STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0028

)

VERDALE BAPTISTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 22, 1990, at Bartow, Florida.

APPEARANCES

For Petitioner: Jack D. Farley, Esquire

4000 W. Martin Luther King Jr., Blvd.

Tampa, FL 33614

For Respondent: Brent Creighton, Esquire

Post Office Box 1089 Lakeland, FL 33802

STATEMENT OF THE ISSUES

Whether Respondent abandoned her position as a food service worker at the Polk Regional Juvenile Detention Center, Bartow, Florida, on or about October 27, 1989.

PRELIMINARY STATEMENT

By letter dated October 27, 1989, the Department of Health and Rehabilitative Services (DHRS), Petitioner, advised Verdale Baptiste, Respondent, that by reason of her absence from work October 23, 24, 25, 26 and 27, 1989, without authorization, she was deemed to have abandoned her position and to have resigned from the career service system.

By Petition for Review dated November 3, 1989, Respondent, by and through her attorney, challenged this determination and requested an administrative hearing. Preliminarily, Petitioner stated that the Department was ready to stipulate that Respondent did not abandon her position as alleged; however, the parties could not resolve the issue of Respondent's right to receive attorney's fees, and this stipulation was not further pursued.

At the hearing, Petitioner called two witnesses, Respondent called two witnesses, including herself; and three exhibits were admitted into evidence, Exhibit 2 being the deposition of Robert D. Lerner, M.D. There is no real dispute regarding the facts surrounding Respondent's absence from work October 23-27, 1989. Proposed findings were timely submitted by the Respondent. Those proposed findings are generally accepted insofar as they state findings of fact rather than recite the testimony of witnesses. Those proposed findings consistent with the findings herein made are accepted, other findings are rejected as unsupported by the evidence, irrelevant or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. On September 19, 1989, Verdale Baptiste was employed at Polk Regional Juvenile Detention Center (PRJDC) as a food service worker (cook). She had been so employed for approximately two years and was permanent career service.

2 2. On September 19, 1989, Respondent sat in a chair to record the groceries she had used in preparing the meal, the chair broke or collapsed, and Respondent fell to the floor with her head striking an adjacent brick wall rendering her unconscious.

1. She regained consciousness enroute to Bartow General Hospital in an ambulance. At the hospital, she was treated by Dr. A. Blavatski. Medical examination revealed a sprained lower back and right knee. As a result of this fall, she was unable to return to work as a cook at PRJDC.

   
   

2. Respondent, at the time of the accident, and subsequent thereto through October 27, 1989, was morbidly obese. She is 5 feet, 8 inches, tall and weighed close to 400 pounds (Exhibit 1 of Exhibit 2).

   
   

3. Respondent did not respond to treatment of her injuries due primarily to her obesity. She continued to be unable to return to work and limited her medical visits to the emergency room at the hospital.

   
   

4. The superintendent and assistant superintendent at PRJDC suspected Respondent was malingering and requested other employees visit her and report back on her physical condition.

   
   

5. Respondent telephoned PRJDC several times to speak to the superintendent or assistant superintendent, but generally was told they were unavailable and to leave a message.

   
   

6. By letter dated October 9, 1989, the superintendent acknowledged talking to Respondent on October 6, 1989, at which time he requested Respondent present medical certification to

   support her continued absence from work. Although the record is somewhat unclear in this regard, it is evident that Respondent produced some medical certification for a further short period of disability. At this time, Respondent had used all of her annual leave and sick leave and was in the status of absent on authorized leave without pay.

   
   

7. On October 20, 1989, Respondent called the PRJDC and said she would return to work Monday, October 23, 1989. On October 23, 1989, she reported at her normal time, but within an hour of standing, her pain became intolerable, and she told the assistant superintendent that she had to leave.

8. Before she departed, the assistant superintendent had Respondent sign for receipt of a memo which directed her to notify the office by 10:30 a.m. the following day whether or not she was able to work and provide a doctor's note for the time she missed work beginning 1:15 p.m., October 23, 1989.

   
   

9. On October 23, 1989, Respondent was seen at the emergency room at Winter Haven Hospital and upon discharge was given a medical certificate of no work for four days (Exhibit 2 of Exhibit 2). Respondent contends that she telephoned PRJDC from the hospital late that afternoon to say she was awaiting a medical certificate, but the assistant superintendent to whom she alleged to have directed the call does not recall receiving such a message. Whether or not that call was made is immaterial to the results reached.

   
   

10. On October 27, 1989, Respondent's husband delivered to PRJDC two doctor's certificates; one dated 10/23/89 saying Respondent was unable to return to work for four days, and a report dated 10/27/89 saying she was unable to return to work for five days. Earlier, on October 27, 1989, the letter notifying Respondent of her presumed abandonment was mailed.

    
    

11. Respondent's husband was given a copy of the October 27, 1989, letter to Respondent when he delivered the two doctor's certificates to PRJDC on October 27, 1989.

    
    

12. Respondent was first seen by Dr. Lerner on November 20, 1989. Dr. Lerner opined that Respondent has been unable to return to work as a cook at PRJDC from the date of her accident until the date of his deposition on March 7, 1990. He further opined that Respondent will remain unable to return to work until her weight gets below 300 pounds (preferably below 200 pounds), at which time he will be able to see if orthroscopic surgery is indicated on her knee and if such surgery will correct the problem.

    
    

13. Respondent is currently on a weight reduction program and has lost some 40 pounds.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

15. At the commencement of the hearing, Petitioner acknowledged that the evidence would not support a finding that Respondent had abandoned her position in the career service, and the only issue remaining was attorney's fees and costs, which is opposed by Petitioner.

    
    

16. In cases involving dismissal of a career service employee who is absent without authority for three successive days on the presumption that the employee has abandoned his position, the presumption is at best a rebuttal presumption. Tomlinson v. DHRS, So.2d (Fla. 2nd DCA 1990), 15 FLWD 327.

    
    

17. Here, Respondent presented convincing evidence that she was unable to work because of a continuing medical problem; accordingly, the presumption of abandonment is rebutted. No other evidence was submitted to support the allegation that Respondent abandoned her position.

    
    

18. The request for attorney's fees and costs presents an entirely different aspect of this case. In resolving this issue, it is appropriate to start with the proposition that the award of attorney's fees is in derogation of

    the common law, and the statutes allowing for the award of such fees should be strictly construed. Sunbeam Enterprises, Inc. v. UpTheGrove, 316 So.2d 34, 37 (Fla. 1975). This is also referred to as "American Rule" in that "in the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorney's fee from the loser." Alyeska Pipeline Service Co. v.

    Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed. 141

    (1975); and each party generally pays their own attorney's fees unless express statutory authorization exists to the contrary. Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 122 (8th Cir. 1987).

    
    

19. Florida Statutes provide for awarding attorney's fees in Sections 57.105, 57.111, 120.57(1)(b)5 and 10. Section 57.105 provides in pertinent part:

    
    

    The court shall award a reasonable attorney's fee to be paid to the pre- vailing party in equal amounts by the losing party and the losing party's attorney in any civil action in which the court finds there was a complete

    absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party; . . .

    Section 57.111 provides in pertinent part: (4)(a) Unless otherwise provided by law

    an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

    Section 120.57(l)(b)5, provides:

    All pleadings, motions, or other papers filed in the proceeding; must be signed by a party, the party's attorney, or the party's qualified representative.

    The signature of a party, a party's attorney, or a party's qualified repre- sentative constitutes a certification that he has read the pleading, motion, or other paper and that, to the best of his knowledge, information and belief formed after reasonable inquiry, it is not interposed for any frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the hearing officer, upon motion or on his own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or

    parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

    Section 120.57(1)(b)10, provides in pertinent part: When there is an appeal, the court in its discretion may award reasonable attorney's

    fees and costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of the appellate process or that the agency action which precipitated the appeal was a gross abuse of the agency's discretion.

    
    

20. Respondent appears to rely upon the provision of Section 120.57(1)(b)5, to support her claim for attorney's fees. This section tracks Rule 11 of the Federal Rules of Civil Procedure which has been widely interpreted by the courts. In applying Rule 11, if the district court concludes that the motion, pleading, or other document was not well grounded in fact or warranted by the existing law, or was meant to harass, then the court must impose a sanction. See e.g., Szabo Food Service Inc. v. Canteen Corp., 823 F.2d 1073, 1082 (7th Cir. 1987). As stated in Brown v. Federation of State Medical Boards of the United States, 830 F.2d 1429, 1435 (7th Cir. 1987):

    
    

    Rule 11 contains two grounds for sanctions. Each ground is concerned with eliminating abuses in the federal courts. The first ground is the "frivolous clause." This portion of Rule 11 is composed of two subparts: Whether the party or attorney made a reasonable inquiry into the facts, and whether the party or attorney made a reasonable inquiry into the law. A viola- tion of either part of the frivolous clause constitutes a violation of Rule 11.

    * * *

    To determine whether the attorney in question made a reasonable inquiry into the law, the district court should consider: the amount of time the attorney had to prepare the docu- ment and research the relevant law; whether the document contained a plausible view of

    the law; the complexity of the legal questions involved; and whether the document was a good faith effort to extend or modify the law (citations omitted).

    
    

21. Taking action to terminate Respondent from her position after three days unauthorized absence was not totally without merit under case law extant at that time. Department of Transportation v. Clancy, 521 So.2d 376 (Fla. 2nd DCA 1988), Hadley v. Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978). Section 57.105 also requires a finding that there was a complete absence of a justiciable issue of either law or fact raised by the complaint filed.

    Here there were both factual and legal issues raised in the abandonment claim. Accordingly, Respondent is not entitled to attorney's fees and costs under this provision.

22. Section 57.111 "Florida Equal Access to Justice Act" provides for the award of attorney's fees and costs to a prevailing "small business party" in an action initiated by a state agency. Since Respondent does not qualify as a small business party, she may not be awarded attorney's fees under this provision.

    
    

23. Finally, Section 120.57(1)(b)10 involves the power of the appellate court to award attorney's fees and costs against a party bringing a frivolous appeal or an agency action precipitating the appeal which was a gross abuse of the agency's discretion. Accordingly, this section is inapplicable here.

    
    

24. From the foregoing, it is concluded that Respondent did not abandon her position as alleged and is entitled to reinstatement. Insufficient evidence was submitted regarding her leave and sick leave status to determine her eligibility for back pay. However, from the evidence that was presented, it is presumed that she was in a leave without pay status at the time the alleged abandonment was brought. It is further concluded that there is no statutory basis for awarding attorney's fees in these proceedings.

RECOMMENDATION

It is recommended that Verdale Baptiste be returned to the employment roll of the Polk Regional Juvenile Detention Center with such back pay as she would have been entitled, absent the alleged abandonment.

ENTERED this 28th day of June, 1990, in Tallahassee, Florida.

K. N. AYERS 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 28th day of June, 1990.

COPIES FURNISHED:

Aletta Shutes Secretary

Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Augustus D. Aikens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Brent Creighton, Esquire Post Office Box 1089 Lakeland, FL 33802

Jack D. Farley, Esquire Department of Health and

Rehabilitative Services 4000 W. Dr. Martin Luther

King, Jr., Boulevard Tampa, FL 33614

William A. Frieder, Esquire Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Sam Power Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John Miller General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Docket for Case No: 90-000028

Orders for Case No: 90-000028