STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN H. BAKER, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1774

)

DEPARTMENT OF EDUCATION, )

DIVISION OF UNIVERSITIES, )

UNIVERSITY OF FLORIDA and )

CAREER SERVICE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came before the undersigned Hearing Officer on an appeal from a suspension of the Petitioner who was at the time an employee of the University of Florida, Gainesville, Florida. The Petitioner has been suspended for three days on the charge of fighting. He appealed that suspension and the matter was referred to this division by the Career Service Commission for an appropriate hearing.

APPEARANCES

For Petitioner: John H. Baker, pro se

1015 South East 20th Street Gainesville, Florida 32601

For Respondent: Ashmun Brown, Esquire

207 Tibert Hall University of Florida

Gainesville, Florida 32611

A hearing was scheduled for March 3, 1977, at Gainesville, Florida, at which time the Petitioner appeared on his own behalf. The University was represented by Ashmun Brown, Esquire. The facts in this case clearly showed that the Petitioner was provoked and attacked by another employee, James, and that the Petitioner wrestled Mr. James to the ground at which time the Petitioner and James were separated by other employees. On a previous occasion it was noted that James had provoked and assaulted the Petitioner for no apparent cause. At that time the Petitioner took no retalitory action against James. James was characterized by several witnesses as an argumentative, contentious employee who often picked fights with others.

After reviewing all the evidence in the case it cannot be stated that the Petitioner violated the University's rules on fighting. All that can be said is that he defended himself from the unprovoked assault of another employee.

Certainly there is a distinction between fighting and defending one's person from assaults. It is therefore RECOMMENDED that the Petitioner's suspension be

overturned and that he be awarded any back salary and other benefits to which he would be entitled.

DONE and ORDERED this 24th day of March, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Mrs. Dorothy Roberts Appeals Coordinator

Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304

Docket for Case No: 76-001774

Orders for Case No: 76-001774