STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER,

vs.

Petitioner,

Case No. 15-3410

ANTWAN WILLIAMS,

Respondent.

/

RECOMMENDED ORDER

This matter was heard before the Division of Administrative Hearings (DOAH) by its assigned Administrative Law Judge,

D. R. Alexander, on September 10, 2015, in Clearwater, Florida.

APPEARANCES

For Petitioner: Matthew M. Smith, Esquire

Assistant City Attorney Post Office Box 4748

Clearwater, Florida 33758-4748

For Respondent: Antwan Williams, pro se

Apartment 168

2705 56th Terrace South Clearwater, Florida 33712-4801

STATEMENT OF THE ISSUE

The issue is whether Respondent should be terminated from employment with the City of Clearwater (City) for falsifying his pre-employment medical application, as alleged in the City's Termination and Dismissal Notice (Notice) dated July 7, 2014.

PRELIMINARY STATEMENT

By Notice dated July 7, 2014, the City advised Respondent, a Parks Service Technician II, that he was being dismissed from employment effective July 8, 2014, for providing false information on his pre-employment medical application submitted in November 2011. Respondent timely requested a hearing to contest the City's action. Pursuant to a contract, and almost one year later, the matter was referred by the City to DOAH to conduct a formal hearing.

At the hearing, the City presented the testimony of three witnesses. City Exhibits A through M were accepted in evidence. Respondent testified on his own behalf.

A one-volume transcript of the hearing has been prepared. Proposed findings of fact and conclusions of law were filed by the City, and they have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. From 1995 until early 1999, Respondent was employed by Pinellas County (County) as a Maintenance Worker II. See Ex. A,

   p. 5. In April 1998, he suffered a knee injury during a County- sponsored softball game. Due to the injury, he was dismissed from employment with the County on February 25, 1999, on the ground he was incapable of performing the essential functions of his job classification, even with a reasonable accommodation.1/

   
   

   See Ex. I, p. 6. At that time, Respondent was determined to

   
   

   have reached maximum medical improvement with a permanent impairment rating of 36 percent. See Ex. I, p. 7. This meant

   that he could only perform his job duties at a 64 percent level. In return for releasing all claims, in 2005 he received a payment from the County in the amount of $100,000.00 as settlement for his on-the-job injury. See Ex. I, pp. 28-31.

2. In October 2011, Respondent applied for a position with the City.2/ See Ex. A. As a part of the employment process, an applicant is required to complete an Application for Employment (Application). The Application required Respondent to certify that "the information contained in this application is correct and complete to the best of my knowledge" and that "any false information provided by [him] to the City may constitute grounds for immediate discharge regardless of when the information is discovered by the City." Id. at p. 4.

3. If the City decides to hire an applicant, he must then complete and submit a Medical History Questionnaire (Questionnaire). Respondent completed and filed the Questionnaire on November 21, 2011. See Ex. C.

4. Based upon his Application and Questionnaire, Respondent was offered a position as a Park Service

   Technician I, a "basic manual, landscape" entry-level position in the Parks and Recreation Department. He began working in

   
   

   December 2011. In January 2013, he was reclassified as a Park Service Technician II. Both positions are labor-intensive and required Respondent to lift, push, or pull items weighing up to

   75 pounds. See Ex. B., p. 2. In short, the job involves physical work 100 percent of the time and is considered "one of the [City's] heaviest positions, in terms of the physical labor requirements." Because of the nature of the work, the City will not hire any applicant with an existing medical disability for these positions.

5. The City has adopted a Performance and Behavior Management Program manual that applies to all employees and contains Citywide, Integrity, and Departmental standards of conduct. Also, pursuant to the Code of Ordinances (Code), the Civil Service Board has adopted a set of rules and regulations that apply to all positions in the civil service, including Respondent's position. Among other things, those regulations set forth additional grounds for disciplining an employee.

6. Question 2.10 of the Questionnaire asks if the applicant has "[a]ny permanent physical condition which received an impairment rating?" Respondent answered no. In response to question 2.11, he denied having any health-related reason that might affect his ability to work as a park service technician. In response to question 2.6, he denied having any injury, operation, disease, or disability not covered by previous

   
   

   questions. In response to question 2.10, he denied having any physical conditions which received an impairment rating. Each of these responses was not true. He also failed to answer questions asking if he had ever filed an injury report with a previous employer (question 2.5) or had ever received a settlement for inability to work (question 2.9). In the comments section of the Questionnaire, Respondent stated that he twisted his knee in 1998, he had arthroscopy on the knee (a minimally invasive surgical procedure), but he had no existing problems. For unexplained reasons, the City either failed to notice that questions 2.5 and 2.9 were not answered, or it did not ask Respondent to complete the form.

7. Respondent had two injuries on the job while working with the City, both of which resulted in him filing workers' compensation claims. When the second injury was being processed by the insurance carrier in May 2014, it noted that Respondent had previously filed a claim with the County in 1998 and instructed the City's Risk Department to contact the County.3/ The City then learned for the first time that Respondent had a permanent disability rating of 36 percent assigned in 1998 and that, in 2005, he had received a $100,000.00 settlement for his injury. Apparently for the first time, the City also noticed that Respondent had not answered questions 2.5 and 2.9 on his Questionnaire.

   
   

8. After discovering this information, the Parks and Recreation Department Director recommended that Respondent be terminated for violating City rules and standards. The Director testified at hearing that had this information been initially disclosed, he would not have hired Respondent due to the labor- intensive nature of the work.

9. Civil Service Board regulations allow an employee to present the circumstances which led to his dismissal and other mitigating evidence. See ch. 13, § 8, Rules and Regs. Pursuant to that regulation, Respondent requested a disciplinary determination meeting with the Department of Human Resources, which was conducted on July 1, 2014. Respondent was represented at the meeting by the president of his union. After considering Respondent's explanation, on July 2, 2014, the Parks and Recreation Department again recommended that Respondent be terminated. On July 7, 2014, the City Manager notified Respondent that he was being terminated effective the following day, July 8, 2014. Respondent timely requested a review of that decision by a hearing officer (administrative law judge). The record does not disclose why the case was not referred to DOAH for almost one year.

10. The evidence shows that Respondent knew, or should have known, that by disclosing that he had a permanent disability rating, he received a settlement from the County for

    
    

    an injury on-the-job, and he was discharged by the County because of a disability, he would not have been hired by the City. The failure to disclose that information is contrary to City policies, standards, and regulations.

11. Respondent testified that he probably answered the medical questions incorrectly because he failed to pay close attention to the information being requested and he filled out the form quickly. He further explained that he was always under the impression that the County did not discharge him in 1999 because of a disability, but rather because it could not hold his position open for more than ten months. The evidence, however, shows otherwise. See Endnote 1. He had no explanation

    for failing to answer questions 2.5 and 2.9, except that he may have overlooked those items. Had he completed the Questionnaire accurately and completely, he would not have been hired.

12. At hearing, Respondent testified that the investigation which led to his dismissal was triggered by bad relations with his landscape manager, who became upset when he observed Respondent using a handicapped license plate to park his car in a handicapped space and did not believe Respondent was disabled. Respondent suggested that this led to the City's examination of his Application and Questionnaire, and his ultimate dismissal. Respondent obtained the special license plate in 1999 when he was given a disability rating by the

    
    

    County, and he continued to renew the tag for around 15 years. However, the issue concerning the license plate played no role in the City's decision to terminate Respondent.

13. Respondent had a blemish-free record while working with the City. He testified without dispute that even with a disability rating and a brace on his left leg, he performed every assigned task and was always given good evaluations by his supervisors. He wants to continue working for the City in order to support his wife and seven children.

14. While termination may be a harsh penalty, the City has ample authority under its Code to take that action. Whether Respondent is eligible to be hired in another position that requires no physical labor is not of record.

    CONCLUSIONS OF LAW

    
    

15. Section 2.285(1) and (2) of the Code authorizes the Civil Service Board to contract with DOAH to provide a hearing officer (administrative law judge) "to review employee appeals resulting from alleged adverse employer action," including dismissal.

16. Section 2.285(2) provides that at the hearing, "[t]echnical rules of evidence shall not apply," and each party "shall have the right to be heard publicly," to be "represented by a person of his choice," and "to present evidentiary facts." Section 2.285(3) requires that "in conducting administrative

    
    

    hearings," the hearing officer "shall utilize a procedure similar to that set out in F.S. §§ 120.57(1) and 120.58." He shall then "transmit the proposed order composed of proposed findings of fact and conclusions to the civil service board."

    § 2.285(4). No provision is made for filing exceptions to the proposed order, but both parties may appear before the Civil Service Board when it considers the proposed order.

17. The Code does not spell out the standard of proof in an appeal by a discharged employee. Ordinarily, except where otherwise provided by statute, an employer seeking to terminate an employee must prove the charges by a preponderance of the evidence. See, e.g., Allen v. Sch. Bd. of Dade Cnty.,

    571 So. 2d 568, 569 (Fla. 3d DCA 1990). This standard has been used. Accordingly, the City has the burden of proving by a preponderance of the evidence that Respondent should be terminated for the reasons stated in the Notice.

18. The Specifications portion of the Notice alleges that "the Medical History Questionnaire [Respondent] submitted in conjunction with [his] pre-employment physical prior to [his] employment with the City contained items that were not responded to, were inconsistent, and/or did not include explanations. The items in question are specifically related to having or being treated for prior accidents, injuries, or Workers' Compensation

    
    

    claims." The Notice goes on to state that these violations constitute grounds for dismissal.

19. There is no dispute that Respondent submitted an inaccurate and incomplete Questionnaire. Had he answered the questions accurately and completely, he would not have been hired. As such, this constitutes a violation of a Citywide standard that requires an employee to "follow all City policies and procedures"; it violates an Integrity standard that prohibits "[f]alsifying City or personnel records, such as falsifying Worker's Compensation claim information or deliberate falsification of an employment application"; it constitutes a violation of a Departmental standard that requires an employee to comply "with all established" rules, regulations, policies, procedures, and directives; and it constitutes a violation of chapter 13, section (3)(h), Rules and Regulations, which prohibits an employee from "making false claims or misrepresentations" in an attempt to gain a benefit, such as employment, from the City.

20. The established facts are sufficient to warrant Respondent's termination. Given his otherwise unblemished record as an employee, and the fact that he has performed every assigned manual task, even with a brace on his leg, the City may give consideration to placing him in a position that does not require physical labor, if one is available.

RECOMMENDATION

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

RECOMMENDED that the Civil Service Board make a determination that the charges in the Notice are sustained, and that Respondent be terminated as a Park Service Technician II.

DONE AND ENTERED this 13th day of October, 2015, in Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2015.

ENDNOTES

1/ At hearing, Respondent testified that he was injured in April 1998, he had surgery on his knee in October 1998, which required extensive recuperation time, and he was dismissed

because the County could not hold his position open for more than ten months. However, County records indicate otherwise and state that he was dismissed because he could no longer perform his job due to the injury. See City Ex. I, pp. 6-7.

2/ Although the Application for Employment is dated October 26, 2010, the actual date probably was October 26, 2011, as the later date matches the other documents and events in the record. This

point was not clarified at hearing, but it does not affect the outcome of the case.

3/ The record does not disclose why the insurance company did not bring this information to the attention of the City's Risk Department in 2013 after Respondent suffered his first injury on- the-job, one that required surgery on his thumb in November 2013.

COPIES FURNISHED:

Rosemarie Call, City Clerk City of Clearwater

Post Office Box 4748 Clearwater, Florida 33758-4748

Matthew M. Smith, Esquire Assistant City Attorney Post Office Box 4748

Clearwater, Florida 33758-4748 (eServed)

Antwan Williams Apartment 168

2705 56th Terrace South Clearwater, Florida 33712-4801

NOTICE OF RIGHTS

Civil Service Board regulations do not authorize the filing of exceptions to this Recommended Order. The Recommended Order will be considered by the Civil Service Board at a meeting to be noticed at a later time and place. At that meeting, the Civil Service Board will make a determination on the disposition of this matter and thereafter send its order and proposed penalty, if any, to the City Manager. See § 2.285(4), Code of Ordinances.

Docket for Case No: 15-003410

Orders for Case No: 15-003410