STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERESA LOEWY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3081

)

FLORIDA STATE UNIVERSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on May 15-16, 1989 in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Woolfork, Esquire

The Murphy House

317 East Park Avenue Tallahassee, Florida 32301

For Respondent: Sonja P. Mathews, Esquire

The Florida State University

311 Hecht House Tallahassee, Florida 32306

STATEMENT OF THE ISSUES

Whether or not Petitioner, pursuant to Rule 6C-770 F.A.C., abandoned her position as a Secretary Specialist, thereby resigning from Florida State University by being absent without leave for three consecutive days.

PRELIMINARY STATEMENT

The Joint Pre-Hearing Statement of the parties was admitted as Hearing Officer's Exhibit A and has been utilized to the degree appropriate in this Recommended Order. At the parties' request, their oral stipulation as to mathematical calculations (TR-396) also has been incorporated.

Respondent presented the oral testimony of Samuel Loewy, David Leslie, Robert Lathrop, Evelyn Ashley, Nina Mingledorff, John Goldinger, Annette Roberts, and Motney Gray. The testimony of Dr. Joe D. Rawlings was submitted by deposition, (R-27). Petitioner presented her own oral testimony. Respondent's Exhibits 1-6, 9-15, 18-21, 23, 26, and 27 were admitted. Petitioner's Exhibits

1. were admitted.

   
   

   Official recognition was taken of Rules 6C-5.740 and 6C-5.770 F.A.C. as in effect October 22, 1987 through November 25, 1987.

   The transcript of proceedings herein was duly filed, and following requested extensions of time which were granted by order, each party has submitted proposed orders. Specific rulings, pursuant to Section 120.59(2) F.S., have been made upon the parties' respective proposed findings of facts in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material, Petitioner, Teresa Loewy, was employed as a Secretary Specialist in the Department of Educational Leadership at Florida State University (FSU).

      
      

   2. On October 22, 1989, Petitioner Loewy reported that she had suffered a head injury as a result of an on-the-job accident. That same day, she was seen at Tallahassee Memorial Regional Medical Center and released.

      
      

   3. On October 23, 1987, FSU placed Petitioner on administrative leave for

      40 hours. Contact was made by Petitioner and her husband, Mr. Samuel Loewy, with Dr. David Leslie, Department Chairman, with Nina Mingledorff, Department Staff Assistant and Petitioner's immediate supervisor, and with Motney Gray, FSU Workers' Compensation Supervisor. The Loewys were informed that a worker's compensation report had been completed and forwarded by the Department to Ms. Gray. This is the first formal step in an employer acknowledging that workers' compensation or medical benefits may be due a worker pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law."

      
      

   4. By letter dated November 3, mailed November 5, and received by Petitioner on November 10, 1987, Chairman Leslie informed Petitioner in pertinent part as follows:

      
      

      As you may be aware, you have been on disability leave for a 40 hour work period. Beyond that limit, this office will not certify any additional leave for you unless we receive medical proof that you are unable to return to work. Although you may apply for workers' compensation, I believe that similar proof will be required by that office.

      Absent any further communication from you and absent proof to the contrary, we assume that you are capable of returning to work and have elected not to do so (R-3).

      
      

   5. By letter of November 5, 1987, (R-9) Motney Gray notified Petitioner that Ms. Gray's communications with Joe D. Rawlings, M.D. had convinced Ms. Gray that Petitioner was not still impaired and was able to work and that Ms. Gray was terminating workers' compensation medical benefits and Petitioner's disability leave as of that date.

      
      

   6. By letter dated November 12 and received November 13, 1987, Robert L. Lathrop, Dean of the College, informed Petitioner as follows:

      
      

      Based on Motney Gray's letter of November 5, to you, we are hereby notifying you as of 8:00

      a.m. November 6, you have been on unauthorized leave.

      Because of your unauthorized leave of absence, I am writing this letter to determine your intentions concerning continued employment at Florida State University. You must report for work immediately, or provide your supervisor,

      Mrs. Nina Mingledorff, with appropriate medical certification by 4:30 p.m., Monday, November 16, or it will be assumed you have voluntarily resigned due to abandonment of your position. (R-1)

      
      

   7. In response, on November 16, 1987, Mr. Loewy, on behalf of his wife, delivered to the Department a handwritten note from Dr. Rawlings, (R-2) which read:

      
      

      To whom it may concern: Mrs. Teresa Loewy is still under my care for headaches dating back to her injury on 10-22-87.

      
      

      At that point in time, Dr. Rawlings could be accurately characterized as Petitioner's primary treating physician pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law". Copies of this letter were seen by Nina Mingledorff and by Annette Roberts, FSU Employee Labor Relations Coordinator.

      
      

   8. On November 17, 1987, Petitioner and Mr. Loewy, together with another couple, visited Petitioner's workplace. Their purpose was to have Petitioner physically on the employment premises to demonstrate that Petitioner was unable to work due to her injury. At that time, the Loewy faction spoke with Annette Roberts, with John Goldinger, Assistant Personnel Director, and with Dean Lathrop. Initially, Petitioner was given a termination letter prepared for the Dean's signature, based upon Petitioner's three consecutive days' absence without prior authorization, which letter was as yet unsigned. However, as a result of the Loewy faction's face-to-face interview with Dean Lathrop, a new memorandum was prepared and actually signed by the Dean. This second communication was addressed to John Goldinger and read as follows:

      
      

      I am hereby authorizing leave of absence for Ms. Teresa A. Loewy beginning November 16, 1987, at 3:00 p.m. and ending no later than 10:00 a.m. on November 20, 1987. The purpose of this leave is to provide time for Mrs.

      Loewy to secure medical certification that she is unable to drive herself to work. (R-4)

      
      

      The effect of this memorandum, signed by Dean Lathrop and handed to Petitioner, was to supersede his other unsigned/unconsummated correspondence attempting to terminate her under the three days' absence rule.

      
      

   9. On November 20, 1987, Mr. Loewy obtained a two page letter from Dr. Rawlings (R-6) dated the preceding day. That letter, which Mr. Loewy was unable to pick up at Dr. Rawlings' office in Thomasville, Georgia, until shortly after the 10:00 a.m. November 20 deadline established by Dean Lathrop's November 17 signed memorandum, may be summarized as follows: Dr. Florek, a board certified neurologist had diagnosed Petitioner as having post-concussive syndrome on October 29, 1987. Sometime between November 3 and 6, Dr. Bridges, an opthomologist had diagnosed her eye examination as "essentially within normal limits". With the concurrence of FSU's Motney Gray, Petitioner was scheduled

      for an MMPI (a psychological assessment), the results of which had not yet been received on the date of Dr. Rawlings' letter, November 19, 1987. She was also scheduled for an MRI (magnetic resonance imaging, a type of x-ray particularly helpful in determining head and soft tissue injuries) which was scheduled for November 24, 1987. Dr. Rawlings confirmed that the Petitioner continued to come to him with the subjective complaints of headaches, blurred vision, and diplopia. The overall tone of his letter is that Dr. Rawlings thought Petitioner could work as of November 19, 1987, although he did not specifically say so. His rather vague summation was, "I have relayed to Mrs. Loewy [on] a number of occasions that I feel this problem will be self limited and that all attempts will be made on my part to not give her any type medication which might be habit forming." (R-6)

      
      

   10. On his wife's behalf, on November 20, 1987, at approximately 11:30 a.m., Mr. Loewy presented Dr. Rawlings' November 19, 1987 letter in a sealed envelope to Evelyn Ashley, Dean Lathrop's Administrative Assistant, and also gave a copy of it to Nina Mingledorff. Dean Lathrop was not in the workplace that day.

       
       

   11. During the time he was at Petitioner's workplace on November 20, 1987, Mrs. Ashley presented Mr. Loewy with a request form for a leave of absence without pay. She and others emphasized to him that the completed form must specify a date the Petitioner could return to work, a fact clearly in contention at that point. He was requested to have Petitioner complete the form and return it. He was not told how long Mrs. Loewy would have in which to complete and return the form. From this point forward the testimony is in sharp conflict.

       It is debatable whether Mr. Loewy was concerned about the effect such a "form" request might have upon his wife's job status or her incipient workers' compensation claim, whether he merely felt she was entitled to leave with pay, or whether he was ever told he could sign the form for his wife. It is clear, however, that Mr. Loewy refused to complete the form on Petitioner's behalf and also refused to take it to her unless he could add a notation to the form that her job would not be jeopardized by requesting such voluntary leave. Having assessed the candor and demeanor of the respective witnesses and the internal and external credibility and consistency or lack thereof of their respective versions of the events and conversations of November 20, 1987, it is found that FSU personnel refused to permit any additions or deletions to the form. They also refused to permit Mr. Loewy to submit a separate explanatory note with regard to the Loewys' position on the subject, even though it was John Goldinger's view at the time of formal hearing that it had always been normal FSU procedure to permit attachments and addendums to other requests for leave without pay. The standard forms requesting leave without pay which were presented by FSU employees to Mr. Loewy therefore were never given to Petitioner, completed by her, or submitted by the Petitioner to the University, although Mr. Loewy was repeatedly told that Petitioner's job would not be held for her unless the forms were filled out and submitted.

       
       

   12. Dr. Rawlings' November 19 letter (R-6) was not transmitted by his subordinates to Dean Lathrop at or near the time Mr. Loewy submitted it to them. Neither did Chairman Leslie contemporaneously see Exhibit R-6. According to Dr. Leslie, no one below his administrative level had the authority to determine the sufficiency of that "excuse" and the appropriate person to have decided that issue would have been Dean Lathrop. Annette Roberts and John Goldinger agreed that leave requests often went through Dean Lathrop. Although the Dean might not vary duly promulgated rules, the evidence as a whole, including Dean Lathrop's prior informal extension of Petitioner's leave, supports Annette Roberts' assertion that Dean Lathrop had the discretion to either effect the

       abandonment or increase the grace/leave period he had previously granted Petitioner.

       
       

   13. Thereafter, Petitioner never did return to work.

       
       

   14. On Wednesday, November 25, 1987, Dean Lathrop, unaware of the contents of the November 19 letter from Dr. Rawlings, and therefore never having decided on its sufficiency or lack thereof, prepared the following termination letter to Petitioner:

       
       

       You have been absent without leave of absence for 3 or more consecutive workdays . . . [Rule 6C-5.770(2)(a) is quoted] . . . Based on the above stated rule, you are deemed to have resigned from your position. . . effective

       this date, November 25, 1987 at 10:00 a.m. (R-10) Bracketed material and emphasis provided]

       
       

       It is clear from the foregoing, that regardless of Petitioner's not having submitted any leave without pay request forms, and regardless of Petitioner's nebulous status as to leave after her initial 40 hours disability leave (See Findings of Fact 4-9 supra), Dean Lathrop counted toward implementation of the three days' abandonment rule only the three consecutive "working days" (presumably 24 work hours) elapsing after his own ultimatum time and date of 10:00 a.m., November 20. The Dean's reasoning, as explained by him at formal hearing, was that the Petitioner had not requested a leave of absence. Evelyn Ashley stated that she had told Dean Lathrop both that the doctor's letter (R-6) had been submitted and also that the Dean could do nothing about processing leave for Mrs. Loewy because R-6 had to be attached to a "request for leave form" and that "form" had not been submitted by the Petitioner.

       
       

   15. Dean Lathrop testified that if he had seen R-6 and still had any doubts of its sufficiency, he probably would have approved leave on the same basis as he had on November 17, at least until he had the opportunity to consult medical personnel further.

       
       

   16. It was never determined by FSU personnel prior to formal hearing whether the December 19 communication from Dr. Rawlings (R-6) was sufficient under the terms of the Dean's November 17 memorandum granting further leave up to 10:00 a.m., November 20, 1987.

       
       

   17. As of Friday, November 20, 1987, Petitioner had only 1.7 hours annual leave and 3.5 hours sick leave status to draw upon. After her separation date, Petitioner was paid for 1.7 hours of accrued annual leave; she was not paid for any accumulated sick leave.

       
       

   18. Subsequently, Petitioner and FSU became embroiled in workers' compensation litigation and entered into a "Stipulation and Joint Petition" which was adopted and approved by an Order of the Deputy Commissioner dated August 8, 1988. (P-3) 1/ Admitted facts found therefrom which are relevant, material, and significant to the instant cause and which are not cumulative to any of the facts found supra, are as follows:

       
       

       . . . She [Petitioner] was scheduled for an MMPI which was done on November 20, 1987. An MRI scan of the brain was done November 23,

       1987 and was interpreted as normal. . . .

       Dr. Bridges examined the Employee [Petitioner herein] on 11/3/87 and found irregular visual fields, more constricted in the right eye, but otherwise normal examination. The employee was then seen by Dr. Thomas J. Perkins

       who diagnosed occipital syndrome on the right side and recommended treatment by Dr. Seay. .

       . . The employer/carrier and employee/claimant stipulate and agree that the maximum medical improvement date is April 25, 1988, pursuant to the medical report of Dr. James T. Willis. [Bracketted material provided]

       
       

   19. It is clear on the record that Motney Gray, FSU's Coordinator for Insurance Risk, informed Dr. Rawlings on several occasions that it was "possible" that workers' compensation would pay for another employee to transport Petitioner from her home in Thomasville, Georgia, to work at FSU in Tallahassee, Florida, but it is not clear that this offer was ever made any more concrete than as a "possibility", and the offer apparently was never made directly to the Petitioner by any representative of FSU. It is clear that, at some point, Dr. Rawlings conveyed this offer to the Petitioner, but it is not clear on the record that this information ever reached Petitioner at any time prior to November 25, 1987 and simultaneously with a period she also was not taking a drug prescribed by some physician. Petitioner was treated, not just by Dr. Rawlings, but by Doctors Florek, Bridges, Seay, Willis, Hogan, and Perkins. At some point in time, Dr. Willis, a chiropractic physician, became Petitioner's primary treating physician. Moreover, it is clear that Dean Lathrop, who was Petitioner's only superior with authority to determine the sufficiency of the letter of certification (R-6), was concerned about Petitioner's ability or inability to drive herself, not whether someone else could or would drive her to work.

       
       

   20. In addition to the oral communications to Mr. Loewy on November 20, FSU had directly advised Petitioner concerning the general nature of its abandonment rule and of FSU's requirements for prior approval of all leave requests, first by circulating standard informational documents to all employees, and secondly, by its various letters to Petitioner which are described supra.

       
       

   21. The parties stipulated that in the event abandonment was not proven, any back wages awarded to Petitioner should be subject to all appropriate class pay increases, and should be reduced by the workers' compensation and unemployment compensation already paid to Petitioner, and should be further reduced by any income earned by her.

       
       

       CONCLUSIONS OF LAW

       
       

   22. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. Section 120.57(1), F.S.

       
       

   23. Rule 6C-770(2)(a), F.A.C. provides as follows:

       
       

       An employee who is absent without authorized leave of absence 3 or more consecutive workdays shall be deemed to have abandoned the position and to have resigned from the

       university. The employee shall have the right to Petition the Chancellor for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

       
       

   24. Rule 6C-770(2)(a) F.A.C. is modeled upon its more frequently utilized and cited career service equivalent, Rule 22A-7.010(2)(a) F.S. Most of the existing cases address the latter rule but nonetheless are instructive in the present circumstances.

       
       

   25. In abandonment proceedings, the initial burden to go forward, and ultimately of proof, is upon the employer seeking to show that an abandonment has occurred. Herein, that was FSU.

       
       

   26. The instant case is clearly distinguishable from three of the cases cited by Respondent. In Godbolt v. University of Florida, DOAH Case No. 86-3929 (Recommended Order 5/4/87; Final Order 6/18/87); Reilly v. University of South Florida, DOAH Case No. 86-3257 (Recommended Order 11/13/86; Final Order 12/23/86), and Pobst v. University of South Florida, DOAH Case No. 86-2155 (Recommended Order 4/10/87; Final Order 8/4/87), the presumption of abandonment established by the career service rule was sustained by the facts as found because in each case no reasonable effort to timely explain the employee's absence was made by the employee and in each case the need for an immediate replacement in the employee's position was clearly demonstrated. In one case, the employee had lied about the reason she was absent, and in one case, the employer knew the employee was already interviewing for another job.

       
       

   27. Unlike the foregoing cases, the instant situation is literally a case of "form" over substance, and the record herein does not support the conclusion that the Petitioner either voluntarily resigned her job or failed to communicate with her employer in such a way that her intent to retain her position or her whereabouts could not be determined by her superiors. Moreover, there is no evidence in this record that hers was a crucial position requiring an immediate substitute employee.

       
       

   28. Rather, the record clearly demonstrates that Dean Lathrop's subordinates insisted that Petitioner's spouse was her agent and that he must either fill out a specific type (leave without pay) leave request form giving a specified (although possibly amendable) date of return. Because Mr. or Mrs. Loewy did not fill out the prescribed form for "leave of absence without pay", those FSU employees who were present on November 20, 1987 ignored all other communications by the Petitioner and by her doctor and further failed to process an obvious but informal request for "disability" leave. In this latter respect, this case is analogous to Penney v. Department of Insurance, DOAH Case No. 85- 1530 (Recommended Order 12/26/85; Final Order 1/31/86).

       
       

   29. Respondent FSU puts great store in its characterization of Mr. Loewy as Petitioner's "agent" and attributes his refusal to fill out or to deliver the blank "leave without pay" form to Petitioner as Petitioner's willful and affirmative abandonment of her position. Clearly, agency in Mr. Loewy has been established, but that status is not controlling.

       
       

   30. The abandonment rule invoked here is really no different than 22A- 7.010(2), F.A.C., which has been held to create only a rebuttable presumption that an employee absent from the workplace without leave for three consecutive days has given up his job. See, Penney v. Department of Insurance, supra. The

       rule is intended to strike a "fair balance" between swift replacement of ineffective public employees" [See, Hadley v. Department of Administration, 356 So.2d 356 (Fla. 1982)] and "job security and retention".--Id. The reasonable scheme established by such an abandonment rule is done considerable violence in circumstances where the employer, knowing that the employee's absence is not caused by any intent to resign, uses the rule to terminate the employee.

       
       

   31. On November 20, 1987, Petitioner's continued efforts to retain her employment position were clearly manifested through Mr. Loewy's words and actions. Everyone involved understood that Dean Lathrop had intervened in the normal flow of bureaucratic paperwork and that a workers' compensation claim, although not yet filed, was incubating. Although the Petitioner's entitlement to workers' compensation benefits was clouded at that time by Motney Gray's letter (R-9) formally terminating disability leave and workers' compensation benefits as of November 5, 1987, Petitioner, through her husband, was still aggressively asserting her entitlement to Chapter 440, F.S. benefits.

32. Rule 6C-4.740(9)(e)(1), F.A.C. provides:

(e) Disability Leave

1. Job-connected disability leave with pay

1. An employee who sustains a job- connected disability that is compensable under the Workers' Compensation Law shall be carried in full pay status for a period not to exceed

   7 days immediately following the injury, or for a maximum of 40 work hours if taken intermittently, without being required to use accrued leave credits. If the employee receives Workers' Compensation benefits for this period of leave with pay, the employee shall reimburse the university the amount of the benefits. Such reimbursement shall not include payments for medical, surgical, hospital, nursing, or related expenses, or lump-sum or scheduled payments of disability losses.

2. If, as a result of the job-connected injury, the employee is unable to resume work at the end of the period provided in paragraph

1. above:

   1. The employee may elect to use accrued sick, compensatory, or annual leave in an amount necessary to receive salary payment that will increase the Workers' Compensation payments to the total salary being received prior to the occurrence of the disability. In no case shall the employee's salary and Workers' Compensation benefits exceed the amount of the employee's regular salary payments; or

   2. The employee may elect not to use accrued leave, or after the employee has exhausted all earned leave in accordance with paragraph a., above, the employee shall be placed on leave without pay and shall revert to normal Workers' Compensation benefits; or

   3. The employee's case may be reviewed by a physician appointed and paid for by the university and the university shall determine the action they wish to take regarding the matter. If the decision is to carry the employee in full pay status, it must be with the chief administrative officer's approval. The employee shall continue to reimburse the university for weekly Workers' Compensation payments received while on leave with full pay. (Emphasis provided)

1. Whether or not Petitioner was entitled to mandatory disability leave and workers' compensation benefits was an issue on November 20, 1987. With accrued annual leave of 1.7 hours and 3.5 hours accrued sick leave, an issue also existed as to whether one of these forms of leave was appropriate. Likewise, it was possible that, if he had contemporaneously reviewed Dr. Rawlings' letter (R-6), Dean Lathrop would have deemed it to be appropriate medical certification and would have extended leave on that basis. The letter did not specifically say Petitioner could not drive due to her injury or due to prescription drugs, but did say she was asserting vision and headache problems and was scheduled for an MRI which could ultimately diagnose her problem during the three days he eventually counted against her. It is alternatively possible that if Dean Lathrop had seen that letter between November 20 and 25, and still had remained unsure about its sufficiency with regard to Petitioner's inability to work, Petitioner's inability to drive, as medical excuse, as a qualifier for workers' compensation and/or disability leave benefits, or on any other basis, the Dean could have extended Petitioner's leave on the same basis as he had on November 17, 1987, pending further clarification from Dr. Rawlings or advice from another physician. (See above, Conclusion of Law 11). At the very least, the sufficiency of the excuse should have been determined, and, if found insufficient, the Petitioner should have been notified and given an opportunity to report to work.

   
   

2. Admittedly, Dr. Rawlings' letter was physically presented to Evelyn Ashley an hour and a half late, (11:30 a.m. as opposed to 10:00 am. on November 20, 1987). However, in light of all the circumstances, including the absence of Dean Lathrop at the time and place appointed for excuse submittal, the employer's failure to make any timely determination on the medical excuse, the employer's concomitant failure to notify Petitioner that the medical excuse was unacceptable, and the method the employer adopted for counting of the 3 days' of abandonment (starting only after the date and time for medical excuse submittal without relying on any of Petitioner's prior periods of absence to comprise the three abandonment days), the Petitioner's hour and a half delay after the ultimatum date and time for submitting the medical excuse is insignificant, especially since she had 1.7 hours banked annual leave and 3.5 hours banked sick leave.

   
   

3. As already observed, this case is closely akin to the Penney case, wherein Mrs. Penney was unable to return to her job due to circumstances beyond her control. She contacted the employer as soon as possible and requested that she be granted emergency leave. The employer was aware of the nature of the emergency. The employer never considered the leave request or made a decision to disapprove the request; although the leave request was never approved, the employer informed Mrs. Penny, after the fact, that her leave had been unauthorized. She was ultimately held not to have abandoned her position. The undersigned rejects the concept that Penney is not analogous to the present

   situation simply because the Petitioner herein was not specifying "emergency leave" in her husband's oral request on November 20, 1987.

   
   

4. Contrary to FSU's contention, the instant case is not analogous to Florida State University v. Brown, 436 So.2d 287 (Fla. 1st DCA 1983), wherein the court reversed a Final Order finding that Brown did not abandon his position. There, the court pointed out that after the employee's approved leave time had expired, the employee "never contacted the employer to request an extension of leave." Department of Transportation v. Clancy, 521 So.2d 376 (Fla. 2nd DCA 1988), also cited by Respondent, likewise would not alter the foregoing conclusions

   
   

5. Petitioner's and her husband's refusal to sign/submit appropriate leave forms was certainly vexatious to FSU personnel and could legitimately subject her to insubordination or other disciplinary charges, but it cannot be reasonably presumed to constitute abandonment or resignation under the facts as found.

   
   

6. Petitioner having affirmatively demonstrated no statute, rule, or other authority upon which attorney's fees may be awarded to her in this cause, that prayer of her Petition and of Petitioner's posthearing proposals should be denied.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered:

1. Finding Petitioner has not abandoned her position.

   
   

2. Reinstating Petitioner to her position.

   
   

3. Ordering payment of backpay and emoluments from November 25, 1987, less unemployment and workers compensation paid by Respondent and less mitigation earnings of Petitioner, pursuant to the parties' stipulation.

   
   

4. Denying any attorney's fees.

DONE and ENTERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1989.

ENDNOTE

1/ Such an Order is not binding on the undersigned, nor can it dispose of the "abandonment" issue which is the crux of the case at bar. See, Department of Health and Rehabilitative Services v. Vernon, 379 So.2d 683 (Fla. 1st DCA 1980); Pobst v. University of South Florida, DOAH Case No. 86-2155 (Recommended Order entered 4/10/87; Final Order entered 8/4/87). However, that stipulation of these same parties constitutes "admissions" and was therefore admitted also in evidence. See, Section 90.803, F.S. Also, since the instant proceeding is a different "action" Section 90.408, F.S., governing settlement negotiations/offers in the same on-going case, is inapplicable to bar admission of the stipulation/order in evidence in the instant proceeding. Also, the order of the deputy commissioner adopting the parties' stipulation is final, and such stipulations/orders are sanctioned and encouraged at law, pursuant to Section 440.20(12), F.S. and constitute public records.

APPENDIX TO RECOMMENDED ORDER, CASE 88-3081

The following constitute specific rulings pursuant to Section 120.59(2),

F.S. Upon the parties' respective Proposed Findings of Fact (PFOF).

Petitioner's PFOF:

Except to the extent they are subordinate or unnecessary to the facts as found, or are cumulative thereto, PFOF 1, 3, 4, 5, 7, 8, 10, 11, 12, 13, 14, 16,

17, 18, 19, 20, 23, 24, 28, 30, 31 are accepted. Part of 19 contains a double negative rendering it subject to several interpretations as well; it is therefore rejected in part on those grounds.

PFOF 2a-f, 6, 9, 21, 22, 25, 26, 27, 32, 34, 35 are unnecessary or cumulative to the facts as found and are rejected.

PFOF 15, 29, 33, 36 are rejected as stated as not supported by the record.

Proposal 29 is also mere recital of unreconciled testimony.

Respondent's PFOF:

PFOF 1 and 37 are covered in the introductory material.

Except to the extent they are subordinate or unnecessary to the facts as found, or are cumulative thereto, PFOF 3, 4 (up to "direction") 7, 8, 11, 12,

13, 14, 15, 16, 18, 19, 20, 21, 22, 26, sentence 2 of 33, 35, and 52 are

accepted. PFOF 2, 4a-d, 9, 10, 17, 31, 35a-c, 38, 50, 51, 53, 54, 55, 56,

57, 59, 61, and 62 are unnecessary or cumulative to the facts as found and are rejected.

PFOF 5, 39, and 61 are accepted in substance but rejected as stated as a conclusion of law, or as mere legal argument. See FOF 3, 5, 9, and 18, and the Conclusions of Law.

PFOF 23, 24, 25, 27, 28, 31, and 36, are rejected in part as not supported by the record as a whole as stated and in part as mere recital of unreconciled testimony. PFOF 27 and 28 are also rejected as speculative and not proved.

PFOF 31 and 36 are also partly legal argument. The substance of these proposals is covered in FOF 7-19.

PFOF 29, 30: It is accepted that Mr. Loewy was told something of this sort in a variety of phrases. However, in light of clear evidence of the Dean's ultimate authority over leave, medical sufficiency, and abandonment, it appears that Mr. Loewy had no duty to rely on this information from the Dean's subordinates. The substance of these proposals is covered in FOF 7-20.

PFOF 32 and sentences 1 and 3 of PFOF 33, 34, and 60 are rejected as stated as not entirely supported by the record as a whole. Further, PFOF 34 is not solely dispositive of the issue at bar.

PFOF 40-49 and 60 are rejected as stated as not entirely supported in the record as a whole. PFOF 58 is accepted to the extent no determination of sufficiency was timely made by FSU but is rejected as stated as not entirely supported by the record as a whole. Some material within each of the foregoing PFOF is also unreconciled testimony or mere legal argument. Further, they are not dispositive by themselves of any material issue at bar. See the Conclusions of Law. What has been proved has been accepted and utilized only as necessary to resolution of the ultimate issue of abandonment. The undersigned recognizes the distinction between "MMI" (maximum medical improvement), a statutorily defined point in time under Chapter 440 F.S., and actual inability to perform any work whatsoever, but in light of FSU's refusal to process R-6, the issues raised by these proposals with regard to how could FSU personnel know in 1987 before the Joint Stipulation and Agreement (P-3) was signed on July 27, 1988 that MMI would be agreed to have occurred on April 25, 1988 [See FOF 18] and with regard to whether Petitioner could have done some degree of work (i.e. temporary total vs. temporary partial disability; see, Chapter 440 F.S.) or driven to work while she still had tests pending on November 19 are not dispositive of the abandonment issue in this case.

Respondent's Supplemental PFOF:

Proposals 1 and 2 are rejected as unnecessary and cumulative to the facts as found.

Proposal 3 is rejected as a conclusion of law.

Proposals 4-5 as stated are rejected as not supported by the record.

Proposal 5 is also speculation not proved, and characterization of unreconciled testimony. Moreover, Dr. Lathrop testified that if he had been able to review

R-6 and had any questions, he would have consulted a doctor, not necessarily Dr. Rawlings.

COPIES FURNISHED:

Sonja P. Mathews Associate General Counsel

Office of the General Counsel

311 Hecht House, Florida State University Tallahassee, Florida 32396-4038

Robert Woolfork, Esquire Post Office Box 11161

317 East Park Avenue Tallahassee, Florida 32301

Scot Silzer, Counsel Office of Human Resources

State University System of Florida

107 Gaines Street

Tallahassee, Florida 32399-1950

Chancellor Charles B. Reed State University System of

Florida

107 West Gaines Street Tallahassee, Florida 32399-1950

Docket for Case No: 88-003081

Orders for Case No: 88-003081