STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANLEY POLITE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-2097

)

DEPARTMENT OF EDUCATION, )

DIVISION OF UNIVERSITIES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on March 15, 1977, in Gainesville, Florida.

The following appearances were entered: Stanley Polite, the Petitioner, appeared on his own behalf; and Ashmun Brown, Gainesville, Florida, appeared for the Respondent, Department of Education, Division of Universities.

By letter dated August 23, 1976, Stanley Polite ("Petitioner" hereafter) was advised that he was suspended without pay from his position as a laborer with the University of Florida Physical Plant Division for a period of three days. On September 8, 1976, the Petitioner filed an appeal of that decision to the Career Service Commission. By letter dated November 23, 1976, the Career Service Commission requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the final hearing. The final hearing was scheduled by notice dated January 12, 1977. At the hearing the Respondent called the following witnesses: Arago Leroy Welch, a labor foreman employed by the Respondent; Robert Olsen, a building services supervisor employed by the Respondent; Roscoe McNeeley, an employee relations supervisor employed by the Respondent; and Paul Morris, a supervisor of building services employed by the Respondent. The Petitioner appeared as the only witness on his own behalf. Hearing Officer's Exhibits 1 and 2, and Respondent's Exhibits 1 and

2 were received into evidence.

FINDINGS OF FACT

1. During August, 1976, and up through the present time, the Petitioner has been employed at the University of Florida Physical Plant Division as a laborer. On August 18, 1976 the Petitioner was working the 11:00 P.M. to 7:00

   A.M. shift. His immediate supervisor was Arago Leroy Welch. Mr. Welch's supervisor was Robert Olsen. Petitioner was working at a parking garage doing sweeping and general cleanup work. Some time between 3:00 A.M. and 5:00 A.M., Mr. Welch went to the parking garage to pick up the Petitioner. He saw the Petitioner in an office with his feet up on a desk, and his eyes closed. Mr. Welch went to Mr. Olsen's office, and the two of them returned. They both observed the Petitioner with his feet up on the desk, his eyes closed, his head hung back, and his mouth opened. When Mr. Olsen called his name, the Petitioner

   was startled and woke up. The Petitioner was asleep on the job, during a time that was not a scheduled break.

   
   

2. The Petitioner testified that he attempted to page his supervisor, Mr. Welch, with a paging device that employees of the Physical Plant Division carry with them. Mr. Welch did not receive the page. Whether the Petitioner attempted to page Mr. Welch is not relevant. His paging his supervisor would not justify his sleeping on the job.

   
   

3. On one other occasion during August, 1976, the Petitioner was found dozing by his supervisor, Mr. Welch. The Petitioner was given an oral reprimand on that occasion.

   
   

4. Employees of the Physical Plant Division are provided with guidelines for standards of disciplinary action. These guidelines indicate that for sleeping on the job an employee can receive three days suspension, or dismissal, for a first offense. The Petitioner in this case was suspended for three days without pay.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. The three days suspension without pay imposed upon the Petitioner was within guidelines for standards of disciplinary action, and was justified by the facts of this case. The decision of the University of Florida, Physical Plant Division was proper and should be affirmed.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

That the three days suspension without pay of the Petitioner, Stanley Polite, from his employment as a laborer with the Department of Education, Division of Universities, University of Florida Physical Plant Division be affirmed.

ENTERED this 25th day of March, 1977, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

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

COPY FURNISHED:

Mrs. Dorothy Roberts Appeals Coordinator

Division of Personnel & Retirement Department of Administration

530 Carlton Building Tallahassee, Florida 32304

Ashmun Brown, Esquire

207 Tigert Hall University of Florida

Gainesville, Florida 32611

Mr. Stanley Polite

1027 South East 5th Avenue Gainesville, Florida 32601

Mr. Conley M. Kennison State Personnel Director

Department of Administration Carlton Building Tallahassee, Florida 32304

Docket for Case No: 76-002097

Orders for Case No: 76-002097