STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3162

)

SANDRA SHELTON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case before James E. Bradwell, a Hearing Officer with the Division of Administrative Hearings, on October 20, 1994, and January 4, 1995, in Clearwater, Florida.

APPEARANCES

For Petitioner: Miles A. Lance, Esquire

Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

For Respondent: J. Robert McCormack, Esquire

Wiggins and McCormack

3040 Gulf-to-Bay Boulevard

Clearwater, Florida 34619 STATEMENT OF THE ISSUES

Whether Petitioner's dismissal of Respondent from her position as an Accounting Clerk II effective May 5, 1994 was justified.

PRELIMINARY STATEMENT

Effective May 5, 1994, Petitioner, the City of Clearwater, discharged Respondent, Sandra Shelton, from her position as an Accounting Clerk II, alleging she had been insubordinate in the performance of her duties in violation of the Rules and Regulations for the City of Clearwater. Respondent thereafter appealed that dismissal to the City Manager and by memo dated May 24, 1994, Petitioner advised Respondent that her appeal had been denied. Petitioner thereafter requested formal hearing and this hearing ensued.

At the hearing on October 20, 1994, Petitioner presented the testimony of Anna Fierstein, a Human Resources Technician; John Terry Neenan, a Superintendent of Petitioner's gas division during times material; Jim Lewin, Sr., an Assistant Superintendent, (Gas); Sandy Harriger, a Staff Assistant III

employed in the gas department and who was Respondent's immediate supervisor from April, 1992 to the time of her discharge. Petitioner also introduced eighteen (18) exhibits.

At the hearing on January 4, 1995, Respondent testified in her own behalf and presented the testimony of Ellen Taylor Foster, a Senior Service Dispatcher; Barbara Strother, an Accounting Clerk II in the gas division; Lisa Perkins, an Accounting Clerk I; Nancy Scott, a Staff Assistant II in the solid waste department; Nancy Tobin, a Staff Assistant II in the gas department; and John Coppersmith, an Accounting Clerk II, who was hired to replace Respondent.

A transcript of the proceedings was furnished. Both parties filed Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

Subsequent to the hearing in this matter, but before the publication of the Recommended Order herein, Hearing Officer Bradwell, who heard this matter, left the Division. The matter was thereafter referred to the undersigned who reviewed the transcript of the proceedings, considered the exhibits entered into evidence and the Proposed Findings of Fact submitted by counsel. By Notice of Unavailability of Hearing Officer dated May 16, 1995, both counsel were advised of the situation and accorded 14 days from the date of the Notice to advise the undersigned of the need for the presentation of further evidence or argument.

Neither counsel indicated a need for further evidence or argument, and counsel for the Petitioner indicated it had no objection to the undersigned serving as the decision authority in this matter.

FINDINGS OF FACT

1. Respondent was employed by Petitioner for approximately thirteen (13) years from 1981 until May 5, 1994. At the time of her discharge, she was an Accounting Clerk II in the gas department.

   
   

2. Prior to 1991, Respondent's employment history with the Petitioner was, with minor exceptions, satisfactory. When she transferred to the gas division as an Accounting Clerk II, her work records indicated she had some shortcomings relating to her organizational skills and her inability to prioritize her work schedule.

   
   

3. As an Accounting Clerk II in the gas division, Respondent was responsible for computing the payroll for all of the employees (approximately 69-73) in the gas department. In addition, Respondent was responsible for preparing purchase orders, paying invoices, making "Candy calls" (a procedure wherein Petitioner advises residents of a given area that there will be

   excavating and other repairs around their property); tracking the hours of part- time guards to make sure that they are evaluated when they reach the level of 2,080 hours of work; and receiving the incoming inventory of materials and supplies. Additionally, in 1991, Respondent volunteered to fill in as a dispatcher, as needed, for the gas division. At that time, the dispatch employees worked part-time. Respondent worked as a dispatcher when the dispatch employees were on sick and vacation leave, lunch time and on weekends. So did other employees.

   
   

4. Notwithstanding subsequent allegations by Respondent that her efforts to cease doing dispatch work were rejected, the overwhelming evidence is clear that dispatch duties for Respondent and other non-dispatch personnel were not mandatory. Ms. Perkins, who was a periodic dispatcher volunteer, indicated that

   she successfully resisted pulling dispatch duties when her normal work precluded it. She indicated, however, that even though respondent had work piled up, she would do dispatch duties when asked. In fact, according to Perkins, dispatching became "kind of, like part of [the] job" for Respondent.

   
   

5. During October, 1993, Nancy Scott was employed in the gas department as a Staff Assistant II. When Scott was hired by administrators Neenan and Lewin, because it was seen that Respondent was falling somewhat behind in her work, she was told to provide assistance to Respondent. In this regard, Scott assisted Respondent in reorganizing her files which were disorganized, and she continued to do so until she transferred to another department in March of 1994. Scott also worked with the contracts, the RPO's and personnel files, all of which were within Respondent's area of responsibility.

   
   

6. Scott assisted Respondent when she completed her own daily work, from about 2:00 PM to 4:30 PM, when Respondent got off work. According to Scott, Respondent was the slowest of the accounting clerks. Scott was aware that Respondent had "a substantially greater" volume of work to do than any other accounting clerk" and was slower as well. Respondent appeared overwhelmed by the job and the work, and Scott suggested that Respondent's work load be distributed "a little bit more evenly to someone else".

   
   

7. In this regard, Scott suggested to supervisors Neenan and Lewin that Respondent's job was "too much for one individual to handle". There is some evidence that on one occasion, Respondent spoke to an industrial counselor about her work load and was told to discuss the matter with her supervisor.

   Respondent did not consider that to be a viable suggestion since, she claimed, she had been subjected to discipline more severe than originally offered on the one previous occasion that she protested her assignments.

   
   

8. During April 1994, Respondent was asked to track the hours of the remaining property guards who had not reached 2,080 hours of employment during that year. When Respondent did not immediately provide the information to her supervisor, Sandy Harringer, before April 15, 1994, Harriger compiled the hours for those employees; Bob Brown, Don Henry and Pat Lafferty. When Harriger compiled the information, she discovered that Robert Brown was due a raise and related benefits since December, 1993. Respondent's failure to keep track of the hours for the property guards resulted in a late review for Robert Brown and, as a result, Petitioner owed Brown a significant amount of back pay.

   
   

9. Pursuant to Petitioner's disciplinary guidelines, employees are subject to discipline when they accumulate 60 disciplinary action points within a specified period.

   
   

10. When Petitioner discharged Respondent on May 2, 1994 (effective May 5, 1994), she had accumulated more than 100 points. The points were assessed as follows:

    
    

    1. On January 13, 1993, Respondent received a letter of reprimand;

    2. On November 17, 1993 she received a two

       1. day suspension for failure to track the hours of part time property guards and the new full time guards, as instructed by her supervisor;

       2. On January 3, 1994, she received a five (5) day suspension for failing to prepare seven per- formance reviews on time;

       3. On April 7, 1994, she received a seven (7) day suspension for not performing up to standards in that she had a large number of invoices payable that were not paid for several months.

       
       

11. These prior offenses accounted for 100 disciplinary action points. The current offense on May 2, 1994, accounted for 40 more points for a total of 140 disciplinary action points.

    
    

12. During the period leading up to the imposition of the last disciplinary action, Mr. Neenan, at the time in issue a supervisor in the Gas Division, was responsible for evaluating Respondent's performance. Reviewing Respondent's personnel records, he found that from 1988, before she came to the gas Department, Respondent's employment reviews showed areas needing improvement even on overall satisfactory reports. She was noted to require improvement in those areas dealing with the accuracy of her work, her planning and organization, and excessive sick leave. From then on, up to the time of her discharge, these same areas of concern were almost consistently marked as needing improvement.

    
    

13. When these areas began to be noted, Respondent was counseled in an effort to try to get her up to speed and to let her know what was important in her job. These efforts did not seem to have any salutary effect. In her 1992 - 1993 report, her overall rating was "needs improvement", and the 1993 - 1994 report was unsatisfactory. In both cases her ability to plan and organize work, her conformity with instructions, and her ability to cooperate with coworkers to get department work done correctly and on time were specifically noted as below standard.

    
    

14. Ms. Shelton was repeatedly advised that her unwillingness or inability to establish appropriate work priorities was her problem. Apparently, she could not decide which was the most important job and get that done. This was explained to her by her immediate supervisor, Ms. Harriger, and by Mr. Lewin.

    As early as 1991 it was determined that Ms. Shelton was not performing properly, and Mr. Lewin counselled her and gave her tips on how to more adequately perform her tasks. She was given assistance by other clerical staff and more than one memo was created to prompt her as to when reviews were due. Notwithstanding these efforts, she continued to have difficulty with late evaluations.

    
    

15. Ms. Harriger offered Respondent training courses to help enhance her skills, some of which she took advantage and others which she declined. Mr. Lewin discussed with Respondent on several occasions her responsibilities as to paying invoices which came in on purchases made by the Department as well as on setting up a workable filing system. In that regard, Respondent claims there was nothing wrong with the filing system she used, and as she describes it, this seems to be true.

    
    

16. Respondent repeatedly advised her supervisors that the dispatch work she was doing took time away from her clerical work and she was, reportedly, consistently directed to put her clerical work first. She saw payroll as her number one priority. In addition, her supervisors took immediate action to cut down her hours and exposure to the radio room and even assigned other clerical people to be backup for the radio so Respondent would not be asked to do it so much. In short, dispatch duties for Respondent was put back to a last resort. Many of these clerical individuals were not able to handle the dispatch duties, however; and though there can be little doubt that Respondent knew her clerical duties were of paramount priority, she continued to do dispatch, claiming that

    unless she did help out, there would be no one in the dispatch office. She felt it an imperative she be there. It was during these years when Respondent got all the prior disciplinary actions.

    
    

17. On March 29, 1994, Respondent was sent a certified letter advising that she would be terminated if her performance did not improve. Notwithstanding this, by early May, 1994, she had again failed to complete reviews on time; and on May 2, 1994, she was discharged for allegedly engaging in "insubordination by refusal to perform work assigned or by failure to comply with written or verbal instructions of the supervisory force".

    
    

18. Nancy L. Tobin, now a retiree, formerly assisted Respondent in filling in as a dispatcher when she wasn't doing her regular Accounting Clerk II duties. Tobin, who was familiar with the work load in the gas division, witnessed Respondent's regular duties escalate as the gas department grew. Respondent often volunteered to help her coworkers when they were "stuck" and Tobin would do the same.

    
    

19. Respondent claims she was required to do dispatching as a matter of necessity. She asserts that when, during late 1992, she attempted to turn down the dispatching duties when asked to do so by her supervisor, Harriger, she was told, "if you don't do it - you'll be written up for insubordination". This statement was allegedly made to Respondent in the presence of another employee, but the latter individual was not present to testify, and Ms. Harriger categorically denies it. However, from that point forward, Respondent claims, she gave up on trying to get out of the dispatching duties and did those duties as well as all of the other duties to which she was assigned.

    
    

20. On one occasion, Respondent claims, when she was being issued a reprimand respecting her failure to timely report the guards' hours, she was asked her to promise that would not recur. When Respondent attempted to explain that she could not do so (in view of her work load), the reprimand was withdrawn and Respondent was issued a five (5) day suspension.

    
    

21. As noted, the previous disciplinary actions taken against Respondent related, to a great extent, to problems with the dispatching and the tracking of hours for the part-time guards which interfered with her regular duties. Her regular duties were "too much" for her to handle, along with the dispatch duties, and Respondent asserts they were more than those of any of the other Accounting Clerk II's employed in her department. There is no evidence to support this, however. The City has hired another accounting clerk to replace Respondent. This individual's duties are similar to those done by Respondent, except for the dispatch function she performed, the evaluation of part-time guards, and for the "candy calls" which are now done by someone else.

    
    

22. The compilation of the hours for the part-time guards required a lot of effort and was a tedious, labor intensive task. It required that Respondent track all of the part-time hours on a ledger and report that tabulation of hours to Harriger as soon as the part-time guards received the 2080 hours. Unlike the full-time employees, these guards worked erratic hours and compiling their hours was difficult. In addition to Respondent's other duties, she was also doing the dispatching which required a total effort and which interfered with her regular duties.

    
    

23. Respondent sincerely tried to perform all the functions of her job while continuing to cover the dispatch. In this regard, she often carried work home and tried to catch up on her regular duties while she performed dispatch

    duties on weekends, when the service lines were not as busy as during the weekdays. Nonetheless, at no time did she ever go to Ms. Harriger, Mr. Neenan or Mr. Lewin to point out the difficulty she was having and ask for help, nor did she ever appeal any of the prior disciplinary actions taken against her which resulted in suspension.

    
    

    CONCLUSIONS OF LAW

    
    

24. 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.

    
    

25. Petitioner has the burden of establishing, by a preponderance of the evidence, that Respondent's discharge was a proper action based on the City's rules and regulations and that its system of progressive discipline followed fair standards and guidelines, and was administered impartially.

    
    

26. The City's Rule 14, Section 1 (1) provides:

    
    

    1. Cause for suspension, demotion and dismissal. -

    The following, in addition to the offenses listed in the guidelines for disciplinary action, depart- mental rules, general or special orders, and rules for the police and fire department, 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 services other than those herein enumerated, namely, that the employee:

    (1) has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given to [her] by [her] superior officer when such violation or failure to obey amounts to insubordination, serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the city or to the public.

    
    

27. The penalty for Respondent's last offense is forty (40) disciplinary action points, as provided in the City's Guidelines for Disciplinary Action, as amended in 1994. Her misconduct is characterized as:

    
    

    Insubordination by refusal to perform work assigned or to comply with written or verbal instructions of the supervisory force.

    
    

28. This offense calls for imposition of 40 points whether the first or a succeeding offense. Any employee who accumulates 60 points in any 24 consecutive month period is subject to dismissal. The instant offense gave Respondent a total of 140 points.

    
    

29. Respondent claims her failure to track the hours for property guards and to prepare the necessary reviews and documents in a timely manner was based on the fact that she was inundated by the amount of work that she was required to perform, and her work load was over and above the amount of work that was

    generally assigned to similarly situated accounting clerks in her division. As noted, Respondent was charged with the responsibility of preparing the payroll, purchase orders and invoices, tracking the hours of part-time guards so that their employee evaluations were timely completed, and filling in as a dispatcher as needed. When Respondent complained about doing some of her duties, she claims, she was told that if she failed to do those duties that were assigned, (the dispatching), she would be reprimanded for insubordination. This allegation was denied by Ms. Harriger, the individual who allegedly made the statement.

    
    

30. There is no evidence to show that Respondent acted defiantly or that she willfully disobeyed orders which were assigned her by her supervisors. In fact, the exact opposite is true. Respondent labored to honor and satisfy all directives and orders that were given her by her superiors. In certain instances she took work home and her work ethic was always good. She willingly assisted other employees who were "stuck" and some of her fellow employees contended that her work load was "overwhelming". However, Ms. Shelton was advised that her assigned work was suffering because of her lack of organization, her failure to prioritize her tasks, and because she was spending too much time in dispatch rather than in accomplishing her assigned tasks. Her failure to accomplish her assigned tasks while still performing the dispatch work constitutes, in this case, the insubordination alleged.

    
    

31. The employee who has been hired to replace Respondent has been assigned a similar but smaller work load relative to Respondent's and his job duties are streamlined. Specifically, he is required only to complete payroll, purchase orders and invoices, and he does not complete employee evaluations for part-time guards because they have now been converted to full-time employees. The replacement employee is not required to do any dispatching.

    
    

32. Respondent did not challenge any of the former disciplinary actions taken against her. She claims her reason for not doing so was based on her contention that on the one occasion when she did so, the reprimand that she was initially offered was converted into a five day suspension, a more severe penalty than was originally intended. Review of the record relating to that incident indicates that the suspension action was taken when she would not guarantee the supervisor that the activity forming the basis for the discipline would not be repeated.

    
    

33. At all times, Petitioner was fearful of losing her job and she even spoke to an industrial counselor regarding the fact that she felt that she was being unfairly assigned work duties in the gas division. Based on her prior attempts to discuss her work problems with her supervisor and the response she received, Petitioner knew that was not a viable alternative. She therefore labored to timely complete the work assignments that were given her but she did not cease accepting work in the dispatch room.

    
    

34. The evidence clearly demonstrates that the Respondent's failure to get the required work done in a timely manner was related to several factors, all of which were within the Respondent's control. In the first place, Respondent spent entirely too much time in dispatch work to the detriment of her routine tasks. That she did this demonstrates her desire to insure that the dispatch function was carried out successfully, and this is to her credit. However, the staffing of the dispatch office was not her responsibility, and when it became clear that her dispatch activities were cutting into her ability to properly perform her duties, she should have declined to perform dispatch on a regular basis. Even accepting, arguendo, that her one request of Ms. Harriger to be

    relieved of dispatch duties was denied, and Ms. Harriger denies this happened, Respondent's should have again declined to perform dispatch duties when it became clear it was interfering with her duties. Other people, such as Ms.

    Perkins, refused and no discipline was imposed.

    
    

35. Ms. Shelton demonstrated a pattern of disorganization even before her transfer to the gas department. Her yearly evaluations back as far as 1988-1989 reflected a need for her to improve her ability to prioritize her work, and each succeeding evaluation reflected a continuing deficiency in that area. She was counselled repeatedly about her performance shortcomings but either would not or could not modify her behavior to conform to the standards set for her. To be sure, she had a heavy work load which some have called overwhelming, and this was recognized by her superiors who provided her with assistance and opportunities for training in areas designed to help her improve her performance. At no time, however, did she seek additional assistance, even when being counselled for failing to meet standards, or did she take advantage of many of the improvement opportunities. On each occasion she had an excuse for not doing so, and this tendency to find excuses is manifested here in her claim of overwork and the pressure of additional dispatch duties.

    
    

36. Ms. Shelton was made well aware of the fact that her work was not up to department standards. She was given opportunity to improve and failed to do so. In continuing to work dispatch after being made aware of her shortcomings and what was needed to overcome them and in failing to take those steps which would have assisted her in meeting standards, Ms. Shelton met the definition of insubordination as contained in the City rules, and the award of 40 disciplinary points for the performance in May, 1994 was appropriate. It appearing that her supervisors have fairly interpreted and followed the pertinent rules in the determination of Respondent's culpability, it is not within the purview of the Hearing Officer to overturn that conclusion. Consequently, in light of her continuing disciplinary record for repeated similar violations, all of which can be traced to her continuing to work dispatch and her failure to properly organize and prioritize her work, consistent with the City's progressive discipline program, discharge is appropriate.

RECOMMENDATION

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

Petitioner enter a final order discharging Respondent from employment with the City of Clearwater.

DONE and ORDERED this 28th day of June, 1995, 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 28th day of June, 1995.

APPENDIX TO RECOMMENDED ORDER

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.

   1. Accepted and incorporated herein.

   2. & 5. More a Conclusion of Law than a Finding of Fact.

      1. Accepted and incorporated herein.

      2. Accepted and incorporated herein.

      3. Not a proper Finding of Fact but more a comment on the evidence.

      4. - 15. Accepted and incorporated herein.

16. Accepted and incorporated herein as a summary of the substance of Respondent's position.

FOR THE RESPONDENT:

alleged response of Ms. Harriger, which she denies.

1. - 11. Accepted and incorporated herein.

   1. Accepted as fact but not as an excuse for Respondent's failure to properly perform.

   2. Accepted.

COPIES FURNISHED:

J. Robert McCormack, Esquire Wiggins and McCormack

3040 Gulf-to-Bay Boulevard

Clearwater, Florida 34619

Miles A. Lance, Esquire Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Michael Laursen, Secretary City of Clearwater Civil

Service Board

Post Office Box 4748 Clearwater, Florida 34618-4748

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 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: 94-003162

Orders for Case No: 94-003162