The Issue Whether the Petitioner, Fletcher Armour, should have been suspended by the Respondent, City of Clearwater, for a three-day period.
Findings Of Fact The Petitioner is an employee of the City of Clearwater and was at the time pertinent to this hearing a meter reader for the city. He was suspended for a period of three (3) days beginning July 31, 1979, and ending August 2, 1979, for insubordination and a serious breach of discipline. In February, 1979, Petitioner Armour and his superior, Fred W. Lewis, Accounts Supervisor, discussed the Petitioner's planned vacation. The Petitioner requested six (6) consecutive days: June 28 and 29, 1979, for religious reasons, plus the following four (4) days. Although tentative written approval was given by Lewis, he warned the Petitioner that if a meter reader with seniority requested the same four (4) "non-religious" vacation days Lewis would have to accede to the request for the reason that there is a seniority policy in the Utilities Department of the City of Clearwater, and further that the department could not properly function with two (2) meter readers on vacation at the same time. Lewis told the Petitioner that the two (2) vacation days requested for religious purposes, June 28 and 29, would be granted regardless of seniority. Subsequent to this first meeting, a Mr. Henderson, a meter reader with seniority over Petitioner Armour, requested the same four (4) days desired by the Petitioner. To resolve this conflict of vacation schedules, Lewis called a meeting during early June, 1979, at which all meter readers were present, including Kim Kyler, a witness for Respondent at the hearing. According to the testimony of Lewis and Kyler, Lewis asked Petitioner Armour during the meeting what days he wanted to take off. Petitioner responded by stating he would take his first two (2) vacation days (June 28 and 29), but not the last four (4) days, and that he would postpone taking these four (4) days until sometime in December when he had two (2) weeks. He was then told that he was not entitled to two (2) weeks until after January 1, and therefore could not take the requested four (4) days in December. Lewis thereupon documented the vacation schedules of Petitioner Armour and Henderson accordingly, giving Henderson the last four (4) days he desired and had theretofore requested. Witness Kyler corroborated the testimony of Lewis. Petitioner Armour took off the four (4) days following the two (2) days leave granted that he had requested in February but was denied in June.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the three (3) days suspension of the Petitioner, Fletcher Armour, by the Respondent, City of Clearwater, be sustained. DONE and ORDERED this 10th day of January, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Rick Griesinger, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 33518 Mr. Fletcher Armour 535 Fairwood Avenue, #230 Post Office Box 794 Clearwater, Florida 33518
The Issue Whether Rules 40B-1.702(4); 40B-4.1020(12) and (30); 40B-4.1030; 40B-4.1040(1)(b) and (c); 40B-4.2030(4); 40B-4.3000(1)(a); 40B-4.3010; 40B-4.3020; 40B-4.3030; 40B- 4.3040; and 40B-400.103(1)(h), Florida Administrative Code, of the Suwannee River Water Management District, are an invalid exercise of delegated legislative authority for reasons described in the Second Amended Petition to Determine Validity of Rules.
Findings Of Fact Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. The District is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an Environmental Resource Permit (ERP) issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between the District and the Department (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the work of the district (WOD) impacts. Petitioner has not filed a permit application with the District regarding the project. It is Petitioner's position that to do so would be futile. The Challenged Rules The rules or portions thereof which are challenged in this proceeding are as follows: Rule 40B-1.702(4), Florida Administrative Code, reads as follows: (4) A works of the district permit under Chapter 40B-4, F.A.C., must be obtained prior to initiating any project as outlined in (3) above within a regulatory floodway as defined by the District. Rule 40B-4.1020(12) and (30), Florida Administrative Code, read as follows: (12) "Floodway" or 'regulatory floodway" means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the 100-year flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more then one-foot rise in surface water. * * * (30) "Work of the district" means those projects and works including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as works of the district. Works of the district officially adopted by the board are adopted by rule in Rule 40B-4.3000 of this chapter. Rule 40B-4.1030, Florida Administrative Code, reads as follows: The implementation dates of this chapter are as follows: January 1, 1986 for Rule 40B- 4.1040(1)(a) which requires persons to obtain surfacewater management permits. April 1, 1986 for Rule 40B- 4.1040(1)(b) and Rule 40B-4.3040 which require persons to obtain works of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Alapaha River and its floodway in Hamilton County, Florida; The Aucilla River and its floodway in Jefferson, Madison, or Taylor counties, Florida; The Suwannee River or its floodway in Columbia, Hamilton, Lafayette, Madison, or Suwannee counties, Florida; or The Withlacoochee River and its floodway in Hamilton or Madison counties, Florida. (c) July 1, 1986 for Rule 40B-4.1040(1)(b) or 40B-4.3040 which require persons to obtain work of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, or Union counties, Florida; or The Suwannee River and its floodway in Dixie, Gilchrist, or Levy counties, Florida. Rule 40B-4.1040(1)(b) and (c), Florida Administrative Code, reads as follows: (1) Permits are required as follows: * * * Works of the district development permit prior to connecting with, placing structures or works in or across, discharging to, or other development within a work of the district. When the need to obtain a works of the district development permit is in conjunction with the requirements for obtaining a surfacewater management permit, application shall be made and shall be considered by the district as part of the request for a surfacewater management permit application. Otherwise, a separate works of the district development permit must be obtained. Rule 40B-4.2030(4), Florida Administrative Code, reads as follows: (4) The new surfacewater management systems or individual works shall not facilitate development in a work of the district if such developments will have the potential of reducing floodway conveyance. (emphasis supplied) Rule 40B-4.3000(1)(a), Florida Administrative Code, reads as follows: The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of works of the district pursuant to Section 373.085, Florida Statutes. Further, Section 373.019(15) provides that works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the district, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as works of the district: The Alapaha River and its floodway in Hamilton County, Florida; . . . . Rule 40B-4.3010, Florida Administrative Code, reads as follows: A general works of the district development permit may be granted pursuant to the procedures in Rule 40B-1.703 to any person for the development described below: Construction of a structure for single-family residential or agricultural use including the leveling of land for the foundation and associated private water supply, wastewater disposal, and driveway access which is in compliance with all applicable ordinances or rules of local government, state, and federal agencies, and which meets the requirements of this chapter. A general permit issued pursuant to this rule shall be subject to the conditions in Rule 40B-4.3030. Rule 40B-4.3020, Florida Administrative Code, reads as follows: Content of Works of the District Development Permit Applications. Applications for a general work of the district development permit shall be filed with the district and shall contain the following: Form 40B-4-5, "Application for General Work of the District Development Permit," Suwannee River Water Management District, 4-1-86, hereby incorporated by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the applicant or owner; Copies of all permits received from local units of government, state, or federal agencies, specifically a copy of the building or development permit issued by the appropriate unit of local government, including any variances issued thereto, and a copy of the onsite sewage disposal system permit issued by the Florida Department of Health and Rehabilitative Services under Chapter 10D- 6, Florida Administrative Code; A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon; and Any supporting calculations, designs, surveys, or applicable documents, which in the applicant's opinion, may support the application. Applications for individual or conceptual approval works of the district development permits shall be filed with the district and shall contain the following: Form 40B-4-4, "Application for Surfacewater Management System Construction, Alteration, Operation, Maintenance, and/or Works of the District Development", Suwannee River Water Management District, 10-1-85, hereby adopted by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the owner. General project information including: The applicant's project name or identification number; The project location relative to county, section, township, and range, or a metes and bounds description; The total project area in acres; The total land area owned or controlled by the applicant or owner which is contiguous with the project area; A description of the scope of the proposed project including the land uses to be served; A description of the proposed surfacewater management system or work; A description of the water body or area which will receive any proposed discharges from the system; and Anticipated beginning and ending date of construction or alteration. Copies of all permits received from, or applications made to, local units of government, state, or federal agencies. A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon. Any supporting calculations, designs, surveys, or applicable legal documents, which in the applicant's opinion, support the application. Copies of engineer or surveyor certifications required by this chapter. Rule 40B-4.3030, Florida Administrative Code, reads as follows: Conditions for Issuance of Works of the District Development Permits. The district will not approve the issuance of separate permits for development in a work of the district for any proposed project that requires a district surfacewater management permit pursuant to Part II of this chapter. For such projects, development in a work of the district may be authorized as part of any surfacewater management permit issued. The district will not approve the issuance of a works of the district development permit for any work, structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water-surface elevations above the 100-year flood elevation, or increasing soil erosion. The district will presume such a facility will not reduce conveyance or increase water-surface elevations above the 100-year flood elevation or increase soil erosion if: Roads with public access are constructed and laid out in conformance with the minimum standards of local government. Where roads are not required to be paved, the applicant must provide design specifications for erosion and sediment control. Where roads are required to be paved, swales will generally be considered adequate for erosion and sediment control; Buildings in the floodway are elevated on piles without the use of fill such that the lowest structural member of the first floor of the building is at an elevation at least one foot above the 100-year flood elevation; The area below the first floor of elevated buildings is left clear and unobstructed except for the piles or stairways; A permanent elevation monument is established on the property to be developed by a surveyor. The monument shall be adequate to establish land surface and minimum buildup elevations to the nearest 1/100 of a foot; No permanent fill or other obstructions are placed above the natural grade of the ground except for minor obstructions which are less than or equal to 100 square feet of the cross-sectional area of the floodway on any building or other similar structure provided that all such obstruction developed on any single parcel of land after the implementation date of this chapter is considered cumulatively; No activities are proposed which would result in the filling or conversion of wetlands. For any structure placed within a floodway which, because of its proposed design and method of construction, may, in the opinion of the district, result in obstruction of flows or increase in the water surface elevation of the 100-year flood, the district may require as a condition for issuance of a work of the district development permit that an engineer certify that such a structure will not obstruct flows or increase 100-year flood elevations. The following conditions shall apply to all works of the district development permits issued for development on lands subdivided after January 1, 1985: Clearing of land shall be limited [except as provided in (b) and (c) below] to that necessary to remove diseased vegetation, construct structures, associated water supply, wastewater disposal, and private driveway access facilities, and no construction, additions or reconstruction shall occur in the front 75 feet of an area immediately adjacent to a water. Clearing of vegetation within the front 75 feet immediately adjacent to a water shall be limited to that necessary to gain access or remove diseased vegetation. Harvest or regeneration of timber or agricultural crops shall not be limited provided the erosion of disturbed soils can be controlled through the use of appropriate best management practices, the seasonal scheduling of such activities will avoid work during times of high-flood hazard, and the 75 feet immediately adjacent to and including the normally recognized bank of a water is left in its natural state as a buffer strip. As to those lands subdivided prior to January 1, 1985, the governing board shall, in cases of extreme hardship, issue works of the district development permits with exceptions to the conditions listed in Rule 40B-4.3030(4)(a) through (c). The 75-foot setback in paragraphs (a) through (d) above shall be considered a minimum depth for an undisturbed buffer. The limitations on disturbance and clearing within the buffer as set out in paragraphs through (d) above shall apply, and any runoff through the buffer shall be maintained as unchannelized sheet flow. The actual depth of the setback and buffer for any land use other than single-family residential development, agriculture, or forestry shall be calculated in accordance with the methodology in: "Urban Hydrology for Small Watersheds", U.S. Department of Agriculture, Soil Conservation Service, Engineering Division, Technical Release 55, June 1986; and, "Buffer Zone Study for Suwannee River Water Management District", Dames and Moore, September 8, 1988, such that the post-development composite curve number for any one-acre area within the encroachment line does not exceed; a value of 46 for areas within the encroachment line with predominantly Class A soils; a value of 65 for areas within the encroachment line with predominantly Class B soils; a value of 77 for areas within the encroachment line with predominantly Class C soils; or a value of 82 for areas within the encroachment line with predominantly Class D soils. (emphasis supplied) Rule 40B-4.3040, Florida Administrative Code, reads as follows: Unlawful Use of Works of the District. It shall be unlawful to connect with, place a structure in or across, or otherwise cause development to occur in a work of the district without a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause an unpermitted development to be removed or permitted. It shall be unlawful for any permitted use to violate the provisions of Chapter 373, Florida Statutes, or this chapter, or the limiting conditions of a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause the unpermitted use to be removed or brought into compliance with Chapter 373, Florida Statutes, and this chapter. Damage to works of the district resulting from violations specified in Rule 40B-4.3040(1) and (2) above shall be repaired by the violator to the satisfaction of the district. In lieu of making repairs, the violator may deposit with the district a sufficient sum to insure such repair. Rule 40B-400.103(1)(h), Florida Administrative Code, reads as follows: (1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or chapter 40B-4, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: * * * (h) Will not cause adverse impacts to a work of the District established pursuant to s. 373.086. . . . Facts Based Upon the Evidence of Record History of the rules Mr. David Fisk is Assistant Director of the District. At the time of the hearing, he had been employed there for 26 and one-half years. He played a significant role in the rule adoption process of the rules that are the subject of this dispute. As part of that process, the District entered into a consulting contract with an engineering, planning, and consulting firm and consulted with the U.S. Corps of Engineers and the Federal Emergency Management Agency (FEMA), to conduct what are described as the FEMA flood studies. Additionally, the district commissioned an aerial photography consultant who provided a series of rectified ortho photographs of the entire floodplain of the rivers within the District, and a surveying subcontractor who provided vertical control and survey cross sections and hydrographic surveys of the rivers. The District also worked in conjunction with the United States Geological Survey to accumulate all of the hydrologic record available on flooding. The information was given to the U.S. Army Corps of Engineers who, operating under FEMA guidelines for conducting flood insurance rate studies, performed the analytical and computer modeling work to identify the flood plains and floodway boundaries. The District used the amassed knowledge of maps, cross sections and surveys that were developed as part of the FEMA flood studies as technical evidence or support for the adoption of the works of the district rules. Following a series of public workshops and public hearings in 1985, the rules were adopted and became effective in 1986. None of the rules were challenged in their proposed state. The District adopted the floodways of the Suwannee, Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works of the district. According to Mr. Fisk, the District adopted the rules pursuant to Section 373.086, Florida Statutes, which provided authority to the District to adopt district works and Section 373.085, Florida Statutes, which provided authority to regulate activities within those works. The Floodway Line Petitioner hired Mr. John Barnard, a professional civil engineer, with extensive environmental permitting experience, to look at the floodway and floodplain issues associated with Petitioner's site and project. Mr. Barnard conducted an engineering study entitled, "Floodplain Evaluation." It was Mr. Barnard's opinion that FEMA's determination of the floodway line was less than precise. Mr. Barnard used FEMA's data regarding the base flood elevation but manually changed the encroachment factor resulting in his placement of the floodway line in a different location than determined by FEMA. Mr. Barnard acknowledged that different engineers using different encroachment factors would reach different conclusions.1/ Respondent's expert in hydrology and hydraulic engineering, Brett Cunningham, noted that the definition of floodway in Rule 40B-4.1020(12), Florida Administrative Code, is essentially the same definition that used is in the FEMA regulations and which also is commonly used across the country in environmental rules and regulations. Mr. Barnard also acknowledged that the District's definition of "floodway", as found in Rule 40B-4.1020(12), Florida Administrative Code, is fairly commonly used by environmental regulatory agencies. Moreover, it was Mr. Cunningham's opinion that the Alapaha River is a stream or watercourse within the meaning of the rule and its floodway an accompanying land. In Mr. Cunningham's opinion, the FEMA flood insurance studies are widely used across the country for a variety of reasons and are typically relied upon by hydrologists and engineers to locate floodways. The definition of "works of the district" in Rule 40B-1020(30), Florida Administrative Code, is taken directly from the language found in Section 373.019(23), Florida Statutes. The statutory definition includes express references to streams and other watercourses, together with the appurtenant facilities and accompanying lands. Petitioner alleges that the phrase "will not cause adverse impact to a work of the SRWMD" as found in Rule 40B- 400.103(1)(h) is not clear because it does not identify what specific adverse impacts are being reviewed. While Petitioner's expert, Mr. Price, was not clear as to what the phrase means, Respondent's expert, Mr. Cunningham, understood the meaning of the phrase and noted that "adverse impact" is a phrase which is very commonplace in the rules and regulations of environmental agencies and is attributed a commonsense definition. The expert engineers differed in their opinions as to the meaning of the term "potential for reducing floodway conveyance" as used in Rule 40B-4.2030(4), Florida Administrative Code. According to Petitioner's expert engineer, Mr. Barnard, "potential for reducing floodway conveyance" is not a specific term that is open to interpretation as an engineer, and that he cannot quantify what constitutes "potential." Respondent's expert, Mr. Cunningham, understood the meaning of the phrase to be any increase in floodway conveyance. It was his opinion that there was nothing about that phrase to cause confusion. Rule 40B-4.3030, Florida Administrative Code, addresses conditions for issuance of works of the district development permits. Petitioner's expert Mr. Price testified that there is no quantification to what constitutes an "increase in soil erosion" as referenced in subsection (2) and linked the reference of soil erosion to a 100-year flood event referenced in the same subsection. Mr. Cunningham was of the opinion that there is no need to quantify an increase in soil erosion in the rule. He noted that soil erosion is used in a common sense manner and that attempting to put a numerical limit on it is not practical and "it's not something that's done anywhere throughout the country. It's just not something that lends itself to easy quantification like flood stages do". Mr. Cunningham's opinion that the words and phrases which Petitioner asserts are vague are words of common usage and understanding to persons in the field is the more persuasive testimony. This opinion is also consistent with statutory construction used by courts which will be addressed in the conclusions of law.
The Issue Whether Respondent, American Water Service Company, Inc., (“American Water”), discriminated against Petitioner, Micheal D. Bristol (“Bristol”), in violation of the Florida Human Rights Act and, if so, what penalty should be imposed?
Findings Of Fact Bristol is a 33-year-old, Caucasian male. He has been diagnosed with lumbar disk degeneration, depression, and anxiety. He holds a General Education Degree. At all times relevant hereto, Bristol was employed by American Water as a customer service representative. A customer service representative fields calls from American Water’s customers concerning complaints, renewals, changes in services, or other issues. The customer service representative uses a telephone and computer to respond to between 60 and 100 customer inquiries per day. The customer’s account information is brought up on the customer service representative’s computer in order to assist with whatever issue is raised concerning the customer’s complaint or issue. American Water is a utilities company that contracts with municipalities to provide water and sewer services to the citizens of the cities. It is a national company with water utility customers in several states. It is governed in part by the Public Utilities Commission and is charged with meeting certain standards regarding customer complaints. Having customer service representatives who are available and qualified is an important factor in meeting those standards. There are between 200 and 250 customer service representatives at American Water’s office in Pensacola, Florida, where Bristol was employed. American Water has another customer service center in Alton, Illinois, with about 200 customer service representatives. Calls coming in from customers are routed to the first available representative, regardless of at which service center they are working. Each representative sits in a cubicle with a desk holding two computer monitors, a telephone, and other necessary equipment. The customer service representatives wear headsets for the telephone which have cords of five to six feet in length. The back side of the cubicle is open to a common area. It is imperative that American Water maintain an adequate workforce of representatives each day. Using historical data, American Water tries to estimate the number of representatives who must be working each hour of each day. Some days historically have more incoming calls than other days, and American Water staffs accordingly. It is understood that some employees may need to take sick leave from time to time. All employees are given vacation days. Thus, making sure that there are enough workers on any given day is a moving target, yet it is integral to the work being done. American Water has instituted policies to help assure adequate staff. For example, there is a limit on the number of employees who may be on vacation at any given time. Some employees are allowed to work part time, but with a very definitive schedule. All employees are required to notify American Water immediately if they are unable to work on their assigned dates and times. Attendance is a singularly important requirement for an American Water customer service representative. At some point in time after he was first hired by American Water, Bristol was diagnosed with a degenerative disk disorder. The disorder causes him discomfort, making it difficult to sit for long periods of time. (However, see paragraph 19, below.) Bristol left his employment with American Water in October 2010. In May 2011, he returned to American Water, again as a representative in the customer service center. He had the same duties as in his previous employment. As Bristol began to experience more problems with his back, he began to use up all of his annual leave and sick leave when he felt he was unable to work. There was no evidence presented at final hearing as to how many annual leave hours employees receive, but each employee is allowed 80 sick leave hours per year. In 2012, Bristol applied for additional leave under FMLA and was approved for 480 hours, equivalent to 60 full work days. American Water approved intermittent leave under FMLA for one day per month with up to two days per time. During calendar year 2012, Bristol used some but not all of his FMLA leave. Bristol reapplied for FMLA leave again in February 2013, and was approved for another 480 hours. In that year, he used all 480 hours of FMLA leave. Bristol took leave whenever he felt like his back pain would prevent him from working. The leave was described as “intermittent” because there was no regular schedule or times associated with the leave. His schedule was, therefore, contrasted from a part-time employee who works fewer hours on a predetermined but regular schedule. On or about November 18, 2013, Bristol was notified that his FMLA leave had been used up. He had also exhausted his annual leave and sick leave allotment. Despite the fact that Bristol’s intermittent leave had created scheduling problems for the company, an employee of American Water provided Bristol with the necessary paperwork for requesting leave under the Americans with Disability Act (“ADA”). Part of that paperwork was a Health Care Provider Statement (“HCPS”) to be completed by his physician. Bristol was advised that after completing the HCPS, American Water would try to ascertain whether there were any accommodations they could provide to him on the job. Bristol submitted the HCPS to his treating physician to be completed and returned to American Water. Meanwhile, American Water tried to accommodate Bristol’s condition. He was provided an ergonomic work station, having a desk that could be raised or lowered, allowing Bristol to work while standing or sitting. He could change positions as needed to alleviate his back pain as much as possible. He could move, albeit not very far, within his small work area. Contradictory testimony was presented as to the exact size or configuration of the work space, so how much Bristol was able to move around is not clear. It is clear, however, that American Water attempted to accommodate his needs as much as the situation allowed. Bristol’s physician, Dr. Carie Fletcher, completed and signed the HCPS on November 26, 2013. The form was provided to American Water. Based upon the information supplied by Dr. Fletcher, American Water notified Bristol by letter dated December 2, 2013, that the current ergonomic work station and job duties were sufficient accommodations for the malady described by his doctor. Bristol said he did not believe the accommodations were sufficient. American Water thereafter asked Dr. Fletcher whether she had anything to add concerning Bristol’s disability or impairment. In response to that inquiry, Dr. Fletcher amended her previous submission, specifically on sections 4(b) and 7 of the form. Section 4(b) asks this question: “Is the Patient ‘substantially limited’ as to the condition, manner, or duration under which the Patient can perform that major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” Dr. Fletcher had originally stated, “Cannot stand/sit for prolonged periods (>1 hr), cannot lift objects >25 lbs secondary to back pain.” Upon American Water’s inquiry, she added this statement: “May expect exacerbation of back pain/DJD intermittently, up to 5-7 occurrences per month, at two days per occurrence.”2/ The question at section 7 of the form asked, “Does the diagnosed condition or conditions affect the Patient’s ability to perform any one of the essential functions of the Patient’s position?”. Dr. Fletcher originally stated: “Recommend allowing frequent position changes, limit lifting; will likely still experience intermittent exacerbations of back pain.” When American Water asked for additional detail, Dr. Fletcher added: “Please allow pt to stand and walk at liberty for approx five minutes every hour.” The amendments were provided to American Water on December 10, 2013. American Water’s HR personnel discussed the doctor’s recommendations and decided that the ergonomic work area and the extension cord on the telephone headset would allow Bristol the movement and flexibility needed. Lifting heavy objects was not part of Bristol’s job duties, so that was not discussed. Dr. Fletcher did not specifically suggest intermittent leave for Bristol, nor did she state that he would need to take leave five to seven times per month at one to two days per time. Rather, her response to American Water’s inquiry was that Bristol “may expect exacerbation” of his condition five to seven times a month. In section 8 of the form – which is the section for the physician to recommend accommodations – Dr. Fletcher wrote only, “As noted above.” (Again, see endnote 2, below). On January 31, 2014, American Water again contacted Dr. Fletcher for additional information. She was asked about Bristol’s mental or psychological disorder, to which she replied, “depression and anxiety” but that the condition did not currently limit Bristol’s activities. As to the lumbar disk degeneration, the limitations were listed as, “limits his ability to sit/stand/lift items and duration of work tolerated.” Dr. Fletcher was provided a matrix outlining Bristol’s essential job functions and asked what accommodations might be warranted for each. Dr. Fletcher replied to those inquiries on February 6 as follows (paraphrased): As for typing, Bristol may need to take breaks every hour; As for sitting, Bristol should be allowed to move/walk for five minutes every hour; As for standing, Bristol should be allowed to sit/rest for five minutes every hour; As to whether he could work full time, i.e., attendance, yes, as long as the previously noted accommodations were provided. It is significant that Dr. Fletcher again did not recommend intermittent leave for Bristol. Bristol nonetheless continued to ask American Water to approve intermittent leave as an accommodation. The primary reason American Water would not approve intermittent leave for Bristol was that it was necessary to be able to staff the customer service center at all times. Allowing employees to miss work randomly would adversely affect American Water’s ability to insure adequate staff. In fact, American Water considered Bristol a very good employee and would have preferred to retain him if possible. This was despite an allegation that Bristol had forwarded computer screen shots of customers to his personal email address, a terminable offense. American Water considered its actions to be in compliance with the recommendations of Dr. Fletcher. Although attached to a headset wire, Bristol had some minimal ability to move about his work space. He was able to stand when he needed to stand and sit when he needed to sit. He was not required to lift anything over 25 pounds. He was able to leave his work station to walk around every hour or so, but would have to log out temporarily to do so. Employees could log out using a special “AUX” code for bathroom breaks. It must be noted that during the entirety of the final hearing, Bristol sat without taking (or asking for) any breaks. He did not take advantage of breaks requested by others; rather, he remained seated as he talked with his counsel. His willingness and ability to remain seated during the final hearing flies in the face of his stated difficulties while working at American Water. While there may be some unstated reason that Bristol did not need relief at the final hearing, without some explanation that fact significantly affects the credibility of his testimony.3/ Bristol continued to miss many days (or parts of days) at work after his FMLA leave was used up. Being away from one’s work station for over an hour was considered an absence by American Water.4/ He presumed that those absences would ultimately be covered or approved under his anticipated ADA leave, but no one ever told him that would be the case (nor did he inquire about it). His presumption was based on the fact that his prior absences while applying for FMLA leave had been covered once FMLA was approved. While waiting for a response to the ADA leave request, Bristol continued working at American Water – and continued missing all or parts of days from work. He would ask his direct supervisor, Shelby Weese, about the status of his ADA application from time to time, but she did not have any information from HR to share with him. On February 13, 2014, Bristol and his union representative (Courtney Brown) met with HR business partner Delles. Bristol at that time explained that he believed his ADA leave would be retroactively applied to his unexcused absences. At this meeting, Delles explained that the FMLA leave Bristol had taken previously was mandated by law, i.e., American Water could not object to the leave once Bristol was approved. To obtain FMLA leave, an employee needs only to work the requisite number of hours in their job. Thus, he was allowed to miss numerous days of work without recourse. The ADA leave, however, was different; the requirements for approval of ADA leave are more stringent than for FMLA leave. An employer does not have to grant ADA leave, but is required to approve FMLA leave if the employee qualifies. At the meeting with Delles, Bristol advised her that he would be filing a claim against American Water with the Employee Equal Opportunity Commission. This was despite the fact that American Water had attempted to provide accommodations. Further, Bristol had never been chastised or reprimanded by American Water for applying for ADA leave or FMLA leave. In fact, American Water had prompted Bristol to apply for ADA when his FMLA leave was exhausted. All the while, Bristol continued to be absent from work in excess of his available leave. Bristol had been notified on June 12, 2013, that he was being issued a Level I verbal warning for non-attendance pursuant to American Water’s attendance policy. On that same day, he was notified that he was being issued a Level II written warning for non-attendance due to a second occurrence. On November 15, 2013, he was given a Level III final written warning for non-attendance. A Level I verbal warning is issued when an employee uses up his sick leave and annual leave and then misses between one hour and one full day of work, i.e., an unexcused absence. The warning would remain “active” in an employee’s file for up to six months. A Level II written warning is issued when the employee has a second unexcused absence while the verbal warning was still active. The Level II warning would remain active for up to 12 months. A Level III final warning is issued when there is a third unexcused absence while the Level II warning was still active. If there is a fourth unexcused absence, the employee’s contract of employment will be terminated. American Water followed its progressive discipline policy regarding Bristol’s absences. On February 24, 2014, Bristol was notified by American Water that his employment was being terminated. The stated reason for the termination of employment was excessive absences. The letter of notification indicated absences of over one hour on 34 additional days following his final written warning. Bristol refused to accept the accommodations suggested by American Water. He maintained that the only way he could continue working was to be allowed to take intermittent leave whenever he felt the need. American Water could not agree to that plan because it had a defined need for customer service representatives to be available on the days they were scheduled, except for normal expectation of sickness or other unforeseen reasons for being absent. Otherwise, American Water would find it impossible to effectively schedule the necessary number of representatives on any given day. American Water did not offer Bristol an alternative job because, as a union member, he was in the only job covered by the union. Whether he could have withdrawn from the union was not discussed with Bristol (or addressed at final hearing). After termination of his employment at American Water, Bristol became employed as a “salad chef” at a local restaurant called Jaco’s. He works approximately seven hours each day and stands for the duration of his work shift, but he gets to walk around the kitchen area. Bristol did not say whether Jaco’s was asked to provide any accommodations for his disability. This fact, too, negatively colors Bristol’s credibility concerning his claims against American Water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that American Water Service Company, Inc., did not discriminate against Micheal D. Bristol. DONE AND ENTERED this 24th day of April, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 24th day of April, 2015.
The Issue Whether the Respondents violated Section 112.313(6), Florida Statutes, by including certain letters in an official mail-out paid for by the taxpayers of the Flagler Estates Road and Water District and, if so, what penalty is appropriate.
Findings Of Fact Stipulated Facts Respondent Holman was appointed as a member of the Board of Supervisors of the Flagler Estates Road and Water Control District (the District) on March 20, 1998. She was appointed to complete the second year of another Supervisor's three-year term. Respondent Holman was elected to serve the remainder of that Supervisor's term on June 20, 1998. A letter from Respondent Holman to the District's property owners was included in the District's mail-out prior to the June 20, 1998, election. Respondent Holman provided Ms. Wendy Wilhelm, the District's secretary, with a copy of the subject letter. Ms. Wilhelm integrated the letter into the District's mail-out by typing it into the District's computer. Respondent Rousseau was appointed to the District Board of Supervisors on November 3, 1994. He was later elected to the position on June 18, 1995, and then re-elected on June 20, 1998. Respondent Rousseau acknowledged that he provided a copy of the subject letter to Ms. Wilhelm for the express purpose of including it in the District's office mail-out. The cost of the subject mailings were paid for with funds that were derived from assessments paid to the District by its property owners. The aforementioned mail-out was the last District mailing issued before the June 20, 1998, District election. Findings of Fact From Documentary Evidence On or about May 11, 1998, the District mailed a Notice of Annual Meeting of Landowners of Flagler Estates Road and Water Control District. The notice advised landowners within the District that the annual meeting would be held on June 20, 1998, at 10:00 a.m., at the District office. Moreover, the notice stated that the purpose of the meeting was to elect supervisors, receive annual reports, and consider other business that may properly be brought before the meeting. Enclosed in the aforementioned mail-out were three letters, one from each of the three members of the District's Board of Supervisors, including Respondent Rosseau and Respondent Holman. In his letter, Respondent Rousseau advised property owners of problems faced by the District during the year; provided information about his background; and stated that his "term expired in June" and that he was seeking reelection. In her letter, Respondent Holman provided information about her background, advised landowners that she had only served as a District Supervisor for four months, and detailed the activities in which she had been involved on behalf of the District. Lastly, Respondent Holman wrote, "I have enjoyed my short time on the Board and hope to be elected to fulfill Gerrit Stewart's one-year term." Ms. Calvert Hanson, the District's general counsel, suggested to Respondents Rosseau and Holman that the above- referenced letters be included in the District's official mail- out. Prior to the letters being mailed out to the property owners, Ms. Hanson reviewed the letters but made no modifications, except for correcting some grammatical errors. Ms. Hanson did not believe that the letters were solicitations for votes for Respondents' election or reelection to the District's Board of Supervisors. Respondent Holman's and Respondent Rousseau's decision to include their respective letters in the District's official mail-out was based solely on the suggestion of the District's general counsel. Prior to the letters being sent out, Respondents provided Ms. Hanson with copies thereof for her review. Having received no recommendations for substantive modifications to the letters, Respondents Holmon and Rousseau did not believe that the contents of the letters constituted an improper solicitation for support in the District's election for Supervisors. Notwithstanding Respondents' subjective belief to the contrary, a portion of each of their letters constituted a solicitation for support in the June 1998 election for the District's Board of Supervisors. While Respondents' letters included information regarding the District, the letters also clearly indicated that Respondents were seeking to be elected or reelected to the District Board of Supervisors. Based on the content of the letters and the fact that they were included in the mail-out noticing the annual meeting at which supervisors would be elected, it appears reasonable that Respondents were seeking support for their election. Thus, although the letters did not expressly request that landowners "vote" for Respondents, such request was implicit in the letters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a Final Order and Public Report be entered finding that Respondent Robin Holman and Respondent Thomas Rousseau did not violate Section 112.313(6), Florida Statutes. DONE AND ENTERED this 26th day of May, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1999. COPIES FURNISHED: Eric S. Scott Assistant Attorney General Attorney General's Office The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Linda Calvert Hanson, Esquire 3501-B North Ponce de Leon Boulevard Suite 342 St. Augustine, Florida 32095 Sheri Gerety Complaint Coordinator and Clerk Ethics Commission 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Petitioner, Frank A. Caluwe, Jr., was employed on a noncontractual basis by Respondent, South Florida Water Management District, during the period from April 8, 1974 through August 4, 1982. From August, 1981 until his termination, Caluwe held the position of water management engineer III. At all times relevant hereto, Richard A. Rogers, director of the Resource Control Department, was overall supervisor or department head. Charles Alan Hall served as his direct, day-to-day supervisor. Petitioner transferred into the Resource Control Department in 1977. He was eventually promoted to a supervising professional engineer I class in 1979 by Rogers and Hall. Caluwe's job evaluations received in evidence as Petitioner's Exhibit 17 reflected outstanding and excellent ratings and included such glowing descriptions of his work performance as "excellent" and "well organized", and as having "a very good handle on all phases of the work". He received an excellent rating from Rogers and Hall as late as November, 1981. Rogers first began experiencing what he described as "difficulties" with Caluwe around 1980 when Caluwe went to lunch with several of his subordinates and did not return to work the rest of the afternoon. He did not take leave for his absence. Although Rogers claimed the employees were on a "drinking spree," this was not confirmed. Caluwe did not receive any disciplinary action for this "incident", although several months later Hall expressed displeasure with his absence. There was no evidence that any of the other employees in the group received any type of oral or written disciplinary action for their absences. Several other "problems" occurred during his employment tenure including unsuccessful attempts in 1980 to utilize law books at the agency's law library for personal use, admonishments for having too many incoming personal calls on his telephone during office hours and discussing nonworking matters with other employees, "negative" comments to two subordinates during a 1981 intra-agency election, and an alleged failure to return a long-distance telephone call to someone seeking information. However, no formal disciplinary action was taken against Petitioner for any of these actions, and his personnel file reflects no written comments. He also sued the agency twice, once in 1977 over an insurance claim, and a second time in 1980 concerning a cash award he claimed was due for making a suggestion. However, this action did not result in any written or oral warnings from his superiors. In May, 1981, Hall, Rogers and Caluwe met to discuss a transfer from a supervisory position (supervisor of water permit section) to a water management engineer III, which was a staff position. Although Caluwe admitted he was "burned out" in his supervisory role, he protested being demoted to a staff position and requested he be given an engineer IV slot. Notwithstanding his request he was demoted to the lower position. On March 17, 1982, an annual agency meeting was held at which time the agency executive director spoke to all employees. Prior to that time an undated memorandum was posted on the agency's bulletin board "urging" all employees to attend. Another memorandum dated March 1, 1982, which rescheduled the meeting to another date, simply advised members of Caluwe's department when the talk was to be held, but made no mention regarding attendance. Caluwe did not attend the meeting because he did not consider it to be mandatory. He based this conclusion upon the fact that the memorandum urged vis a vis required attendance, and because other employees had missed the meeting in prior years. He conceded, however, that it was "implied" from the memorandum that he attend the meeting. Respondent construed the memorandum to mean that attendance was compulsory, and that "everybody (was) expected to attend." Whether this specific meaning was ever conveyed to all employees, including Caluwe, before the meeting was not disclosed. During the annual agency meeting Caluwe remained working in his office. While there, an unidentified member of the public approached a temporary receptionist seeking information concerning a problem. The receptionist in turn went to Caluwe seeking his aid in responding to the inquiry. Caluwe responded, "I don't know. That's not my job. Pat Gleason's group handles that." Out of "curiosity", the receptionist reported his comments to a department head, who in turn told Rogers. Neither the receptionist nor the member of the public were identified, and neither appeared and testified at the final hearing. Whether or not the receptionist suffered "abuse" as a result of this as the agency claims was not confirmed. Rogers, Hall and Caluwe met on March 18 concerning his absence from the annual meeting and the "incident" with the receptionist. On March 22 Caluwe was given a written warning and assigned 25 disciplinary points for being guilty of a Category 2e offense under the agency's Corrective Action-Procedure Index and Corrective Action-Policy. The Index and Policy "defines appropriate corrective actions for resolving performance problems and violations of rules of conduct" by agency employees. In short, it represents the agency's written code of conduct for employees. A 2e offense is defined therein as a "(f)ailure to follow authorized instructions." In conjunction with the written warning, Caluwe was also given a memorandum prepared by Rogers on March 19 which explained in greater detail the conduct that precipitated the disciplinary action. In the memorandum Rogers referred to a number of things which prompted the disciplinary action, including the "incident" with the receptionist, the missed meeting, and Caluwe's apparent use of the telephone for personal use during the meeting as reported by the temporary receptionist. However, since the 25 points were given to Caluwe for failing to follow authorized instructions, it is found that disciplinary action was taken because he failed to attend the annual meeting. On March 29, 1982, Caluwe wrote a fourteen-page letter to Rogers giving his version of what occurred on March 17, and explaining in great detail other "incidents" that had occurred during the preceding eighteen months, Attached to the letter were 23 exhibits. Among other things, Caluwe accused Hall and Rogers of "improper conduct and abuse of authority" in handling the other incidents that had previously arisen. He also criticized their ability to manage and communicate with employees. The letter indicated that copies of the same were being mailed to each member of the agency's governing board, its Executive Director, Deputy Director, and Records Clerk, and an outside attorney. Rogers accepted the letter as merely being a response to his memorandum of March Caluwe was not disciplined for this action. On March 31, 1982 Caluwe wrote a two-page letter to the members of the governing board of the agency and enclosed his March 29 letter and exhibits previously sent to Rogers. In his March 31 letter, Caluwe stated, among other things, that management "occupie(d) a position of trust", that it had "breached this trust", that it "rule(d) by intimidation and fear and not in the spirit of cooperation", and urged the board members to conduct an independent investigation of his "allegations". A copy of this letter was also furnished an outside attorney. On May 13, 1982 Caluwe sent another letter to the members of the governing board in which he inquired as to the status of the investigation he had called for in his letter of March 31. Caluwe also raised allegations concerning the agency's general counsel, and claimed the general counsel had "used sick leave for purposes other than for which it was intended (and) falsified his bi-weekly time reports and received pay and benefits for periods he was absent from work", and that the problem was created because his leave slips had been approved by the agency's deputy executive director. That complaint is now the subject of a Florida Commission on Ethics proceeding. Caluwe had previously brought this subject to Rogers' attention sometime in 1980. There was no evidence his to the reaction, if any, by the members of the governing board to this letter or the one previously sent on March 31. Caluwe did not furnish his supervisors a copy of the letter but did copy the records clerk of the agency. Neither Rogers nor the agency personnel director received copies of the same until late July, 1982. In June, 1982 Caluwe contacted reporter for the Miami Herald to disclose the fact that the chairman of the agency's governing board had been involved in selling insurance to the board. On June 22, 1982 outside counsel for the agency wrote the agency's personnel director telling him, among other things, that it would call the director the next day concerning Caluwe and provide him "with language to be included in a letter of termination." It also referred to a need to review in detail "SFWMD's termination, grievance, and personnel policies to make sure that Caluwe's discharge, and the procedures used to implement the discharge, comport with due process." At this point, then, the agency had decided to terminate Caluwe. On July 21, 1982 Caluwe again wrote a letter to the members of the governing board. The text of the letter is set out below: To members of the Governing Board of the South Florida Water Management District: You are to be congratulated for your unity in not addressing controversial topics. It's an unfortunate situation when special interests are put ahead of the public trust that has been vested in you. The only reasonable conclusion that I can reach is that you condone poor management and theft. Perhaps some of you have committed acts similar to these and that's why you cannot afford to get involved. Well you are involved! It's satisfying to note the courts have held directors personally liable in civil actions and that penalties are not limited to compensatory damages but that punitive damages can be assessed. It's also interesting to note that you may be found culpably negligent in permitting acts like these to occur. Since you have been unwilling to do your own house cleaning, I have decided to help you in this matter. I think it would be an excellent idea if the citizens of South Florida had an opportunity to see how the South Florida Water Management District has acted in favoring special interests. When this happens you will not honestly be able to say, "we didn't know". One member of the Board responded by letter dated July 23, 1982 that she considered it inappropriate for Caluwe to write directly to board members and instructed him to use channels that were provided for handling complaints. She added that Caluwe's letter struck her as being "offensive". The letter made no direct reference to Rogers and Hall, and they were not furnished a copy. However, on July 26 Rogers was given a copy of the letter. On July 30, 1982 Rogers sent Caluwe a memorandum in which he informed Petitioner that his employment was being terminated at 5:00 p.m. on August 4, 1982, and not to report to work after July 30. In brief, the reasons given for Caluwe's termination were (a) his "uncooperativeness shown a co-worker" on March 19, and his "failure to respond to a request for information from a member of the public", which collectively constituted a 2e offense for which he was previously assigned 25 points on March 19, 1982; (b) his letter to Rogers on March 29, 1982 which alleged poor management, illegal activity and unfair treatment to Caluwe, and which "personally attacked and insulted Charles Hall and (Rogers)"; (c) his letter of July 21 to the board which contained "inflammatory, threatening, and abusive language" and which constituted Category 2h and 3a offenses for which he received 75 points in total, and an additional 25 points which was given for the same letter by virtue of Caluwe's "failure to follow promulgated grievance and complaint procedures'; 3/ (d) the accumulation of a total of 125 points since March 19 which was in violation of Section E.1.d. of the Corrective Action Policy; and (e) "actions" which interfered with Rogers' ability to maintain internal discipline", made it impossible to work with (Caluwe)", made it "impossible to transfer (him) to a different Department", which "interfered with (his) performance of assigned duties", and which showed a "tendency on (his) part to make untrue and misleading statements." A Category 2h offense is defined in the Policy-Index as the "(u)se of abusive language to a co-worker" while a Category 3a offense is defined as the "(u)se of abusive or threatening language to the public, or use of threatening language to a co-worker." Category 2e offenses carry the imposition of 25 points for each violation. Fifty points are assigned for a violation of a Category 3 offense. Section E.1.d, of the Policy-Index provides that "(a) total of 100 points in effect may be cause for termination." The Policy-Index requires that "(c)orrective action shall be taken as soon as possible, but not more than five working days from the time the supervisor becomes aware of the incident." The memorandum of July 30, 1982 was followed by a letter to Caluwe on August 5 from Rogers which confirmed that his employment had been terminated. The letter also instructed Caluwe on the time limitations for filing a request for an administrative hearing. Thereafter, a timely request for a hearing was filed. The agency adopted an "Employee grievance Procedure" on July 15, 1977. Its purpose was to allow all employees the opportunity to quickly and fairly resolve a grievance." The Procedure provides a specified procedure for hearing and resolving various types of complaints from employees, including a hearing by an Employee Relations Committee (ERC), a further review by the unit manager or department director, a second hearing by a Grievance Review Board, and a final decision by the agency's executive director. According to the agency's personnel director, the agency has fired employees in one of two ways in the past: (a) when the employe has accumulated more than 100 disciplinary points under the Policy-Index, and (b) when the employee has committed certain acts, irrespective of the Policy-Index. Thus, it contends the agency may, at its discretion, determine whether to terminate an employee by assessing points under the Policy-Index or by merely giving notice to the employee even though he has accumulated no points under its written code of conduct. Even though an employee has accumulated over 100 points, the agency may not necessarily fire an employee. For example, on one occasion an employee accumulated 135 points but was not fired. In the case at bar, the agency considered Caluwe's 125 points to be incidental to his termination, and viewed his supervisor's inability to work with him, his letter writing activities and prior "incidents" to be the major concern and basis for the termination. Whether the District had a policy of terminating an employee whenever his actions made it impossible to transfer him to another department or whenever a supervisor could not work with an employee was not disclosed. It was also not disclosed whether all employees, including Caluwe, were aware of such policies, and the ramification for violating the same. There was no evidence as to the reason for such policies, the types of proscribed conduct within each policy, and the authority for adopting the same. Caluwe blamed his firing primarily on the fact that he had prompted an investigation of the agency's general counsel, who was a long-time District employee. He acknowledged he failed to use the Employee Grievance Procedure when he wrote directly to the members of the governing board, but claimed the ERC was ineffective in dealing with management problems. Caluwe did not dispute that he missed the annual meeting, and wrote the letters in question; however, he contends they do not justify the disciplinary action imposed by the District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that all charges against Petitioner be dismissed except for one Category 2e offense for which 25 points should be imposed. It is further RECOMMENDED that Petitioner be reinstated in the position of water management engineer III retroactive to August 4, 1982 and that he be given full back pay between that date and the date of reinstatement. DONE and RECOMMENDED this 8th day of June, 1983 in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1983.
The Issue Whether Appellant was wrongfully denied a variance of 21.33 feet to construct a second floor deck at 673 Bay Esplanade, Five Palms Motel Condo, Clearwater, Florida.
Findings Of Fact John Shaw, a resident of Massachusetts, purchased the condominium for which the variance is here requested in December, 1988 without first visiting the property or inquiring about zoning restrictions. The unit purchased is on the second floor of a two story building earlier converted from a hotel or motel into condominiums. The seller told Shaw he could construct a deck over the existing deck on the ground floor condominium below the unit purchased by Shaw. While the construction of this deck was in progress it was discovered no permit had been pulled for the project and the work was stopped. The subsequent application for a permit was denied because the proposed deck encroached some 21.33 feet into the setback area. The application for a variance was denied by the Clearwater Development Code Adjustment Board and this appeal followed. The two buildings comprising this complex were erected many years ago and are non-conforming, i.e., the buildings themselves violate the current Development Code. An existing deck extending into the setback area was constructed on the unit directly below the condominium purchased by Shaw and a similar deck extending to the seawall was constructed on an adjacent building. No permits are on file for those decks. Construction of the proposed deck would improve the livability of the condominium greatly by expanding the area usable for looking seaward. The condominium has been used without this deck for many years. This property is zoned CR-24 and the setback requirement is 25 feet from the water's edge.
Findings Of Fact At all times relevant hereto, Sammie Rayner, Respondent, was employed by the City of Clearwater as a customer service representative in the utility department. On February 11, 1992, Respondent needed to take her daughter to Seminole High School for a test and mentioned this to Joyce Griesel, Senior Customer Service Representative. The only city employees in the customer service section with authority to grant Respondent permission to leave the building on February 11, 1992, were John Scott, Utility Consumer Response Manager and Tim Bissonnette, Customer Service Supervisor. On the afternoon of February 11, 1992, Bissonnette was out of the office attending a conference; however, Scott was available. Bissonnette was Respondent's immediate supervisor, and Scott was over Bissonnette. Prior to October 1991, the Senior Customer Service Representative had authority to allow customer service representatives to leave the building for short periods. However, because of an incident in October 1991, this authority was removed from the Senior Customer Service Representative, and all employees were advised of the changed policy. Although Respondent denies that she was told that only Scott and Bissonnette could grant permission to leave the building, she did ask if Bissonnette was available before she departed the office around 3 p.m., on February 11, 1992. Respondent also contends that she asked Giesel for permission to leave, but Giesel denies that she gave such authorization, knowing full well that she had no such authority. Respondent was not given permission to leave the building on February 11 by Giesel.
Findings Of Fact This application is a request for a consumptive use permit for two wells located in Pasco County, Florida, within the Pithlachascotee Basin. The subject wells are also located in that area wherein the Board of Governors of the Southwest Florida Water Management District declared a water shortage in Order No. 76-3D, Southwest Florida Water Management District. The application seeks an average daily withdrawal of 95,000 gallons with a maximum daily withdrawal of 360,000 gallons. The use of this water is for public supply involving effluent disposal by on-site percolation and ponding. This-use was existing prior to January 1, 1975 with am average daily withdrawal for 1974 of 74,000 gallons. The testimony presented by staff members of the Southwest Florida Water Management District establishes that the consumptive use for which a permit is sought will not violate any of the criteria set forth in Subsections 163- 2.11(2)(3) or (4), Florida Administrative Code, except that the use may significantly induce salt water encroachment. No evidence was presented showing that the sought for consumptive use will, in fact, significantly induce salt water encroachment. In the twelve month period ending October, 1975, applicant's highest average daily withdrawal was 81,000 gallons. This time frame corresponds to that time frame referred to in paragraph 1 of Water Shortage Order No. 76-3D, Southwest Florida Water Management District. In view of Water Shortage Order No. 76-3D, Southwest Florida Water Management District, the staff recommends granting of the permit for an average daily withdrawal of 81,000 gallons and a maximum daily withdrawal of four times that figure or 234,000 gallons. The staff further recommends imposition of the following conditions: That the permittee shall install totalizer flow meters of the propeller driven type on all withdrawal points covered by the permit with the exception of those wells which are currently ganged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter, said pumpage to be read on a monthly basis and submitted quarterly to the District on April 15, July 15, October 15, and January 15 for each preceding calendar quarter. That all individual connections to the system be metered. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15, and January 15 for each preceding calendar year.
Findings Of Fact Jaime Fernandez was transferred in 1977 to Clearwater Traffic Engineering Department as an electrician's helper from the Clearwater Pollution Control Department. Prior to coming to Water Pollution Control, Respondent had been a CETA employee in the Parks Department from which he was fired for incompetence (Respondent's testimony). Although the exact situation was not made clear to the Hearing Officer, it appeared that Respondent appealed his firing from the Parks Department alleging some type of discrimination, and, following a hearing, the City was required to reemploy him. At all times here relevant, Respondent was an employee in the Classified Civil Service of Clearwater. Respondent testified that the evaluations he received at Water Pollution Control were satisfactory overall, and the request for a transfer was initiated by him. As an electrician's helper, Respondent was one of six or seven electrician's helpers. When he was subsequently transferred to the position of ET helper, he was the only ET helper in the Traffic Engineering Department. With a larger number of electrician's helpers it was easier to assign trench digging, painting and other similar menial jobs to Respondent without detracting from the overall efficiency of the Department than it was when Respondent became the only ET helper in a group with two ET's. Respondent served as an electrician's helper in the Traffic Engineering Department for approximately two years before he was transferred to the position of ET helper. During these two years as an electrician's helper, Respondent failed to get a satisfactory overall evaluation and never received a merit pay increase. He was transferred to the electronics shop as an ET helper in late 1979. In the six months follow-up review of Respondent's unsatisfactory evaluation report dated 2-9-80, the Director of the Traffic Engineering Department recommended Fernandez be terminated for incompetence. This recommendation was rejected by the Personnel Department because of insufficient documentation of the events giving rise to the recommendation. On August 25, 1978, Respondent was given a letter of reprimand following an accident involving a truck, driven by Respondent, and a building in which Respondent's inattention contributed to the accident (Exhibit 6). On April 14, 1980, Respondent was suspended from duty without pay for three days on charges of incompetence and inefficiency in his work product, errors in daily time cards and other reports, and continuous performance evaluations indicating improvement needed. On the instant charges the evidence was unrebutted that during the period August 1, 1980, through March 15, 1981, 19 errors were made by Respondent on the time sheets he submitted. Twenty-seven other employees in the same Department fill out time sheets and, during the same period, the next highest number of errors was eight. Most of the employees made only one or two errors in completing their time sheets. During the period February 2, 1981 to February 5, 1981, Respondent was given a work order to construct and install back boards in two transit controllers (Exhibit 1). Included in the work order was a drawing showing how the panel was to be connected and detailed instructions on how the work was to be performed. Despite close supervision, Respondent failed to follow the instructions, cut the wires longer than the maximum three feet lengths as shown on the work order, installed grounding bar in the wrong location, and did not properly lace the harness. This work order was within the capability of a reasonably qualified ET helper to complete in twenty hours. Respondent took forty-seven hours to accomplish this work and made numerous errors which had to be corrected by others. During a period in mid-February; 1981, Respondent was assigned a detector to repair. Repair of this equipment was also within the capability of a reasonably qualified ET helper in about four hours. After working on this detector for twenty-one hours, Respondent was still unable to repair it. It was given to an electronics technician who repaired the detector in approximately one hour. Respondent, in work order 136, was given an LT 169 load pack to repair. Test equipment is set up in the petitioner's shop for trouble shooting this equipment. After testing this load pack, Respondent replaced the part he thought defective but, when tested by someone else, the equipment was still inoperative. The part replaced by Respondent was the part most frequently found defective in this load pack. In this instance, this part was not the cause of the equipment being in operative. This was a routine work order that a reasonably qualified ET helper should have been able to complete. Respondent has been counselled and evaluated numerous times by different supervisors in the Traffic Engineering Department for the past three years and has yet to be assigned a satisfactory evaluation. No other employee has been retained in a position with the City of Clearwater for such an extended period with unsatisfactory evaluations. Respondent testified that he has completed a two-year course in electronics at Pinellas County Vocational School and has one year of college. Accordingly, he deemed himself better qualified as an ET helper than as an electrician's helper. He felt he should have been disciplined for incompetency as an electrician's helper during the two years he worked in that Division, rather than as an ET helper in which position he has worked for approximately one year. Respondent's testimony, that he was denied earned leave or pay for this leave when he was dismissed, was not rebutted. However, the City of Clearwater's regulations relating to leave were not presented to the Hearing Officer, and without access to these regulations, Respondent's claim cannot be resolved.
The Issue Whether Respondent knowingly submitted an inaccurate timesheet for April 4, 2018, as charged in the agency action letter dated May 11, 2018.
Findings Of Fact ECUA is a public utility that provides water, wastewater, and sanitation services to customers in Escambia and Santa Rosa counties. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost- effective services.” The Manual sets forth the terms and conditions of employment with ECUA. The Manual specifies that: Overtime work should be for emergency or unforeseen situations and to solve problems which are not a part of the daily activities. Supervisors are expected to use overtime work sparingly and employees should respond when called upon. Overtime and compensatory time authorization will be established by the supervisor with the approval of the department director. During the relevant time period, ECUA employed Mr. Boyd as an Industrial Plant Mechanic I. On June 26, 2012, Mr. Boyd signed a document acknowledging that a copy of the Manual was available to him in his supervisor’s office, via ECUA’s intranet, in ECUA’s Human Resources Department, and via compact disc upon request. Mr. Boyd also acknowledged on June 26, 2012, that it was his “responsibility to read the entire Manual/Handbook and to comply with the plans, guidelines, directives, and procedures contained in the Manual/Handbook and any revisions to it.” As an Industrial Plant Mechanic I, Mr. Boyd works under the supervision of a senior mechanic. He normally begins his workday by reporting to the Central Wastewater Reclamation Facility (“CWRF”) at 7:00 a.m. and is dispatched to assigned worksites. He uses an ECUA truck to travel to and from those sites. Mr. Boyd has a 30-minute lunch break for which he is not compensated. He is also allowed one 15-minute break in the morning and another in the afternoon. Mr. Boyd’s typical workday ends at 3:30 p.m. With a 30-minute lunch break, that amounts to an eight-hour workday. In April of 2018, ECUA needed to replace all of the diffusers at its Bayou Marcus Water Reclamation Facility (“the BMWRF”). Mack H. Weeks, ECUA’s Plant Maintenance Manager at the time, had supervisory authority over Mr. Boyd. Shortly before April 4, 2018, Mr. Boyd mentioned to Mr. Weeks that he wanted to stop at the BMWRF on April 4, 2018, prior to reporting to the CWRF, in order to see if the water level had decreased to a point where the diffusers in question were visible. According to Mr. Boyd, that information would enable him and the three other members of his four-person work crew to ascertain what parts they needed to complete the repair. However, there was no benefit for Mr. Boyd to stop at the BMWRF prior to reporting to the CWRF.3/ At 6:32 a.m. on April 4, 2018, ECUA’s security system recorded Mr. Boyd passing through a gate at the BMWRF. Mr. Boyd took a picture of a portion of the BMWRF a few minutes later. The security system at the CWRF recorded Mr. Boyd entering the facility at 7:13 a.m. on April 4, 2018. Mr. Boyd traveled back to the BMWRF with Kevin Spinks, an ECUA co-worker, in an ECUA work truck that had been assigned to Mr. Spinks. Carl Ayliffe and another ECUA employee were the remainder of the four-person work crew assigned to that job, and they traveled to the BMWRF in a separate ECUA truck. The tank at the BMWRF was on-line by 3:00 p.m. on April 4, 2018. Every ECUA truck has a global positioning system that enables ECUA to know precisely where each truck is at virtually any given point in time. The GPS on Mr. Spinks’ truck was not functioning because the antenna had been disconnected. However, the GPS on Mr. Ayliffe’s truck was functioning and recorded that he was done working at 4:29 p.m., on April 4, 2018.4/ Rather than returning his truck to the CWRF, Mr. Ayliffe drove the truck to his home because he was on call that night. A camera at the back gate of the CWRF recorded Mr. Spinks returning his truck at 5:07 p.m. on April 4, 2018. ECUA’s security system recorded Mr. Boyd using his employee badge to enter the CWRF through the southeast shop door at 5:09 p.m. on April 4, 2018. In consideration of a need to gather any belongings and/or complete paperwork, Mr. Boyd’s work on April 4, 2018, should have ended at approximately 5:30 p.m. on April 4, 2018. On April 16, 2018, Mr. Boyd, Mr. Spinks, and Mr. Ayliffe submitted timesheets indicating that they each worked eight regular hours and three overtime hours on April 4, 2018. Ultimate Findings The greater weight of the evidence demonstrates that there was no benefit to Mr. Boyd stopping at the BMWRF on April 4, 2018, prior to reporting for work at the CWRF. The greater weight of the evidence also demonstrates that his stop at the BMWRF was unauthorized by anyone who supervised Mr. Boyd. As a result, Mr. Boyd’s stop at the BMWRF on April 4, 2018, was an attempt to accumulate unnecessary overtime pay. The undisputed evidence demonstrates that Mr. Boyd began his workday at 7:13 a.m. on April 4, 2018, and his workday should have ended at approximately 5:30 p.m. after he reported back to the CWRF at 5:09 p.m. Given that Mr. Boyd was entitled to a 30-minute, unpaid lunch break, the undisputed evidence indicates that he worked 9.75 hours on April 4, 2018, rather than the 11 hours indicated on his timesheet.
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 Robert D. Boyd, II, violated Section B-3, attendance records; Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (13), falsification of records; and Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law. DONE AND ENTERED this 17th day of September, 2018, 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 17th day of September, 2018.
