STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIMITRIA D. SCHMIDT, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1614

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on June 4, 1992, in Orlando, Florida.

APPEARANCES

For Petitioner: Dimitria D. Schmidt, Pro Se

429 Number 3 Sheoah Boulevard Winter Springs, Florida 32708

For Respondent: James Sawyer, Esquire

HRS-District 7 Legal Office South Tower, Suite S-827

400 West Robinson Street Orlando, Florida 32801

PRELIMINARY STATEMENT

This proceeding was initiated with the Department of Administration's referral for a fact finding hearing on Dimitria Schmidt's request for review of the Department of Health and Rehabilitative Services (HRS) determination that she abandoned her career services position, as provided in Rule 22A-7.010(2), F.A.C.

The parties appeared at the appropriate time and place as noted above.

At the commencement of the hearing, counsel for HRS presented a proposed recommended order as stipulation for disposition of the case. The stipulation provides that HRS has reinstated Ms. Schmidt and will restore all back pay and benefits, including insurance and leave, to which she would be entitled if she had not been deemed to have abandoned her position. Ms. Schmidt accepted the stipulation except as to the relief provided to her. She contends that she is entitled to additional damages for ancillary expenses incurred by her directly or indirectly related to her employer's action. She also contends that her personnel file should be expunged of disciplinary matters which preceded the abandonment charge.

After brief argument, counsel for HRS moved for dismissal of the request for hearing on the basis that all issues over which the Hearing Officer, and the Department of Administration, had jurisdiction were resolved.

Dismissal was granted as to the relief regarding expungement of the personnel file, but the motion was taken under advisement as to the other relief, and is granted with this recommended order, as more specifically get forth in the Conclusions of Law.

Ms. Schmidt testified in her own behalf, and presented four exhibits. HRS presented the testimony of its District VII Personnel Officer, Richard Audia, and one exhibit, the stipulation styled "proposed recommended partial final order".

After the hearing the parties waived submittal of briefs, memoranda on proposed orders on the remaining issues and requested an expedited recommended order so that back pay may be issued as soon as possible.

FINDINGS OF FACT

1. At all times relevant, Dimitria Schmidt was employed by the Department of Health and Rehabilitative Services (HRS) as a Children, Youth and Family (CYF) Senior Counselor in HRS District VII, in Orlando, Florida.

   
   

2. In a letter dated February 5, 1992, Ms. Schmidt's supervisor and program operations administrator informed her that she was considered to be on leave without authorization and would continue to be considered such until she contacted her supervisor and provided written certification of her condition from a physician.

   
   

   This was followed with a letter dated February 10, 1992 informing Ms. Schmidt that she was deemed to have abandoned her position based on failure to report to work on February 5, 6, 7, and 10, 1992 and failure to contact her supervisor.

   The letter cited Rule 22A-7.10(2), F.A.C. and provided the right to petition the Department of Administration for a review of the facts in accordance with that rule.

   
   

3. In a letter dated February 20, 1992, Ms. Schmidt timely made her appeal to the Department of Administration and referred to her attorney, Dominick Salfi, in Altamonte Springs, Florida.

   
   

4. Based on certain medical reports, HRS District VII Administrator, Paul Snead, rescinded the notice of abandonment on April 9, 1992, and reinstated Ms. Schmidt to her same position, but, at her request, in a different unit with a different supervisor. The agency intends to restore the employee to her prior status with respect to all benefits to which she would have been entitled without the break in service. This includes, but is not limited to back pay, leave, retirement benefits, and bumping rights. The agency no longer contends that Ms. Schmidt abandoned her position, and considers the notice of February 10, 1992 a nullity.

   
   

5. Ms. Schmidt contends that she is entitled, in addition to the above, to reimbursement in the approximate amount of $2,634.00, for attorney's fees, for travel to Tallahassee to see the HRS Secretary, for telephone calls and postage, for mortgage late fees, and hospital and other medical costs which Ms. Schmidt claims were the result of stress from harassment by her supervisor.

6. Of the $2,634.00 total, $254.00 relate to attorney's fees incurred when Ms. Schmidt's mortgage was foreclosed. She has not paid those fees yet. She has paid $658.55 to attorney Dominick Salfi, as follows:

   
   

   $100.00 for consultation on 1/13/92 (a month prior to the abandonment notice)

   $400.00 for consultation on 2/13/92 (directly related to the abandonment notice)

   $116.00 for copies of medical records provided to her attorney (invoice from West Lake Hospital undated, and ambiguous as it references 11 pages, at $1.00 a page, plus $5.00 research fee, for a total of $116.00)

   $42.55 for consultation on 4/23/92 and long distance telephone call on 5/15/92.

   
   

   CONCLUSIONS OF LAW

   
   

7. Between the time that the abandonment notice was sent and then rescinded, the case, Sonia Jenkins v. State of Florida, Department of HRS, 17 FLW D614 (1st DCA opinion March 2, 1992) found the Department of Administration without jurisdiction in career service employee terminations based on constructive abandonment. As a fact-finding alter ego of the agency pursuant to Section 120.57(1), F.S., the Division of Administrative Hearings is similarly without jurisdiction.

   
   

8. Notwithstanding the jurisdictional issue, both parties here have stipulated that abandonment did not occur, and the agency is willing to restore all benefits to the affected employee.

   
   

9. Ms. Schmidt has cited no authority, and the Hearing Officer can find none, for her requests for additional relief to be granted in this proceeding. That includes the request for expungement of certain disciplinary records, as well as the payment of various out of pocket expenses addressed in the findings of fact, above.

   
   

10. Various statutes provide for the award of attorney's fees in administrative proceedings. Ms. Schmidt has cited none, and the Hearing Officer can find no specific authority for the award of fees in this case. For example, Section 57.111, F.S. requires a "prevailing small business party", as opposed to a prevailing employee. Thompson v. Department of HRS, 533 So2d 840 (Fla. 1st DCA 1988). Section 120.57(1)(b)5., F.S. applies when a party files a pleading, motion or other paper in a proceeding to harass, cause unnecessary delay, for a frivolous purpose or needless increase in the cost of litigation. The record in this case does not support a finding of such improper purpose. And finally, Section 120.59(6)(a), F.S. on its face does not apply when a prevailing or nonprevailing party is an agency.

RECOMMENDATION

Based on the foregoing, it is hereby, recommended that the Department of Administration enter its final order dismissing Dimitria Schmidt's petition and remanding the matter to the Department of HRS for the immediate payment of back pay and restoration of benefits, consistent with the parties' agreement.

RECOMMENDED this 9th day of June, 1992, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Dimitria D. Schmidt

429 Number 3 Sheoah Blvd. Winter Springs, FL 32708

Dominick Salfi, Esquire HRS-Dist. 7 Legal Office South Tower, Ste. S-827

400 W. Robinson Street Orlando, FL 32801

James Sawyer, Esquire HRS-Dist. 7 Legal Office South Tower, Ste. S-827

400 W. Robinson Street Orlando, FL 32801

John Slye, Esquire HRS

Bldg. One, Ste. 407 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

John A. Pieno, Secretary Dept. of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Augustus D. Aikens, Jr. General Counsel

Dept. of Administration

435 Carlton Building Tallahassee, FL 32399-1550

John M. Carlson, Esquire Dept. of Administration

438 Carlton Building Tallahassee, FL 32399-1550

MARY CLARK

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 9th day of June, 1992.

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 contact the agency that will issue the final order in this case concerning agency 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: 92-001614

Orders for Case No: 92-001614