STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2076

) CAREER SERVICE NO. 77-258

ALDRIDGE MCMAHAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at the Conference Building "B," 6501 Arlington Expressway, Jacksonville, Florida at 10:00 A.M., March 28, 1978. (Consideration of the facts of this case has been delayed pending the transmittal of the transcribed testimony by deposition of David Hicks, M.D., which was forwarded to the undersigned on May 16, 1978.)

APPEARANCES

For Petitioner: Robert M. Eisenberg, Esquire

Post Office Box 2417F Jacksonville, Florida 32231

For Respondent: Thomas E. Crowder, Esquire

1320 Barnett Bank Building Jacksonville, Florida 32202

ISSUE

Consideration of the matter set forth in the September 22, 1977, letter of suspension served on Respondent, for events which allegedly transpired from September 13 through September 20, 1977, concerning the Respondent's fitness for duty and duty performance in the job position Pharmacist II, State of Florida, Department of Health and Rehabilitative Services.

FINDINGS OF FACT

1. Aldridge M. McMahan is a Career Service employee with the State of Florida, Department of Health and Rehabilitative Services. His specific employment is as a Pharmacist II, permanent status. This case concerns the action by the Petitioner, State of Florida, Department of Health and Rehabilitative Services, in which the Petitioner by letter of September 22, 1977, suspended the Respondent, Aldridge M. McMahan, for a period of thirty (30) days without pay, effective September 21, 1977. The suspension without pay was subject to being lifted upon receipt by the Petitioner of a satisfactory report prior to the end of the thirty (30) day suspension, on the question of the

   Respondent's fitness for duty. It was further stated in the letter of suspension that if such a satisfactory report was forthcoming, the Respondent would be afforded necessary sick leave to attend to his health needs, thus taking the amount of remaining time in the thirty day suspension out of the category of a disciplinary action without pay and placing it into sick leave status with pay, if the Respondent had earned sufficient sick leave time.

   
   

2. The Respondent has disagreed with the conclusions drawn by the Petitioner and has appealed the action of suspension.

   
   

3. To clearly understand the steps taken by Petitioner, it is necessary to consider the events of late 1976 and early 1977 pertaining to the Respondent's employment status. Beginning in October, 1976, the Respondent had occasions when he appeared to be groggy, was unable to speak intelligibly and had problems in filling prescriptions which was his primary duty within his employment position. Several alternatives were considered to assist Mr. McMahan with those difficulties including possible psychiatric counselling. In the beginning of 1977 the problems of Mr. McMahan intensified and he was required to see a psychiatrist. Eventually, Mr. McMahan was treated by David Hicks, M.D., a psychiatrist in Jacksonville, Florida. The contact began in earnest in March, 1977, and on April 19, 1977, Mr. McMahan was admitted to St. Luke's Hospital for assessment. At that point, Mr. McMahan was asking for tranquilizing medication for his condition. Mr. McMahan was discharged from the treatment with outpatient follow-up. The discharge occurred on May 3, 1977.

   
   

4. On May 18, 1977, McMahan saw Dr. Hicks again and Mr. McMahan appeared very tired. Some of the tests that were performed in April of 1977 indicated that Mr. McMahan had been showing declining levels of long-acting barbiturates, specifically between April 19 and April 26, 1977. Dr. Hicks felt that the taking of barbiturates was consistent with the mannerisms of slurred speech and problems of communication.

   
   

5. During the treatment with Dr. Hicks, and particularly from April 18, 1977, the Respondent by agreement with his employer was allowed to take sick leave to be treated for his condition and in fact took 160 hours of sick leave.

   
   

6. When the Respondent returned, his work performance improved and there was no difficulty with his ability to perform his job, until September, 1977. The events in September, as stated before, give rise to the current action. Beginning in the middle part of September, 1977, identified as being September

   13 through September 20, 1977, excluding the intervening weekend, McMahan was observed to have been hesitant in his walking and wavering in his walking, to have run into walls; to have evident slurred speech, to have appeared to have been dozing while sitting in the chair in his office, to have taken a number of pills and to have been extremely difficult to communicate with in the context of his job. All these matters occurred in the aforementioned period, September 13 through September 20, 1977, while Mr. McMahan was at work. He also evidenced a poor physical appearance in the sense of being gray in appearance, in terms of skin coloring. One of his coworkers who is a pharmacist in the same office felt that Mr. McMahan was rushing the prescriptions too quickly during this time sequence and it was also stated at the hearing that some complaints had been received about filling the prescriptions. Those complaints were rendered from outside sources other than by the Petitioner. It is significant that the symptoms observed by a number of employees who work with Mr. McMahan were the same symptoms that they had observed in April, 1977, when Mr. McMahan took leave to be treated for a problem with meprobamate. During the course of events between September 13 and September 20, 1977, no specific discussion was had with

   the Petitioner other than one occasion in which Embry Coalson, Chief of the Consumer Drugs and Devices Control Section of the State of Florida, Department of Health and Rehabilitative Services, made inquiry about why the Respondent had come to work on September 16 after his wife had called in saying that Respondent was ill. The Respondent had shown up for work looking very ill on that date.

   
   

7. Nonetheless, after gathering all the facts and details of the events of September 13 through September 20, 1977, Mr. Coalson called the Respondent in to apprise him that he was being placed on suspension under the terms that are discussed above. Respondent indicated in the course of the discussion that was held on September 21, 1977, that he felt it was unfair treatment because he had been sick with diarrhea and had been taking Dramamine and Lomotil for this condition. In Respondent's mind this would appear to make him drowsy. Coalson suggested that a medical evaluation be made of the Respondent's condition and the Respondent suggested that he would be willing to have a blood test to show that there were no inappropriate drugs in his system. The conversation of September 21, 1977, ended with the Respondent being told that he could have a medical evaluation and blood test done and that of the report was satisfactory to the employer, the Respondent would be reinstated. The Petitioner was not willing to go with the Respondent on the date of the actual interview, i.e., September 21, 1977, to have tests done in the presence of the employer's representative. Coalson took the position that the responsibility to clear the matter resided with the Respondent and not the Petitioner. The attitude by the employer's representative was premised on the idea that the performance during the period of September 13 through September 20, 1977, on the part of the Respondent showed him to be unfit for duty and below standards in the duty performance; however, it allowed the punishment to be mitigated upon a satisfactory explanation of the Respondent's condition during the period in question. Beginning September 26, 1977, the Respondent went to see Dr. Hicks, the psychiatrist, who in his deposition in the course of the hearing indicated that he was convinced that McMahan's drowsiness was part of the physical ailment associated with nausea and diarrhea and not due to any drug-related problem.

   Dr. Hicks was of this persuasion although he administered no test for drugs and even though he had not observed Mr. McMahan's demeanor during the period of September 13 through September 20, 1977. A letter was written from Dr. Hicks to Mr. Coalson which was dated October 10, 1977, expressing the opinion of Dr.

   Hicks on the question of whether or not Mr. McMahan was suffering sensorial disturbance or other physical or psychiatric phenomenon suggesting any use of any chemical at the time of the initial interview with Dr. Hicks which took place on September 26, 1977. Mr. Coalson found this letter and explanation sufficient to reinstate the Respondent in is job position and Respondent remains in that position today.

   
   

8. After analyzing all the facts in this cause, it is uncertain whether or not Mr. McMahan was truly ill at the time of September 13 through September 20, 1977, while he was at his work station. However, it is apparent that Mr. McMahan was unfit to perform duties of his position and performed those duties at such a substandard level that he was subject to the suspension that was entered against him, and not entitled to any reinstatement until the employer's representative received Dr. Hicks' letter and accepted it for purposes of establishing the reinstatement.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction in this cause.

10. Upon a full consideration of the facts offered in this matter, it is determined that the Petitioner was correct in entering the suspension without pay against the Respondent under the terms and conditions of the suspension letter of September 22, 1977.

RECOMMENDATION

It is recommended that the appeal of the Respondent be denied and that the suspension of September 22, 1977, be upheld.

DONE and ENTERED this 2nd day of June, 1978, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1978.

COPIES FURNISHED:

Robert M. Eisenberg, Esquire Post Office Box 2417F Jacksonville, Florida 32231

Thomas E. Crowder, Esquire 1320 Barnett Bank Building Jacksonville, Florida 32202

Dorothy Roberts Appeals Coordinator

Career Service Commission

530 Carlton Building Tallahassee, Florida 32304

Docket for Case No: 77-002076

Orders for Case No: 77-002076