STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES AUTHORITY,

Petitioner,

vs.

SUGAR T. BERRY,

Respondent.

/

Case No. 20-3438

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted before Administrative Law Judge Garnett W. Chisenhall of the Division of

Administrative Hearings (“DOAH”), via Zoom on December 16, 2020, and

January 8, 2021.

APPEARANCES

For Petitioner: Jessica L. Scholl, Esquire

Moore, Hill & Westmoreland, P.A. Post Office Box 13290

Pensacola, Florida 32591

For Respondent: Sugar T. Berry

Post Office Box 3684 Milton, Florida 32572

STATEMENT OF THE ISSUE

Whether Petitioner violated Sections B-13 A (4), B-13 A (6), B-13 A (22), B-13 A (26), B-13 A (32), B-13 A (33), and B-13 A (34) of the Emerald Coast Utility Authorities’ (“ECUA”) Human Resources Manual (“the Manual”).

PRELIMINARY STATEMENT

Via a letter dated July 8, 2020, Keith Kyles, Sr., ECUA’s Sanitation

Collections Manager, notified Sugar Berry that he intended to recommend

that her ECUA employment be terminated. In support thereof, Mr. Kyles’s letter made the following allegations:

On Thursday, May 7, 2020, at approximately 11:58 a.m., your assigned ECUA truck #180G serviced the can at 4249 Dana Street. The recording shows you picked up the can with the grabber arm and proceeded to drive down the street as you were dumping the can. Eventually, you came to a rolling stop and released the can. In doing so, you allowed the can to fall out of the grabber arm onto the ground. You made no attempt to stop the truck and turn the can upright.

On Thursday, June 25, 2020, at approximately 10:59 a.m., your assigned ECUA truck #180G serviced the can at 4249 Dana Street. The recording shows you picked up the can with the grabber arm and proceeded to drive down the street as you were dumping the can. Eventually, you came to a rolling stop and released the can. In doing so, you placed the can in front of the next- door neighbor’s house.

On Thursday, July 2, 2020, at approximately 12:40 p.m., your assigned ECUA truck #180G serviced the can at 4249 Dana Street. The recording shows you picked up the can with the grabber arm and proceeded to drive the truck in reverse as you were dumping the can. As you were driving in reverse dumping the can, the customer at this address came out onto his front porch and attempted to get your attention. Eventually, you put your truck in drive and released the can, moving it from its original location. You used excessive speed and caused the customer to be alarmed by your behavior.

The letter closed by notifying Ms. Berry of a predetermination hearing scheduled for July 13, 2020, during which she would have an opportunity to address the aforementioned allegations.

Mr. Kyles issued a letter to Ms. Berry on July 16, 2020, stating that her ECUA employment was terminated due to multiple violations of the Manual. The letter closed by informing Ms. Berry that she could challenge that decision by requesting a formal hearing.

Ms. Berry requested a hearing, and ECUA requested the services of

DOAH as described in the terms of the “Administrative Law Judge Services Contract” (“the Contract”) entered into between ECUA and DOAH.

The final hearing was convened as scheduled on December 16, 2020, via Zoom. However, due to technical difficulties, the undersigned continued the final hearing to January 8, 2021.

When the final hearing was reconvened on January 8, 2021, ECUA presented the testimony of Mr. Kyles; Ms. Berry; James Clark, Ms. Berry’s direct supervisor; and Kimberly Scruggs, ECUA’s Director of Human Resources. ECUA Exhibits 1, 3 through 11, 15, and 16 were admitted into evidence. Ms. Berry testified on her own behalf and did not move any exhibits into evidence.

Pursuant to the terms of the Contract, ECUA was not required to have a court reporter present at the final hearing.1 Thus, no transcript was filed

with DOAH. The Contract also provides that “[n]o post-hearing proposed

findings of fact or briefs will be submitted by the parties.”

Unless indicated otherwise, all statutory references shall be to the 2020 version of the Florida Statutes.

1 As required by the Contract, ECUA recorded the final hearing.

FINDINGS OF FACT

1. Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove, and suspend its employees.

2. ECUA’s mission statement specifies that ECUA and its employees “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct.

3. Ms. Berry began working for ECUA on November 24, 2017, as a Sanitation Equipment Operator I.

4. On November 13, 2017, Ms. Berry received an ECUA document memorializing certain expectations of all sanitation equipment operators.

   One of the requirements mandated that “[a]ll Garbage and Recycle cans must be left in the upright position with the can lid closed.”

5. ECUA promoted Ms. Berry to a Sanitation Equipment Operator II on

   November 13, 2018. ECUA’s description of the Sanitation Equipment Operator II position describes the “essential job functions” as follows:

   
   

   Operates a heavy duty, highly technical, and specially designed, one-person automated residential or commercial refuse collection truck equipped with a hydraulically operated container loading and waste packing mechanism in order to remove solid waste on an assigned collection route. Required to manually load yard trash, brush, or bulk waste when assigned to yard-trash duty.

   
   

   Operates a heavy duty residential rear-loading, semi-automated refuse collection truck equipped with a hydraulically operated container leading and waste packing mechanism in order to remove

   
   

   solid waste on an assigned collection route, while acting as crew leader for the two/three person assigned crew.

   
   

6. Keith Kyles, Sr., has been ECUA’s Sanitation Collection Manager for

   the last three- and one-half years, and he was responsible for hiring Ms. Berry.

7. Mr. Kyles received a customer complaint regarding Ms. Berry’s job performance. That same customer emailed Mr. Kyles three videos from his door camera of Ms. Berry’s garbage truck picking up trash in front of the customer’s home.

8. The first video was taken on May 7, 2020, and depicts Ms. Berry’s garbage truck using the grabber arm to pick up a trash can while the garbage truck is in motion. According to Mr. Kyles, operating a grabber arm with the garbage truck in motion puts excessive strain on the garbage truck’s engine by causing the rotations-per-minute (“RPMs”) to reach a dangerous level. The first video also depicts the garbage truck coming to a rolling stop, the grabber arm dropping the trash can, and the garbage truck driving away with the trash can left on its side. The video does not depict the garbage truck driver returning in order to place the trash can upright.

9. The second video was taken on June 25, 2020, and depicts Ms. Berry’s garbage truck in motion with the grabber arm in operation. The garbage truck came to a rolling stop and placed the trash can in front of the

   customer’s next-door neighbor’s house. The video does not depict the garbage truck driver returning the trash can to the customer’s property.

10. The third video was taken on July 2, 2020, and depicts Ms. Berry’s truck coming to a stop in order to pick up the customer’s trash can. With the

    grabber arm in operation, the garbage truck inexplicably drives in reverse for approximately 20 yards while emitting an audible back-up signal.

    However, there was no pause between the initiation of the back-up signal and

    the garbage truck’s backward movement. The garbage truck then moved

    
    

    forward, and the grabber arm returned the trash can to the customer’s

    property.

11. Mr. Kyles explained that every ECUA garbage truck is equipped with a backup camera and that those backup cameras take approximately five

    seconds to engage once the garbage truck is put into reverse. While ECUA’s garbage trucks have mirrors, Mr. Kyles testified that the mirrors do not give drivers a complete view of who or what is behind the garbage truck.

12. Ms. Berry’s timesheets indicate that she was working on May 7, 2020, June 23, 2020, and July 2, 2020, and Mr. Kyles credibly determined that she was the driver depicted in the videos.

13. After conferring with Ms. Berry’s direct supervisor, Mr. Kyles decided

    that Ms. Berry’s ECUA employment should be terminated. Accordingly, Mr. Kyles issued a letter on July 8, 2020, describing the allegations against Ms. Berry and notifying her that a predetermination hearing would be held on July 13, 2020.2

14. Mr. Kyles issued a letter on July 16, 2020, stating that Ms. Berry’s employment with ECUA was terminated and that the termination would be effective at the close of business on July 16, 2020.

15. Mr. Kyles’s July 16, 2020, letter explained the basis for his decision:

    
    

    During the hearing, you recounted your activities surrounding the events outlined in the Notice of Hearing and stated that you had previously “tagged” the customer’s garbage can in an attempt to have the customer place the can in a different location. You described your unsafe driving practices when you admitted to having your ECUA truck in motion while dumping the customer’s can and, in doing so, failed to properly place the can in its original location. Your actions, as described in the Notice of Hearing, appeared to be deliberate in

    
    

    2 The letter stated that “[t]he purpose of the predetermination hearing is to avoid an erroneous decision by giving you the opportunity to address your alleged violations referenced above. You have the right to provide any documents, explanations or comments to refute the allegations. Your response may be oral, in writing, or both.”

    
    

    nature. Moreover, they breached the trust placed in ECUA by the public and were a violation of ECUA rules and procedures.

    
    

16. Mr. Kyles’s July 16, 2020, letter alleged that Ms. Berry violated the following provisions of the Manual: Sections B-13 A (4), B-13 A (6), B-13 A (22), B-13 A (26), B-13 A (32), B-13 A (33), and B-13 A (34).

17. During her testimony, Ms. Berry neither admitted nor denied the allegations. She testified that she is not the only sanitation equipment operator who has dropped a can and that she always checks her mirrors. Because there was no property damage, she believes that termination of her ECUA employment is too harsh. As discussed below in the Conclusions of Law, ECUA proved by a preponderance of the evidence that Ms. Berry violated the aforementioned provisions of the Manual.

    
    

    CONCLUSIONS OF LAW

18. DOAH has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.65(6) and 120.57(1), Florida Statutes.

19. The Contract provides that ECUA “has the burden of proof by a preponderance of the evidence.” “Proof by a ‘preponderance’ of the evidence means proof which leads the factfinder to find that the existence of the contested fact is more probable than its nonexistence.” Smith v. State, 753 So. 2d 703, 704 (Fla. 5th DCA 2000).

20. Section B-13 A (4) of the Manual defines “conduct unbecoming an ECUA employee” as:

    
    

    [a]ny act or activity on the job or connected with the job which involves moral turpitude, or any conduct, whether on or off the job, that adversely affects the employee’s effectiveness as an ECUA employee, or that adversely affects the employee’s ability to continue to perform their job, or which adversely affects ECUA’s ability to carry out its assigned mission. Conduct unbecoming an ECUA

    
    

    employee includes any conduct which adversely affects the morale or efficiency of the ECUA, or any conduct which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the provision of ECUA services.

    
    

21. Ms. Berry violated Section B-13 A (4) on May 7, 2020, by: (a) driving away and leaving a trash can on its side; and (b) not returning to place the trash can upright. Ms. Berry violated Section B-13 A (4) on June 25, 2020, by:

    (a) placing a customer’s trash can in front of the customer’s next-door neighbor’s house; and (b) not returning the trash can to the customer’s property. Ms. Berry also violated Section B-13 A (4) on July 2, 2020, by inexplicably driving in reverse for approximately 20 yards. The

    aforementioned conduct would tend to destroy public respect or confidence in the provision of ECUA services.

22. Section B-13 A (6) of the Manual defines being “discourteous or rude to the public/customer” as:

    
    

    [b]ehavior, words, or gestures exhibited by an employee, which a reasonable person would understand as curt, ill-mannered, or impolite, and directed at a customer or a member of the public while performing the tasks of his or her job.

    
    

23. Ms. Berry violated Section B-13 A (6) on May 7, 2020, and June 25,

    2020, by not returning the customer’s trash can to its proper position.

24. Section B-13 A (22) of the Manual defines “negligent operation of

    ECUA vehicles or equipment” as:

    
    

    [t]he negligent operation of ECUA vehicles or equipment which may or may not result in personal injury. “Negligent operation” means a failure to operate ECUA vehicles or equipment with proper care.

    
    

25. Ms. Berry violated Section B-13 A (22) of the Manual on July 2, 2020, by inexplicably driving her garbage truck in reverse for approximately 20 yards without giving the backup camera sufficient time to engage. Even if she was using her mirrors at the time, she could not have been absolutely sure that there was nothing or no one in the garbage truck’s path.

26. While not setting forth a definition, Section B-13 A (26) of the Manual

    subjects ECUA employees to discipline for “substandard quality and/or quantity of work.”

27. Ms. Berry violated Section B-13 A (26) on May 7, 2020, and June 25, 2020, by not properly returning the customer’s trash can to its original position. This provision was also violated on July 2, 2020, when Ms. Berry inexplicably drove her garbage truck in reverse for approximately 20 yards without giving the backup camera sufficient time to engage.

28. Section B-13 A (32) of the Manual defines “violation of safety practices” as “[t]he failure to adhere to or follow established safety procedures. This includes the failure to wear safety equipment and performing any unsafe action.”

29. Ms. Berry violated Section B-13 A (32) on July 2, 2020, by inexplicably driving her garbage truck in reverse for approximately 20 yards without giving the backup camera sufficient time to engage.

30. Section B-13 A (33) of the Manual defines a “violation of ECUA rules or guidelines or state or federal law” as:

    
    

    [t]he failure to abide by ECUA rules, guidelines, directive, or state or federal statutes. This may include, but is not limited to, misuse of position, giving or accepting a bribe, discrimination in employment, or actual knowledge of and failure to take corrective action or report rule violations and employee misconduct.

    
    

31. As explained above, Ms. Berry’s conduct on May 7, 2020, June 25, 2020, and July 2, 2020, amounts to violations of the Manual and thus Section B-13 A (33) as well.

32. Section B-13 A (34) of the Manual subjects ECUA employees to

    discipline for “willful, wanton, and/or intentional damage or destruction of

    ECUA or other property or equipment.”

33. On May 7, 2020, June 25, 2020, and July 2, 2020, Ms. Berry violated Section B-13 A (34) by driving her garbage truck forward or backward with the grabber arm in operation. As discussed above, that practice puts

unnecessary stress on the truck’s engine via excessive RPMs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the executive director of the Emerald Coast Utilities Authority find that Sugar T. Berry violated Sections B-13 A (4), B-13 A (6), B-13 A (22), B-13 A (26), B-13 A (32), B-13 A (33), and B-13 A (34) of the

ECUA’s Human Resources Manual.3

DONE AND ENTERED this 26th day of January, 2021, in Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

www.doah.state.fl.us

3 The Contract specifies that “[t]he ALJ will issue findings of fact and recommended conclusions of law to the Executive Director within thirty (30) days after close of the hearing record. Based upon the findings of fact and recommended conclusions of law, the ALJ will determine whether the employee has committed the violation as charged, but the ALJ will not comment on, or recommend, any disciplinary penalty.”

Filed with the Clerk of the

Division of Administrative Hearings this 26th day of January, 2021.

COPIES FURNISHED:

Jessica L. Scholl, Esquire

Moore, Hill & Westmoreland, P.A. Post Office Box 13290

Pensacola, Florida 32591

J. Bruce Woody, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street

Pensacola, Florida 32514

Sugar T. Berry

Post Office Box 3684 Milton, Florida 32572

Cynthia Sutherland, Director

Human Resources and Administrative Services

Emerald Coast Utilities Authority 9255 Sturdevant Street

Pensacola, Florida 32514

NOTICE OF RIGHTS TO SUBMIT WRITTEN ARGUMENT

Pursuant to paragraph 7(m) of the contract between ECUA and DOAH, all parties have the right to submit written argument within 10 days of the issuance of this Recommended Order with the Executive Director of the ECUA as to any appropriate penalty to be imposed. The Executive Director will then determine the appropriate level of discipline to be imposed upon the Respondent.

Docket for Case No: 20-003438

Orders for Case No: 20-003438