The Issue Whether Respondent violated provisions of Petitioner’s Human Resources Manual and Employee Handbook (“the Manual”) on April 27, 2018, and on May 3, 4, 8, 9, 12, 16, 17, 24, and 31, 2018, as charged in the agency action letter dated June 22, 2018.
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 the Board and employees of ECUA “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. Mr. Boyd has worked for ECUA since at least November of 1997 and acknowledged on June 25, 2012, that a copy of the Manual was available to him. During all times relevant to the instant case, Mr. Boyd was assigned to ECUA’s patch services division (“patch crew”). A significant part of the patch crew’s work involves filling holes left after other ECUA employees have performed utility work. The patch crew consists of eight people who normally work from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break and two 15-minute breaks. In addition to his employment with ECUA, Mr. Boyd owns an automobile mechanic shop in Pensacola, Florida, known as Boyd’s Motorsports. An anonymous e-mail to Gerry Piscopo, ECUA’s Deputy Executive Director of Maintenance and Construction, alleged that the patch crew was leaving work early and incurring overtime by intentionally being lackadaisical in completing work assignments. As a result, ECUA initiated an investigation of the patch crew’s daily activities. ECUA retained a private investigator, Terry Willette, to surveil the patch crew and videotape their daily activities. From April of 2018 to some point in June of 2018, Mr. Willette routinely surveilled the patch crew for 4 to 12 hours a day. Mr. Willette’s work was facilitated by global positioning devices (“GPS”) that ECUA installed on every truck utilized by the patch crew. The GPS devices transmit a vehicle’s precise location to ECUA at two-minute intervals. The GPS devices also inform ECUA whether a vehicle is moving, idle, or stopped. Findings Regarding the Allegations from April 27, 2018 Mr. Boyd filed a “Daily Overtime Report” noting that he worked from 3:30 p.m. to 8:30 p.m. on April 27, 2018. Because the patch crew’s workday normally ends at 3:30 p.m., Mr. Boyd claimed five hours of overtime. Mr. Willette was following Mr. Boyd that night and observed him arriving at Boyd’s Motorsports in an ECUA truck at 7:38 p.m. Mr. Boyd left Boyd’s Motorsports at 8:02 p.m. Soon afterward, Mr. Willette lost visual contact with the ECUA truck driven by Mr. Boyd and was unable to follow Mr. Boyd to his next destination.2/ Mr. Boyd testified that he was preparing for the next day’s work assignments when he arrived at Boyd’s Motorsports that evening. According to Mr. Boyd, he and other ECUA employees would freely use resources available at Boyd’s Motorsports in order to further ECUA work. Mr. Boyd also testified that he was either: (a) in route to address a customer complaint when he left Boyd’s Motorsports at 8:02 p.m.; or (b) driving the ECUA truck to his home because he had been ordered to proceed directly to a particular worksite the next morning. Mr. Boyd’s testimony about the extent to which he and other ECUA employees freely utilized the resources of Boyd’s Motorsports to facilitate ECUA work lacked credibility.3/ As a result, the preponderance of the evidence demonstrates that Mr. Boyd was not working on ECUA business when he stopped at Boyd’s Motorsports from 7:38 p.m. to 8:02 p.m. on April 27, 2018. Therefore, Mr. Boyd erroneously reported working five hours of overtime that day. Findings Regarding the Allegations from May 3 and 4, 2018 Mr. Boyd filed a “Daily Overtime Report” indicating he worked 8.5 hours of overtime from 3:30 p.m. to 12:00 a.m. on May 3, 2018. He filed another “Daily Overtime Report” indicating he worked seven hours of overtime from 12:00 a.m. to 7:00 a.m. on May 4, 2018. The majority of the claimed overtime pertained to an assignment on Cervantes Street in downtown Pensacola involving a sewer system repair. Another crew led by Michael Killen was responsible for performing the primary repair work, and the patch crew was to move in after Mr. Killen’s crew had completed its work. Mr. Killen’s crew arrived at the worksite at 7:00 p.m. on May 3, 2018, and finished its work at 3:30 a.m. Even though Mr. Killen’s crew was still working, the patch crew arrived onsite several hours prior to Mr. Killen’s crew completing its work. While the patch crew provided whatever assistance it could during that downtime, it spent most of that time waiting for Mr. Killen’s crew to leave. When Mr. Killen’s crew left at 3:30 a.m., the patch crew began actively working. Given that the worksite was in downtown Pensacola, it is reasonable to infer that the work needed to be completed as quickly as possible. Therefore, it was not unreasonable for the patch crew to be onsite and ready to immediately begin its work.4/ In addition, the testimony indicated this was a complex assignment for all concerned and that the patch crew may have provided valuable assistance to Mr. Killen’s crew. The preponderance of the evidence does not demonstrate that Mr. Boyd erroneously reported the overtime he worked on May 3 and 4, 2018. Findings Regarding the Allegations from May 8, 2018 On May 8, 2018, Mr. Willette observed Mr. Boyd and a coworker driving an ECUA truck with several bags of concrete to Boyd’s Motorsports. Mr. Willette shot video of Mr. Boyd and his son Tony loading the concrete bags onto a pickup truck driven by Tony Boyd. Mr. Boyd testified that the concrete had to be disposed of because the bags had become wet and the concrete inside was ruined. Rather than using the ECUA truck to transport the concrete to a landfill or some other disposal area, Mr. Boyd had his son, who was not an ECUA employee, dispose of the concrete. As for why he did not use the ECUA truck to take the concrete directly to a disposal area, Mr. Boyd explained it would have been too time consuming given the locations of the patch crew’s work assignments that morning. Multiple aspects of Mr. Boyd’s testimony lacked credibility: (a) that ECUA routinely allowed concrete to become ruined through exposure to moisture; (b) that Mr. Boyd enlisted someone not employed by ECUA to dispose of ECUA property; (c) that Mr. Boyd did not need authorization in order to dispose of the concrete; and (d) that Mr. Boyd was concerned about spending an excessive amount of time in transit from a landfill to a worksite. The preponderance of the evidence demonstrates Mr. Boyd did not have authorization to take the concrete. Mr. Willette also observed Mr. Boyd driving the same ECUA truck to a CVS pharmacy and spending 16 minutes there on May 8, 2018. While Mr. Boyd had no business purpose for stopping at the pharmacy, it is certainly possible that this stop occurred during one of his authorized 15-minute breaks or that it was a bathroom stop.5/ The preponderance of the evidence does not demonstrate that Mr. Boyd violated any Manual provisions when he stopped at a pharmacy on May 8, 2018. Findings Regarding the Allegations from May 9, 2018 Mr. Boyd filed a “Daily Overtime Report” indicating he worked 2.5 hours of overtime on May 9, 2018. However, ECUA did not present any exhibits to substantiate its allegation that Mr. Boyd left work at 5:49 p.m. The preponderance of the evidence does not demonstrate that Mr. Boyd filed an erroneous timesheet on May 9, 2018. Findings Regarding the Allegations from May 12, 2018 On May 12, 2018, Mr. Willette began following Mr. Boyd at 9:08 a.m. After completing an assignment on East Chase Street, Mr. Boyd testified that he worked on three other assignments on Creighton Road, Spanish Trail, and Davis Highway before finishing his workday at 3:05 p.m. Mr. Willette testified that he did not see Mr. Boyd performing any meaningful work on Creighton Road, Spanish Trail, and Davis Highway. The relevant GPS report indicates the ECUA truck utilized by Mr. Boyd that day was idling when no work was being performed. Because Mr. Willette’s testimony was more credible, the preponderance of the evidence demonstrates that Mr. Boyd did no work after leaving East Chase Street on May 9, 2018. Findings Regarding the Allegations from May 16, 2018 Mr. Boyd’s timesheet for May 16, 2018, indicates he arrived at work at 7:00 a.m. and left at 3:30 p.m. It also indicates he worked eight hours that day. Mr. Willette surveilled Mr. Boyd on May 16, 2018. He observed Mr. Boyd and a coworker leaving ECUA that morning and driving directly to Dodge’s Chicken Store. Mr. Boyd remained inside the store for a few minutes and left appearing to be carrying two food items. Mr. Willette observed Mr. Boyd having lunch with an unidentified female from 11:30 a.m. until 12:16 p.m. Mr. Boyd drove his personal vehicle from ECUA property at 3:15 p.m. and arrived at a J.C. Penny’s store at approximately 3:29 p.m. Mr. Boyd drove away from the store at approximately 3:33 p.m. with another unidentified female. The preponderance of the evidence demonstrates that Mr. Boyd did not work eight hours on May 16, 2018. The stop at Dodge’s Chicken Store could have been one of Mr. Boyd’s 15-minute breaks. However, as noted above, patch crew members have a 30-minute lunch break, and Mr. Boyd spent 46 minutes at lunch that day. Also, while a patch crew member’s day usually ends at 3:30 p.m., Mr. Boyd left work at 3:15 p.m. Findings Regarding the Allegations from May 17, 2018 Mr. Boyd’s timesheet for May 17, 2018, indicates he arrived at work at 7:00 a.m. and left at 3:30 p.m. It also indicates he worked eight hours that day. Mr. Willette surveilled Mr. Boyd that day and observed him leaving Baptist Hospital at 8:11 a.m. following a medical appointment. Mr. Boyd then proceeded to Boyd’s Motorsports. The preponderance of the evidence demonstrates that Mr. Boyd’s May 17, 2018, timesheet is inaccurate. He was not continuously working from 7:00 a.m. to 3:30 p.m. on May 17, 2018. Findings Regarding the Allegations from May 24, 2018 Mr. Boyd’s timesheet for May 24, 2018, indicates he reported to work at 6:57 a.m. and left work at 3:30 p.m. It also indicates he worked eight hours that day. Therefore, his time entries indicate he took a standard 30-minute lunch break that day. Mr. Willette observed Mr. Boyd and a coworker meeting a third man for lunch at Miller’s Ale House at 11:08 a.m. that day. The trio left the restaurant at 12:17 p.m. Mr. Boyd testified that the third man was an ECUA supervisor and that work was discussed over lunch. Even if that assertion is accurate, there is no dispute that Mr. Boyd’s lunch on May 24, 2018, exceeded 30 minutes. The preponderance of the evidence demonstrates that Mr. Boyd’s May 24, 2018, timesheet is inaccurate. Findings Regarding the Allegations from May 31, 2018 Mr. Boyd’s timesheet for May 31, 2018, indicates he arrived at work at 6:57 a.m. and left at 3:30 p.m. Mr. Willette photographed Mr. Boyd driving his personal vehicle from ECUA property at 7:10 a.m. A coworker picked up Mr. Boyd at Boyd’s Motorsports approximately two hours later. The preponderance of the evidence indicates that Mr. Boyd’s May 31, 2018, timesheet is inaccurate.
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, Sr., violated Section B-3, attendance records; Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (13), falsification of records; Section B-13 A (17), leaving a work station without authorization; Section B-13 A (18), loafing; Section B-13 A (21), neglect of duty; Section B-13 A (26), substandard quality and/or quantity of work; Section B-13 A (27), theft or stealing; Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law; and Section B-37, vehicle and equipment idle reduction. DONE AND ENTERED this 21st 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 21st day of September, 2018.
Conclusions Respondent Orange County School Board, pursuant to the September 22, 2010 order of Administrative Law Judge Susan Harrell, hereby accepts jurisdiction of this matter. Based upon the advice of counsel, Respondent Orange County School Board hereby enters a final order rejecting all bids in this matter so as to issue a new invitation to bid for provision of occupational and physical therapy services. This action is being taken to clarify standards by which the SCHOOL BOARD will award the bid. DONE AND ORDERED THIS 14" Day of December, 2010. THE SCHOOL BOARD OF ORANGE COUNTY, FLORIDA Filed December 17, 2010 4:16 PM Division of Administrative Hearings APPEAL OF FINAL ORDER This Order may be appealed by filling two copies of a notice of appeal accompanied by a filing fee, as provided in §120.68, Fl. Stats. and Fla R.App.P. 9.100(b) and (c) within thirty (30) days of the rendition of this final order. CC: Administrative Law Judge Susan Harrell Counsel of Record
The Issue The issue is whether the termination of Respondent, Otis Paul Whatley, was in accordance with the personnel procedures established by the Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Mr. Whatley was employed by ECUA. On October 31, 2001, Mr. Whatley signed an acknowledgement that he received the ECUA Employee Handbook. The ECUA Employee Handbook is a summary of benefits, policies, procedures, and rules, which are more fully set forth in ECUA's Human Resources Policy Manual. While on the ECUA Rotation Schedule Standby List on Sunday, July 26, 2009, Mr. Whatley, and his co-worker Jonathan Wheat, were required to be available to make repairs when summoned by ECUA customers. Mr. Whatley submitted a Daily Overtime Report dated July 26, 2009, which indicated that he worked on that day from 9:00 a.m. until 10:30 a.m. at 926 Lake Terrace, in Pensacola, Florida. The overtime report further stated that he worked from 10:30 a.m. until 11:00 a.m. at 1283 La Paz Street, in Pensacola. He further asserted that he worked at 402 West Lloyd Street, from 6:00 p.m. until 11:00 p.m. According to the Global Positioning System (GPS) installed on the ECUA truck assigned to Mr. Whatley, he did not depart his residence at the time he claimed to be working at 926 Lake Terrace or at 1283 La Paz Street. Moreover, the evidence provided by the GPS indicated that he was at the 402 West Lloyd Street for four hours rather than the five claimed as overtime. Mr. Whatley's co-worker, Jonathon Wheat, did work at 926 Lake Terrace and at 1283 La Paz Street, but he worked alone. Mr. Wheat joined in Mr. Whatley's prevarication with regard to the quantity of time expended at 402 West Lloyd Street. Mr. Wheat confessed to his prevarication when confronted. Mr. Whatley lied about his whereabouts when initially confronted, but eventually admitted that his timesheet contained false entries. It is found as a fact that Mr. Whatley, on his time sheet for July 26, 2009, claimed one hour and a half overtime for work at 926 Lake Terrace, one-half-hour overtime for work or at 1283 La Paz Street, and an hour more overtime than actually worked at 402 West Lloyd Street. None of the forgoing periods were worked by Mr. Whatley. Accordingly, these entries on his time sheet were false.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utility Authority, based on the findings of fact found herein, impose such penalty on Otis Paul Whatley, as he or she determines to be appropriate. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 November, 2009. COPIES FURNISHED: Otis Whatley 8655 Ramblewood Place Pensacola, Florida 32514 John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Stephen E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner in violation of Section 760.10, Florida Statutes (2002).
Findings Of Fact Petitioner is an African-American female. She has worked for Respondent in several positions since January 2000. Beginning on January 21, 2000, Petitioner worked as a student nutrition services assistant at Bonner Elementary School. She resigned on February 8, 2000, because she wished to seek an eight-hour per day position. On February 24, 2000, Petitioner began working as a custodian at Mainland High School. Soon thereafter, Petitioner required light-duty employment due to medical restrictions. She resigned her position on March 17, 2000, because Respondent did not have a position available that would accommodate her light-duty work requirements. On June 27, 2000, Respondent rehired Petitioner as a custodian at Holly Hill Middle School. On August 4, 2000, Petitioner resigned for personal reasons. Thereafter, Petitioner worked for Respondent as a substitute teacher. On April 18, 2002, Petitioner began working as a custodian at Silver Sands Middle School. She subsequently resigned the job due to a conflict with her supervisor. Thereafter, Petitioner worked for Respondent as a substitute custodian at Campbell Middle School. Petitioner never achieved permanent status in any of the above-referenced positions of employment. Instead, she resigned each of them while she was still on probationary status. During the summer of 2002, Respondent assumed responsibility for employment of the health support technicians (HST) that worked in Respondent's school health clinics. Prior to that time, the Volusia County Health Department had been responsible for employing the HST. When Respondent assumed responsibility for the employment of the HST, there were many vacancies in the school clinics. Catherine Ferguson, Respondent's Coordinator of Student Health Services, began interviewing applicants, conducting reference checks, and making hiring recommendations to Respondent's personnel department. Because Petitioner is licensed as a certified nurse's assistant (CNA), she applied for a position as an HST. On or about August 16, 2002, Respondent hired Petitioner to fill one of the vacant HST positions. Each school in the district, with the exception of alternative education sites, has some level of clinical medical or nursing staff. Staffing needs of the clinics are determined by the needs of the student body in each school. The student population may warrant either a full-time or part-time employee. An HST may be assigned to more than one school to fulfill the district's needs. If so, the HST will work three days per week in one school and two days per week in another school. As an HST, Petitioner's primary responsibility was to administer first aid and to dispense medication in school clinics. Her initial assignment was to Samsula Elementary School and Port Orange Elementary School. At all times relevant here, Don Olech was Principal of Samsula Elementary School. Because medication dispensing is an important issue, Mr. Olech took an active role in the clinic operations. He often took the time to personally care for the children, dispensing medicine and taking temperatures. On or about September 13, 2002, Petitioner made inappropriate and unprofessional comments about her sex life in the office at Samsula Elementary School. Petitioner made the comments to a member of the office staff in an area open to parents and students. At all times relevant here, Diane Hammond was Respondent's Nursing Supervisor. In a telephone call on September 13, 2002, Petitioner told Ms. Hammond that Petitioner did not feel welcome at Samsula Elementary School. Petitioner complained that a child with head lice had been sent back to class instead of being sent home. Additionally, Petitioner stated that she was uncomfortable because Mr. Olech was checking on her in the clinic. On September 19, 2002, Ms. Hammond met with Petitioner and Mr. Olech to discuss why Petitioner did not feel welcome at Samsula Elementary School. Petitioner explained that it bothered her for Mr. Olech to visit the clinic so often. On or about September 19, 2002, Ms. Hammond advised Petitioner that she would be assigned to work in the clinics at Port Orange Elementary and New Smyrna Middle School. Ms. Hammond explained that Petitioner was expected to assist in the clinics at other schools when requested to do so. Petitioner accepted the re-assignment. On September 24, 2002, Petitioner began working in the clinic at New Smyrna Middle School with another HST, Charlene Chastain. It was immediately apparent that Petitioner was not willing to do her share of the work. Petitioner was constantly eating or reading a book in the clinic. One of the students at New Smyrna Middle School had recently undergone a hernia operation. When he visited the clinic, Petitioner laughed out loud and made comments in the student's presence about his "nuts." Petitioner's unprofessional conduct in front of the student embarrassed Ms. Chastain. On September 26, 2002, Ms. Hammond visited Petitioner in the clinic at New Smyrna Middle School. Ms. Hammond reviewed Petitioner's responsibilities in general, including professional standards, food in the workplace, and paperwork. On September 27, 2002, Ms. Hammond visited the clinic at Port Orange Elementary School while Petitioner was on sick leave. Ms. Hammond confirmed complaints from Assistant Principal Cindy Fisher regarding the clinic's medication administration record (MAR). For example, there was no emergency care plan for a student with a peanut allergy. Ms. Hammond left a list of record corrections that Petitioner needed to make on the MAR. Petitioner was in the clinic at Port Orange Elementary School on September 30, 2002. During a telephone call to Ms. Hammond, Petitioner agreed to make the changes on the MAR. In the meantime, Principal Gary Marks informed Ms. Ferguson that he did not want Petitioner to return to New Smyrna Middle School due to her unprofessional conduct. Based on Mr. Mark's request and a need for an HST at Osceola Elementary School and Ortona Elementary School, Ms. Ferguson decided to assign Petitioner to work three days a week at Port Orange Elementary School, one day per week at Osceola Elementary School, and one day per week at Ortona Elementary School. On October 14, 2002, Ms. Ferguson and Ms. Hammond met with Petitioner to counsel her on her performance. During the meeting, Ms. Ferguson advised Petitioner regarding appropriate discussions in the workplace, the need to limit telephone use to work-related business, and the prohibition against reading personal literature in the clinic. On October 15, 2002, Ms. Hammond checked the MAR at Port Orange Elementary School. Petitioner had not corrected all of the medication records. There were some remaining omissions in the MAR. Additionally, Petitioner had signed some records which required Ms. Hammond's signature as school nurse. During the visit to Port Orange Elementary School on October 15, 2002, Ms. Hammond noted that Petitioner had posted a lot of religious material on the walls of her desk area. Ms. Hammond left Petitioner a list of things she needed to correct in the clinic. On October 15, 2002, Petitioner worked at Osceola Elementary School for at least one half of a day. She refused to check a class for head lice because she was so busy making personal telephone calls. Additionally, Petitioner failed to properly sign-in medication and sent a student back to class after he vomited instead of sending him home. On October 18, 2002, Ms. Ferguson and Ms. Hammond met with Petitioner again. They explained that Petitioner was being terminated for unsuccessful completion of her probationary period. Since the meeting on October 14, 2002, Ms. Ferguson had received complaints about Petitioner using the phone at Osceola Elementary School for personal business. As Ms. Ferguson continued to advise Petitioner about the reasons for her termination, Petitioner abruptly ended the meeting, using profane and/or vulgar language as she slammed the door on her way out. Respondent approved the recommendation for termination of Petitioner's employment on November 12, 2002.
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 Petition for Relief. DONE AND ENTERED this 12th day of October, 2004, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 12th day of October, 2004. COPIES FURNISHED: Cecilia Brown 3630 Caramel Avenue, Apartment 38 Port Orange, Florida 32127 Erin G. Jackson, Esquire Thomas M. Gonzalez, Esquire 501 East Kennedy Boulevard, Suite 14003 Post Office Box 639 Tampa, Florida 36602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
