Findings Of Fact Application No. 76-00336 is a request by the City of Plant City, Florida, for a new use from a single well at a location approximately 31 miles east of downtown Plant City. The well would be located in the Hillsborough Basin. The average annual daily withdrawal sought is 2.0 million gallons with a maximum daily withdrawal sought being 3.5 million gallons. The amount requested is consonant with the needs of the city and contains provision for some growth. The Plant City service area encompasses 8,600 acres. The sought for consumptive use will not significantly induce salt water intrusion. The consumptive use sought may interfere with existing legal uses. There are a number of private wells, perhaps 50-60, in the area. Most of these wells are in a subdivision known as Pleasant Acres. These wells will experience drawdowns of up to 4.3 feet which may cause the pump to break suction during the dry season or line pressure to drop. Further, the average drawdown at the property boundary created by the sought for consumptive use will be approximately 6.3 feet. The boundary of the well site is approximately 150 feet from the well. The well could have been located so that the average drawdown at the property boundary would not have been in excess of 5 feet. The well is already in existence, having been constructed over one year ago. The primary purpose of the well is for better fire protection and additional capacity for domestic use and growth in Plant City. The residents of Pleasant Acres are very concerned about the effect of the proposed well on their existing wells. The Southwest Florida Water Management District's staff recommends granting of the permit with the following conditions: That the City of Plant City shall install a totalizing flowmeter on the well. That the City of Plant City shall submit monthly pumpages on a quarterly basis to the following address: Chief, Technical Information Service, SWFWMD, 50560 U.S. 41 South, Brooksville, Florida. That upon completion of construction of all pumping facilities the City of Plant City will pump the permitted facility during the third week of the following May at the maximum rate of 3.5 million gallons per day for at least three days. Private well owners within a radius of mile will be notified prior to the initiation of the tests. Complaints will be handled by the city according to stipulation D. The City of Plant City shall investigate under the direction of the city engineer, all complaints by owners of private wells which are within a mile radius of the permitted facility and which relate to loss of water. Further, the city shall repair or replace at no cost to the owner, those private wells and/or the associated pumping facilities which are substantially affected by the city's with- drawals and which can be attributed to 10 feet or less of drawdown. With the exception of those matters set forth above pertaining to Subsection 16J-2.11(4)(b), F.A.C., none of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.A.C., exist, with regard to this application so as to require its denial.
Recommendation It is recommended that Application No. 76-00336, submitted by the City of Plant City, Florida, be granted in the amount of 2 million gallons per day average annual withdrawal and 3.5 million gallons per day maximum daily withdrawal, provided that the four conditions listed in paragraph 8, above, be placed upon the permit. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. O. Box 457 Brooksville, Florida 33512 Salvador D. Nabong City Engineer City of Plant City P. O. Drawer C Plant City, Florida 33566 Paul Buckman, Esquire City Attorney City of Plant City City Hall Plant City, Florida 33566
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.
Findings Of Fact 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
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.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of national origin and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact No dispute exists that Mr. Duverglas is a male and Black and that his national origin is Haitian. No dispute exists that he is a member of the protected class as it relates to discrimination. No dispute exists that, at all times material hereto, the City was an employer as defined by the Florida Civil Rights Act of 1992, as amended. Mr. Duverglas began his employment with the City in 1996 as a Park Ranger. An inference is drawn and a finding is made that Mr. Duverglas wore a uniform type of clothing for his position. In 2002, some employees complained, among other things, that the vehicles that Mr. Duverglas drove and in which he rode often were left reeking of urine. On December 17, 2002, a counseling session was held with Mr. Duverglas by his supervisor, Kelton Wayns, regarding, among other things, Mr. Duverglas’ personal hygiene and cleanliness of vehicles. In 2003, a complaint was received by Mr. Wyans regarding Mr. Duverglas urinating in a drain on the floor in a bathroom, instead of a urinal. Mr. Wyans investigated the complaint, and the investigative report was reviewed by the Park Ranger Supervisor and Foreman, Earnest Jones. Mr. Jones concluded that the allegation could not be substantiated, but he did counsel Mr. Duverglas that, as an employee of the City, he (Mr. Duverglas) must conduct himself professionally, at all times, and that any unsanitary behavior would not be tolerated. Performance evaluations of Mr. Duvergals were conducted. The categories for the rating of the evaluations were unsatisfactory, marginal, satisfactory, above satisfactory, and outstanding. At the review ending date of April 29, 2001, he received a satisfactory rating; and at the review ending dates of October 29, 2001, October 27, 2002, and October 27, 2003, he received an above satisfactory rating. In February 2004, due to workforce reductions, Mr. Duverglas was bumped and reassigned to the Grounds Maintenance Division as an Apprentice Maintenance Worker. In that position, Mr. Duverglas was assigned to a roving-crew of three to four workers who picked-up litter in a quadrant of the City. An inference is drawn and a finding is made that he wore a uniform type of clothing for his position. Also, around November 2004, Mr. Duverglas was hired as a part-time Park Ranger. Any problems, regarding Mr. Duverglas in this position, were directly dealt with by Mr. Jones. On December 9, 2004, Mr. Duverglas, as a maintenance worker, had a problem arriving at work timely. On December 15, 2004, he was given a letter of reprimand by his supervisor, John Neal, for arriving to work late and for failing to call-in regarding his tardiness. Additionally, the reprimand indicated that future occurrences could result in more severe disciplinary action up to and including dismissal. In January 2005, Mr. Neal, advised Mr. Duverglas that he was spending too much time on his (Mr. Duverglas’) cell phone. At that time, Mr. Duverglas informed Mr. Neal that a co- worker, L. C. Orr, had made offensive comments about Haitians. Mr. Neal had no knowledge of Mr. Orr’s alleged comments before being informed of them by Mr. Duverglas. Mr. Orr was aware of Mr. Duverglas’ Haitian ancestry. However, Mr. Neal was not until he was informed of Mr. Orr’s alleged comments. After that meeting and also in January 2005, Mr. Duvergals made a complaint with the City’s Office of Professional Standards (OPS) against Mr. Orr. Mr. Duverglas complained that Mr. Orr had made offensive comments about Haitians and that the offensive comments had contributed to a hostile work environment. After making the complaint with OPS, Mr. Duverglas was counseled by Mr. Neal regarding his (Mr. Duverglas’) poor work performance. At that time, Mr. Duverglas informed Mr. Neal that he had made a complaint against Mr. Orr with OPS. Mr. Neal had no knowledge of the OPS complaint before being informed of it by Mr. Duvergals. Mr. Duvergals also complained to OPS that Mr. Neal had retaliated against him when Mr. Neal met with him to counsel him about his performance deficiencies after his (Mr. Duverglas’) OPS complaint. Mr. Duverglas informed Mr. Neal, during the meeting, that he (Mr. Duverglas) had made a complaint to OPS against Mr. Orr regarding Mr. Orr’s derogatory comments about Haitians. Mr. Neal was not aware of Mr. Duverglas’ complaint against Mr. Orr until Mr. Duverglas informed him (Mr. Neal) of it. OPS investigated the complaint. OPS was unable to question Mr. Orr because he had retired from the City. Following an investigation, OPS determined that the allegations were unfounded and without merit. During his work as a maintenance worker and his part- time work as a Park Ranger, complaints regarding Mr. Duverglas’ personal hygiene occurred in both positions. Complaints were made regarding his clothing and body having the odor of urine and his trousers being wet in the front, and regarding the odor of urine being left in vehicles and lingering in the Park’s office. Mr. Duverglas was counseled on several occasions regarding these issues and notified that, if the problems continued, stronger action, than counseling, would be taken to address the problems. When Mr. Duverglas was a part-time Park Ranger, only one Park Ranger, Alan Brown, did not complain about Mr. Duverglas smelling of urine, wetting the front of his trousers, or leaving the smell of urine in vehicles. The evidence demonstrates that Mr. Jones, Mr. Duverglas’ supervisor as a Park Ranger, was aware of Mr. Duverglas’ Haitian ancestry. The evidence fails to demonstrate that any of Mr. Jones’ actions were taken because of Mr. Duverglas’ Haitian ancestry. In March 2005, Mr. Duverglas, as a maintenance worker, was sent by the City for a Fit-For-Duty evaluation, which was a medical evaluation to determine his fitness for duty. On March 22, 2005, a Fit-For-Duty evaluation was performed. The report by the examining physician indicates, among other things, that a prior evaluation was performed on March 11, 2005, and Mr. Duverglas was found fit for duty; that another evaluation was requested due to continued concerns regarding his “cleanliness” at work; that a concern existed as to whether he was suffering from incontinence; that he refused to allow the physician to perform an abdominal and genital exam; that his personal physician wrote a note to the examining physician that Mr. Duverglas did not suffer from incontinence and was fit to return to work with no restrictions; and that, based upon the representations by Mr. Duverglas’ personal physician, the examining physician had no choice but to find Mr. Duverglas fit for duty and clear him to return to work. Mr. Duverglas denied, and continues to deny, that he suffered or suffers from a medical condition, i.e., incontinence. The evidence is insufficient to demonstrate that Mr. Duverglas suffered or suffers from incontinence. The evidence demonstrates that Mr. Duverglas was fit- for-duty. In April 2005, Teresa “Terry” Reynard, Assistant Director of Parks and Recreation, who had the responsibility for park maintenance, transferred Mr. Duverglas, in his position as a maintenance worker, from one location to another location, Carter Park. Ms. Reynard’s intent was to accommodate what she perceived to be a problem with Mr. Duverglas’ personal hygiene by placing him in a park, Carter Park, in which several restrooms were available and accessible. However, the complaints continued at both of Mr. Duverglas’ jobs with the City. Mr. Duverglas’ supervisors counseled him on several occasions regarding his hygiene, the smell of urine, and trousers being wet in the front. At one point, Mr. Duverglas, as a maintenance worker, was notified that he should bring a change of clothing to work in an effort to eliminate the odor and smell of urine. Mr. Duverglas admits that he may have urinated on himself maybe once or twice but nothing extraordinary. Also, complaints were made regarding Mr. Duverglas’ excessive cell phone use, instead of working, inadequately performing his work, and unauthorized breaks. Mr. Duverglas admits that he was disciplined for excessive cell use. Mr. Duverglas admits that, on April 14, 2005, he was issued a reprimand for arriving at work late and that was his second violation in six months. Further, he admits that he was notified that the continuation of such conduct could be a basis for termination. On June 13, 2005, Mr. Duverglas was issued a letter of reprimand by Ms. Reynard for lack of productivity. Furthermore, the letter of reprimand notified Mr. Duverglas that his failure to be productive in his work could result in further disciplinary action including termination. On June 15, 2005, Mr. Duverglas was again issued a letter of reprimand by Ms. Reynard for lack of productivity. The letter of reprimand indicated, among other things, that Mr. Duverglas had violated the following General Employees’ Work Rules: Minor Rule 3 – Failure to observe department work schedules (starting time, quitting time, and meal periods). Minor Rule 6: - Unsatisfactory work performance, inefficiency. Minor Rule 7 – Loafing or other abuse of time during assigned working hours. Major Rule 6 – Leaving City premises during working hours without permission of supervisor. Further, the letter of reprimand notified Mr. Duverglas that, among other things, “future occurrences of the same or similar nature will result in more severe disciplinary action up to and including dismissal.” Mr. Duverglas refused to sign the letter of reprimand, but was provided a copy of it. On June 22, 2005, Ms. Reynard issued Mr. Duverglas an “Informational Letter” regarding his personal hygiene, i.e., urinating in his trousers. The Informational Letter provided, among other things, that, despite prior conversations and counseling, he (Mr. Duverglas) continued to have the personal hygiene problems; that his situation was a serious health risk; that, if he soiled his uniform in the future, he would be asked to change his uniform, and, if he failed to have a change of uniform with him at the time, he would be asked to leave work on his own time and not return until he had changed his uniform; and that, if his problem was caused by a medical condition and he wished to request an accommodation, he should do so. On June 24, 2005, Mr. Duverglas was issued a letter of counseling by Ms. Reynard regarding his (Mr. Duverglas’) personal hygiene. The letter of counseling provided, among other things, that Mr. Duverglas had been spoken to and counseled in the past months regarding his personal hygiene, but that the problem had persisted; and that Ms. Reynard had observed, the day before, that Mr. Duverglas’ trousers were wet. Further, the letter of counseling reminded Mr. Duverglas what he was directed to do if he wet his trousers. Moreover, the letter of counseling provided that future occurrences would result in disciplinary action, including dismissal. Mr. Duverglas contends that he was not protected from a threat of violence made by a co-worker Wilmar “Slim” Alexander. On June 29, 2005, Mr. Alexander threatened physical violence against Mr. Duverglas if Mr. Duverglas approached him (Mr. Alexander) in an aggressive manner. On July 5, 2005, Ms. Reynard issued a letter of reprimand against Mr. Alexander for “an inappropriate remark to a coworker.” Further, the letter of reprimand provided, among other things, that the behavior exemplified by Mr. Alexander would not be tolerated and that future occurrences would result in severe disciplinary action including dismissal. The evidence failed to demonstrate that Mr. Alexander exhibited any further violent behavior towards Mr. Duverglas. The evidence failed to demonstrate that the letter of reprimand was not the appropriate punishment for Mr. Alexander’s behavior. The evidence is insufficient to demonstrate that Mr. Alexander exhibited any violent behavior towards Mr. Duvergals prior to Mr. Alexander’s threat. The evidence failed to demonstrate that the City failed to protect Mr. Duverglas from the threat made by Mr. Alexander. On June 30, 2005, Mr. Duverglas was placed on administrative leave with pay pending the City’s investigation that he “may have violated City rules and regulations.” On July 27, 2005, after notice, an informational meeting was held with Mr. Duverglas. Based on the informational meeting, on July 28, 2005, Ms. Reynard issued a written recommendation to Phil Thornburg, Director of the City, regarding Mr. Duverglas. The recommendation provided, among other things, that the persons in attendance at the informational meeting included Ms. Reynard, Mr. Duverglas, and a union representative; that the meeting was held to address several issues including Mr. Duverglas’ personal hygiene, complaints regarding the smell of urine, his performance deficiencies and general loafing, and the report of his urinating in public; and that Mr. Duverglas denied all allegations. Further, the recommendation determined that Mr. Duverglas’ denials, explanations and responses were “incredible and unworthy of belief” and that he had engaged in severe conduct. Ms. Reynard recommended the termination of Mr. Duverglas. Around May 2005, a self-employed painter, Samuel Mitchell, was performing contract work at Carter Park. Mr. Mitchell observed whom he recognized as Mr. Duverglas leaning against a concrete pole with his (Mr. Duverglas’) trousers around his (Mr. Duverglas’) knees, appearing to be urinating, but Mr. Mitchell did not observe a stream of liquid. The area in which Mr. Duverglas was observed was near a residential area, was an area that the general public frequents, and was an area used by school children. Mr. Mitchell perceived the conduct to be inappropriate. Mr. Mitchell spoke with Mr. Duverglas, and Mr. Duverglas vehemently denied that he was the person whom Mr. Mitchell observed. Mr. Mitchell did not wish to report what he observed to the City, but wanted Mr. Duverglas to change the behavior that he (Mr. Mitchell) observed; however, because of the way Mr. Duverglas reacted to his (Mr. Mitchell’s) talking with him (Mr. Duverglas), Mr. Mitchell reported the incident to the City. Mr. Mitchell testified at hearing, and his testimony is found to be credible. Mr. Duverglas denied that he was the person observed by Mr. Mitchell. Mr. Mitchell’s testimony is found to be more credible than Mr. Duverglas’ testimony. Also, at the time of the incident, another person, who was a non-employee of the City, reported the same observation to the City. That person did not testify at hearing. A finding is made that Mr. Duverglas was the person observed by Mr. Mitchell and was the person engaged in the conduct observed by Mr. Mitchell. Further, even though Mr. Mitchell did not observe a stream of liquid, an inference is drawn and a finding is made that, based upon the prior conduct, actions, and behavior of Mr. Duverglas, regarding his personal hygiene and the wetting of the front of his trousers, Mr. Duverglas was urinating. Moreover, a finding is made that the City was reasonable in making a determination that Mr. Duverglas was urinating. The evidence demonstrated that Ms. Reynard was aware of Mr. Duverglas’ Haitian descent. However, the evidence failed to demonstrate that any of her actions were motivated by Mr. Duverglas’ Haitian descent. Mr. Thornburg had the final authority in disciplinary matters regarding the Parks and Recreation Department. By letter dated August 5, 2005, Mr. Thornburg notified Mr. Duverglas that he (Mr. Duverglas) was being suspended, without pay, for 20 days, effectively immediately, and was being dismissed from the City as an Apprentice Maintenance Worker, effective September 2, 2005. The letter was hand-delivered to Mr. Duverglas. The letter provided, among other things, that the action was being taken for continued deficiencies in performance and conduct, setting forth the deficiencies, which were: Despite prior counseling, a transfer to another facility with better access to bathroom facilities and other accommodations, you continued to disregard your personal hygiene and appearance as a representative of the City by urinating in your trousers in public and disregard of proper safety practices and precautions. Your failure to conform your behavior to civilized standards has been the subject of complaints by your co-workers over having to work in offensive, unsanitary and unhealthy conditions and cannot be tolerated. You continued to demonstrate deficiencies in performance of assigned duties by taking unauthorized breaks, excessive use of your personal cell phone in the field during working hours and general loafing. Employees of two City contractors have witnessed you urinating in a public place although restroom facilities were available. City Ordinance 16-75(a)(5) – Public Indecency. Additionally, the letter set forth General Employees’ Work Rules that Mr. Duverglas violated, which were: Major Rule 1 – Any act which might endanger the safety or lives of other [sic]. Major Rule 2 – Refusal to perform work properly assigned by a supervisor. Major Rule 3 – Willful, deliberate or repeated violation of City safety rules, including instances where there is evidence of willful disregard of proper safety practices and precautions while operating City equipment. Major Rule 7 – Deliberately abusing [sic] destroying, damaging or defacing City property, tools, equipment or the property of others on City premises. Major Rule 21 – Neglect of duty. Major Rule 24 – Conduct, either while on or off duty, which tends to reflect discredit upon the City. Major Rule 25 – Employee harassment, abusive conduct towards an employee or a member of the general public. Major Rule 26 – Violation of City Charter, ordinances, or administrative rules and regulations, specifically City Ordinance 16- 75(a)(5) – Public Indecency. Furthermore, the letter provided that Mr. Duverglas had the opportunity to request a hearing, setting forth the procedure for such a request, and indicated the consequences for his failure to request a hearing. City Ordinance 16-75(a)(5) – Public Indecency provides in pertinent part: Offense. It shall be unlawful for any person to commit public indecency. A person commits public indecency when he performs any of the following acts in a public place: * * * (5) Urinates . . . in other than a toilet or washroom . . . . Definitions. “Public place,” for purposes of this section, means any place where the conduct may reasonably be expected to be viewed by others. Penalties. Any person convicted of violating this section shall be deemed guilty of the offense of public decency and upon conviction shall be punished as provided in section 1-6 of this Code. Section 1-6, titled “Penalty for violations,” provides in pertinent part: In this section “violation of this Code” means: Doing an act that is prohibited or made or declared unlawful or an offense by ordinance or by rule or regulation authorized by ordinance . . . . * * * Except as otherwise provided herein, a person convicted of a violation of this Code, shall be punished by a fine not to exceed five hundred dollars ($500.00) or by imprisonment for a term not to exceed sixty (60) days or by both such fine and imprisonment. . . . The imposition of a penalty does not prevent revocation or suspension of a license, permit or franchise or the imposition of civil fines, civil penalties or administrative sanctions. Administrative sanctions could be imposed for a violation of City Ordinance Section 16-75(5). Mr. Duverglas admits that a violation of City Ordinance Section 16-75(5) is just cause for suspension and dismissal. The ground of public indecency was sufficient, in and of itself, to dismiss Mr. Duverglas from employment. The evidence demonstrated that he committed the act of public indecency as defined in City Ordinance Section 16-75(5). The evidence fails to demonstrate that Mr. Thornburg had any knowledge of Mr. Duverglas’ Haitian ancestry prior to the disciplinary action. Mr. Duverglas requested a hearing from the City. The hearing was held on September 6, 2005. By letter dated September 7, 2005, the City Manager, George Gretsas, notified Mr. Duverglas that, after a review of all the available and relevant information, including that presented at the hearing, the suspension and dismissal was upheld. A grievance under the union contract was filed. On November 21, 2005, the City’s Employee Relations Director issued a “Fourth Step Response Teamster Grievance,” providing, among other things, that a hearing was held on November 9, 2005, in accordance with the grievance, that no evidence was presented to cause the City to modify its decision, and that, therefore, the grievance was denied. An inference is drawn and a finding is made that an arbitration hearing was held on or about May 18, 2006, regarding Mr. Duverglas’ suspension and dismissal. The evidence was insufficient to demonstrate the outcome of the arbitration proceedings, but an inference is drawn and a finding is made that the arbitration decision was not favorable to Mr. Duverglas. On July 24, 2006, Mr. Duverglas filed a Charge of Discrimination with the Broward County Civil Rights Division and the EEOC against the City alleging that the City discriminated against him on the basis of national origin (Haitian) and retaliation in violation of the Florida Civil Rights Act of 1992, as amended. The Broward County Civil Rights Division waived investigation of the charge. The matter was investigated by the FCHR. On January 19, 2007, the FCHR issued a Determination of No Cause and a Notice of Determination of No Cause. Mr. Duverglas timely filed a Petition for Relief with the FCHR against the City.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Donald Duverglas against the City of Fort Lauderdale. DONE AND ENTERED this 25th day of November, 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 25th day of November, 2008.
The Issue The issues to be resolved in this proceeding concern whether the Respondent is guilty of conduct which violates certain provisions of the Emerald Coast Utilities Authority (ECUA) policy manual, amounting to "conduct unbecoming a ECUA employee" and "sexual harassment."
Findings Of Fact The Petitioner, ECUA, is an agency of local government, established pursuant to an enabling act of the Florida Legislature at Chapter 81-376, Laws of Florida, as amended. It is a "regional water supply authority" for purposes of Sections 163.01 and 373.1962, Florida Statutes (2008). It is thereby given authority to supply utility services to persons and businesses residing in a defined area in Escambia County, Florida, including the provision of water and wastewater utility service. It is authorized in that act to employ personnel to secure the provision of such utility services and to regulate the conditions and terms of their employment, their retention, their hiring, and their termination, as well as other forms of employee discipline. It has provided for such regulation of its personnel through the adoption of a "Human Resources Policy Manual" (Manual). That manual was adopted in accordance with Part III, Chapter 112, Florida Statutes. The Petitioner also has promulgated an "Employee Handbook," in evidence as ECUA Exhibit Two. Page 32 of that Handbook addresses "rules of conduct" and Rule 4 of those rules of conduct precludes an employee from engaging in "conduct unbecoming a ECUA employee." Sexual harassment is also prohibited, by Employee Handbook Rule 24, at page 32. Sexual harassment is then defined at Section A- 4, page 4 of the Human Resources Policy Manual, in evidence as ECUA Exhibit 1. Ms. Deni Deron was hired as a "Utility Worker I" beginning on June 1, 2008. Nathan Thomas, a witness in this case, was hired as a Utility Worker I on a permanent basis on June 16, 2008. He had been a temporary worker before that time. The Respondent, Emmett R. Woods, Jr. (Woods or Respondent), was the supervisor of Ms. Deron and Mr. Thomas. Both were probationary employees for six months after their hiring date. The Respondent's job title was "Lead Worker," which is a sort of foreman. He was assigned responsibility for a "camera truck," a work truck carrying a television camera projection apparatus, designed to use a television camera to observe inside waste water mains, accessible at manholes, in order to determine sources of leakage, breakage or other issues related to wastewater main repair and maintenance. Sometime in early October 2008, Ms. Deron, the complainant, was assigned to the Respondent's camera truck, to be supervised by him in the duties performed through the use of that truck. Early in her period of assignment to the truck and the company of the Respondent, probably on the first day, while they were alone in the truck, the Respondent began kissing her without her permission. This made her uncomfortable, although she did not take any particular overt action about it at the time. Later in that day, however, she told the Respondent that it had made her feel uncomfortable and that he should leave her alone and "be just friends." The Respondent behaved in a normal fashion for the next couple of days and engaged in no harassment of her. Thereafter, however, he began inappropriately touching her on one occasion or another, principally while they were riding in the work truck, on almost a daily basis. He engaged in vulgar, sexually related conversation with her. This was without her invitation, although she admittedly engaged in some of such conversation with him as well. Such talk on her part, however, was in a joking vein and was usually in a situation where several employees were together at lunch, or on occasions of that nature, when such joking conversation would begin, in which she admittedly participated. This was not the situation when the Respondent and Ms. Deron were alone in the work truck and elsewhere on the job. The Respondent engaged in inappropriate touching of Ms. Deron on a frequent basis. He touched her by unclasping her bra through her shirt, by unexpectedly running his hand beneath her shirt and grabbing her breast, and at various times grabbing her breast and crotch. All this activity was uninvited and uninitiated by Ms. Deron. She was upset by it and did not enjoy it, as her testimony shows, as corroborated by that of her co- worker, Nathan Thomas, who observed much of the conduct. Nathan Thomas, in fact, observed such conduct make her cry on a number of occasions. The Respondent alluded to his close relationship with the director of their department and intimated to both Ms. Deron and Mr. Thomas that he and the director fished together, were good friends, and that he could get them fired if he chose. Ms. Deron told Nathan Thomas about the Respondent's conduct about two weeks after they had been assigned to his truck (and he observed much of it as well). She told him that she was going to try to video his conduct when it happened again. Mr. Thomas described her demeanor as being upset and crying at the time. In fact, Ms. Deron did use her video cell phone to video some of the Respondent's inappropriate touching and conduct, both physical and verbal. This was stored on an ECUA computer and displayed to the undersigned, and all parties, at the hearing. This tends to corroborate the testimony of Ms. Deron and Nathan Thomas. Nathan Thomas, in fact, testified that he observed the Respondent touch Ms. Deron inappropriately, in one way or another, approximately every other day. Ms. Deron admitted that she did some flirting when she first came to work at ECUA. She described it as being a function of being single and was flirting mostly as a mechanism to "fit in, in an all male staff." That fact, however, does not obviate the clear import of her testimony, that of Nathan Thomas, and that of Sharon Griffin. Ms. Griffin is a Human Relations Generalist II, working in employee relations for ECUA. She does recruiting, knows Ms. Deron and helped her get hired and "processed-in" to her job. Just before Thanksgiving in November 2008, she observed Ms. Deron outside her office and had a conversation with her. She noticed Ms. Deron appeared somewhat nervous and asked her how she was getting along with an all male crew. At that point they agreed to have a private talk within Ms. Griffin's office. Ms. Deron at that point tearfully told her of the conduct of the Respondent. Ms. Deron also gave Ms. Griffin access to the video made on Ms. Deron's cell phone. The gravamen of Ms. Griffin's testimony is that Ms. Deron clearly appeared sincere and genuinely upset about the matter and this helped to convince Ms. Griffin that it was a truthful account of what had happened. Nathan Thomas, in his testimony, stated that the Respondent made him afraid for his job so he did not report what he had observed. He testified that he felt, at first, that it was not his place to report the Respondent's conduct. When he saw how upset Ms. Deron was he apologized to her for not reporting it, and realizes that he should have. The Respondent's testimony, and that of his witnesses, was to the general effect that Ms. Deron was not a "quiet person" and freely engaged in sexually suggestive joking conversation with them, and other workers, regarding sexual matters such as "penis size" and how long it had been since one had sex. The Respondent and his witnesses described Ms. Deron as being flirtatious. The Respondent, for his part, testified that "me and Deni did fool around" but the Respondent contends that it was just flirting, was not forced and was consensual. In considering the testimony of Ms. Griffin, Ms. Deron and Mr. Thomas, versus that of the Respondent and the Respondent's witnesses, it is observed that the Respondent's witnesses are his co-workers, in a relationship that pre-dates Ms. Deron's employment. Their testimony may cast Ms. Deron in a less favorable light by inferring that the activity may have been consensual. It does not establish that fact, however, and does not refute the Respondent's perpetration of the above- described conduct. They did not observe the conduct. Ms. Deron and Mr. Thomas did observe it and the manner of its occurrence is corroborated by Ms. Griffin's testimony. The testimony of Ms. Deron, Mr. Thomas, and Ms. Griffin is more germane, credible and worthy of belief and is accepted. It is thus established that the inappropriate touching and other sexually-related behavior, inflicted by the Respondent on Ms. Deron occurred in the manner described above. It was not consensual. Even if Ms. Deron attracted such behavior, or seemed to invite it, based upon being somewhat flirtatious, the behavior of the Respondent was still not appropriate and, by any measure, constitutes sexual misconduct and harassment, occurring in the course of employment. This is particularly so since the Respondent occupied a position of superior power, as the supervisor of Ms. Deron and Mr. Thomas, and in fact threatened their employment, at least implicitly, if they revealed the subject conduct. Moreover, even if the Respondent's version were somewhat true (which is not accepted), and Ms. Deron invited this conduct, and was a willing participant in it, it is still a violation of the above-referenced rules applying to ECUA employees. Engaging in such conduct, even if consensual, on the employer's truck, when attention should be paid to duties, and with all the negative circumstances that such sexually-related conduct can cause, displays extremely bad judgment on the part of the Respondent. Such a lavish display of poor judgment, even if the conduct did not amount to sexual harassment, clearly is conduct unbecoming a ECUA employee within the meaning of the Petitioner's above-referenced rule.
The Issue The following issues were presented by the Petitioner or arose at hearing: Was a proper investigation and showing of interest made in this Petition? Should Assistant Sorensen be included or excluded from the proposed unit? Whether the appropriate unit should be composed solely of personnel within the Road and Bridge Department.
The Issue Whether Petitioner must be discharged from his position as a sanitation equipment operator II because he can no longer perform the essential functions of that job, with or without a reasonable accommodation.
Findings Of Fact 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, and fix their compensation within the guidelines of Escambia County Civil Services Rules. 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. For instance, Section B-11 provides that “[r]easonable accommodation is available to all disabled employees, where his or her disability affects the performance of job functions.” Section B-13 A (10) of the Manual requires ECUA employees to maintain all capabilities that are necessary for them to perform their assigned duties. Mr. Smith is 52 years old and initially worked for ECUA as a sanitation equipment operator from March 1997 through October 2002. He returned to his previous position at ECUA in January 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. Other “essential job functions” include activities such as manually picking up waste containers for disabled customers, climbing in and out of trucks, climbing stairs and ladders, and walking refuse containers to and from residences. As for the position’s physical requirements, the job description states that: While performing the essential functions of this job the employee is regularly required to sit, stand, or walk, use hands to finger, handle, or feel, reach with hands and arms, stoop, kneel, jump, step, or crouch, and lift and/or move up to 100 pounds and occasionally required to lift over 100 pounds. On June 25, 2019, Mr. Smith’s right knee collided with the rear door or bumper of a refuse truck while he was dumping refuse into a landfill. He sought medical attention that day, and the resulting “work status report” from the Sacred Heart Medical Group indicated he could return to work on June 26, 2019, but was prohibited from bending at the waist, stooping, kneeling, crawling, climbing, or squatting for the next eight days. ECUA learned of Mr. Smith’s injury on June 25, 2019, and he was promptly placed on leave pursuant to the Family and Medical Leave Act (“FMLA”). The standardized form memorializing that action advised Mr. Smith that “[y]ou will be required to present a fitness-for-duty certificate to be restored to employment.” Mr. Smith’s injured knee did not improve to a point at which he could return to his position as a sanitation equipment operator II, and he exhausted his 12 weeks of FMLA leave in September of 2019.1 At that point, ECUA’s Human Resources department placed him in two light-duty positions. The first was a temporary position counting inventory. That temporary position comes open for a week at the end of every ECUA fiscal year. After Mr. Smith completed that work, he was assigned to removing paper and plastic from ECUA’s composting operation. Mr. Smith’s tenure with the compost operation was brief because he was unable to walk or stand for long periods of time.2 1 Mr. Smith enjoyed working for ECUA and was interested in other employment opportunities there following his accident. Because he has 20 years of customer service experience and associates degrees in culinary management and hotel and restaurant management, Mr. Smith inquired about becoming a customer service representative. However, ECUA only had one such opening between March and November of 2019 and typically receives hundreds of applications when such a position comes open. Also, ECUA’s Human Resources department does not have the authority to reassign employees from one department to another. An employee interested in a position outside his or her department must apply for the position, and the department seeking to fill that opening makes the final decision as to who is hired. 2 The witnesses disagreed about how long Mr. Smith worked at the compost operation. Chiquita Payne, a senior human resources generalist at ECUA, and Tim Dean, ECUA’s lead compost technician, testified that Mr. Smith spent no more than a few days with the compost operation. Mr. Smith testified that he was there for 2.5 weeks. Mr. Smith never returned to his position as a sanitation equipment operator II. The medical restrictions prohibiting Mr. Smith from activities such as bending at the waist, stooping, kneeling, crawling, climbing, or squatting were not lifted. A note from Dr. Juliet De Campos, Mr. Smith’s attending physician at the Andrews Institute of Orthopedics & Sports Medicine, gave the following assessment of Mr. Smith: This 52-year-old male, truck driver had an impact injury to the anterior [of] the right knee in the patellofemoral area with a fall to the ground which may have twisted his knee. He had a laceration which healed uneventfully but had recurrent swelling and giving way of his knee. X-ray showed no fracture or loose body. MRI suggested abnormal MRI and medial meniscus. What was not read was a prepatellar bursitis and contusion. The contusion has resolved but the patient still has recurrent swelling, catching, and giving way. He has had physical therapy and a knee sleeve. Exam today shows findings consistent with medial meniscus tear but no ACL injury, atrophy. Prepatellar bursitis has resolved. He continues to have recurrent swelling and instability. He has been in physical therapy which has helped but [has not restored] normal function. Within a reasonable degree of medical certainty, this injury was caused by the job injury and treatment is necessary on that basis. The note continued by recommending that Mr. Smith have right knee surgery, and he ultimately did so on January 22, 2020. Following the surgery, Mr. Smith’s attending physician anticipated that Mr. Smith would have a “permanent impairment rating” and recommended that he do no stooping, squatting, or kneeling. The attending physician also recommended that Mr. Smith not lift anything over 10 pounds. Thus, the attending physician noted that “[o]ffice work would be appropriate” and counseled against Mr. Smith engaging in “commercial driving.” Section D-16 of the Manual contains a section on workers’ compensation providing that: Employees will return to work anytime they are medically able, with or without reasonable accommodations, within six (6) months of the date of injury. If after six (6) months from the date of injury the employee remains unable to perform the essential functions of his or her job, with or without reasonable accommodation, the employee’s department director, in consultation with the Human Resources Director, shall consider the employee’s prognosis and anticipated return-to- work date, the department’s present and projected workload and needs, and all other relevant factors in determining whether additional leave is appropriate under the circumstances. Should the employee remain unable to perform the essential functions of his or her job, with or without reasonable accommodation, after passage of six (6) months from the date of the injury and any extension thereof, if any, he or she shall retire, resign, or be terminated. Keith Kyles Sr., ECUA’s sanitations collections manager, issued a letter to Mr. Smith on December 3, 2019, stating the following: The most recent medical note in your file shows you were last seen by your treating physician, Dr. DeCampos, on November 19, 2019. Regarding your ability to return to work to perform the essential functions of your job, Dr. DeCampos stated, “No change – will need to schedule surgery.” Based on the above, it is clear you are unable to perform the essential functions of your position as a Sanitation Equipment Operator II. Moreover, a return to work date is unknown and there is no estimated date for your return to work at this time. Your continued absence, without a probable date of your return to work, creates a substantial hardship on the operational needs of the Sanitation Department and impairs ECUA’s ability to properly fulfill its responsibilities to its ratepayers. ECUA is also unaware of any reasonable accommodations which would enable you to perform the essential functions of your job. Moreover, ECUA cannot indefinitely hold your position open, as the duties which it entails simply must be performed. We have done everything reasonably possible to accommodate your work restrictions. However, we can no longer allow your continuing inability to perform the essential functions of your job, with or without a reasonable accommodation, to create a substantial hardship and impair ECUA’s ability to properly fulfill its business obligations. The letter closed by notifying Mr. Smith that Mr. Kyles had scheduled a predetermination hearing for December 10, 2019, so that Mr. Smith could have an opportunity to discuss whether he could perform the essential functions of a sanitation equipment operator II, with or without a reasonable accommodation. After the predetermination hearing, Mr. Kyles issued another letter to Mr. Smith on December 12, 2019, notifying him that his employment with ECUA had come to an end: During your hearing, you provided information that your knee surgery is scheduled for December 26, 2019. After surgery, you stated that you would be required to be on crutches for 10 days, followed by an additional eight weeks off work for recovery post-surgery. Based on the information provided, I have determined your continued inability to perform the essential functions of your position, with or without reasonable accommodation, creates a substantial hardship and impairs ECUA’s ability to properly fulfill its business obligations. Your inability to perform the essential functions of your job, with or without reasonable accommodations, constitutes a violation of Section B-13 A (10) . . . of ECUA’s Human Resources Manual Therefore, it is with regret I notify you that your employment with ECUA is hereby terminated effective close of business December 12, 2019. The preponderance of the evidence demonstrates that Mr. Smith cannot tolerate the physical demands associated with his former position as a sanitation equipment operator II, nor is there any reasonable accommodation that could be made that would allow him to perform the duties of a sanitation equipment operator II. Thus, Mr. Smith is not in compliance with Section B- 13 A (10) of the Manual. Mr. Smith did not meaningfully contest ECUA’s argument that he could no longer perform the physical tasks associated with a sanitation equipment operator II. Instead, Mr. Smith’s case focused on arguing that there are other, less demanding positions, within ECUA’s Sanitation Department and that assigning him to one of those positions would be a reasonable accommodation. However, Mr. Smith failed to prove that he was capable of handling the physical demands associated with those positions. For instance, Mr. Smith raised the possibility of being assigned to ECUA’s “miss truck.” ECUA’s standard refuse trucks occasionally miss refuse pick-ups due to inadvertence on the drivers’ part or residents’ failure to place their garbage on the curb in a timely manner. The miss truck is not as large as a typical refuse truck and is more automated. Therefore, miss truck duty is not as physically demanding as driving a typical refuse truck. Nevertheless, Mr. Kyles’s testimony demonstrated that miss truck duty is still a physically demanding position in that the miss truck driver must be capable of transporting large refuse cans to and from residences over all types of surfaces and distances. Because ECUA’s standard refuse trucks typically miss 40-50 refuse pickups a day, the preponderance of the evidence indicates that the physical demands associated with miss truck duty are not appropriate for someone with Mr. Smith’s physical limitations. Mr. Smith also raised the possibility of transporting ECUA’s fuel trailer. ECUA obtains fuel for its refuse trucks by transporting a fuel trailer to the Alabama-Florida line, acquiring the fuel, and transporting it back to ECUA. While this work is probably not as physically demanding as operating a refuse truck, Mr. Kyles testified that a fuel trailer operator would still have to satisfy the physical requirements associated with the sanitation equipment operator II position. Mr. Smith did not present any evidence to rebut Mr. Kyles’s testimony, and it is therefore accepted. Finally, Mr. Smith mentioned “monitoring piles” during his direct testimony. However, he presented no details about such duty. As a result, there is no competent, substantial evidence indicating that pile monitoring would be within his physical limitations, or that it would be a reasonable accommodation.
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 James V. Smith, Sr., is no longer qualified to perform the functions of a sanitation equipment operator II and take such action as deemed appropriate under the pertinent provisions of the Human Resources Manual and Employee Handbook. DONE AND ENTERED this 26th day of March, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 26th day of March, 2020. COPIES FURNISHED: Kimberly E. Scruggs Emerald Coast Utilities Authority Post Office Box 17089 Pensacola, Florida 32522-7089 James V. Smith, Sr. 901 Booker Street Cantonment, Florida 32533 Jessica L. Scholl, Esquire Moore, Hill & Westmoreland, P.A. Post Office Box 13290 Pensacola, Florida 32591 (eServed) Steve E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 (eServed) Cynthia Sutherland, Director Human Resources and Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 (eServed)
The Issue Whether the Respondent committed an unlawful employment practice by terminating the Petitioner’s employment on the basis of handicap.
Findings Of Fact The Petitioner, John Tadlock, (Tadlock) is a white male, age 46, and a resident of Panama City, Bay County, Florida. The Respondent, Westinghouse Electric Company, d/b/a Bay County Energy Systems, Inc. (Energy Systems), was and is a corporation organized and existing under the laws of the State of Florida. Energy Systems maintains a facility that collects garbage and burns it as fuel. The operation serves two basic functions. First, it disposes of unwanted garbage. Second, it produces energy by creating steam that in turn drives a turbine and produces electricity. From January, 1987, until September, 1993, Tadlock was employed by Energy Systems. Tadlock began as a B-class maintenance mechanic and advanced to the position of A-class maintenance mechanic. Subsequently, Tadlock moved to the operations portion of the company where he worked on boilers. Tadlock testified that he suffered injuries while at work during the years 1987, 1991, and 1993. Tadlock further testified that after each injury he recovered fully and resumed work at Energy Systems. As a result of the injuries sustained in his accidents at Energy System, Tadlock never testified that he was informed by any physician that he would have any permanent restrictions. In addition, at no time did Tadlock inform his employer, Energy Systems, that he suffered from any disability or restrictions relating to his ability to perform his job. During the period from October, 1991 through September, 1993, Tadlock had been cited for numerous violations of company policy and provided written warnings or reprimands. The first such violation occurred on October 24, 1991, when Tadlock was cited for violating company policy by failing to wear appropriate safety gear. Specifically, Tadlock failed to wear his indirect venting goggles. The memorandum memorializing the complaint noted that just two days prior to the complaint, Tadlock had received emergency training and, in response to a direct question raised by Tadlock, was informed that he must wear venting goggles. On September 17, 1992, Tadlock was cited for a safety violation for failing to wear appropriate hearing protection devices. As a result of this violation, Tadlock was given an oral warning. On June 3, 1993, Tadlock was cited for failing to wear gloves while on the floor of the facility. As a result of this violation of safety procedure, Tadlock was orally counseled on the correct policy and informed that such departure from set safety procedures would not be acceptable. On June 14, 1993, Tadlock was cited for failing to wear a personal respirator while in specific areas of the facility in violation of published safety procedures. On June 25, 1993, Tadlock received a written warning regarding his “unsatisfactory” safety record. Specifically, Tadlock was informed that he had a total of eleven accidents since his employment and that five of them were reportable to OSHA. The memorandum warned Tadlock that if he failed to show “immediate and sustained” improvement in his accident rate that he would be subject to disciplinary action. On July 30, 1993, Tadlock was verbally warned for failing to properly replace “pig pans” under an air dryer that resulted in oil running into a water drain. On August 31, 1993, Tadlock was verbally warned for failing perform his duties as an outside operator by failing to properly read his turnover log. As a result of his lack of action, Tadlock placed 55 gallons of bleach into a drainage basin. On September 19, 1993, Tadlock was informed, for a second time, that his safety record continued to be unsatisfactory. The letter referenced two accidents that occurred in August, 1993, that could have been avoided by practicing proper safety measures. As a result of those accidents and for his many past safety violations, Tadlock was suspended for three working days. Tadlock was offered employee assistance to help him perform his work in a more satisfactory and safe manner. On September 28, 1993, Tadlock was cited for a safety violation for failing to wear the appropriate shields on his prescription glasses. On October 10, 1993, Tadlock was cited for failing to properly maintain a boiler operator sheet log. This was the second time that Tadlock had been cited for improper maintenance of a log. Tadlock was also informed that if this type of action happened again, it would result in discipline. On October 15, 1993, Tadlock was observed urinating on the Boiler Room floor of the facility. Tadlock was cited for violating several rules of company conduct. A result of violating this company policy, coupled with the countless verbal and written warnings he had received, Tadlock was dismissed for cause. At the hearing, Tadlock admitted that he urinated on the floor of the facility but countered that he had no choice because Energy Systems failed to properly maintain its restroom. Tadlock was unable to support his assertion that there were no operating restroom facilities. First, in spite of every witness called by Tadlock, there was no testimony, even from Tadlock himself, that any of the bathrooms were not in working order.4 Energy Systems maintained that it had operational restroom facilities throughout its facilities. In addition, no competent evidence was presented that indicated that any of the restroom facilities were inoperable thus requiring someone to urinate in the middle of the facility. After being fired for the numerous safety violations and for violating company policy, Tadlock filed a complaint with the Commission on Human Relations alleging that he was discriminated against because of his handicap. Specifically, Tadlock asserted that he had suffered several on-the-job injuries that rendered him disabled and that he was discriminated because of the type injury or the lack of adequate medical treatment that he received. Such allegations were never proven and appear irrelevant to these proceedings. Specifically, any issues relating to his medical treatment and his injuries are more appropriately resolved in a worker’s compensation forum. At no time during his employment with Energy Systems did Tadlock inform his employer that he suffered from a handicap. Furthermore, there is no evidence that Energy Systems was aware that Tadlock suffered a disability or handicap. For example, Mr. James M. Leddy, the plant manager for Energy Systems testified that he was not aware of any condition which prevented Tadlock from functioning in a normal manner. The record is void of any evidence by a physician to indicate that Tadlock was considered disabled or handicapped. Mr. Dale J. McKeand, Manager of Plant Operations for Energy Systems, stated that Tadlock was not disabled and never asked for any accommodation for his “condition.” In addition, Mr. Richard S. Brookins, an industrial hygiene, safety and environmental coordinator for Energy Systems, stated that Tadlock worked full-time with no medical or duty restrictions and that he was terminated for his safety violations including urinating on the boiler room floor. Assuming that Tadlock could prove that he was handicapped, his actions after he was dismissed do not indicate a person with a handicap. Specifically, immediately after Tadlock’s dismissal, Tadlock opened a skinning shop for the purpose of skinning wild game (alligators, etc.). Skinning is a very physical job and it requires an individual to handle large game animals for the purpose of skinning hides from the carcasses of the animals. For the reasons stated above, there is no evidence to support that Tadlock was dismissed for any reason other than cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that this matter be dismissed with prejudice. DONE and ORDERED this 27th day of March, 1997, at Tallahassee, Florida. ` WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1997.
Findings Of Fact SJRWMD caused "Request for Qualifications No. 91H157" to be published in the Jacksonville Business Journal on May 3 through 9, 1991. In part, the request stated: Interested firms shall submit a letter of interest (three (3) copies) which contains, but is not limited to, the following: Experience in assessing the environmental fate of pollutants. Familiarity with current and historical agricultural practices employed by vegetable farms in Florida. In particular, knowledge of the storage and application of pesticides and herbicides is required. Ability to perform environmental chemistry and to assess the toxicological, chemical, and physical properties of hazardous materials. Ability to evaluate and/or develop site monitoring plans, industrial hygiene plans, site safety plans, decontamination plans, remediation plans, and abatement measures. Experience in performing environmental audits at potential hazardous waste sites. Staff must have the OSHA required 40 hours Hazardous Waste Site Safety Training pursuant to 29 CFE 1910.120. Documentation of experience in sampling of surface water, ground water, soil, sediment, including installation of temporary and permanent wells and split-spoon borings while following current state and federal approved procedures, and must be capable of preparing and implementing a quality assurance project plan specific to each site assessment. At least $5,000,000 of professional liability insurance. Evaluation of submitted letters of interest will be pursuant to Section 287.055, Florida Statutes. Contracts shall be negotiated pursuant to provisions of Section 287.055, Florida Statutes. Petitioner's Exhibit No. 1. Halff, Jammal and Geraghty & Miller, Inc. (G & M) among others, responded to the request for qualifications with letters of interest. SJRWMD staff evaluated the letters of interest and ranked the respondents in order: Halff was first; Jammal was second; and G & M was third. Staff recommended beginning negotiations with Halff. After tabling the matter at the first Board meeting at which it came up, the Board discussed the staff recommendation on August 14, 1991, and, it seemed from a tape recording of the meeting in evidence, was unfavorably impressed with the fact that Halff had only one full-time employee in Florida, Robert Barnard. (Three other people are in petitioner's Jacksonville office on "a sub-contract basis." T.50.) Mr. Barnard, who would have had charge of the work for SJRWMD if Halff had been chosen, spoke at the Board meeting. He came up to the podium and answered questions, but did not make a formal presentation. No other contender was represented at the Board meeting. As far as the evidence shows, each Board member had read all letters of intent carefully: The record is silent on the point. The Board voted to rerank Jammal and Halff first and second, respectively, and directed staff to begin negotiations with Jammal.
Recommendation It is, accordingly, recommended that SJRWMD proceed with negotiations with Jammal, Halff and G & M in that order. RECOMMENDED this 4th day of March, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1992. COPIES FURNISHED: William Lon Allworth, Esquire 1301 Gulf Life Drive, Suite 200 Jacksonville, FL 32207 John W. Williams, Esquire P.O. Box 1429 Palatka, FL 32178-1429 Wayne Flowers, Executive Director St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether Luis A. Gonzalez earned a passing grade on the Professional Engineer Examination of April 14-15, 1988?
Findings Of Fact Luis A. Gonzalez took the Professional Engineer Examination administered by the Department of professional Regulation on April 14-15, 1988. By notice dated July 22, 1988, Mr. Gonzalez was informed by the Respondent's Office of Examination Services that he had failed the Professional Engineer Examination. Question 122 on the Principles & Practices of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, provided the following: SITUATION: An old, large, retirement community apartment complex has reported sewer overflow and plumbing discharge problems. You are an engineer assigned to review the flow and sizing of the one main sanitary sewer exiting and carrying the total flow of the complex, with the objective of correcting the problem. Review with the manager, and inspection of the plans, reveal there are 490 residential units with an estimated continuing residence population of 1,475. Water bills are paid individually. REQUIREMENTS: NOTE: Use and-show equations for calculations. Do not use a nomograph or hydraulic slide rule. Citing your assumptions and sources, calculate the average, maximum, and minimum sanitary wastewater flows expected, in gallons per day, from the total complex. You measure the main sewer from the project and examine the plans and find it is 10" round ID, VCP, with a slope of 0.0045. Inspection leads to an estimate of n 0/015 (fair) because of age. Calculate theoretical full flow capacity and velocity with no surcharge. Calculate depth and velocity of flow for your estimated maximum flow rate, if you can conclude the sewer is not overloaded. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 122. The citations included by Mr. Gonzalez in answering part (a) of Question 122, although questioned by the grader of Question 122, were adequate. Mr. Gonzalez failed to list assumptions which he should have taken into account in answering part (a) of Question 122, concerning inflow, infiltration or exfiltration. In answering part (a) of Question 122, Mr. Gonzalez determined "estimated flow." In calculating estimated flow, Mr. Gonzalez multiplied the population of the complex (1,475) times an estimated water use per person of 100 gallons per day. In support of Mr. Gonzalez's use of 100 gallons per person water use, Mr. Gonzalez cited the Civil Engineering Reference Manual, Fourth Edition, and the ASCE Manual on Engineering Practice No. 36. Mr. Gonzalez also provided other references at the formal hearing to support his use of 100 gallons per day. The use of 100 gallons a day per person in answering part (a) of Question 122 by Mr. Gonzalez would be correct only if the problem involved a residential community. The citations used by Mr. Gonzalez indicate that 100 gallons per day is generally acceptable for residential communities or "[i]n the absence of any better basis . . . ." Question 122, however, involves an apartment complex and not a residential community. The weight of the evidence presented at the formal hearing indicates that for an apartment complex an estimated water use of 60 to 80 gallons per day per person should be used. Even some of the references provided by Mr. Gonzalez at the formal hearing support this conclusion. For example, Petitioner's exhibit 5 indicates that a wastewater flow of 67 to 79 gallons per person per day should be used for "[m]ultiple-family dwellings (apartments)." Mr. Gonzalez's use of 100 gallons per day in answering part (a) of Question 122 was incorrect. Mr. Gonzalez failed to demonstrate an adequate understanding of flow in answering Question 122. Although Mr. Gonzalez demonstrated an understanding of full flow, he failed to demonstrate an understanding of partial flow. Mr. Gonzalez's answer to part (b) of Question 122 was adequate. Mr. Gonzalez's answer to part (c) of Question 122 was incorrect. Mr. Gonzalez did not dispute this conclusion at the forma1 hearing. Mr. Gonzalez was awarded a score of 4 for his solution of Question 122. Question 122 was graded pursuant to the National Council of Engineering Examiners Standard Scoring Plan Outline (DPR Exhibit #4). This Outling provides that a grade of 4 is to be awarded under the following circumstances: UNQUALIFIED: Applicant has failed to demonstrate adequate knowledge in more than one ASPECT of one CATEGORY. BU. Fails to demonstrate an understanding of flow and velocity calculations for pipes flowing full or partially full; or contains multiple errors; or one part is missing or wrong with other gross or multiple errors; or the record is deficient; or in combination. A grade of 5 was to awarded under circumstances similar to the circumstances for awarding a score of 4, except that a score of 5 is appropriate only if an "[a]pplicant has failed to demonstrate adequate knowledge in [only] one ASPECT of one CATEGORY." The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 4 for his answer to Question 122 and not a score of 5. Mr. Gonzalez failed to "demonstrate an understanding of flow . . . calculations for pipes flowing . . . partially full . . . ." His answer also "contains multiple errors" and at least "one part is . . . wrong." Finally, Mr. Gonzalez's answer to Question 122 "failed to demonstrate adequate knowledge in more than one ASPECT of one CATEGORY" as opposed to "[only] one ASPECT of one CATEGORY." [Emphasis added]. Question 123 of the Principles & Practice of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, includes parts (a) through (j). Mr. Gonzalez questioned parts (b), (d) and (e) of Question 123. In pertinent part, Question 123 provides the following: SITUATION: In a detailed study of traffic flow on one lane of a 2-lane urban freeway, the following data were collected: Average Distance between the front bumper of successive vehicles 75 feet Space Mean Speed = 33 mph Time Mean Speed = 32 mph REQUIREMENTS: (b) Determine the traffic density. Assuming that the 30th highest hourly volume is to be used for design purposes on this highway, what is a reasonable estimate of the 30th highest hourly volume in one direction on this facility? Briefly justify any assumptions made. Determine the most widely accepted value of the capacity of a freeway lane operating under ideal conditions of uninterrupted flow. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 123. Mr. Gonzalez answered part (b) of Question 123 by calculating a density of 70.40. The grader of Question 123 circled this answer and wrote "DECIMAL." The Respondent agreed at the formal hearing that the use of decimals by Mr. Gonzalez was insignificant. In answering part (d) of Question 123 Mr. Gonzalez failed to include adequate assumptions. Although the statements made by Mr. Gonzalez in answering part (d) of Question 123 are correct, his equation is wrong. Mr. Gonzalez did not offer adequate proof at the formal hearing that his response to part (d) of Question 123 was correct. In answering part (e) of Question 123 Mr. Gonzalez assumed a capacity of 2,000 cars per hour. The grader of Question 123 indicated that this capacity is an "obsolete value." The Solutions to be used in grading the Professional Engineer Examination and, in particular, Question 123, indicates the following: Based on the 1985 Highway Capacity Manual or other similar sources, the capacity of a multi-lane freeway lane operating under ideal conditions is 2,000 vehicles per hour. ANSWER Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with this solution, the capacity of a multi-lane freeway lane operating under ideal conditions, based on the 1985 Highway Capacity Manual is actually 2,800 vehicles per hour and not 2,000 vehicles per hour. The answer to part (e) of Question 123 provided in the Solutions used by graders of the Professional Engineer Examination and Mr. Gonzalez's answer are therefore incorrect. The Solutions provided to graders are to be used only to assist graders and are not binding on them. Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with the Solutions provided, the answer is incorrect. Therefore, the grader properly took into account Mr. Gonzalez's incorrect solution to part (e) of Question 123. Even if Mr. Gonzalez is given credit for his response to part (e) of Question 123, his grade for Question 123 will not change. Mr. Gonzalez correctly answered parts (a)-(c) and (f)-(j) of Question 123. Mr. Gonzalez was awarded a score of 8 points for his answer to Question 123. Question 123 was graded pursuant to a Six Level Item Specific Scoring Plan (155P). The Plan provides that a grade of 8 is to be awarded under the following circumstances: CLEARLY QUALIFIED: All categories satisfied with at least one at a higher than minimum level. Correct approach but a solution with math errors or answers outside allowable tolerances for parts (d), (e), and (h) or An [sic] slightly incomplete solution. The next highest grade which can be awarded for Question 123 is 10 points, the maximum award possible for Question 123. Ten points are to be awarded under the following circumstances: HIGHLY QUALIFIED: All categories satisfied. -Presentation -may lack in completeness or equations, diagrams, orderly steps in solution, etc. Results within allowable tolerance. Correct approach and correct solution within allowable tolerances for parts (d), (e), and (h) and correct interpretation of results. All parts complete. The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 8 for his answer to Question 123 and not a score of 10. Mr. Gonzalez did not satisfy all categories and he failed to arrive at the "correct solution within allowable tolerances for parts (d), [and] (e) . . . " in answering Question 123. Mr. Gonzalez failed to prove that he should have been awarded a score of 10 for Question 123. Mr. Gonzalez failed to prove that he should be awarded an additional point on the Professional Engineer Examination of April 14-15, 1988.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Engineers issue a final order concluding that Luis A. Gonzalez's grade on the Professional Engineer Examination of April 14- 15, 1988, was a failing grade. DONE and ENTERED this 6th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 6th day of April, 1989. APPENDIX Case Number 88-6056 Mr. Gonzalez has submitted a letter dated March 21, 1989, containing proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Respondent did not file a proposed recommended order. Mr. Gonzalez's Proposed Findings of Fact Paragraph Number in Recommended Order of Acceptance or Reason for Rejection Paragraphs 1-2, 6 Not proposed findings of fact. Paragraph 3 The first sentence is a statement of the issue concerning Question 122. The second and third sentences are not supported by the weight of the evidence. The Florida Department of Environmental Regulation established water per day usage is for regulatory purposes and not necessarily consistent with the engineering principles to be used in answering questions on the Professional Engineer Examination. References which should have been used in answering Question 122 indicate that a water use rate of 67 to 79 gallons per day should have been used for apartments. The letter referred to was not accepted into evidence and can not form any basis for a finding of fact. Paragraph 4 The first and fifth sentences are accepted in findings of fact 20 and 21. The second and fourth sentences are not relevant to this proceeding. The third sentence is based upon a letter apparently received after the formal hearing. It cannot be taken into account in this proceeding. The sixth sentence is not supported by the weight of the evidence. The grader used the correct information and not "personal conviction." Although it is true that Mr. Gonzalez used the most recent data he was aware of concerning vehicles per hour, the fact remains that the value he used at the time of the examination was incorrect. Paragraph 5 Not supported by the weight of the evidence. Mr. Gonzalez included two references with his letter of March 21, 1989, which were not offered at the formal hearing. Those references cannot be relied upon in this case and have played no part in making the findings of fact and conclusions of law in this Recommended Order. COPIES FURNISHED: H. Reynolds Sampson Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Luis A Gonzalez 7419 Sandy Bluff Drive Jacksonville, Florida 32211 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
