor granted the absence.
On November 22, 1988, Mrs. DeSilva’s physician notified Mrs. DeSilva’s supervisor that Mrs. DeSilva would be unable to return to work. Although disputed, the supervisor testified that she asked the doctor to provide a letter on that matter. Two weeks passed and no one contacted the supervisor. As a result, the district director of the department sent Mrs. DeSil-va a letter on December 2, 1988, terminating her because she abandoned her position by failing to notify her supervision of any inability to work. Mrs. DeSilva appealed the termination. The Department of Administration deemed her absence, without written authorization, as an abandonment of her position.
Before discussing the merits, this court wishes to acknowledge the holding in Tomlinson v. Department of Health and Rehabilitative Services, 558 So. 2d 62 (Fla. 2d DCA 1990), that the Department of Administration does not have authority to consider dismissal orders, such as the one here. Despite the foregoing authority, neither party in their briefs raised whether the order in question was appealable. As a result, this court declines to address any jurisdictional problem. On appeal, Mrs. DeSilva argues that she presented sufficient evidence to rebut the presumption that she abandoned her position by being absent without authorization after November 23, 1988. Reviewing her doctor’s testimony, we conclude that there was evidence rebutting the abandonment presumption. The physician called her supervisor to let her know that Mrs. DeSilva was not ready to return to work. He claims that the supervisor stated she would send him the necessary forms to explain Mrs. DeSilva’s further absence. More important, Mrs. DeSilva relied on those representations. She, therefore, provided a reasonable basis for failing to seek an extension. See City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla.1982).
Accordingly, we reverse the order of the Department of Administration and remand with instructions that Mrs. DeSilva be reinstated with back-pay.
REVERSED and REMANDED.
LETTS, DELL and STONE, JJ., concur.
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Citator
Cited By
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Jenkins v. State, 618 So. 2d 749 (Fla. 1st DCA 1993)…, because PERC has authority to invoke less severe penalties than dismissal, see § 447.208(3)(c), Fla.Stat. (1989), while the DOA may simply approve or reject the determination of abandonment. See, generally, DeSilva v. Department of Transportation, 564 So. 2d 216 (Fla. 4th DCA 1990). The issue of abandonment was discussed in some depth in Tomlinson. As the second district court observed, the underlying statutes do not discuss abandonment or a presumption of separation. 558 So. 2d at 66. For example, section…
Authorities Cited
- City OF Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982)
- Tomlinson v. Dep't of Health & Rehabilitative Servs., 558 So. 2d 62 (Fla. 2d DCA 1990)