STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3364

)

DIANE C. HASHIL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Richard Hixson, held a formal hearing in this case on November 3, 1995 in Clearwater, Florida.

APPEARANCES

For Petitioner: Leslie K. Dougall-Sides, Esquire

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

For Respondent: Diane C. Hashil

1527 South Prospect Avenue Clearwater, Florida 34616

STATEMENT OF THE ISSUES

The issue in this case is whether the City of Clearwater properly dismissed Respondent, Diane C. Hashil, from her employment as a Toll Booth Attendant for inefficiency in the performance of duties, in violation of Rule 14, Section 1, paragraph (c), of the Civil Service Rules and Regulations of the City of Clearwater.

PRELIMINARY STATEMENT

On or about May 18, 1995, the Deputy City Manager of Petitioner, City of Clearwater, gave Respondent, Diane C. Hashil, written notice that she was being dismissed from her employment as a Toll Booth Attendant on charges of inefficiency in the performance of duties in violation of Rule 14, Section 1, paragraph (c), of the Civil Service Rules and Regulations of the City of Clearwater. Dismissal was effective May 24, 1995. On May 19, 1995, prior to her termination of employment, Respondent was afforded a pre-termination hearing conducted by the designee of the City Manager. Respondent was also afforded a post-termination hearing through the City Manager stage. Respondent filed a request for formal hearing which pursuant to Chapter 25 of the City of Clearwater Code, and Rule 15, Section 1, paragraphs (b) through (d) of the Civil Service Rules and Regulations, was referred to the Division of Administrative Hearings on July 3, 1995.

At final hearing on November 3, 1995, Petitioner presented twenty-three exhibits which were received into evidence without objection. Petitioner also presented three witnesses, William Held Jr., Michael Hancock, and Kathy S. Rice. Respondent testified in her own behalf, and presented no exhibits.

Petitioner maintains that Respondent was properly terminated from her employment with the City of Clearwater pursuant to the City's Guidelines for Disciplinary Action, Civil Service Board Rules and Regulations, and Memorandum on Annual Performance Rating.

Respondent contends that she has been unfairly singled out and reported for disciplinary action by other employees because she failed to join a union, and that although she may have violated City Marine Department rules, other employees also violate rules and are not subject to disciplinary action.

A transcript of the hearing was not filed. On November 17, 1995, Petitioner filed its Proposed Recommended Order. On November 17, 1995, Respondent filed a Statement of Facts and Issues. Specific rulings on the proposed findings submitted by the parties are set forth in the Appendix attached hereto.

FINDINGS OF FACT

1. Respondent, Diane C. Hashil, was employed as a Toll Booth Attendant at the Sand Key Tollbooth by Petitioner, City of Clearwater, (the City), from July of 1992 until May 24, 1995.

   
   

2. During the course of Respondent's employment with the City, Respondent has been the subject of numerous disciplinary actions, resulting in counseling, written reprimands, and suspensions. Beginning on December 6, 1993, and continuing through May 24, 1995, twelve disciplinary actions were taken against Respondent for charges including repeated discourtesy to customers, insubordination, failure to comply with verbal instructions, failure to follow policies regarding nonpayment of tolls, and entering the cash drawer of another employee without permission.

   
   

3. Respondent's disciplinary action history includes the following actions: 1) On December 7, 1993, Respondent received a written warning for a Level 4, #2 offense (insubordination); 2) On December 21, 1993, Respondent was suspended for two days for a Level 2, #2 offense (discourtesy); 3) On January 26, 1994, Respondent was suspended for three days for a Level 2, #2 offense (discourtesy); 4) On August 10, 1994, Respondent received a letter of reprimand for a Level 1, #1 offense; 5) On January 12, 1995, Respondent received a letter of reprimand for a Level 4, #2 offense (insubordination); 6) On January 17, 1995, Respondent was given a letter of reprimand for a Level 2, #1 offense; 7) On March 9, 1995, Respondent was suspended for two days for a Level 3 offense (productivity); and, 8) On March 15, 1995, Respondent was suspended for five days for a Level 4, #2 offense (insubordination).

   
   

4. In April of 1994, Respondent's employment with the City was terminated; however, the City reversed this decision, and Respondent subsequently remained in her position.

   
   

5. On November 1, 1994, Respondent received an unsatisfactory performance evaluation. The primary basis for this evaluation was Respondent's continued

   discourtesy to patrons which had resulted in disciplinary actions against Respondent during the evaluation period.

   
   

6. The City's employee performance ratings policy requires that an employee receiving an unsatisfactory rating be reevaluated in three months. On February 13, 1995, at her three-month follow-up reevaluation, Respondent again received an unsatisfactory performance rating. The basis for this evaluation was that Respondent had received repeated reprimands for insubordination, failure to follow rules, and entering the cash drawer of another employee without permission.

   
   

7. On March 9, 1995, as a result of her unsatisfactory reevaluation, Respondent received a two-day suspension, and twenty disciplinary points. On March 15, 1995, Respondent was suspended for five days for insubordination. Respondent's appeal of these suspensions was upheld through the City Manager stage. Respondent did not seek further review of these suspensions.

   
   

8. On May 5, 1995, at her second follow-up reevaluation, Respondent again received an unsatisfactory performance rating. Under the City's policy this unsatisfactory rating was automatic because Respondent had been suspended for five or more days during the rating period. In addition the second follow-up performance evaluation stated that Respondent filed a false police report alleging a customer had defrauded her, that Respondent entered the cash drawer of another employee without permission, and that Respondent was responsible for low morale of the other employees at the Sand Key Tollbooth.

   
   

9. Respondent admits that she entered the cash drawer of another employee without permission, and that she kept a daily log of the activities of other employees which contributed to the low morale at the Sand Key Tollbooth; however, Respondent believed other employees were allowed to violate rules, and that she was being unfairly disciplined because she was female and not a member of the union.

   
   

10. The evidence does not support a finding that other employees were allowed to violate rules, nor that Respondent was treated differently than other employees. The evidence does not reflect that Respondent was subjected to disciplinary actions because of her gender or her failure to join a union.

    
    

11. During her employment at the Sand Key Tollbooth, Respondent received more complaints from customers and other employees than any other tollbooth attendant.

    
    

12. Because Respondent had received two consecutive three-month reevaluations with an unsatisfactory rating, she was subject to termination under the City's policy. In addition, because Respondent had accumulated excessive disciplinary points she was subject to termination under the City's Guidelines for Disciplinary Action.

    
    

13. The performance evaluations and the disciplinary actions taken with regard to Respondent were appropriate and consistent with those given other employees.

    
    

14. Following her five-day suspension, Respondent filed a report alleging various rule violations of other employees. The City investigated Respondent's allegations and required three employees to attend counseling with regard to cash drawer procedures.

15. The evidence does not support a finding that the City singled out Respondent for disciplinary actions. The City allowed Respondent to serve her five-day suspension over two pay periods to lessen the financial impact of her suspension. The City Harbormaster has employed other females within the department without incident.

    
    

16. As of October 1995, the City has eliminated the position of tollbooth attendant because of the construction of a new Sand Key bridge which will, upon completion, be toll free. The City has assisted former tollbooth attendants in attempting to secure other positions of employment with the City.

    
    

17. Subsequent to her termination, Respondent applied for a meter reading position with the City, but was not hired.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes, and City of Clearwater Code, Section 2.285.

    
    

19. City employees can appeal from a dismissal determination by requesting the appointment of a hearing officer. Section 2.285, City of Clearwater Code, and Rule 14, Section 8, Civil Service Rules and Regulations of the City of Clearwater.

    
    

20. Under the City's Civil Service Rules, City employees can be dismissed only for just cause. See Sections 1 and 4, of the Civil Service Rules and Regulations of the City of Clearwater. In administrative proceedings under Section 120. 57, Florida Statutes, an agency seeking to dismiss or suspend an employee has the burden to prove, by a preponderance of the evidence, that the employee was guilty of charges constituting just cause for dismissal or suspension. DiLeo v. School Board of Dade County, (Fla. 3d DCA 1990). The same burden and standard of proof should apply in this case.

    
    

21. The City charged Respondent with violation of Rule 14, Section 1, paragraph (c), of the Civil Service Rules and Regulations of the City of Clearwater which provides:

    
    

    Sec. 1. Cause for Suspension, Demotion, and Dismissal.--The following, in addition to the offenses listed in the Guidelines for Discip- linary Action, Departmental Rules, General or Special Orders, and Rules for the Police and Fire Departments, are declared to be just causes for suspension, demotion, or dismissal of any employee in the career civil service,

    though charges may be based upon any cause which will promote the efficiency of the City service other than those herein enumerated, namely, that the employee:

    * * *

    (c) Is inefficient in the performance of specific duties of his position (specific instances to be charged).

    The specific instances with which the City charged Respondent included insubordination and failure to achieve a satisfactory performance evaluation on a second three-month follow-up evaluation.

    
    

22. The City of Clearwater Guidelines for Disciplinary Action provide in pertinent part:

    
    

    Any large organization such as the City of Clearwater must have rules and regulations and standards of performance to insure that efficient and effective services are provided in an orderly manner. Such rules, regulations, and standards are not adopted to restrict employee rights but rather to provide working guidelines which will assure fair, equitable, and consistent treatment of employees. The following Guidelines for Disciplinary Action are structured to provide

    for equality of treatment in discipline. However, in recognition of the fact that the circumstances of each infraction or occurrence may differ in many respects from the circumstances in other somewhat similar situation, the City retains the right to treat each occurrence on an individual basis and without creating precedent for other cases which may arise in the future or mitigating previous discipline.

    
    

23. Level 4 offenses include insubordination, which under the Guidelines justify discharge or a seven to fifteen day suspension on the second occurrence.

    
    

24. Level 5 offenses include the "(f)ailure to achieve a satisfactory performance evaluation in accordance with the City's Performance Evaluation Program (on second three-months' follow-up review)" which under the Guidelines justifies discharge or a ten to twenty day suspension on the first occurrence.

    
    

25. The Respondent's dismissal was based in part on her failure to achieve a satisfactory performance evaluation in accordance with the City's Performance Evaluation Program on her second three month follow-up review. Respondent also was disciplined for insubordination on more than two occasions.

    
    

26. The preponderance of the evidence establishes that the City has acted in accordance with the City's Guidelines for Disciplinary Action, that Respondent has been afforded appropriate review of the disciplinary action taken, and that dismissal of Respondent was justified by the evidence presented in this case.

    
    

27. The preponderance of the evidence does not establish that the City acted unfairly or inappropriately in taking disciplinary action against Respondent.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

The City of Clearwater Civil Service Board enter a Final Order dismissing Respondent from her position of employment with the City of Clearwater.

RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of November, 1995.

RICHARD HIXSON

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 29th day of November, 1995.

APPENDIX

As to Petitioner's Proposed Findings:

1 - 12. Accepted and Incorporated.

As to Respondent's Proposed Statement of Facts:

1. Accepted, except that unauthorized entry into another employee's cash drawer violated City rules and regulations.

2. Rejected as irrelevant.

3. Rejected as not supported by the evidence.

COPIES FURNISHED:

Leslie K. Dougall-Sides, Esquire Paul Richard Hull, Esquire

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

Diane C. Hashil

1527 South Prospect Avenue Clearwater, Florida 34616

Ms. Cynthia Goudeau City Clerk

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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: 95-003364

Orders for Case No: 95-003364