The Issue Whether Respondent Wilton Hill committed the violations alleged in the Decision-Making Leave and Mandated EAP Referral notice; and, if so, the appropriate discipline that should be imposed.
Findings Of Fact The City is a municipality governed by a city council. A city manager oversees the City’s operations. On September 8, 2015, Petitioner hired Respondent to work as a senior systems programmer, which is categorized by the City as a “Classified” service position. The Clearwater Civil Service Board has adopted rules and regulations which govern the conduct of all City employees. Chapter 13 of the CSR provides the framework for suspending, demoting, and dismissing City employees. By correspondence dated February 22, 2021, Petitioner provided Respondent with what is commonly referred to as a “predetermination notice” and advised Respondent therein that it was believed that he “committed an offense warranting formal discipline.” The predetermination notice states, in material part, that Respondent violated “Integrity Standards, listed on page iv of the official PBMP manual, adopted by the City of Clearwater on February 15, 1998 and revised on July 1, 2014, to wit: [1] Violation of the provisions of Chapter 13, Section 3, of the City Civil Service Rules and Regulations[;] [and] [2] [d]ishonesty or untruthfulness or willful refusal to provide information or otherwise cooperate during an internal investigation or when directed to do so by competent authority.” The notice also specifically alleges that Respondent violated chapter 13, section 3(b), (f), and (l) of the CSR. The City seeks to discipline Respondent based on events that occurred on or about February 1, 2, 3, and 10, 2021, respectively. On February 24, 2021, Respondent met with the director of his department and presented his version of the events in question. Following the meeting, the City, by correspondence dated March 5, 2021, notified Respondent that he would be placed on “a two-day Decision-Making Leave and mandated EAP for ... violating the Clearwater PBMP Citywide Personal Responsibility, Integrity, and Excellence standards.” Performance and Behavior Management Program (PBMP) The City developed the PBMP in order “to provide a method of working with employees whose performance or behavior does not meet the City’s standards.” The philosophy of the program “is based upon the belief that, in most cases, employees can change behavior and improve performance when standards and expectations are clear and when employees are given opportunities to change.” Whenever practicable, “the City will provide intervention, coaching, and corrective guidance or counseling ... for employees ... in order to bring their performance or behavior up to standard.” The program recognizes, however, “that some behaviors that are serious and are direct violations of City Policy may warrant immediate disciplinary action up to and including termination.” According to the PBMP manual, there are three categories of performance and behavior: (1) Personal Responsibility; (2) Integrity; and (3) Excellence. As to each, the manual notes that: These categories are based on employees’ willingness or ability to meet standards of behavior or performance. Willingness refers to the employees’ decision to meet expectations, follow rules and policies, and perform work that meets efficiency and quality standards. Ability refers to the employees’ capability and skills in performing job tasks. The first two categories, Personal Responsibility and Integrity, are considered “will do” categories because they typically involve situations wherein the employee has a choice and makes a decision about whether or not to meet the standards. The third category, Excellence, is considered a “can do” category, because it most often refers to a situation where the employee is not able to perform up to standard because of a lack of resources, skill, or capability. City of Clearwater expectations for each of these three categories are stated below. Personal Responsibility (“Will Do” Issues) - City of Clearwater employees will be held personally accountable for the actions they take in meeting the customer service needs of the City and the community the organization serves. Employees are expected to take full responsibility for their conduct and job performance and exhibit commitment to fulfilling their responsibilities to the best of their ability. Integrity (“Value and Ethics” Issues) - As public employees representing the citizens of Clearwater, employees are expected to commit to the highest standards of personal and professional integrity. The City expects employees to communicate openly and continually demonstrate honesty, fairness, and respect for others. Employees should do what is ethically appropriate. Employees are expected to adhere to City policies. Excellence (“Performance/Can Do” Issues) - City of Clearwater employees have an obligation to provide the highest quality of service and results to our customers. This commitment to excellence involves developing the job knowledge and skills needed to perform the tasks required and to continually improve the City’s ability to meet the needs of the community we serve. The PBMP manual generally lists 75 Personal Responsibility Standards, 14 Integrity Standards, and 41 Excellence Standards. Regarding the Integrity Standards, the PBMP manual notes in bold print that “immediate formal discipline, up to and including termination, may be recommended” for a violation of these standards. The PBMP manual does not set forth any such illumination for the other standards. As previously noted, the City contends that Respondent violated several of the PBMP Integrity Standards and should therefore be subjected to formal discipline. Background – Family Medical Leave Act (FMLA) Respondent suffers from a serious medical condition that occasionally impacts his ability to perform his job. Under the City’s policy related to FMLA, an employee may intermittently take leave under FMLA “whenever medically necessary … because the employee is seriously ill and unable to work.” The policy also instructs that “[e]mployees should make a reasonable effort to schedule intermittent leave as to not unduly disrupt office operations.” Because of Respondent’s underlying medical condition, Petitioner, since at least November 2020, has allowed Respondent “4 [to] 5 episodes per month” during which Respondent can take FMLA leave without having to submit documentation related to the same. As a practical matter, this means that when Respondent experiences a medical episode that impairs his ability to work, he is to contact his supervisor, if possible, and let the supervisor know that he is utilizing FMLA leave for his anticipated absence from work. Herein lies “the rub” in the instant dispute. Respondent’s Understanding of Leave Protocol According to the City’s governing manual for supervisory, administrative, managerial, and professional employees (SAMP), “Classified employees who have successfully completed an initial probationary period become certified to regular employment status and have certain rights of appeal through the Civil Service grievance process.” The SAMP manual also provides that “Classified SAMP employees will not be disciplined except for just cause.” Section 2 of the SAMP manual provides that “Classified SAMP employees must obtain approval from a person of competent authority prior to working any hours outside of their established work schedule, either before their designated starting time or after their designated quitting time or during an unpaid meal period. Chapter 22, section 1, of the CSR provides as follows: Normal Work Hours -- The number of hours constituting a regular schedule work week for City Employees is specified by the City and excludes meal periods. In positions requiring shift work, the City reserves the right to include meal periods as actual time worked. Regularly scheduled work hours may be adjusted or “flexed” within a specific work week with proper notification and at the mutual convenience of the employee and the respective department. Such adjustments or flexing of work hours must be approved in advance by the respective department…. Chapter 4 of the CSR defines “flex time” as “the process whereby an employee’s regularly scheduled hours of work within a specific workweek are adjusted with proper notification and at the mutual convenience of the employee and the respective department. Such flexing of work hours must be approved in advance by the respective department….” Respondent, at all times material hereto, understood that he was to first contact his supervisor before taking time off related to a medical episode. Evidence of Respondent’s understanding is illustrated in emails that he sent to his supervisor on December 2 and 31, 2020. February 1 and 2, 2021 Sometime around January 2021, the City implemented a number of workplace measures designed to mitigate the risk of contracting and spreading the COVID-19 virus. One such mitigation effort allowed employees “to work from home on their assigned remote day.” During February 2021, Tuesdays were Respondent’s assigned days to telecommute. On Monday, February 1, 2021, the following emails were exchanged between Respondent and his supervisor: From: Williams, Jeremy Sent: Monday, February 1, 2021 (2:12 p.m.) To: Hill, Lloyd Subject: Feb 01, 2021 Hi Lloyd, Where are you? Thanks, Jeremy From: Hill, Lloyd Sent: Monday, February 1, 2021 (2:15 p.m.) To: Williams, Jeremy Subject: Feb 01, 2021 At lunch From: Hill, Lloyd Sent: Monday, February 1, 2021 (2:21 p.m.) To: Williams, Jeremy Subject: Feb 01, 2021 Precisely; (Respondent provided the email address for the auto/electronics store where he was located) From: Williams, Jeremy Sent: Monday, February 1, 2021 (4:00 p.m.) To: Hill, Lloyd Subject: Feb 01, 2021 Can you confirm what time you arrived today? From: Hill, Lloyd Sent: Monday, February 1, 2021 (4:04 p.m.) To: Williams, Jeremy Subject: Feb 01, 2021 Is anyone else required to confirm their time today? From: Williams, Jeremy Sent: Monday, February 1, 2021 (4:08 p.m.) To: Hill, Lloyd Subject: Feb 01, 2021 I put the timesheets on your desk for time entry this AM and noticed that your laptop was not here and your desk looked to be unoccupied, at 2:30 your desk looked the same. We need to make sure to charge your time correctly, so if you had an appointment not reflected on my calendar I need to update it. Please confirm your arrival time, and how long of a lunch you took for my records please. Thank you, Jeremy On Tuesday, February 2, 2021, Respondent and his supervisor exchanged additional emails regarding Respondent’s absence from work: From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (10:21 a.m.) To: Hill, Lloyd Subject: Feb 01, 2021 Hi Lloyd, Can you confirm your times for yesterday as I requested please? Thank you, Jeremy Soon after sending the email to Respondent at 10:21 a.m., on February 2, 2021, Mr. Williams met with Respondent via videoconference. During the videoconference, Mr. Williams again asked Respondent about his whereabouts and arrival time to the office on February 1, 2021. Mr. Williams credibly testified that Respondent, in response to his inquiry, became argumentative by wanting to know if other employees where being questioned about their whereabouts and arrival time to work. Respondent never answered the questions posed to him by Mr. Williams, but instead, advised Mr. Williams that his time away from the office on February 1, 2021, should be charged as one of his monthly FMLA episodes. Mr. Williams was confused by Respondent’s request, in part, because Respondent was requesting FMLA leave that covered time when Respondent actually performed certain work-related tasks, albeit via unauthorized telecommuting. Shortly after the videoconference ended, Respondent and Mr. Williams had additional discussions regarding the matter as reflected in the following emails: From: Hill, Lloyd Sent: Tuesday, February 2, 2021 (11:12 a.m.) To: Williams, Jeremy Subject: Re: Lloyd - ? 5.0hrs I am using this as one episode of FMLA. My [redacted] was too high to drive. I am notifying you after the incapacity has passed as allowed by law. From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (11:32 a.m.) To: Hill, Lloyd Subject: Re: Lloyd - ? 5.0hrs Hi Lloyd, We will need to refer to HR as to what is allowed. I will update this outage once we hear back from them. Thank you, Jeremy From: Hill, Lloyd Sent: Tuesday, February 2, 2021 (11:35 a.m.) To: Williams, Jeremy Subject: Re: Lloyd - ? 5.0hrs To be clear, I have notified you that I was incapacitated due to an underlying condition covered by my FMLA on the morning of February 1st. From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (11:37 a.m.) To: Hill, Lloyd Subject: Re: Lloyd - ? 5.0hrs Hi Lloyd, I only have record of your FMLA request for the AM of 2/1/2021 on a video call that occurred on 2/2/2021. Can you send me the notification that you sent me on the 1st indicating this? It[’s] possible that I missed it. Thanks, Jeremy From: Hill, Lloyd Sent: Tuesday, February 2, 2021 (12:14 p.m.) To: Williams, Jeremy Subject: Re: Lloyd - ? 5.0hrs I think you missed it. I don’t have a copy. From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (12:46 p.m.) To: Hill, Lloyd Subject: Re: Lloyd - ? 5.0hrs Hi Lloyd, This doesn’t make any sense. Either you requested the time or you didn’t. If you don’t have a record, you didn’t request it. I certainly did not receive anything. I have re-reviewed my emails, teams and sms and see nothing from you indicating that you would be out of the office on Monday (2/1/21) morning and early afternoon. We will confer with HR as to what we can use to charge your time. Thank you, Jeremy As previously mentioned, the City, on or about February 22, 2021, informed Respondent that it intended to suspend him for two days. In response to the City’s notice of disciplinary suspension, Respondent stated the following with respect to matters that transpired on February 2 and 3, 2021: On February 1, 2021, I began working from home at about 7 AM. I typically log on the server in the morning before leaving for work to check on emails and overall functioning of all systems, as well as respond to the system users. Due to severe anxiety arising out of my continuing concern over the risk to my health posed by the pandemic as well [as] the ongoing dispute with the City over my ADA reasonable accommodation request to telecommute, I experienced [redacted] symptoms. My first … reading taken was [redacted] putting me in the range of an ... emergency. As such, I decided to remain at home and continue to work. I did not feel safe to drive to the office and kept monitoring my [redacted] to determine whether I needed to go to the emergency room. When my readings returned to a safe level, I arrived at the office later that day around 3 PM. My manager acknowledged my presence because I walked past his office several times. I am more than willing to provide documentation of the ... readings I took that day. On February 2, 2021, I had a video meeting with my manager and explained to him the stress that I was experiencing. At that time, I requested 5 hours of leave (against my available intermittent FMLA leave) because he would not consider time I spent at home earlier that day as hours worked, despite the fact that I performed my job duties during that period. Respondent’s suggestion of incapacity is not supported by the evidence. By his own admission, Respondent, on the morning of Monday, February 1, 2021, was able to log onto the City’s server which allowed him to “check on emails and overall functioning of all systems, as well as respond to the system users.” Respondent also admits that after his first elevated reading he decided to “remain at home and continue to work” because he did not “feel safe to drive.” The issue is not whether Respondent felt well enough to drive, but whether he felt well enough to send an email. If Respondent felt well enough to “respond to the system users, and continue to work,” then he was certainly capable of sending an email to his supervisor. There is no credible evidence that Respondent suffered from any form or type of medical condition on the morning of February 1, 2021, which prevented him from notifying his employer that he was taking an “episode” of FMLA leave for the workhours in question. It is undisputed that Monday, February 1, 2021, was not Respondent’s designated day to telecommute. Chapter 12, section 1, of the CSR clearly provides that the City determines normal work hours for its employees, and that employee-initiated changes to the normal work hours “must be approved in advance.” The uncontroverted evidence establishes that Respondent was not authorized to telecommute on Monday, February 1, 2021, and that he did so in violation of the CSR and SAMP manual. Respondent’s assertion that he did not violate City rules and regulations “because he performed [his] job duties” while at home on February 1, 2021, is irrelevant because, as noted above, he lacked authority to telecommute on the day in question. February 3, 2021 Respondent reported to work on February 3, 2021, and worked until leaving the building at 1:30 p.m. Respondent did not return to work on this date and several hours later initiated the following email chain with his supervisor: From: Hill, Lloyd Sent: Wednesday, February 3, 2021 (4:27 p.m.) To: Williams, Jeremy Subject: One FMLA Episode From Now Till Tomorrow [There was nothing written below the subject line]. From: Williams, Jeremy Sent: Wednesday, February 3, 2021 (5:13 p.m.) To: Hill, Lloyd Subject: RE: One FMLA Episode From Now Till Tomorrow I have you down for Tomorrow in the AM, you’ll confirm with me the specific amount of time when you get in. See you tomorrow, Jeremy From: Williams, Jeremy Sent: Wednesday, February 3, 2021 (5:21 p.m.) To: Hill, Lloyd Subject: RE: One FMLA Episode From Now Till Tomorrow Hi Lloyd, Did you mean to say that you took off work at 4:30 p.m. today (using FMLA)? I stopped by your desk to clarify what you meant by this email, you weren’t there (5:20 p.m.). Office 365 saw you last at 4:48 p.m. I’m pretty confused if you can clarify, I’d appreciate it. Thank you, Jeremy From: Hill, Lloyd Sent: Wednesday, February 3, 2021 (5:47 p.m.) To: Williams, Jeremy Subject: One FMLA Episode From Now Till Tomorrow Correct Before Respondent prematurely ended his workday on February 3, 2021, he had been assigned that morning to provide IT support services for the City’s recreation centers. Mr. Milou Louis, who worked as senior systems programmer at the City’s recreation centers, was retiring from employment with the City, and Respondent, because of his availability and skill set, was tasked with replacing Mr. Louis. In explaining his actions related to his early departure from work on February 3, 2021, Respondent stated the following: On February 3, 2021, I was informed that I was required to be on-site at the City’s Parks & Rec centers where COVID-19 infection rates were among some of the highest for City employees. Notably, this documented infection rate does not consider infected members of the public who may use the centers. I immediately informed my manager, who rendered his lay opinion that I was at no higher risk than anyone else. Notably, I had not previously been assigned to be on-site, let alone during a pandemic. Thereafter, I suffered a sever anxiety attack because I legitimately feared for my health. At that point I left the building. Management told me I left at 1:30 PM. I contacted my supervisor at around 4 PM informing him I would take available FMLA leave for the rest of the day. As an initial matter, there is no credible evidence of record that Respondent’s particular work environment at the recreation centers would have been any more at risk for COVID-19 exposure than his regular work environment, or say, the electronics store where Respondent stopped during his lunch break on February 1, 2021. During Respondent’s email exchange with his supervisor on February 3, 2021, Mr. Williams clearly communicated to Respondent that he was confused about Respondent’s FMLA leave request. Respondent, despite having the opportunity to do so, never sought to clarify his leave request, and, for whatever reason, chose not to correct Mr. Williams’ erroneous belief that Respondent left work at 4:30 p.m., when all the while Respondent knew that he actually left work several hours earlier at 1:30 p.m. With respect to the events of February 3, 2021, the evidence establishes that Respondent violated City rules and regulations by failing to inform his supervisor of his early departure from work under circumstances where he clearly had the opportunity to do so. Also, as noted above, the email that Respondent sent at 4:30 p.m., on February 3, 2021, advised that Respondent was taking “One FMLA Episode From Now Till Tomorrow.” Because Respondent’s email was misleading as to when he actually left work, Respondent actually had a three-hour unauthorized absence from work (i.e., from 1:30 p.m. to 4:40 p.m.) and misled his supervisor as to the amount of FMLA leave that was being requested. February 10, 2021 On February 10, 2021, Respondent reported to work at his scheduled time and then left the office from 2:00 p.m. to 4:40 p.m. When asked by his department supervisor to account for the missing time, Respondent could not do so and instead elected to quibble with his supervisor about whether his authorized lunch break was 30 minutes or one hour in duration. Respondent’s unauthorized leave was charged against his accrued vacation hours.
Conclusions For Petitioner: Owen Kohler, Esquire City of Clearwater 600 Cleveland Street, Suite 600 Clearwater, Florida 33755 For Respondent: Richard Michael Pierro, Esquire Calciano Pierro, PLLC 146 Second Street North, Suite 304 St. Petersburg, Florida 33701
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Civil Service Board of the City of Clearwater enter a final determination suspending without pay Respondent’s employment for a period of two days. DONE AND ENTERED this 31st day of August, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2021. COPIES FURNISHED: Owen Kohler, Esquire City of Clearwater 600 Cleveland Street, Suite 600 Clearwater, Florida 33755 Rosemarie Call, City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 33758-4748 Richard Michael Pierro, Esquire Calciano Pierro, PLLC 146 Second Street North, Suite 304 St. Petersburg, Florida 33701
Findings Of Fact Background During 1994, the Respondent, Craig Reeves, was working for the City as a Tradesworker in Infrastructure. While technically not in a supervisory position, as Tradesworker the Respondent functioned as a job foreman or lead man on his crew. He received jobs from his immediate supervisor, and it was the Respondent's job to mobilize his crew, assign tasks and get the jobs done. Having a background in private construction work, the Respondent brought to the job a private construction work philosophy. Essentially, he thought the workers on his crew (or any other crew) should do their jobs, and do them right, and told them so in blunt terms. While such an attitude apparently is both effective and practical in private construction work, it apparently is too harsh an attitude to be practical for use on all of the Respondent's crew (or perhaps any City work crew.) In addition, working for the City, the Respondent was unable to use (or at least carry through with) the threat that is always available in the private sector to simply fire on the spot any employee who did not meet the foreman's standards. ("Do it my way and do it right, or go find another job.") Some of the men could handle, and respond to, what amounted to the Respondent's bullying; others could not. While the Respondent was able to get all of his jobs done timely and well using his approach, he hurt the feelings of some members of his crew. Anger and resentment built up among them. Although the Respondent received high marks (exceeds standards) in most areas of his performance evaluations, for at least the three years beginning August 26, 1991, the Respondent consistently received admonishments and only satisfactory in the area of his treatment of the men working under him. The Respondent generally accepted these criticisms and agreed to try to improve in that area. However, the City also certified in the evaluations that the Respondent already was receiving all "requisite annual training," and no real improvement over the years was evident. The Charges and Investigation One Friday in June, 1994, one member of the Respondent's crew, named Ed Stiers, was found crying to himself on the job. He told the Respondent's supervisor that he could not take working under the Respondent any longer and that he wanted a demotion to get off the Respondent's crew. Just barely coherent, Stiers said something to the effect that he was sexually harassed on the job eight to nine years before and that he was afraid it was starting to happen to him again. He accused the Respondent and another man on the Respondent's crew, named Phil Manson, of sexual harassment, physical and verbal abuse and general mistreatment on the job. The following week, the Respondent's supervisors referred Stiers to the City's Human Relations Director, Eleanor Breland, to investigate the charges. Breland's investigation consisted of interviews with Stiers, the Respondent, and everyone else who was in a position to have knowledge about the charges. To assist her in her investigation, Breland tape-recorded the interviews. At times, she stopped the recording and inadvertently forgot to restart it. Also, an assistant later erroneously reused one of the tapes, erasing part of an interview. Having been told incorrectly that statements prepared from the interviews were verbatim transcripts, the Respondent became suspicious when he discovered that they were not and that one of the tapes had been erased. But it is found that there was no intentional destruction of evidence favorable to the Respondent or cover-up or any other kind of foul play involved. Name-Calling and Personal Insults It is found that the Respondent probably did call certain City employees working under him names like "stupid" and "ignorant." He also described some of the things they did on the job as being "stupid" or "ignorant" if they made mistakes on the job, or did jobs in ways that were (at least in the Respondent's mind) incorrect or inefficient or ineffective, and it was in those contexts that the Respondent might have called the workers "stupid" or "ignorant" or words to that effect. Once as Stiers and a co-worker approached a job site where the Respondent was working, the Respondent began to repeat the phrase "Stiers and queers" in a "sing-song" manner. Stiers took the Respondent to be calling him a "queer," but it was not clear from the evidence what the Respondent intended. At worst, it was proven that the Respondent's behavior was nonsensical and childish joking around on the job. While maybe not appropriate or desirable behavior on the Respondent's part, it was clear that all the men on the Respondent's and other City crews joke around in a similar fashion from time to time on the job. It is found that the Respondent has told City employees working under him that they "are not paid to think." This comment could be considered a personal insult directed to the employees' intelligence. However, it appears that the context of such a comment would have been an occasion when a worker under him contradicted the Respondent, saying "but I thought" or "but I think." In using the comment, the Respondent was repeating an expression he heard his immediate supervisor use. In September, 1994, in response to criticism of his use of the expression during a group meeting, the Respondent pointed out his supervisor's use of the very same expression and said that, if his supervisor agreed, he would also stop using it. There is no evidence that the Respondent continued to use the expression after the September, 1994, meeting. The Safety Sunglasses Ed Stiers insisted on wearing safety sunglasses that were so old, scratched up and dirty that he barely could see out of them. Apparently at least in part because he could not see clearly through the glasses, Stiers made mistakes on the job, such as steering wheelbarrows over form boards and into co- workers. The Respondent repeatedly admonished Stiers to get new glasses so that he could see better. Sometimes, Stiers responded to the effect that he did not want to be able to see any better. It was proven that at least once, out of anger and frustration with Stier's obstinacy, the Respondent snatched Stiers's old glasses off his face and threw them away. He got new glasses for Stiers to use instead and gave them to Stiers to put on. Cleaning the Trucks Most of the time, at the end of the work day, the Respondent assigned two men to clean out each of the City trucks used during the day. On occasion, the Respondent assigned Stiers, or another, to clean a truck alone. It was not proven that Stiers or the others were singled out to do this chore by themselves in retaliation or as a form of mistreatment or to "bust their chops." Most of the time, it was just a matter of assigning tasks in the most efficient manner. For example, Stiers was not good at finishing curbs, so the Respondent sometimes would have Stiers clean out a truck while another worker helped finish curbs. Butt-Poking and Bananas It was proven that the Respondent poked Stiers in the posterior with a rake handle while Stiers was bent over and reaching down into a hole in the ground. The Respondent's purpose was to redirect Stiers's attention to the part of the hole in which Stiers was supposed to be working. It was not proven that there was anything sexual about what the Respondent did or how he did it. One day at work, Manson noticed that Stiers seemed to be staring at a banana he was holding. Comparing the banana to a male sexual body part, Manson "joked" about Stiers wanting to eat the banana. Others, including the Respondent, also persisted in teasing Stiers about "eating bananas." While maybe not appropriate or desirable behavior on the Respondent's part, it also was clear that all the men on the Respondent's and other City crews joke around in a similar fashion from time to time on the job. At different times, all of them--including not only the Respondent, but Stiers as well--went "overboard" in the joking and teasing. Racial Slurs It was proven that the Respondent used racial slurs by referring to a fellow employee as a "bush nigger" and by describing a new hire (Manson) as "a white guy, not a nigger." However, it was not proven that the Respondent used these terms in the presence of African-Americans. Request for Training On or about August 11, 1994, the Respondent registered for City Human Services training in proper techniques in supervising those working under him. The training class was entitled "Basics of Supervision." He requested the class scheduled for September 20, 1994, but for reasons not made clear from the evidence, he did not attend the class until February 24, 1995, after action already had been taken to demote and suspend him. Selective Discipline The evidence disclosed that several other City employees--including many of the Respondent's accusers--were guilty of some of the same misconduct with which the City has charged the Respondent in this proceeding. The evidence did not disclose that disciplinary action has been taken against any of them except the Respondent and Manson, the two targets of Stiers's complaints. (Manson received a reprimand.) Apparently, since only the Respondent and Manson were named in Stiers's complaints, Breland's investigative report on the complaints only recommended that action be taken against them. Breland testified that she assumed that the appropriate supervisors and personnel officers would take appropriate action against others whose misconduct might be revealed in the body of her investigative report, but it is not clear from the evidence whether her assumption was correct. Disciplinary Guidelines The City of Clearwater has adopted Guidelines for Disciplinary Action, which provide in pertinent part: [The Guidelines] are structured to provide for equality of treatment in discipline. However, in recognition of the fact that the circumstances of each infraction or occurrence may differ in many respects from the circumstances in other somewhat similar situations, the City retains the right to treat each occurrence on an individual basis and without creating precedent for other cases which may arise in the future or mitigating previous discipline. The City took the position in this case that the Respondent's alleged actions were governed by the following Guidelines for Disciplinary Action: Level 3, #14 - Threatening, intimidating, coercing or interfering with fellow employees, supervisors or citizens at any time while on duty, reporting for duty or leaving duty an on City premises, including the use of abusive or profane language. (20 points) Level 4, #8 - Abuse, misuse, destruction or loss of any City property, including records, tools, supplies, equipment and radio network. (40 points) Level 4, #16 - Making or publishing false, vicious or malicious statement(s) concerning an employee or a supervisor where such false statement(s) are damaging to the individual's reputation. (40 points) Level 5, #13 - Immoral, unlawful or improper conduct on or off the job which is contrary to honesty, modesty or decency and which tends to affect the reputation and citizen's good will toward the City, whether or not such act is a criminal offense. (60 points) Level 5 offenses under the Guidelines justify 60 discipline points and discharge or a ten- to 20-day suspension on the first occurrence. (The Guidelines provide that "any employee who is assessed disciplinary action totalling the equivalent of 60 points within any 24-consecutive month period is subject to dismissal.") In the Guidelines, Level 5, #13, is described as a violation of paragraph (j) of Rule 14, Section 1. Level 4 offenses under the Guidelines justify: 40 discipline points (for a total of 40 cumulative points) and a three- to seven-day suspension on the first occurrence; and 40 more discipline points (for a total of 80 cumulative points) and discharge or a seven- to 15-day suspension on the second occurrence. The Guidelines describe Level 4, #8, as a violation of paragraph (e) of Rule 14, Section 1; they describe Level 4, #16, as a violation of either paragraph (e) or (k) of Rule 14, Section 1. Level 3 offenses under the Guidelines justify: 20 discipline points and a one- to four-day suspension on the first occurrence; 20 more discipline points (for a total of 40 cumulative points) and a three- to seven-day suspension on the second occurrence; and 20 more discipline points (for a total of 60 cumulative points) and discharge or a seven- to 15-day suspension on the third occurrence. In the Guidelines, Level 3, #14, is described as a violation of either paragraph (e) or (k) of Rule 14, Section 1. Level 2 offenses under the Guidelines justify: a letter of reprimand on the first occurrence; 20 discipline points and a one- to four-day suspension on the second occurrence; 20 more discipline points (for a total of 40 cumulative points) and a three- to seven-day suspension on the third occurrence; and 20 more discipline points (for a total of 60 cumulative points) and discharge or a seven- to 15-day suspension on the fourth occurrence. Level 1 offenses under the Guidelines justify: a letter of reprimand on the first occurrence; 15 points and a one- to three-day suspension on the second occurrence; 15 more points (for a total of 30 cumulative points) and a three- to five-day suspension on the third occurrence; 15 more points (for a total of 45 cumulative points) and a five- to seven-day suspension on the fourth occurrence; and 15 more points (for a total of 60 cumulative points) and a discharge or a seven- to 15-day suspension on the fifth occurrence. Under the Guidelines, Level 2 offenses include (among others that are not pertinent): 2. Discourtesy to persons with whom an employee comes into contact while in the performance of duties . . .. The Guidelines describe this as a Rule 14(1)(e) violation. Under the Guidelines, Level 1 offenses include (among others that are not pertinent): 6. Engaging in horseplay, scuffling, malicious mischief, throwing things, distracting the attention of others, catcalls or similar types of disorderly conduct. The Guidelines describe this as a Rule 14(1)(k) violation. Although not clear from the evidence, it appears that the references in the Guidelines to paragraph (e) of Section 1 of Rule 14 are incorrect and that the correct references should have be to paragraph (f).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the City of Clearwater Civil Service Board enter a final order: (1) demoting the Respondent to Public Works Service Worker II; (2) assessing 20 discipline points against him; and (3) suspending him without pay for four days. RECOMMENDED this 20th day of June, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0546 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted. As to the Disciplinary Guidelines, incorporated; otherwise, subordinate and unnecessary. 2.-3. Accepted and incorporated. 4. Rejected as not proven that he was "warned." Otherwise, accepted and incorporated. (The "group counseling" apparently had to do with telling the employees that they were "not paid to think." 5.-6. In part accepted and incorporated; in part rejected as not proven. Accepted but subordinate and unnecessary. Accepted but not within the charges. Rejected as not proven and as contrary to the evidence. (He was asking questions, not testifying or making admissions.) As to crying on the jobsite, accepted and incorporated; as to crying at the hearing, accepted but subordinate and unnecessary. 11.-13. Rejected as not proven and as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and as contrary to the greater weight of the evidence that it was his "only attempt." Otherwise, accepted but subordinate and unnecessary. Accepted and incorporated. Respondent's Proposed Findings of Fact. (The Respondent submitted a letter with eight unnumbered paragraphs. For purposes of these rulings, the unnumbered paragraphs have been assigned consecutive numbers.) Accepted but subordinate and unnecessary. Accepted and incorporated as to the destruction of tapes. Conclusion of law as to the Respondent's rights. 3.-4. Accepted and incorporated. 5.-8. Argument, subordinate and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater P. O. Box 4748 Clearwater, Florida 34618-4748 Mr. Craig Reeves 1501 Fredrica Avenue Clearwater, Florida 34616 Michael Laursen Secretary City of Clearwater Civil Service Board P. O. Box 4748 Clearwater, Florida 34618-4748
Findings Of Fact At all times relevant hereto, Michael Gieseke was employed by the City of Safety Harbor as a Laborer 3 in the Sanitation Department. He had been so employed for approximately nine months on February 1, 1991. On January 29, 1991, shortly before clocking out time, Gieseke was in the Sanitation Department breakroom with most of his coworkers. People were talking, laughing and, in general, relaxing following the day's work. The breakroom had six picnic-type tables at which the various employees were sitting. Respondent was sitting at one of these tables facing away from the table. Behind Respondent at the same table, Eric Davis was straddling the bench, and was engaged in conversation with Grover Smith, his and Respondent's supervisor. This conversation was fairly loud and punctuated by loud laughter by Davis. For several minutes this loud laughter had persisted very close to Respondent, and on one or more occasions Respondent had requested Davis stop shrieking in his ear. These protests were not honored by Davis. Several witnesses described Davis' laugh as often irritating. Finally, Respondent got up and picked up a broom near the time clock and returned to his seat with the broom handle resting on his shoulder, held in his right hand with the bristle part between him and Davis. Respondent swung the handle of the broom back and forth likewise moving the bristle end. In so doing, the bristle end of the broom struck Davis on the side of the head. As described by Davis, the blow was sufficient to make one aware he had been hit but not hard enough to make one cry. Davis jerked the broom aside and got up and put his hands around Respondent's neck. Realizing that participating in a fight could lead to dismissal, Davis refrained from tightening his grip on Respondent's neck and merely told Respondent not to do that again. During his rounds that day, Respondent had picked up a discarded razor- knife with which he had been cleaning his fingernails since entering the breakroom. This knife consisted of razor-like blades joined lengthwise which are encased in the sheath of the knife and extend from the sheath in a cutting position by pushing a button on the outside of the sheath and pushing the blade outward. This knife was held in Respondent's left hand with the blade extended approximately 1/2 inch. When Davis was hit by the broom and grabbed Respondent around the neck, one supervisor reminded Respondent that [for drawing a knife] a person would be fired, and another supervisor told both parties to knock it off, which they did. During this slight altercation, Respondent made no effort to use the knife or even threaten to use the knife. The following day, one of the supervisors who was in the breakroom when the altercation occurred reported the incident to the Director, Public Works Department, who had the incident investigated by Kurt Peters, Assistant Public Works Director. Peters is not a Division Director, but was authorized to investigate the incident by Wayne Logan, Jr., the Interim City Manager, Safety Harbor, with the authority to take all disciplinary action taken in this case. Following the investigation, Peters concluded that Respondent had been responsible for the incident and reported this to the City Manager who concurred. On Friday, February 1, 1991, with authorization from Logan, Peters told Gieseke that effective immediately he was being placed on unpaid leave for five days. On Monday, February 4, 1991, Gieseke was on unpaid leave, and the decision was made to terminate Gieseke's employment with the City. Accordingly, the letter to Gieseke dated February 4, 1991 (Exhibit 1) so advising him was sent to Gieseke's home address. This registered letter was not received by Gieseke from the post office, and he learned of the letter when he returned to pick up a pay check.
Recommendation It is recommended that Michael Gieseke be found guilty of violating Rule 24, Section C, Items 7 and 16, of the City of Safety Harbor Civil Service Rules, that the five day suspension be approved, that the subsequent dismissal for the same offense be disapproved and that Gieseke be restored to duty by the City of Safety Harbor with back pay for the period commencing at the conclusion of his period of suspension. ENTERED this 20th day of June, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1991. APPENDIX Proposed findings submitted by Petitioner are accepted, except for: Paragraph 5, second sentence that Respondent retracted the blade and lowered the knife. No evidence was presented that the blade was ever extended more than 1/2 inch or that Respondent raised the knife as if to use it against another. Paragraph 6, penultimate sentence, insofar as it intimates the decision of the City Manager to terminate Respondent was made on February 1, 1991. On February 1, 1991, the City Manager authorized the suspension of Gieseke for five days. COPIES FURNISHED TO: THOMAS M. GONZALES, ESQUIRE POST OFFICE BOX 639 TAMPA, FL 33601 JOHN K. FINCH, ESQUIRE WILLIAM WIGGINS, ESQUIRE 323 MAIN STREET SAFETY HARBOR, FL 34695
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about January 28, 1977, at approximately 2:00 P.M., respondent Spencer, Clarence Jones, and John Aaron were all on duty as employees of the petitioner. The three men were dressed in City work clothes and were riding in a small truck with a City of Clearwater emblem on the side. John Aaron was driving the truck. As the City truck approached the intersection of Jones Street and Garden Avenue in Clearwater at a speed of about 5 miles per hour, it came upon three teenage pedestrians -- two girls and a boy -- walking on the left side of the rode. Driver Aaron said "Hey, now" or "Hey baby" to one or both of the girls. One of the girls said something offensive in reply. At that point, respondent Spencer asked Aaron to stop the truck. After two or three such requests, Aaron stopped the truck and respondent Spencer got out. By this time, the three teenagers had begun to walk away from the truck into a vacant field. Respondent Spencer walked up to the teenagers and one of the girls called him a "nigger" and continued to walk away. Spencer testified that the same girl swung at him with her fist. Neither Aaron nor Jones saw the girl make any threatening gestures toward respondent. After respondent was called a "nigger," he removed his belt and hit the girl twice with the belt as she was walking away. Respondent then returned to the City truck and the three employees drove off. By a "termination and dismissal notice," respondent was advised that he was dismissed as an employee of the City of Clearwater for his activities occurring on January 28, 1977. As causes and reasons therefor, petitioner listed three violations of Rule 14 of the Civil Service Rules of Clearwater. (Exhibit 4) Respondent timely filed his answer and explanation to the charges, petitioner did not accept the same and respondent therefore requested a hearing pursuant to City Ordinance Number 1643, S2-38. Pursuant to a contract between the City of Clearwater and the Division of Administrative Hearings, the undersigned Hearing Officer was duly designated to conduct the hearing. By an Agreement between the parties dated June 7, 1977, the parties recognized the recent ruling of the Circuit Court in and for Pinellas County (Civil Case No. 77-1023-7) which held invalid the referendum election amending the City's Civil Service System. Expressing doubt as to Whether the hearing should be held before the Civil Service Board or before a Hearing Officer appointed by said Board, the parties mutually agreed to waive any and all rights to a hearing before the Board, and to abide by the judgment rendered by the Board pursuant to the findings of the Hearing Officer pursuant to Ordinance Numbers 1643 and 1649, subject to the judicial review procedures established by law. (Exhibit 1)
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent's dismissal by the City of Clearwater be upheld and AFFIRMED. Respectfully submitted and entered this 13th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank X. Kowalski, Esquire Chief Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518 Ronald E. Smith, Esquire 308 South Garden Avenue Clearwater, Florida 33516
Findings Of Fact Respondent, Studebaker's Restaurant (Respondent), owns a 50's theme bar in Clearwater which offers entertainment and dancing and serves alcoholic beverages and food. Studebaker's has a nationwide policy, also followed at the Clearwater establishment, of restricting admittance to persons aged 23 and older. In the same building housing the Clearwater Studebaker's, Respondent also owns and operates a theme bar called the Palm Beach Club which is under common management and which is operated like Studebaker's except that the theme and music is contemporary and anyone who has attained the legal drinking age is allowed admittance. Petitioner, Ronald M. McElrath, is the coordinator for the Community Relations Board established under Chapter 99 of the City of Clearwater Code. He is approximately 38 years of age. In May or June 1985, McElrath witnessed an employee of the Clearwater Studebaker's refusing admission to a female on the basis that she was not at least 23 years of age. Investigating further, McElrath verified through the manager of the Clearwater Studebaker's that Respondent did have a policy restricting admission to the Clearwater Studebaker's to persons at least 23 years of age. Based on McElrath's knowledge and information, McElrath and the Community Relations Board attempted to conciliate with Respondent the alleged conflict between Respondent's age policy at the Clearwater Studebaker's and Chapter 99 of the City of Clearwater Code. By November 13, 1985, McElrath and the Community Relations Board concluded that their attempts at conciliation would not be successful, and the Community Relations Board filed a charge of discrimination against Respondent. That charge of discrimination was referred to the Division of Administrative Hearings and assigned Case No. 85-3513. On or about February 11, 1986, Case No. 85-3513 was dismissed and the file closed based upon the Community Relations Board's report that it was withdrawing its petition in the case and that an individual other than the Community Relations Board would file a separate petition as Charging Party. Actually, on or about January 9, 1986, McElrath, in his capacity as coordinator for the Community Relations Board, had filed a Supplemental Charge Of Discrimination against Respondent on the same alleged facts that formed the basis of Case No. 85-3513. McElrath's Supplemental Charge Of Discrimination was referred to the Division of Administrative Hearings on or about February 4, 1986, resulting in this case. McElrath has never attempted to file any other complaint under Chapter 99 of the City of Clearwater Code in his capacity as coordinator for the Community Relations Board. Because no further investigation was necessary and no further attempts to conciliate were reasonably likely to succeed, McElrath made no further investigation and made no further attempts to conciliate with Respondent after filing the Supplemental Charge Of Discrimination. Before filing of the Supplemental Charge Of Discrimination in this case, McElrath did not make a formal probable cause determination and did not serve notice of determination of probable cause on the Respondent. Respondent and its management has a commendable and appropriately implemented policy of being a responsible seller of alcoholic beverages for consumption on the premises. However, contrary to Respondent's assertions in this case, the policy of allowing only persons 23 years of age and older in the Clearwater Studebaker's is not significantly motivated by a desire to reduce alcohol-related traffic accidents. The primary motivation for the age limit is to establish and maintain an economically successful theme bar. Any contribution towards reducing alcohol related traffic accidents is an after thought rationalization. This was proven by Respondent's willingness to divert patrons younger than 23 next door to its Palm Beach Club where Respondent willingly serves them alcoholic beverages for consumption on the premises.
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 The issue in this case is whether to grant the appeal of Valentinos Koumoulidis from the Planning and Zoning Board's denial of his application for variances from the requirement of a minimum lot width of 150 feet at the setback line and from the requirement of a minimum of 20 percent clear space.
Findings Of Fact When the Appellant, Valentinos Koumoulidis, bought the subject property, the building was being used as a six-unit motel--three units on each of two floors. There were approximately 1600 square feet of space on each of the two floors. The property fronts at 606 Bayway Boulevard; the back of the property is waterfront. In 1991, the Appellant applied for and was granted a parking variance and variances to enable him to convert the first floor to retail use and convert the second floor to a residence. Apparently construction was delayed, and in October, 1992, the Appellant reapplied for the variances to enable him to convert the first floor to retail use and convert the second floor to a residence, while withdrawing the application for a parking variance. (He had decided to convert from straight- in/back-out parking to an off-street parking lot.) In 1994, the Appellant again applied for variances, this time to allow him to add approximately 300 square feet of commercial space to the back of the first floor and approximately 900 square feet of residential space to the back of the second floor. The Board denied those variance requests in October, 1994. Rather than appeal, the Appellant decide not to pursue the addition of commercial space to the back of the first floor and, on December 22, 1994, instead applied for variances to allow him just to add approximately 900 square feet of residential space to the back of the second floor. (Of the 900 square feet, approximately 550 would be enclosed, and approximately 350 would be open deck.) The evidence (primarily through the testimony of Noel Woods, one of the Appellant's neighbors) was that the residential property in the immediate vicinity is comparable, in terms of square footage of living space per dwelling unit, to the Appellant's current second floor--i.e., approximately 1600 to 1700 square feet. There was some evidence that residential properties across the intracoastal waterway from the Appellant's property are valued as high as a million dollars. But the evidence (again, the testimony of Noel Woods) also was that condominium units in the immediate vicinity are valued at approximately $175,000. There was no evidence that the use the Appellant is making of his property (retail on the first floor and residential on the second floor) is not a reasonable use.
The Issue The issue in this case is whether the discipline imposed on Petitioner, Alisha Fessel, by Respondent, City of Cape Coral (the "City"), was appropriate.
Findings Of Fact Based on the Stipulated Record, the following Findings of Fact are made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated under the Charter. Ms. Fessel was employed by the City as an administrative secretary in the City's Police Department, and she was a member of the Union. Ms. Fessel had been counseled and disciplined on several occasions regarding her work performance and behavior pursuant to the City's personal rules and regulations as codified in the City of Cape Coral Code of Ordinances and the Cape Coral Police Department General Orders. All disciplinary proceedings against Ms. Fessel were initiated under the City of Cape Coral Code of Ordinances, Chapter 2, Article III, Division 7, entitled, Discipline of Regular Employees, and pursuant to the collective bargaining agreement between the City and the Union. On September 30, 2011, Ms. Fessel was placed on a 120-day performance improvement plan. On November 2, 2012, Ms. Fessel was suspended for 40 hours. On March 7, 2013, Ms. Fessel was placed on administrative leave with pay. On March 12, 2013, Ms. Fessel remained on paid administrative leave while the City conducted a pre-disciplinary hearing. On April 18, 2013, Ms. Fessel's employment with the City was terminated. The parties have stipulated: The underlying discipline is not being challenged; rather, Petitioner [Ms. Fessel] contends that the suspension with pay during the period March 7, 2013[,] up to and including April 18, 2013, constituted disciplinary action barring any further discipline (i.e., Fessel's termination on or about April 18, 2013) for the same actions.
The Issue Whether Respondent Petras Jakstas committed the violations alleged in the Termination and Dismissal Notice, and, if so, the appropriate discipline that should be imposed.
Findings Of Fact The City is a municipality governed by a city council. A city manager oversees the City’s operations. On January 22, 2007, Respondent was hired as a Parks Service Technician I. He successfully completed the Parks Service Technician Apprenticeship Program and was promoted to his current classification of Parks Service Technician II on February 2, 2008. Respondent’s job responsibilities include, but are not limited to, the collection of trash and the emptying of trash receptacles. Respondent is a native of Lithuania. While Respondent does not speak “perfect English,” the record indicates that Respondent speaks and understands English at a level of proficiency which allows him to function in an environment where only English is spoken or written without the necessity of an interpreter. The Clearwater Civil Service Board has adopted rules and regulations which govern the conduct of all City employees. Chapter 13 of the Clearwater Civil Service Board Rules and Regulations (Civil Service Rules) provides the framework for suspending, demoting, and dismissing City employees. Chapter 13, section 6 of the Civil Service Rules, provides that the “City Manager or designee may discharge an employee for one or more of the causes listed under Section 3 of this Chapter or in accordance with the established performance and behavior management program . . . or for other good cause.” On or about March 20, 2018, Respondent received from the City a termination and dismissal notice advising that his employment with the City of Clearwater was being terminated effective “Wednesday, March 21, 2018, at the end of the day.” The notice of termination and dismissal cites the following violations as cause for the termination of Respondent’s employment: Personal Responsibility Standards, We will follow all City policies and procedures. We will comply with all City and our respective Department, division, and section rules and standard operating procedures. We will cooperate and participate in City processes. We will resolve to accept personal accountability and responsibility for our actions. We will perform our work assignments with established standards and comply with written or verbal instruction from the supervisory or management group. Integrity Standards, Violation of the provisions of Chapter 13, Section 3, of the City Civil Service Rules and Regulations. Excellence Standards, We will treat everyone with dignity, respect, and courtesy. We will present a professional image through actions, dress, speech and behavior. We will strive for excellence and continuously learn and make improvements. We will learn from mistakes, modify behavior and recommend procedural changes to improve operations and processes. The notice of termination and dismissal, in addition to the generally referenced “Integrity Standards” violation, also specifically provides that Mr. Jakstas violated Civil Service Rules, chapter 13, section 3, to wit: (b) Failure to perform satisfactorily within established guidelines. (e) Commitment of a flagrant offense, including harassment or discrimination or abusive conduct or language toward coworkers, City officers, or the public. (g) Commitment of or participation in any activity or action which undermines public confidence or otherwise significantly impairs the employees’ ability to perform his/her job productively. (l) Failure to conform to the dictates of corrective action, including but not limited to failure or inability to comply with an agreed upon “development plan,” or when the City believes that an employee is willful in refusing to adhere to established rules, regulations, or guidelines. The gravamen of the charges against Respondent derive from his alleged violation of Civil Service Rules, chapter 13, section 3(b), (e), (g), and (l). The City’s current proceeding against Respondent is as a result of Respondent’s flirtatious statement to a current female City employee, which occurred while Respondent was working under a “Development Plan,” which was implemented because he harassed a former City employee and used City property while doing so. PERFORMANCE & BEHAVIOR MANAGEMENT PROGRAM The City developed its PBMP in order “to provide a method of working with employees whose performance or behavior does not meet the City’s standards.” The philosophy of the program “is based upon the belief that, in most cases, employees can change behavior and improve performance when standards and expectations are clear and when employees are given opportunities to change.” Whenever practicable, “the City will provide intervention, coaching, and corrective guidance or counseling . . . for employees . . . in order to bring their performance or behavior up to standard.” The program recognizes, however, “that some behaviors that are serious and are direct violations of City Policy may warrant immediate disciplinary action up to and including termination.” According to the PBMP manual, there are three categories of performance and behavior: Personal Responsibility, Integrity, and Excellence. As to each, the manual notes that: These categories are based on employees’ willingness or ability to meet standards of behavior or performance. Willingness refers to the employees’ decision to meet expectations, follow rules and policies, and perform work that meets efficiency and quality standards. Ability refers to the employees’ capability and skills in performing job tasks. The first two categories, Personal Responsibility and Integrity, are considered “will do” categories because they typically involve situations wherein the employee has a choice and makes a decision about whether or not to meet the standards. The third category, Excellence, is considered a “can do” category, because it most often refers to a situation where the employee is not able to perform up to standard because of a lack of resources, skill, or capability. City of Clearwater expectations for each of these three categories are stated below. Personal Responsibility (“Will Do” Issues) City of Clearwater employees will be held personally accountable for the actions they take in meeting the customer service needs of the City and the community the organization serves. Employees are expected to take full responsibility for their conduct and job performance and exhibit commitment to fulfilling their responsibilities to the best of their ability. Integrity (“Value and Ethics” Issues) As public employees representing the citizens of Clearwater, employees are expected to commit to the highest standards of personal and professional integrity. The City expects employees to communicate openly and continually demonstrate honesty, fairness, and respect for others. Employees should do what is ethically appropriate. Employees are expected to adhere to City policies. Excellence (“Performance/Can Do” Issues) City of Clearwater employees have an obligation to provide the highest quality of service and results to our customers. This commitment to excellence involves developing the job knowledge and skills needed to perform the tasks required and to continually improve the City’s ability to meet the needs of the community we serve. The PBMP manual generally lists 75 Personal Responsibility Standards, 14 Integrity Standards, and 41 Excellence Standards. Regarding the Integrity Standards, the PBMP manual notes in bold print that “immediate formal discipline, up to and including termination, may be recommended” for a violation of these standards. The PBMP manual does not set forth any such illumination for the other standards. As previously noted, certain PBMP standards are referenced in the termination and dismissal notice provided to Respondent by the City. THE DEVELOPMENT PLAN The initial step of PBMP entails supervisor coaching and counseling of employees as a strategy for helping employees to meet supervisor, department, or City expectations or standards. In instances where an employee has committed a serious offense of the PBMP standards and expectations, the City may place an employee on a development plan, a decision-making leave without pay, or both. On October 23, 2017, Respondent was placed on decision-making leave without pay for the two-day period of October 24 and 25, 2017. On October 26, 2017, when Respondent returned to work he was placed on a development plan. Both actions resulted from an incident involving former City employee Ms. Kelsey Souto. Ms. Souto previously worked for the City, and during the course of her employment Respondent developed a physical attraction to her. There is no evidence suggesting that Ms. Souto was in any way interested in Respondent. Sometime around the early part of 2017, Ms. Souto relocated from Florida to Idaho. The undisputed evidence is that Respondent tracked Ms. Souto’s whereabouts and began to send her letters, jewelry, and at one point, he even mailed her a rooster. Ms. Souto found Respondent’s behavior to be extremely upsetting as evidenced by the Petition for Protective Order that she swore- out against Respondent wherein she requested, on or about August 24, 2017, that the District Court for the State of Idaho enjoin Respondent from engaging in “malicious harassment, stalking, [and] telephone harassment.” On September 28, 2017, Respondent submitted to the City a request for vacation days and included therewith a notice of hearing regarding the Protective Order that was filed against him by Ms. Souto. The hearing was scheduled for September 29, 2017. Respondent attended the hearing in Idaho and “agreed to entry of a protection order.” The exact date is not clear from the record, but it is undisputed that sometime between September 28, 2017, and October 26, 2017, the City learned two things from Respondent. First, the City learned that Respondent used a City of Clearwater Parks and Recreation envelope to mail a letter to Ms. Souto as part of his campaign of harassment against her; and second, the City learned the full details of Respondent’s harassment activities directed towards Ms. Souto. Given this information, on October 26, 2017, the City, pursuant to its PBMP, placed Respondent on a written development plan. The development plan contains a section titled “Specific Examples of Behavior or Performance Observed (completed by Supervisor).” In this section, Respondent’s supervisor noted the following with respect to the circumstances surrounding Respondent’s interaction with Ms. Souto: Approximately one year ago, your manager was contacted by the owners of the beach concessions, Mr. and Mrs. Chandler, to inform him that you were showing an interest in one of their workers, but she was not interested in you. You were persistent with this female and you had sent her a gift of a wedding ring by mail. When the Chandlers contacted your manager, they stated they did not want to make a formal complaint with the City, but wanted to speak with you about the situation and return the ring. The City has learned that despite this female moving out of state, you have continued to pursue her. On Thursday, September 28, 2017, you turned in a vacation request to your supervisor along with a notice of hearing for a protection order filed against you in the District Court of the Fifth Judicial District of the State of Idaho. This protection order was filed by the female who formerly worked for a beach concessions and it cited malicious harassment, stalking, telephone harassment as the reasons for her petition to the court. The petitioner described in the protection order that she met you while she worked as a manager at Barefoot Beach House on Clearwater Beach. She explained that City employees were provided free soft drinks by an established lease agreement and you as well as other City employees, would go to the restaurant for that reason. She further explained that beginning approximately five years ago, you would regularly bring her candy, gifts, and treats and she would often politely decline your offerings or put them out for all her employees. She stated that you would come in several times throughout your workday waiting in long lines, just so that she could wait on you. The petitioner stated that she moved to Idaho in 2016 and somehow you obtained her contact information on-line and you began sending her certified letters about every other month. Additionally, she said at Christmas time she received a diamond ring and gold necklace from you of which she returned to you. Most recently, on August 23, 2017, she stated that she received notification from the post office that you had sent her a live rooster as she recognized your handwriting on the notice and card. She further described that you sent her emails and text messages, so she blocked your phone number. On October 4, 2017, your supervisor was provided a copy of a City of Clearwater Parks and Recreation envelope [which] shows you used City material to mail her a certified letter on August 15, 2016. When meeting with your Director, you admitted to using City materials for personal use and acknowledged it was a bad thing to do however; you did not take full responsibility of the seriousness of your inappropriate behavior and conduct which led to the protection order filed against you, stating that you “were only trying to have fun. Based on the information involving Ms. Souto, the City specifically identified in Respondent’s development plan certain standards and expectations that Respondent had not met, including the following: “We will treat everyone with dignity, respect, and courtesy; [w]e will present a professional image through actions, dress, speech and behavior; and [w]e will learn from mistakes, modify behavior and recommend procedural changes to improve operations and processes.” Reference in the development plan to these specific standards and expectations, as well as inclusion of an extensive narrative regarding his harassment of Ms. Souto, put Respondent on notice that future instances of conduct of a similar nature would not be in compliance with the terms of his development plan. The development plan contains a signature line where the employee is to sign. Below the employee’s signature line is the following statement: “My signature indicates I have read and understand the Development Plan outlined above, and agree to comply with all City standards and policies, although I may not agree that a violation has occurred.” Respondent signed the development plan on October 26, 2017. The development plan notes that its duration is for six months. In addition to signing the development plan, Respondent also wrote the following on the plan: “I will not misuse City prop[erty] again. No mean no! Sorry I recognize my fault! I will make better choices in my life. I recognize my fault.” SEA BLUES FESTIVAL On Saturday, February 24, 2018, Respondent was working at the Sea Blues Festival, which is a cultural event sponsored by the City. Madai Gutierrez, who is employed by the City as a recreation specialist, also worked the festival on that date. Ms. Gutierrez’ job responsibilities involve overseeing matters related to patron ticketing and gate operations. Her job duties do not include overseeing or otherwise supervising Respondent or workers who are similarly classified. Ms. Gutierrez’s credibly testified that on the day in question, while in the backstage area of the festival, Respondent summoned her to the area where he and a coworker were picking up trash. Ms. Gutierrez, thinking that Respondent had an inquiry about a matter pertaining to the event, walked over to Respondent where he told her, “You’re so beautiful. You have the eyes like an eagle.” Respondent’s statement to Ms. Gutierrez was a discourteous statement that lacked dignity and respect, the statement failed to comport with the development plan goal of maintaining a professional image through “speech,” and by making the statement, Respondent demonstrated a failure to modify his behavior as required by the development plan. Respondent’s statement to Ms. Gutierrez was sufficiently similar in character to the conduct Respondent displayed towards Ms. Souto. Mr. Gutierrez testified that Respondent’s statement made her feel “weird and creepy,” and she immediately left the area after hearing the same and went to her ticketing trailer. On the day of the incident, Ms. Gutierrez reported Respondent’s conduct to her supervisor. On Monday, February 26, 2018, she then prepared a written statement detailing her interaction with Respondent. Respondent admits that he spoke to Ms. Gutierrez but states that it “was about work.” (Tr. 200:9) In further explaining himself, Respondent testified, “I told them that I never said in this way and -- and that we were talking about -- strictly about work.” (Tr. 200:16-18). In this statement, Respondent is referring to his conversation with Ms. Gutierrez on February 24, 2018. At the time of his interaction with Ms. Gutierrez, Respondent was still working under the limitations of the development plan and this would certainly provide sufficient motivation for Respondent to not be truthful regarding his interaction with Ms. Gutierrez. Ms. Gutierrez testified that on occasion she will instruct a City worker whose job includes responsibility for trash collection to empty an overflowing trash receptacle. However, Ms. Gutierrez specifically testified with clarity and certainty that at no time during the Sea Blues Festival did she ever instruct Respondent, or any other trash worker, to empty a trash can. Ms. Gutierrez’s testimony regarding what was said to her by Respondent is found to be more credible than Respondent’s denial. Respondent’s assertion that he had a “work-related” conversation with Ms. Gutierrez on February 24, 2018, is not credible and is rejected. I NEED AN INTERPRETER Respondent claims that the City knew that he needed a language interpreter but failed to provide one during the discipline determination meeting resulting from the incident involving Ms. Gutierrez. The job position occupied by Respondent is covered by the Agreement between City of Clearwater, Florida, and Communications Workers of America, Local 3179 (Fiscal Years 2017–2018) (collective bargaining agreement). Article 11, section 4 of the collective bargaining agreement provides, in part, that “[w]henever an employee who is a Union member is noticed of any meeting that could result in discipline, the employee will be granted a minimum of two (2) business days before the meeting to arrange for Union representation.” The right to union representation at any such meeting is commonly referred to “Weingarten” rights. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). On March 7, 2018, the City informed Respondent that a discipline determination meeting was scheduled for March 14, 2018, to discuss the alleged incident involving Ms. Gutierrez and its possible impact on his continued employment with the City. Respondent attended the meeting along with his union representative Phil Hughes of the Communications Workers of America. There are no provisions in the Civil Service Rules, the PBMP manual, or the collective bargaining agreement, which require the City to provide a foreign language interpreter for an employee who is represented by his union at a disciplinary meeting. Respondent cites no authority in support of his contention that the City was obligated to provide him with such services and furthermore there is no factual basis in the record otherwise indicating that Respondent even requested such services from the City once the current termination and dismissal proceedings commenced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Civil Service Board of the City of Clearwater enter a final order terminating Mr. Jakstas’ employment. DONE AND ENTERED this 12th day of December, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 12th day of December, 2018. COPIES FURNISHED: Edward C. Castagna, Jr., Esquire Castagna Law Firm, P.A. Suite 702 611 Druid Road Clearwater, Florida 33756 (eServed) Owen Kohler, Esquire City of Clearwater 112 South Osceola Avenue Clearwater, Florida 33756 (eServed) Nichole A. Kerr, Esquire Castagna Law Firm, P.A. Suite 702 611 Druid Road Clearwater, Florida 33756 Ted Starr, Esquire Starr Law Offices 8181 U.S. Highway 19 North Pinellas Park, Florida 33781 Rosemarie Call, City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 33758-4748
