STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN STEWART, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1221

)

DEPARTMENT OF OFFENDER ) REHABILITATION; CAREER SERVICE ) COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on October 20, 1977, in the New Administration Building Conference Room, Union Correctional Institution, Raiford, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Walter Thomas, Esquire

Voyager Building 2255 Phyllis Street

Jacksonville, Florida

For Respondent: Raymond Gearey, Esquire

Department of Offender Rehabilitation

1311 Winewood Boulevard

Tallahassee, Florida 32304 ISSUE

Whether the disciplinary action taken against the Petitioner, John Stewart, on the grounds stated in the disciplinary letter dated May 26, 1977, was for good cause.

FINDINGS OF FACT

1. John Stewart is a correctional officer with permanent status. He filed a timely appeal on his five-day suspension with the Career Service Commission.

   
   

2. Franklin Ashe, Assistant Food Service Director, was Stewart's immediate supervisor and rater at the time in question. Stewart had transferred to kitchen duties shortly after his initial rating as a Correctional Officer I in March, 1976. Ashe prepared Stewart's first rating as a Correctional Officer I working in the kitchen as a steward on April 25, 1977. At that time Stewart had worked in the southwest unit kitchen since the and of March, 1977. His duties in the southwest unit kitchen were direction and supervision of inmate cooks and cook's helpers. Prior to his transfer, Stewart's duties were to take the noon

   meal to the prisoners working on work details outside the prison. However, Ashe had also supervised Stewart prior to his transfer to the southwest unit kitchen. His performance of his initial duties were presumably satisfactory because this was apparently a good assignment and Stewart performed these duties until March, 1977. The benefits of this job included no shift work and weekends off.

   
   

3. In late March, 1977, Stewart who was active in a union organizational effort received oral warning from D. E. Carter concerning passing out union material on the premises of the prison. Shortly thereafter, Stewart who was an alternate to the bargaining talks, was moved from his duties serving prisoners on work detail and assigned to shift work. Shortly after that he was moved to the southwest unit kitchen. The evaluation involved in this case followed shortly thereafter.

   
   

4. Ashe's evaluation of Stewart was delivered to Ashe by one of the Correctional Officers II or sergeants who were assigned duties in the kitchen. Ashe was displeased about the rating and asked the sergeant about speaking to Ashe. A meeting occurred between Ashe and Stewart in Ashe's office shortly after Stewart came to work on May 23, 1977. This meeting lasted about five minutes.

   
   

5. Stewart states that he asked Ashe about the rating and Ashe replied that it was self-explanatory and that he just called the facts the way they were. Beyond this Ashe gave no explanation of the basis for his rating of Stewart. Ashe does not deny this, but alleges that Stewart was abusive and insubordinate by stating that he (Ashe) was full of shit. Ashe then attempted to terminate the meeting by leaving. Ashe stated that Stewart blocked his way out of the door and told him that he was a baby not a man and that if they met on the street, Ashe had better move over. Stewart denies having used vulgar or threatening language with Ashe, but admits that be did stand in the door way and did say Ashe was a baby not a man. Stewart never received an explanation of his rating.

   
   

6. Based upon the foregoing Stewart was suspended for five days.

   
   

   CONCLUSIONS OF LAW

   
   

7. The agency has the burden of proof to show that the disciplinary action taken was for good cause. The letter of disciplinary action recites that the action was taken because Stewart's conduct violated Chapter 33-4.03, Section 23 (Conduct unbecoming a public employee) and Section 27 (Insubordination). Technically Chapter 33-4.03, Florida Administrative Code, specifically relates to the range of penalty permitted for an offense. The disciplinary rules stating what an employee shall and shall not do are stated in Chapter 33-4.02, Florida Administrative Cede. Subsection (4) and (11) of Chapter 33-4.02, Florida Administrative Code are the rules to which the allegations against Stewart were actually based.

   
   

8. The total sum of the evidence against Stewart is the testimony of Ashe. Ashe states that Stewart stated that he was full of shit, was a baby not a man, and that Ashe should avoid Stewart off the job. Such comments would constitute insubordination. Insubordination would be conduct unbecoming a state employee, but while it is permissible to state a change in the alternative when one action would constitute the violation of two provisions, it is inappropriate to find the employee guilty of both offenses.

9. The facts surrounding the incident indicate that the agency and its employee Ashe may have been involved in conduct which would constitute an unfair labor practice. However, the jurisdiction to adjudicate such question is vested in the Public Employee Relations Commission. The issue before the Career Service Commission is solely whether good cause existed for disciplinary action.

   
   

10. The actions of Ashe is failing to adequately explain his evaluation of Stewart were raised as a defense to Stewart's conduct. While Ashe did not respond in an appropriate manner to Stewart's inquiries regarding his evaluation, this is not an adequate defense nor investigation of Stewart's conduct. Stewart should have filed an official grievance on his evaluation, not threatened and orally abuse his supervisor.

    
    

11. The Petitioner, Stewart, denies having used vulgar language in referring to Ashe, but admits that he said Ashe was a baby not a man, and that Ashe should avoid Stewart. These comments in themselves are insubordinate and, constitute good cause for disciplinary action.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer finds that good cause existed for disciplinary action against Stewart.

DONE and ORDERED this 23rd day of November, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Raymond Gearey, Esquire

Department of Offender Rehabilitation 1311 Winewood Boulevard

Tallahassee, Florida 32304

Walter Thomas, Esquire Voyager Building

2255 Phyllis Street Jacksonville, Florida

Mrs. Dorothy Roberts Appeals Coordinator

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

Docket for Case No: 77-001221

Orders for Case No: 77-001221