STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNIVERSITY OF SOUTH FLORIDA,

Petitioner,

vs.

LARRY FISHER,

Respondent.

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) Case No. 04-1044

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing in this proceeding on April 8 and

June 16, 2005, in Tampa, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Gerard D. Solis, Esquire

University of South Florida 4202 East Fowler Avenue, ADM 250

Tampa, Florida 33620

For Respondent: Larry Fisher, pro se

Post Office Box 424 Zephyrhills, Florida 33539

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is entitled to a "name clearing" hearing in this proceeding after Petitioner terminated the employment of Respondent in a separate proceeding.

PRELIMINARY STATEMENT

On November 4, 2004, Petitioner suspended Respondent without pay and notified Respondent that Petitioner intended to terminate Respondent's employment contract. Respondent requested an administrative hearing, and Petitioner referred the matter to DOAH to conduct the hearing.

At the hearing conducted on April 8, 2005, the tardy appearance of one witness delayed the hearing substantially. The parties also agreed that two days would be required to complete the administrative hearing. Pursuant to the agreement

of the parties, the ALJ continued the case until June 16 and 17, 2005.

At the hearing conducted on June 16, 2005, one witness testified, and Petitioner submitted 11 exhibits for admission into evidence. The identity of the witness and exhibits, and the rulings regarding each, are reported in the one-volume Transcript of the hearing filed with DOAH on July 25, 2005.

Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner is the state agency responsible, in relevant part, for the employment and dismissal of non-instructional employees at the University of South Florida (USF). Petitioner was a non-instructional employee at USF from a date sometime before March 25, 2003, until sometime before April 16, 2005.

   The precise dates of employment and termination are not identified in the record.

2. Shortly before March 25, 2003, Petitioner suspended Respondent without pay for three days. The suspension occurred on March 25, 26, and 27, 2003.

3. The suspension of an employee without pay affects the substantial interests of an employee within the meaning of Florida Administrative Code Rule 6C4-10.213(1)(e). On April 17, 2003, Respondent filed a grievance for informal resolution, but was unsuccessful. Respondent proceeded with what is identified in the record as a Step-1 internal review. Respondent was unsuccessful in the Step-1 internal review. On November 26, 2003, Respondent requested an administrative hearing, and Petitioner referred the matter to DOAH on March 24, 2004.

4. The request for administrative hearing requests reinstatement of Respondent to full-time employment for the three-day suspension and reimbursement of the compensation to which he was entitled during the three-day suspension (back pay). On June 15, 2005, Petitioner paid Respondent the entire amount of back pay claimed by Respondent.

5. The suspension of an employee with pay does not affect the substantial interests of an employee within the meaning of Florida Administrative Code Rule 6C4-10.213(1)(e). Respondent is not entitled to reinstatement for the period covered by the

   three-day suspension. Subsequent to the request for hearing in this proceeding, Petitioner terminated the employment of Respondent on separate grounds in a separate proceeding that was addressed in an order of the Public Employees Relations Commission (PERC) filed on April 14, 2005. Larry Fisher v.

   University of South Florida, Case No. CA-005-001, Order

   
   

   No. 05U-079 (PERC April 14, 2005). DOAH is precluded by the judicial doctrine of collateral estoppel from revisiting the issues addressed by PERC.

6. Respondent claims that he is entitled to proceed in this proceeding to clear his name (a name-clearing hearing). Respondent is not entitled to a name-clearing hearing based on a three-day suspension with pay. Respondent suffered no injury in fact. The three-day suspension with pay did not alter the legal status of Respondent's employment, did not deprive Respondent of any property right, and did not injure the reputation of Respondent. If it were determined that the three-day suspension with pay injured the reputation of Respondent, the intervening termination of Respondent on separate grounds in a separate proceeding renders inadequate any remedy available to Respondent in a name-clearing hearing in this proceeding.

   CONCLUSION OF LAW

   
   

7. DOAH does not have subject matter jurisdiction in this proceeding. Respondent does not have standing to proceed with a

   hearing in this proceeding to obtain reinstatement and back pay for the three-day suspension period. The three-day suspension with pay on March 25 through 27, 2003, did not affect the substantial interests of Respondent. § 120.57(1), Fla. Stat. (2003); Fla. Admin. Code R. 6C4-10.213(1)(e).

8. Florida Administrative Code Rule 6C4-10.213(1)(e) does not include the suspension of an employee with pay as agency action that affects the substantial interests of an employee. Petitioner can not deviate from a valid existing rule.

   § 120.68(7), Fla. Stat. (2004).

   
   

9. The requests for back pay and reinstatement are moot.

   
   

   Respondent has received the amount of back pay to which he is entitled. Respondent is not entitled to reinstatement in this proceeding. Petitioner terminated the employment of Respondent in a separate proceeding that has been adjudicated by PERC. The judicial doctrine of collateral estoppel precludes DOAH from recommending reinstatement of employment for an employee that has been terminated from his employment in a collateral proceeding.

10. Respondent is not entitled to a name-clearing hearing in this proceeding. Respondent did not suffer an injury in fact from the three-day suspension with pay. Cf. Herold v.

    University of South Florida, 806 So. 2d 638 (Fla. 2d DCA 2002)(denial of promotion does not satisfy so-called "stigma-

    plus" test); Sickon v. School Board of Alachua County, 719 So. 2d 360 (Fla. 1st DCA 1998)(reassignment from band director to assistant band director that allegedly demotes employee with no decrease in pay does not affect substantial interests of employee).

11. The three-day suspension with pay did not alter the legal status of Respondent's employment. The three-day suspension with pay did not damage the reputation of Respondent or impair his ability to secure other employment in any manner that this proceeding may be able to remedy in light of the intervening termination of Respondent's employment for separate grounds. Compare Spiegel v. University of South Florida, 555 So. 2d 428 (Fla. 2d DCA 1989)(removal as department chairman without explanation created a stigma and affected right to compensation as chairman).

12. If it were determined that the three-day suspension with pay satisfied the "stigma-plus" test, Respondent has no adequate remedy available in this proceeding. Even if Respondent were to succeed in removing the three-day suspension from his personnel record, the removal of that alleged stigma would pale in comparison to the termination of employment that Respondent cannot remove from his personnel record. A reasonable inference may be drawn that the latter stigma impairs Respondent's ability to obtain employment elsewhere in a manner

that cannot be remedied by the removal of the three-day suspension from Respondent's personnel record.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a final order dismissing the original proceeding for lack of jurisdiction and denying Respondent's request for a name-clearing hearing in this proceeding.

DONE AND ENTERED this 1st day of August, 2005, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2005.

COPIES FURNISHED:

Larry Fisher

Post Office Box 424 Zephyrhills, Florida 33539

Gerard D. Solis, Esquire University of South Florida

4202 East Fowler Avenue, ADM 250

Tampa, Florida 33620

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 04-001044

Orders for Case No: 04-001044