STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF SARASOTA )

COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0865

)

STEPHEN J. OTTEN, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida on October 11, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Maria D. Korn, Esquire

Kunkle & Miller

290 Cocoanut Avenue Sarasota, Florida 34236

For Respondent: Frederick P. Mercurio, Esquire

Mercurio & Hogreve, P.A.

1800 Second Street, Suite 920

Sarasota, Florida 34236 STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Respondent, Stephen

J. Otten, should be discharged from employment with the Petitioner, School Board of Sarasota County, for allegedly filing a false Worker's Compensation claim.

PRELIMINARY STATEMENT

By letter dated January 22, 1990, Charles W. Fowler, Superintendent of the Sarasota County schools, advised the Respondent he was suspended from employment with pay until February 6, 1990, on which date Fowler would recommend to the Board Respondent's termination because of his alleged deliberate filing of a false worker's compensation claim and false accusation made against his supervisor. After the Board meeting was held, on February 7, 1990, counsel for Mr. Otten requested a formal hearing, and by letter of equal date, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

After the parties' responses to the Initial Orders entered herein, by Notice of Hearing dated February 23, 1990, the undersigned set the case for hearing in Sarasota on March 16, 1990. However, Respondent requested a

continuance and Petitioner filed a Motion for Summary Judgement which was ruled upon by the undersigned on August 23, 1990. In that Order, denying the Motion, the undersigned again set the matter for hearing, on October 11, 1990, at which time it was heard as scheduled.

At the hearing, Petitioner presented the testimony of Basil G. Mays, an employer of the contractor which manages school board facilities and formerly Respondent's supervisor; Thomas L. Crown and Calvin T. Albritton, employees of the Board and co-workers with Respondent; Dr. Robert T Francis, Executive Director of Facility Services for the Board, and Respondent. Petitioner also introduced Petitioner's Exhibits 1 and 2.

Respondent testified in his own behalf and introduced the testimony of his wife, Diane; Richard S. Kaze, a groundsman for the Board; Norman G. Desormier, a regional custodian manager and manager of the Board's custodial Academy; Donald

W. Donovan, Jr., a physician's assistant, and Kurt W. Beecher, a Sarasota police officer. Respondent also introduced Respondent's Exhibit A.

A transcript was provided, and subsequent to the hearing, both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Respondent was an employee of the School Board of Sarasota County having started work there on August 6, 1986. He was a custodian and number one keyholder for the Board's 20 plus building administrative complex.

   
   

2. At approximately 5:30 AM on June 20, 1989, Respondent arrived at the complex and started to walk toward building R-21 to unlock it. While he was on his way, he claims, Mr. Basil Mays, the regional assistant director of maintenance came up to him, grabbed him by the arm, and told him to "keep his mouth shut" about a purported alteration of a report of property loss he, Respondent had submitted. In response, Respondent told Mays not to "fuck" with him and walked away to his board-owned vehicle. At this point, Respondent noticed that neither Thomas Crown nor Calvin Albritton, other workers and friends of Mays who usually congregate in the parking lot in the morning, were present. However, they soon arrived and went up to Mays' van to talk. At this point, Respondent walked up, shoved his time card through Crown and Albritton and gave it to Mays. He advised Albritton, with whom he was to work that day, he would meet him at Sarasota High School. He then left to go purchase the ceiling tiles he was to bring to the school for Albritton to install.

   
   

3. Respondent completed his tasks that day though his arm bothered him on and off the whole time. Before initially leaving the board grounds, he put cold water on the arm where he had been grabbed and was observed by Mr. Kaze, to whom he reluctantly told the story. Kaze recommended he see a doctor and report the incident to the police. He did not mention the incident to Albritton because they were not close, and though he did try to speak with Mr. Desormier about it at the pizza party held that day, every time he did, Mays would come up. He didn't mention the incident to anyone else at the Board offices. When he finally got to speak with Desormier the next day, he was advised to get the arm checked and if it did not get better, to see Mr. Palmer, head of risk management, about it.

4. During the day of the incident and the next, Respondent tried to do his normal tasks, but was unable to fully do so. He did what he could but was unable to use the arm for any heavy work. He subsequently reported the incident to the police. Mr. Mays was not arrested at that time.

   
   

5. On June 22, 1989, Donald W. Donovan, a physician's assistant, treated the Respondent for a large bruise on his right arm with numbness and pain radiating down the arm. His examination showed a 5 centimeter hematoma with nerve involvement in the 4th and 5th fingers which usually is an indication of lateral nerve involvement. Respondent claimed he had been grabbed by his supervisor whose thumb had caused the bruise. In Mr. Donovan's opinion, the injury was consistent with the Respondent's story. Admittedly, though difficult to do, this injury could have been self-inflicted. At the time he saw Otten, he appeared very apprehensive and fearful of repercussions about the incident. As a result, he suggested Respondent see a psychiatrist. He treated Respondent for about a month and prescribed physical therapy.

   
   

6. Mr. Mays denies injuring Respondent. He admits, that he asked Otten to increase the value of the theft on his report form because he couldn't account for all missing tools and did not think Otten could account for them, either.

   He claims, however, that on the day in question he got to work about 5:20 AM and met Crown and Albritton there. When Respondent came up, Mays laid out the work schedule for the day and Otten walked off with one of the men. He had his regional meeting later in the day at which Respondent was present, but indicates they had no conversation. On June 21, 1989 Mays left for New York, remaining there until June 25, 1989. When he got back to work on June 26, 1989, he received a call from city detectives warning him to stay away from Otten. When he asked what this was all about, he was told that Otten had alleged he had grabbed him and was fearful that Mays would retaliate. Mays was not arrested at that time and though he subsequently was apprehended, the matter was dropped because the prosecutor determined the evidence was insufficient to warrant prosecution.

   
   

7. Both Mr. Crown and Mr. Albritton saw Respondent on the morning of the alleged assault, after it supposedly happened, and he made no mention of it to them. Albritton claims that though he worked with Respondent all that day, Otten said nothing to him. He saw Otten the next day at Sarasota High School favoring his arm. When he asked what happened, Otten said somebody had grabbed him. This is consistent with Otten's story. Neither Crown nor Albritton are friends of the Respondent. In fact, Crown did not care to work with Otten and admits he may have said he would not be surprised if Otten broke into his own van.

   
   

8. After Mays was contacted by the police, he reported the matter to his supervisor, Dr. Francis who asked that Mays write out a statement. Thereafter, Otten filed a notice of injury which required other paperwork and an investigation by the Deputy Superintendent for Human Resources. Dr. Francis then prepared a memo to that officer recommending that Respondent be terminated for filing a false claim of injury and a false report against a supervisor. There is no report of any additional investigation made by Dr. Francis into the incident before making that recommendation. However, before any action was taken, an investigation was conducted by Dr. Price, the Assistant Superintendent for Human Resources, (not made available at the hearing), and after the Respondent's worker's compensation claim was rejected, the Board took its action to terminate him from employment.

9. Respondent claims to never have been in trouble with his employers before this incident. When his van was broken into, he immediately prepared a report of the theft, listing, to the best of his ability, the tools stolen from him. It was this report which Mays asked him to falsify and which was the basis for the incident here. His reputation as a school board employee, at least with Mr. Desormier, formerly a regional custodian manager and now manager of the Board's Custodian Academy is that of a very good and cooperative employee. Desormier never knew Otten not to tell the truth over the approximately 3 1/2 years they worked together.

   
   

10. Worker's Compensation benefits were denied Mr. Otten because the Judge of Compensation Claims found that his version of the facts was not credible.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Petitioner seeks to terminate Respondent's employment with the School Board because, it claims, he filed a false claim for worker's compensation and made a false allegation against his supervisor. If these conditions can be properly supported, they would serve as grounds for termination.

    
    

13. Since termination of an employee is serious disciplinary action, the Board must show, by a preponderance of the evidence, that the Respondent is guilty of the misconduct alleged. South Florida Water Management District v. Caluwe, 459 So.2d 390 (4DCA 1984); Dileo v. School Board of Dade County, 15 FLW D2781 (3 DCA 1990).

    
    

14. Here, the Board relied extensively on the determination by the Judge of Compensation Claims that Respondent's story was not credible, to establish that the claim was false. This is unjustified. A hearing before the Division of Administrative Hearings, under Section 120.57(1), Florida Statutes, is a de novo hearing and the Hearing Officer's charter is to independently determine facts; not merely accept those factual conclusions drawn by others. Notwithstanding his title, the Judge of Compensation Claims is not a judicial officer, and his findings are not binding in this forum. He is treating different issues than those under consideration here. Had he made specific findings of fact, these findings might be given some weight, but the mere determination, without more detail, that in his opinion, the Respondent's story is not credible, does not require a similar conclusion here.

    
    

15. To be sure, a definite equipoisal situation exists. Mr. Otten had a bruise on his arm, and though the physician's assistant treating it indicated it could have been self-inflicted, that was not likely, and he concluded the injury was consistent with Respondent's story. Other evidence from coworkers also tend to indicate that on the day in question, Otten was favoring his arm and was obviously in some distress. Further, he has given a straightforward account of his version of the incident and his credibility has not been satisfactorily impeached.

    
    

16. On the other hand, Mr. Mays admitted he asked Otten to amend his report of loss to take care of some unexplained tool shortages. This impacts on his credibility. Further, the Board's representative, Dr. Francis, referred to an investigation he conducted, but no report of that investigation was presented.

17. It is not found here that Mr. Otten's injury was caused by Mr. Mays. By the same token, it is not found that his report was false. The Judge of Compensation Claims was not satisfied that Otten had shown a causal connection between his work and his injury and found his testimony not credible. This, however, is insufficient, in light of the state of the other evidence presented, to show Respondent's misconduct by even a preponderance of the evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Respondent, Stephen J. Otten, be reinstated as a classified employee.

RECOMMENDED this 13th day of December, 1990, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 13th day of December, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-0865

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1.-2. Accepted and incorporated herein. 3.-5. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein. 8.-12. Accepted and incorporated herein.

13. Accepted as a restatement of the testimony, but not as dispositive of the issue.

14.-17. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted.

20.-22. Accepted and incorporated herein.

23. Accepted.

24.-25. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted.

FOR THE RESPONDENT:

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. Not a proper Finding of Fact. 4.-10. Accepted.

11.-12. Accepted and incorporated herein. 13.-14. Not proper Findings of Fact.

15. Not a Finding of Fact but a restatement of and comment on the evidence.

16.-17. Accepted and incorporated herein. 18.-19. Accepted and incorporated herein.

1. Accepted but irrelevant.

2. Accepted and incorporated herein. 22.-24. Accepted and incorporated herein.

COPIES FURNISHED:

Maria D. Korn, Esquire Kunkle & Miller

290 Cocoanut Avenue Sarasota, Florida 34236

Frederick P. Mercurio, Esquire Mercurio & Hogreve

1800 Second Street, Suite 290

Sarasota, Florida 34236

Dr. Charles W. Fowler Superintendent of Schools Sarasota County

2418 Hatton Street

Sarasota, Florida 34237

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-000865

Orders for Case No: 90-000865