The Issue Whether Respondent committed the actions of conducting personal business during his scheduled work time for Petitioner as charged in the agency action letter dated March 24, 2015.
Findings Of Fact ECUA provides water, wastewater, and sanitation services to customers in Escambia and Santa Rosa counties. ECUA is considered a quasi-governmental agency, and therefore, its employees enjoy procedural due process rights with regard to their continued employment. As set forth in the "Human Resources Manual & Employee Handbook" (Handbook), non-exempt and non-key employees of ECUA who face possible termination are entitled to notice of the allegations against them and a pre-determination hearing conducted by ECAU. If an employee is dissatisfied with the outcome of the pre-determination hearing, the employee is entitled to a hearing before DOAH after making a timely request. The parameters of the hearing are governed by the Contract entered into between ECUA and DOAH in accordance with section 120.65, Florida Statutes. Respondent was employed with ECUA for approximately 17 years as a UST which is a non-exempt, non-key employee position. He was terminated from his position of UST III effective March 23, 2015. As a UST III, Respondent's job duties on the 3:00 p.m. to 11:00 p.m. (3-11) shift included responding to reported water leaks and repairing them, and responding to calls to "turn back on" (TBO) service for customers who have been disconnected from their water service. When working on the leak truck or TBO truck, Respondent served as the lead worker on the two-man truck crew due to his years of experience and license. The 3-11 shift has no scheduled break for lunch. However, those working on this shift as UST's on the leak or TBO trucks are permitted to take brief stops to purchase a meal to go or use the restroom. February 20, 2015, Incident On Friday, February 20, 2015, Respondent was assigned to work the leak truck on the 3-11 shift with Michael Garrison (Garrison), a UST Trainee who had been employed with ECUA for approximately two months. Respondent was the lead employee on the truck and supposed to provide supervision and direction to Garrison. At approximately 5:30 p.m., Garrison and Respondent discussed driving through McDonald's around 7:00 p.m. to pick up dinner. Shortly thereafter, Respondent directed Garrison to drive them to DeLuna Lanes bowling alley on Nine Mile Road. There was no pending service call at the bowling alley. Respondent told Garrison he wanted to stop to check on "his girls," referring to his bowling team. Respondent indicated he would only be a few minutes and he took the ECUA radio with him into the bowling alley at approximately 6:00 p.m. At 6:20 p.m., Susan Colon (Colon), a dispatcher in ECUA's Supervisory Control and Data Acquisition department (SCADA), received a request for a service call to repair a water leak. Colon tried to reach the leak truck on its ECUA issued radio approximately six times, and each time the response showed the radio was unavailable or off. After being unable to reach the leak truck by radio, Colon attempted to contact Respondent on his personal cell phone for approximately an hour. When she called, the cell phone put her into Respondent's voice mail and she left a message for him to return her call to handle a service call. After no success contacting Respondent, Colon called Walter Williams (Williams) who she believed was working with Respondent that night. Williams advised that it was his day off. Colon next telephoned Perry White (White), the UST Supervisor for the East Region, who advised her to contact the TBO truck to handle the leak. White called Garrison's personal cell phone at 7:05 p.m. and asked his location. Garrison reported that he was in the truck outside the bowling alley on Nine Mile Road and had been there since approximately 6:00 p.m. White told Garrison to stay at that location until White arrived. In the meantime, Colon received a call for service at a leak at another location at approximately 7:20 p.m. She again tried to reach Respondent on his radio and cell phone without success. Respondent returned the call to Colon at approximately 7:25 p.m. after exiting the bowling alley and told Colon that his radio was dead. A few minutes later, Respondent returned to the leak truck. Garrison advised Respondent that White was on his way and that, "this is not good." Respondent said that it was all right and that he intended to tell White that he was eating at the bowling alley. When White arrived at approximately 7:30 p.m., he immediately placed Respondent on paid administrative leave. White had verbally counseled Respondent only two days prior regarding the need to timely respond to radio calls. Earlier on that same shift, Respondent had Garrison drive him two times to a Dodge dealership where Respondent discussed the purchase of a personal vehicle. Both stops took approximately 25 minutes combined. Initial Investigation The February 20 incident was referred to Human Resources Manager Stella Holland (Holland) for investigation. When Holland initially interviewed Respondent regarding the incident, Respondent told Holland that he and Garrison arrived at the bowling alley around 6:30 p.m. Several days later, Respondent retracted the statement and told Holland that he arrived closer to 7:00 p.m. Respondent's explanation, that he went into the bowling alley briefly to collect money from a bowling teammate and get something to eat, was inconsistent with Garrison's statement that he was left alone in the truck at the bowling alley for more than an hour while waiting for Respondent, and inconsistent with Colon's repeated unsuccessful attempts for more than an hour to reach Respondent. During ECUA's initial investigation, other similar situations, of Respondent running personal errands during scheduled work time in the prior two weeks, came to light. On February 10, 2015, while working the 3-11 shift with co-worker Bud Watson (Watson), Respondent went to his house for 30 minutes to meet his girlfriend. Respondent did not request leave or receive approval from his supervisor to conduct this personal business on ECUA time. On February 11, 2015, while working the 3-11 shift on the TBO truck, Respondent took the ECUA radio and went to the bowling alley for one hour leaving Watson in the ECUA vehicle while TBO work orders were pending. Respondent was not authorized to go to the bowling alley and to conduct this personal business on ECUA time. Watson did not like being in the ECUA truck because the truck has a large ECUA emblem and anyone could call ECUA and report the truck "being in the wrong place at the wrong time." On February 12, 2015, Respondent took a one-hour lunch break at Kentucky Fried Chicken. Employees working the 3-11 shift do not get a designated lunch break but are allowed to stop and pick up food provided they are readily available to respond to calls as needed. On February 17, 2015, while working the 3-11 shift with Williams, Respondent told Williams he wanted to run by Liberty Lanes bowling alley. Respondent and Williams arrived at Liberty Lanes at approximately 7:00 p.m. Williams remained in the ECUA truck while Respondent went inside the bowling alley. Respondent did not return until 7:30 p.m. During this time, service calls were pending. Williams was concerned because he knew that White had talked to Respondent earlier that same day about promptly responding to radio calls. As a result of the initial investigation, on March 2, 2015, Ernest Dawson (Dawson), Director of Regional Services, issued Respondent a written Notice of Predetermination/Liberty Interest (name clearing) Hearing (NOP). This NOP detailed ECUA's findings with regard to the February 20 incident, summarized additional incidents of Respondent conducting personal business during work time, identified the alleged policy violations committed by Respondent, indicated Dawson's intent to recommend an 80-hour suspension without pay, and advised of a pre- determination hearing scheduled for March 4, 2015. Supplemental Investigation Later that same day, Cindy Sutherland (Sutherland), Director of Human Resources and Administration, called Respondent to advise that due to the discovery of information regarding additional misconduct, the pre-determination hearing was postponed. The subsequent investigation revealed a long standing pattern and practice of Respondent conducting personal business while on ECUA's time and using ECUA's vehicle. These personal activities included: multiple stops at three different bowling alleys; multiple stops at Respondent's home; multiple stops at the home of a female acquaintance of Respondent; several stops at two local Walmart stores; and a stop at a local bank downtown to obtain a loan. On each of these occasions, Respondent either drove or requested his co-worker to drive him in the ECUA truck to the desired location to conduct his personal business on ECUA time. Each time Respondent frequented these unauthorized locations, his assigned co-worker would remain in the truck. Respondent's assigned co-workers were unaware of what business he was conducting at these locations but it was not business for ECUA. The time spent conducting personal business at these locations by Respondent would range from 15 minutes to more than one and a half hours. On all of these occasions, Respondent was expected to, and should have been, performing his assigned ECUA duties and responsibilities. If the truck to which Respondent was assigned had no pending work orders, Respondent should have checked with the other truck and dispatch to determine whether additional work was available. If no additional work orders were waiting, Respondent should have returned back to ECUA to clean the truck and wait for further work instructions. Respondent was aware from multiple Region East meetings that ECUA vehicles should not be seen in places not authorized by the work assignments designated for the vehicle. As a result of the findings of the supplemental investigation, Respondent was issued an Amended NOP by letter dated March 10, 2015. This letter advised Respondent that his predetermination hearing was rescheduled for March 13, 2015. Further, the letter notified Respondent that he was charged with the following violations: section B-13 A (4) (conduct unbecoming an ECUA employee), section B-13 A (9) (excessive tardiness), section B-13 A (17) (leaving the workstation without authorization), section B-13 A (18) (loafing), section B-13 A (19) (unauthorized use of the ECUA property or equipment), section B-13 A (21) (neglect of duty), and a section B-13 A (33) (a violation of the ECUA rules or guidelines or state or federal law), of ECUA's Handbook. Respondent was also advised that termination of his employment was recommended. Respondent requested and was granted a continuance of the predetermination hearing until March 17, 2015. Respondent's Explanation Throughout the course of the investigation and during the predetermination hearing, Respondent consistently argued that the alleged incidents of misconduct were not serious because, "everybody does it." However when asked to identify the co- workers he believes engaged in similar conduct, Respondent refused to do so. Respondent's position is that if there were no pending work orders, USTs were free to run any personal errands while on ECUA time and in its vehicles. Although Respondent admitted repeated stops at the bowling alleys, his own home, his girlfriend's residence, Walmart, and the Dodge dealership, Respondent initially claimed that these were brief restroom or meal breaks. Respondent later acknowledged that he went to the bowling alleys to watch his teams bowl and conduct personal business with his teammates and bowling alley employees. Significantly, Respondent received a one-day suspension on November 22, 2013, for taking an excessive lunch break on October 25, 2013, to attend a retirement party of another employee from a different department without authorization. On October 25, 2013, Respondent took additional time to go to the bank for his personal business without authorization and as a result of spending excess time at the retirement party and on personal business, Respondent only completed ten of the 37 work orders assigned to him that day. Respondent regularly ran personal errands on ECUA time regardless of whether work orders were pending, whether his co- workers objected or expressed concern, and after receiving discipline for doing the same. Accordingly, Respondent's explanation, that he believed he could run any personal errand he wanted while on ECUA time, as long as no work orders were pending, is simply not credible. After the predetermination hearing on March 17, 2015, Respondent was provided a written summary on March 24, 2015, of ECUA's determination that he violated the above-cited policies and that he was terminated effective March 23, 2015. Respondent timely requested a hearing before DOAH. At the final hearing, Respondent argued that other USTs also ran personal errands on ECUA time. In fact Garrison, a relatively new employee admitted that he made a stop to buy milk and drop it home for his baby, a stop home to grab coffee, and a stop at his old address to pick up mail. However, Garrison explained he only made such personal stops when riding with Respondent because Respondent's behavior led him to believe it was fine when they were together. Garrison did not make personal stops when working with other co-workers. Watson has stopped at the Tom Thumb convenience store or Walmart while working to use the restroom or get a drink. He has not stopped for personal business other than when taking an authorized lunch break on the 7:00 a.m. to 3:30 p.m. shift. Jeremy Williams ran a personal errand on ECUA time on one occasion. He stopped at Academy Sports to buy an arm brace. The Director of ECUA happened to be in the parking lot and saw the ECUA vehicle. Jeremy Williams received a three-day suspension without pay for this incident. The overwhelming credible evidence at the final hearing was that no one, other than Respondent, has engaged in an ongoing pattern and practice of making routine stops for personal business (except for comfort breaks, which are authorized) while working for ECUA and using an ECUA vehicle.
The Issue At issue in this proceeding is whether the Petitioner, Pinellas County Sheriff's Office (PCSO or Petitioner), properly disciplined Respondent Robert Haimes for violations of Chapter 89-404, Laws of Florida, as amended by Chapters 90-395 and 2008- 285, Laws of Florida (the Pinellas County Sheriff's Civil Service Act), and the General Orders and Rules and Regulations of the PCSO.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is the Sheriff of Pinellas County. The Sheriff commands the operations of the PCSO and is responsible for providing law enforcement and corrections services in Pinellas County, Florida. The Sheriff is authorized to impose discipline on PCSO employees, in accordance with the Pinellas County Sheriff's Civil Service Act. At all times relevant to this proceeding, Respondent was employed by the PCSO as a Sergeant. Respondent worked in one of three PCSO Statistical Tactical Analytical Response (STAR) units, elite patrol units that perform special assignments such as criminal surveillance and security for presidential visits. The regular hours for Respondent's STAR unit were from 5:00 p.m. until 3:00 a.m., though the unit's varied assignments often required that its members work an irregular schedule. Lieutenant Dale Jones is the evening shift commander in the patrol division of the PCSO's main office. Lt. Jones oversees administrative and operational duties for his shift, including the maintenance of the official attendance records. When Lt. Jones is off duty, another lieutenant or a sergeant steps into the role of acting shift commander. On September 30, 2008, acting shift commander Sgt. Bruce Hauck raised a question with Lt. Jones as to Respondent's attendance. Sgt. Hauck did not feel comfortable marking Respondent present for his entire ten hour shift, because Respondent was not where he was supposed to be when his STAR unit responded to an emergency situation. Sgt. Hauck checked the Global Positioning System (GPS) and Computer Assisted Dispatch (CAD), which record the location of a given patrol car at all times during its driver's shift. The GPS indicated that Respondent's car was at his residence for several hours of his shift.1 Respondent had given Sgt. Hauck no indication that he was taking time off on September 30. Lt. Jones looked into the matter when he came to work the next day. He noted the discrepancy in Respondent's work hours and consulted his captain, Wayne Morris. Lt. Jones and Capt. Morris agreed that Lt. Jones should check Respondent's time entries over a period of time to determine whether September 30, 2008 represented an isolated instance of inaccurate accounting or was part of a larger pattern of discrepancies. Lt. Jones decided to review Respondent's time records for the entire month of September 2008, with the assistance of a computer expert regarding the GPS and CAD records. Lt. Jones found records from several nights in September that caused him to question whether Respondent had worked a full shift and/or whether Respondent was in his assigned patrol area. Respondent had not requested time off on any of the nights in question. Lt. Jones reported his findings to Captain Morris and Major Stephen Allen. Major Allen decided that the investigation should be turned over to the PCSO's Administrative Investigative Division (AID). Sergeant Michael Holbrook of the AID was assigned to conduct the investigation. Sgt. Holbrook broadened the temporal scope of the investigation, with findings that ultimately included dates from August 20, 2008 through November 2, 2008. In addition to reviewing the GPS and CAD records, Sgt. Holbrook conducted interviews with Respondent and other PCSO employees with knowledge of the incidents in question. Sgt. Holbrook reviewed the PCSO's in-house e-mail system, Respondent's cell phone records, the PCSO's payroll and budgeting computer records, paper attendance logs and calendar books, and data from the PCSO key card system that records every employee's entrance and exit from PCSO facilities. Sgt. Holbrook wrote an investigative report, dated November 6, 2008. The report concluded that there was a discrepancy of 23.7 hours on seven days between the time Respondent had been paid for working and the time that he was demonstrably at work. Sgt. Holbrook testified that he was not trying to "nitpick" and that Respondent was given the benefit of every doubt regarding his hours worked. Respondent was given credit from the time the computer in his patrol car was logged on until the time it was shut down.2 Sgt. Holbrook reviewed Respondent's attendance records for the days adjoining those showing discrepancies, to make sure that Respondent had not "flexed" hours on those days. Flex-time is a substitute for paid overtime. PCSO Personnel Rule 11 describes flex-time as "a scheduling method, based on operational needs of the Sheriff's Office and managed by supervisors, which allows members to take time off during normal duty hours preceding or following approved work outside of normal duty hours. Such time off will be on an hour off for hour worked basis." In other words, when a deputy has worked approved hours outside of his regular shift, he may shorten his regular shift for that day or may "flex" the time off on another day during the same pay period. Lt. Jones testified that deputies are not allowed to adjust their hours on their own. Flex-time must be approved by the commanding officer, who must ensure that there is adequate coverage for the shift in question. The investigative report found that Respondent appeared to have been paid for 3.7 hours that he did not work on August 20, 2008; 2.0 hours on September 16, 2008; 3.0 hours on September 22, 2008; 3.5 hours on September 29, 2008; 8.5 hours on September 30, 2008; 1.0 hours on October 26, 2008; and 2.0 hours on November 2, 2008. For August 20, 2008, CAD records indicated that Respondent began his shift at 1017 hours and logged out at 1633 hours.3 GPS records indicated that Respondent logged on and logged off of the system at or near his personal residence. Key card records indicated that Respondent entered the SAB at 1045 hours and at 1523 hours. Cell phone records indicated that Respondent used the phone at times from 1142 hours and 1615 hours. Sgt. Holbrook testified that he knew that the hours worked by Respondent did not coincide with his usual shift, but that he did not know whether the STAR unit had been assigned to some special detail requiring it to work odd hours. Sgt. Holbrook relied on the GPS records, which showed that Respondent worked 3.7 hours less than the ten hours for which he was paid. Respondent had no firm recollection of the events of Wednesday August 20, 2008. He recalled that he had just returned from a cruise on the previous Sunday morning when he received a phone call from Lt. Jones telling him that his STAR unit had to come in early to cover patrol sectors. Respondent was also sure that his hours had been adjusted to reflect the change in his shift, but could not speak to the specific date in question. Respondent firmly denied having knowingly made a false entry or caused a false entry to be made into an official PCSO record. On September 16, 2008, Respondent began his shift at 1616 hours.4 The CAD records showed no log-off time. GPS records indicated that Respondent started at 1616 hours and ended at 2209 hours. Respondent also attended a two-hour training class on this date, making the cumulative total of his training and working time eight hours. Respondent was paid for a full ten hour shift, leaving a two hour shortfall. Key card records indicated that Respondent entered the SAB six times between 1531 and 2004 hours. Cell phone records indicated that Respondent used the phone at times between 0916 to 2244 hours. Respondent again had no clear recollection of why his hours reflected a two hour shortfall. At about this time, he was experiencing problems with his patrol car's computer, which he believed might explain some of the discrepancy. Respondent also stated that during this period he often came into the office early to talk with members of the Criminal Investigations Division (CID) in an effort to maintain open communications between CID and his STAR unit. As with all of the other dates in question, Respondent was adamant that he did not intentionally falsify his time entries or attempt to be paid for time not worked. Respondent believed that he must have flexed the two hours on some other date, because such was the only explanation for the shortfall. For September 22, 2008, GPS records indicated that Respondent started his shift at 1326 hours and ended his shift at 2024 hours. He started and ended the shift at or near his residence. Cell phone records indicated that Respondent used the phone at times between 1332 hours and 2147 hours. Respondent was paid for ten hours worked on this date, leaving a shortfall of three hours. Respondent's shift for September 22 was changed because his STAR unit was assigned to the Belleview Biltmore hotel. Respondent's unit was assigned to work security for a campaign visit by then-candidate Barack Obama on September 23, 2008, and was engaged in a briefing detail at the site of the visit on the date in question. Respondent testified that his shift had to have been adjusted by his lieutenant, because as the sergeant he was not authorized to adjust that much time on his own. Respondent had no clear recollection to explain the shortfall in his hours, though again he insisted that he must have flexed the time because he would never intentionally cut his hours. For September 29, 2008, Respondent's CAD records indicated two log-on and log-off times. Respondent first logged on at 1031 hours and logged of at 1047 hours. He logged on again at 1730 hours and logged off at 2350 hours. Respondent was paid for ten hours, and is recorded as working for just over 6.5 hours, leaving a shortfall of roughly 3.5 hours for the shift. Respondent explained that the shortfall on September 29 was due to his having taken his patrol vehicle to Dimmitt Chevrolet in Clearwater for repairs under a recall that affected all of the Chevrolet Impalas in the PCSO fleet. Lt. Jones testified that deputies were allowed to take their cars to the dealer during their working hours, or could take the cars on their own time and then obtain flex credit for the hours, provided they did the proper paperwork or notified their superior of the schedule adjustment. Respondent took his car to the dealership at 1030 hours, which accounted for the morning log in on his CAD records. Respondent testified that it took him about an hour to take the car to the dealership, receive service, hand over the keys, and return to his home. The dealership told him to expect the car to be ready by 3:00 or 3:30 p.m. Respondent phoned Sergeant Jeffrey Esterline to ask for a ride back to the dealership at 3:00 p.m. Sgt. Esterline confirmed that he picked Respondent up at his home and dropped him off at Dimmitt Chevrolet at 3:00 p.m. on September 29. Sgt. Esterline had no idea how long Respondent waited at the dealership after he dropped him off. Respondent testified that the car was not ready when he arrived at the dealership, and that he had to wait until at least 5:00 p.m. and possibly as late as 5:30 p.m. While he waited, Respondent phoned Corporal Matthew Hilliard and asked him to convey to the commanding officer that Respondent would not make it for roll call at 5 p.m. Respondent has actually accounted for the time discrepancy on September 29, 2008, if it is accepted that he spent one hour dropping off the car and waited roughly two and one half hours to pick up the car in the afternoon. The only question as to September 29 is whether Respondent properly flexed the hours that he spent dealing with the repairs to his vehicle. The issue of flexing procedure is discussed at Findings of Fact 43-59, infra. On September 30, 2008, CAD records showed that Respondent logged on at 1440 hours and logged off at 0732 hours on October 1, 2008. The vehicle's GPS indicated that Respondent logged on at 1440 hours and logged off at 1606 hours. Respondent logged off at or near his home. Based on the GPS log, Respondent appeared to have worked for only 1.5 hours on September 30, though he was paid for a full ten hour shift. Respondent conceded that he left work early on September 30, 2008, due to a situation at home with his wife. Respondent's wife, Grace Haimes, testified that she had inadvertently overheard a phone conversation between her husband and another woman. The conversation made Mrs. Haimes extremely upset. She phoned Respondent at work to tell him she was packing a bag, taking their children and leaving him. Respondent told Cpl. Hilliard that he had to go home. Cpl. Hilliard was left in charge of the STAR unit and Respondent drove his patrol car to his residence, where he remained for the rest of his shift. Respondent testified that he had assumed that Cpl. Hilliard would take care of the "Form 30" paperwork to document his time off on that date. Respondent conceded that he did not expressly ask Cpl. Hilliard to complete the Form 30. In fact, Cpl. Hilliard did not fill out the paperwork for Respondent's time off on September 30, 2008. For October 22, 2008, GPS data showed that Respondent's patrol vehicle remained stationary at his parents' residence between 2119 hours and 2246 hours. The date and time coincided with Game One of the 2008 World Series, which featured the Tampa Bay Rays. Respondent and his mother, Judith Haimes, each testified that Respondent stopped at his parents' home during the game on October 22, 2008. Sgt. Holbrook did not include October 22, 2008 in his investigative report and did not count any work time missed on that date as part of the 23.7 cumulative hours that Respondent is alleged to have been paid without working. For October 26, 2008, CAD records indicated that Respondent logged in at 1628 hours. The GPS records from his patrol vehicle indicated that Respondent's activity ended at or near his residence at 2351 hours. Respondent submitted a Form 30 for two hours' sick leave on October 26. The two hours' sick leave plus the roughly seven hours at work equaled nine hours. Respondent was paid for ten hours' work on October 26, 2008. On October 26, Respondent's subordinates in the STAR unit had been assigned to special duty under another sergeant. Respondent was therefore designated as patrol unit "S30B," meaning that for that evening he was the road supervisor for patrol Squad Three. The squad's regular supervisor, Sergeant Michael Peasley, had been injured and was restricted to light duty in the office. Prior to the commencement of the shift, Sgt. Peasley met with Respondent. Respondent testified that Sgt. Peasley told him that his corporal would be out on the road supervising the squad and that Sgt. Peasley would be available in the office to take calls from the deputies on the road. Also, a third sergeant, Joseph Gerretz, would be working with Squad Three. According to Respondent, Sgt. Peasley told him, "We've got it covered," and that Respondent needed only to listen for pursuits or other emergency situations. Sgt. Peasley testified that he never intended to give Respondent the impression that he was not needed to supervise Squad Three. Sgt. Peasley concurred that he said he would handle administrative matters in the office and that he would be monitoring his squad, but denied telling Respondent anything that should have made him think he was relieved of his operational duties to supervise the squad in the field. In any event, on the evening of October 26, 2008, Game Four of the World Series was played. From 2004 hours until 2331 hours, Respondent's patrol vehicle was stationary at his parents' residence. Respondent admitted that he was watching the World Series game at his parents' house. Respondent testified that he stopped by to see his parents and somehow got caught up in watching the game. At all times, Respondent was monitoring his radio and would have heard if a deputy called S30B. Every ten or fifteen minutes, Respondent would walk out to his patrol car to check the computer. Respondent also had his cell phone. Respondent freely admitted that he should have been out on patrol rather than watching the game at his parents' house, but denied that he was absent without leave from his job. Respondent's mother credibly corroborated his testimony that he constantly monitored his radio and would go out to the car between innings. In fact, she found Respondent's radio irritating because it interfered with the sound from the television. Respondent was wearing his full patrol uniform and did not sit down while he watched the game. For November 2, 2008, CAD records indicated that Respondent logged in at 1626 hours and logged out at 0056 hours on November 3, showing a two hour shortfall from the ten hours for which Respondent was paid. Because Respondent was taking several days of vacation after November 2, 2008, he was required to leave his patrol car at the SAB at the close of his shift. Respondent asked his second-in-command, Cpl. Hilliard, to give him a ride home. Both Respondent and Cpl. Hilliard testified that they considered themselves on duty and supervising their unit while Cpl. Hilliard drove Respondent home at about 1 a.m.5 Both men were monitoring their radios, and their subordinates were aware that Cpl. Hilliard was taking Respondent home. Cpl. Hilliard testified that he and Respondent left no specific instructions as to who was supervising the squad while he gave Respondent a ride home. Cpl. Hilliard stated that he would have turned his car around and gone to help a deputy had there been an emergency. Respondent contended that he was entitled to flex the two hour shortfall on November 2, 2008, because he had taken some new uniform shirts to the cleaners to be altered. Sgt. Holbrook confirmed that PCSO employees may flex time for taking their uniforms for alteration, but only if they go to one of three designated cleaners. These cleaners perform the alterations at no charge to the individual employee. The PCSO pays the cleaners for the alterations. Sgt. Holbrook testified that one of the designated cleaners, Americana Cleaners, is about a mile and a half from the SAB, and another is in the northern part of the county, closer to Respondent's home. However, Respondent did not take his shirts to one of the designated cleaners. He went to Royal Cleaners, at the intersection of Alderman Road and U.S. 19, about 20 minutes from his house. Royal Cleaners is operated by Respondent's aunt, Rosalina Diana, who also does tailoring. Respondent testified that he had just been issued nine new long-sleeved shirts. A cold snap had come through Pinellas County, and Respondent wanted to wear these warm shirts as soon as possible. He had always used Americana Cleaners, though it was far from his house and closed at 5:00 p.m. On this occasion, he took the shirts to Royal Cleaners because it was more convenient and because he knew his aunt could quickly perform the alterations to the shirts. Respondent paid for the alterations out of his own pocket in the interest of saving time. If a deputy is willing to absorb the cost of alterations, its seems unfair to disallow him flex-time to take his uniforms to the cleaners of his choice, provided the location is a reasonable distance from the SAB or is on the deputy's route from home to the SAB.6 However, even if Respondent was entitled to flex the time he spent taking his shirts to Royal Cleaners, there remains the question whether he could flex the time without submitting paperwork. In each instance of a discrepancy between time paid and recorded time worked, Respondent claimed that the only possible explanation was that he flexed the differential. Even on those shifts that he could not clearly recall, Respondent was adamant that he never intentionally shorted his time and that he must have flexed the hours. The PCSO responded that Respondent could not have flexed the hours in question without creating a record and obtaining approval pursuant to PCSO Personnel Rule See Finding of Fact 10, supra. Personnel Rule 11 requires that employees performing approved work for subsequent flex-time off "will submit a Request for Overtime Compensation to a supervisor immediately after the time worked. Overtime that has been flexed must be so noted on the overtime memo. The form will be forwarded to Fiscal." Respondent did not notify his supervisors of his intention to flex hours in the situations presented by this case, and he did not submit the paperwork to document the changes to his schedule. On the following dates, Respondent simply submitted paperwork indicating that he worked a regular ten-hour shift despite the fact that records indicated he worked fewer than ten hours, and Respondent had no explanation for the discrepancy: August 20, 2008, September 16, 2008, September 22, 2008, and October 26, 2008. For September 29, 2008, Respondent accounted for the time differential through his testimony regarding the warranty repairs to his patrol car, but he did not file the required paperwork to indicate that he did anything other than work a regular ten-hour shift. For September 30, 2008, Respondent explained his 8.5 hour absence from work through his testimony regarding the emergency situation with his wife, but again allowed paperwork to be filed indicating that he worked a regular ten-hour shift. For November 2, 2008, Respondent explained the two hour differential as flex-time for having taken his shirts to be altered, but again allowed paperwork to be submitted indicating that he worked a regular ten-hour shift. Sgt. Holbrook testified that he investigated all of the days in the relevant pay periods in an effort to find documentation that Respondent had worked extra hours to balance the shortfalls, but he could find no such extra time. Respondent contended that, during the time period in question, there was no strict requirement that paperwork be filed for flex time in the STAR unit. Flexing, rather than paid overtime or comp time, has been used more extensively by the PCSO in light of the budget crises of the past few years, and Respondent testified that it was commonplace for deputies to flex time without submitting paperwork. Respondent testified that the paperwork requirement has only been enforced since the investigation into his time entries, and that throughout the PCSO, the requirement is known as the "Bobby Haimes Rule." Several current and former PCSO employees testified in support of Respondent's contention. Cpl. Hilliard testified that when he flexed hours, he told his sergeant that he was doing so but filled out no paperwork. He did not know whether the sergeant or lieutenant in charge later filled out the paperwork. Sgt. Esterline was asked whether paperwork was filled out for flexing when he worked in the Narcotics division, and answered as follows: There was a time when there was no paperwork filled out, and over the years there has been numerous incidents that have changed the way we do payroll. Usually, it's an incident that happens that causes some tightening up of the policies, but it depends on who you work for and where you work for them and what the policy was. It's been done in different places for years. Sgt. Esterline testified that Respondent's troubles had ended the practice of flexing without paperwork, and caused a new procedure to be instituted whereby deputies are required to fill out paperwork even when they take flex-time off on the same day they worked extra off-shift hours. Sergeant Nathan Samoranski, a 22-year veteran of the PCSO, testified that he had always done flexing with paperwork until he was transferred to the STAR unit in 2008. When he moved to the STAR unit, Sgt. Samoranski was told that he did not need to fill out paperwork for same-day flexing. He told the timekeeper that he would prefer to do paperwork for all flexing, and was told that he could require paperwork for the deputies under his command. John Pikramenos, who retired in 2008 after 30 years with the PCSO, was a STAR sergeant with the north county unit, though he never worked with Respondent. Mr. Pikramenos testified that throughout his career, the people who worked for him flexed without paperwork, provided they gave him notice and flexed the hours on the same day. He would do paperwork if more than an hour or two was being flexed, or if the deputy was taking flex-time off on a different day than the one on which the time flexed was worked. Sergeant Clark Wagner has been in the K9 unit for four years but worked in the same STAR unit as Respondent for the two immediately preceding years. Sgt. Wagner testified that flexing without paperwork was ubiquitous until six to eight months ago, when the directive was issued that paperwork must be done for same-day flexing. Prior to the directive, deputies would commonly flex two hours without paperwork, provided their supervisors were aware that they were flexing. Deputy Michael Smalley has spent nine years with the PCSO, two of which were in the STAR unit. Dep. Smalley testified that the STAR unit flexed without paperwork "all the time" provided the sergeant knew about it. He did not know how the time was entered in the unit's attendance book. Dep. Smalley only knew that there was no problem so long as the deputy worked a total of 40 hours for the week. Deputy Randy Ream, who has worked in the DUI and vice squads, testified that same-day flexing without paperwork stopped in the DUI squad as soon as Respondent was disciplined. Deputy James Vickers has worked in the K9 unit since January 2001 and earlier worked in the DUI squad. Dep. Vickers testified that same-day flexing without paperwork was commonplace throughout the special operations divisions of the PCSO, until the change occurred in the past year. Dep. Vickers confirmed that the change is referred to as the "Bobby Haimes Rule." All of these witnesses supported Respondent's assertion that same-day flexing without paperwork was common throughout the PCSO, despite the formal requirements of Personnel Rule 11. However, none of these witnesses testified that it was ever the practice in the PCSO for employees to flex hours without first notifying their superiors. The evidence established that, except for September 30, 2008, when he informed Cpl. Hilliard that he was going home to deal with his wife, Respondent never gave notice to a superior or acting supervisor that he was flexing the hours that he now claims to have taken. Further, Respondent's supporting witnesses also confirmed under cross-examination that no amendment was made to the PCSO's General Orders or Rules and Regulations in order to give effect to the "Bobby Haimes Rule." They understood that no amendment was necessary because the practice of same-day flexing without paperwork was never in keeping with Personnel Rule 11, and that the practice was undertaken with a wink and a nod by some sergeants, corporals and deputies in certain units of the PCSO. In his testimony before the Administrative Review Board, Respondent claimed that he was unaware that the General Orders required documentation of flex-time. The evidence clearly demonstrated that superior officers such as Lt. Jones were unaware that flexing without paperwork was happening in their commands. The "Bobby Haimes Rule" was simply the incident that caused "some tightening up" of the enforcement of the personnel rules that had always been in place. Even if Respondent's claim is credited, and it is accepted that he took flex-time for the missing hours but followed the then-common practice and failed to submit paperwork, the problem remains that there is no documentation that Respondent actually worked the extra hours that would have entitled him to take flex-time off. Lt. Jones and Sgt. Holbrook made diligent efforts to document the extra hours, but could not find them in the records. Aside from his testimony regarding the September 29, 2008, car repairs and the November 2, 2008, trip to the cleaners, Respondent could provide only speculation and vague guesses as to how he might have earned flex-time on the dates in question. General Order 3-1 establishes the standard of conduct expected of members of the PCSO. The disciplinary system is divided into five categories, from Level One to Level Five, in increasing order of seriousness. General Order 3-1.1 sets forth Level Five violations, and includes Rule and Regulation 5.14, "Conduct Unbecoming Members of the Agency," which further subsumes Rule and Regulation 5.14c, "Knowingly making a false entry or cause a false entry to be made in any official record of the agency." A preponderance of the evidence established that Respondent caused false entries to be made in official records of the agency, in that he allowed inaccurate time entries to be made and accepted the payments generated by those inaccurate entries. Respondent conceded that false entries were made, at least insofar as he failed to document the extra hours for which he claimed to have earned flex-time. The only point in question is whether Respondent "knowingly" caused false entries to be made in the PCSO's official records. The PCSO's rules do not include a special definition of the term "knowingly," which indicates intent to rely on common legal usage of this term, which entails concepts of willful or intentional action. In the context of Rule and Regulation 5.14c, it may be said that an employee "knowingly" acts when he makes a false entry with actual knowledge of the requirements of the personnel rules, or makes a false entry with deliberate ignorance or reckless disregard of the requirements of the personnel rules. In this case, Respondent claimed not to have actual knowledge that Personnel Rule 11 required documentation of flex-time. If this claim were credited, the question would then arise whether a sergeant with 19 years of experience in the PCSO could be unaware of his agency's personnel rules in the absence of deliberate ignorance or reckless disregard. Respondent's claim of ignorance is not plausible. Respondent presented evidence sufficient to establish that the practice of same-day flexing without paperwork was commonplace within certain units of the PCSO. However, the evidence also established that most employees indulging in the practice understood that they were not complying with the PCSO's rules, and that their superior officers were unaware that the rules were not being followed. Respondent was not "singled out" for punishment. He merely had the bad luck of being the first person caught casually violating Personnel Rule 11 in this fashion, which in turn triggered an agency-wide tightening of enforcement of the paperwork requirement. The totality of the evidence established that Respondent believed it was acceptable to flex without paperwork because other people did so and no punishment ever seemed to ensue, not because he believed that PCSO rules permitted the practice. The preponderance of the evidence established that Respondent knowingly caused false entries to be made in the official records of the PCSO, in violation of Rule and Regulation 5.14c. General Order 3-1.2 sets forth Level Four violations, and includes Rule and Regulation 4.9, "Improper Conduct by Members of the Agency," which further subsumes Rule and Regulation 4.9b, "Absence without leave from duty." Respondent is alleged to have violated Rule and Regulation 4.9b when he spent a portion of his October 26, 2008 shift at his parents' house watching the World Series. Respondent conceded that he watched the World Series at his parents' house while on duty, but contends that he should not be charged with the Level Four offense of being absent without leave. Respondent asserts that it would be more appropriate to charge him with a violation of Rule and Regulation 3.13, which forbids, among other things, "loafing" and "idling" while on duty. Rule and Regulation 3.13 is a Level Three violation. In his defense, Respondent noted that he was in uniform, constantly monitored his radio, and periodically went to his patrol car to check his computer while he stood and watched the baseball games. Respondent's mother credibly supported his description. As to the evening of October 26, Respondent testified that he had no one under his command and that he was needed only for pursuits or other emergencies. Sgt. Peasley, the regular supervisor of Squad Three, denied telling Respondent that he was not needed to patrol as the S30B on the night of October 26, 2008. Rule and Regulation 4.9b does not define the term "absent without leave from duty."7 However, under any common sense reading of the term, it is clear that Respondent was not present at his place of duty for approximately three and one- half hours on the night of October 26, 2008, while he watched a World Series game at his parents' house. He may also have been "loafing" or "idling" while at his parents' house, but such does not disprove that he was absent from his place on patrol as the road supervisor for Squad Three. As Chief Deputy Gualtieri admonished Respondent at the Administrative Review Board, "As long as there is a deputy on the street, you've got somebody to supervise." The preponderance of the evidence established that Respondent was absent without leave from duty, in violation of Rule and Regulation 4.9b. General Order 3-1.3 sets forth Level Three violations, and includes Rule and Regulation 3.31, "Inappropriate Conduct by Members of the Agency," which further subsumes Rule and Regulation 3.31g, the relevant portion of which includes, "Failure to properly supervise subordinates...." Respondent is alleged to have violated Rule and Regulation 3.31g when he left his squad unattended while Cpl. Hilliard drove him home on November 2, 2008, and when he spent a portion of his October 26, 2008 shift at his parents' house watching the World Series. Based on the findings of fact above, the preponderance of the evidence established that Respondent failed to properly supervise subordinates, in violation of Rule and Regulation 3.31g, on both occasions. General Order 10-2 sets forth the PCSO's disciplinary procedures, including the scale to be used in determining the amount of discipline rendered for sustained violations, based on their severity. The Progressive Discipline Worksheet prepared by the PCSO in accordance with the point scale found in General Order 10-2 assigned 50 points to the single Level Five violation sustained against Respondent, 30 points for the single sustained Level Four violation, and 15 points for the single sustained Level Three violation, for a total of 95 points. Rule and Regulation 10-2.6D provides that if the point value falls between disciplinary ranges, the lower point value is to be used in determining discipline. Respondent's total fell between 75 and 100+ points on the disciplinary range, and therefore he is subject to the range of discipline provided for a total of 75 points. The minimum discipline for 75 points is a ten day suspension. The maximum discipline is termination. General Order 10-2 also reserves to the Sheriff the right to demote a supervisor as part of the disciplinary process. The Sheriff concluded that Respondent should be demoted from the rank of sergeant to that of deputy, and that he should receive the minimum ten day suspension. The preponderance of the evidence shows that this is a reasonable penalty.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered finding that Respondent engaged in the prohibited conduct alleged by the charging document, and upholding the discipline imposed by the Sheriff as recommended by the Administrative Review Board. DONE AND ENTERED this 6th day of October, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 6th day of October, 2009.
The Issue Whether Petitioner abandoned her position and resigned from the career service.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner, Betty Pigatt, was employed by the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles (Respondent) from February 22, 1983 until January 21, 1988. Petitioner injured her lower back in an automobile accident on April 17, 1985. She was previously disabled from a work related injury and was awarded prior temporary total disability benefits. She returned to work on June 5, 1987. Her condition became progressively worse and she again ceased work on June 27, 1987. Petitioner complained of pain in her lower back going down her left leg and into her foot. She had limited ability to stand and sit, and complained of pain and limitation of motion in her neck. Petitioner was treated by Dr. Rosabal who discharged her in late July, 1987. She thereafter was treated by Dr. William Bacon, who has treated her since August 17, 1987. By letter dated September 24, 1987, Petitioner was advised by Respondent's Division Director, James H. Cox, (Cox) that her request for leave without pay was granted beginning September 2 thru November 30, 1987. She was further advised that Respondent "requested that she send a Doctor's statement to Mr. Richard Weaver, Bureau Chief of Field Operations, explaining your medical condition and an approximate date of when you will be able to return to work". (Respondent's Exhibit 1). Petitioner was aware that she was to submit a letter of explanation of her medical condition from her physician. Petitioner failed to submit such a letter. Thereafter, Petitioner requested additional leave without pay and Cox advised Petitioner as follows: Your recent letter requesting additional leave without pay cannot be given favorable consideration until you furnish Mr. Richard Weaver, Bureau Chief of Field Operations, with a statement from your Doctor explaining your medical condition and an approximate date of when you will be able to return to work. Respondent, by its Acting Regional Director, Martha A. Castro, advised Petitioner by letter dated January 21, 1988, that her request for an extension of leave without pay had been denied and she was directed to report for duty at her assigned office at 7:00 a.m., on January 13, 1988. Petitioner did not report to work as directed on either January 13, 14, or 15, 1988. Respondent advised Petitioner by letter dated January 21, 1988, of Fred O. Dickinson, III, Deputy Executive Director of the Department of Highway Safety and Motor Vehicles, that as she had not reported to work for 3 consecutive work days, in accordance with Rule 22A-7.010(2), Florida Administrative Code, she was considered to have abandoned her position and to have resigned effective immediately. Petitioner had received maximum medical improvement and was requested to return to work as of January 13, 1988. (Respondent's Exhibit 6). Petitioner was familiar with her rights and obligations as an employee and was responsible for knowing the contents of the Driver License Examiner's Manual. On page 240 of the Examiner's Manual which was in use during Petitioner's employment is the requirement that leave without pay must be authorized by the Director of the Division of Driver Licenses. Petitioner did not obtain authorized leave without pay from the Director of the Division of Driver Licenses as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Final Order be entered finding that Petitioner abandoned her position and resigned from career service, and denying Petitioner's request that she be reinstated to her position of employment. DONE and ORDERED this 17th day of October, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1163 Rulings on Petitioner's proposed factual findings: Adopted as modified, paragraph 1, R.O. Adopted as modified, paragraph 9, R.O. Adopted as modified, paragraph 4, R.O. Adopted as modified, paragraph 5, R.O. Adopted as modified, paragraph 6, R.O. Adopted, last sentence paragraph 6, R.O. Adopted as modified, paragraph 7, R.O. Adopted as modified, paragraph 8, R.O. First sentence adopted and the remainder rejected as irrelevant. COPIES FURNISHED: Suzanne G. Printy, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A432 Tallahassee, Florida 32399-0504 Betty Pigatt 1262 Northwest 172nd Terrace Miami, Florida 33169 Michael Alderman, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0555 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issues to be resolved in this proceeding concern whether the Respondent is guilty of conduct which violates certain provisions of the Emerald Coast Utilities Authority (ECUA) policy manual, amounting to "conduct unbecoming a ECUA employee" and "sexual harassment."
Findings Of Fact The Petitioner, ECUA, is an agency of local government, established pursuant to an enabling act of the Florida Legislature at Chapter 81-376, Laws of Florida, as amended. It is a "regional water supply authority" for purposes of Sections 163.01 and 373.1962, Florida Statutes (2008). It is thereby given authority to supply utility services to persons and businesses residing in a defined area in Escambia County, Florida, including the provision of water and wastewater utility service. It is authorized in that act to employ personnel to secure the provision of such utility services and to regulate the conditions and terms of their employment, their retention, their hiring, and their termination, as well as other forms of employee discipline. It has provided for such regulation of its personnel through the adoption of a "Human Resources Policy Manual" (Manual). That manual was adopted in accordance with Part III, Chapter 112, Florida Statutes. The Petitioner also has promulgated an "Employee Handbook," in evidence as ECUA Exhibit Two. Page 32 of that Handbook addresses "rules of conduct" and Rule 4 of those rules of conduct precludes an employee from engaging in "conduct unbecoming a ECUA employee." Sexual harassment is also prohibited, by Employee Handbook Rule 24, at page 32. Sexual harassment is then defined at Section A- 4, page 4 of the Human Resources Policy Manual, in evidence as ECUA Exhibit 1. Ms. Deni Deron was hired as a "Utility Worker I" beginning on June 1, 2008. Nathan Thomas, a witness in this case, was hired as a Utility Worker I on a permanent basis on June 16, 2008. He had been a temporary worker before that time. The Respondent, Emmett R. Woods, Jr. (Woods or Respondent), was the supervisor of Ms. Deron and Mr. Thomas. Both were probationary employees for six months after their hiring date. The Respondent's job title was "Lead Worker," which is a sort of foreman. He was assigned responsibility for a "camera truck," a work truck carrying a television camera projection apparatus, designed to use a television camera to observe inside waste water mains, accessible at manholes, in order to determine sources of leakage, breakage or other issues related to wastewater main repair and maintenance. Sometime in early October 2008, Ms. Deron, the complainant, was assigned to the Respondent's camera truck, to be supervised by him in the duties performed through the use of that truck. Early in her period of assignment to the truck and the company of the Respondent, probably on the first day, while they were alone in the truck, the Respondent began kissing her without her permission. This made her uncomfortable, although she did not take any particular overt action about it at the time. Later in that day, however, she told the Respondent that it had made her feel uncomfortable and that he should leave her alone and "be just friends." The Respondent behaved in a normal fashion for the next couple of days and engaged in no harassment of her. Thereafter, however, he began inappropriately touching her on one occasion or another, principally while they were riding in the work truck, on almost a daily basis. He engaged in vulgar, sexually related conversation with her. This was without her invitation, although she admittedly engaged in some of such conversation with him as well. Such talk on her part, however, was in a joking vein and was usually in a situation where several employees were together at lunch, or on occasions of that nature, when such joking conversation would begin, in which she admittedly participated. This was not the situation when the Respondent and Ms. Deron were alone in the work truck and elsewhere on the job. The Respondent engaged in inappropriate touching of Ms. Deron on a frequent basis. He touched her by unclasping her bra through her shirt, by unexpectedly running his hand beneath her shirt and grabbing her breast, and at various times grabbing her breast and crotch. All this activity was uninvited and uninitiated by Ms. Deron. She was upset by it and did not enjoy it, as her testimony shows, as corroborated by that of her co- worker, Nathan Thomas, who observed much of the conduct. Nathan Thomas, in fact, observed such conduct make her cry on a number of occasions. The Respondent alluded to his close relationship with the director of their department and intimated to both Ms. Deron and Mr. Thomas that he and the director fished together, were good friends, and that he could get them fired if he chose. Ms. Deron told Nathan Thomas about the Respondent's conduct about two weeks after they had been assigned to his truck (and he observed much of it as well). She told him that she was going to try to video his conduct when it happened again. Mr. Thomas described her demeanor as being upset and crying at the time. In fact, Ms. Deron did use her video cell phone to video some of the Respondent's inappropriate touching and conduct, both physical and verbal. This was stored on an ECUA computer and displayed to the undersigned, and all parties, at the hearing. This tends to corroborate the testimony of Ms. Deron and Nathan Thomas. Nathan Thomas, in fact, testified that he observed the Respondent touch Ms. Deron inappropriately, in one way or another, approximately every other day. Ms. Deron admitted that she did some flirting when she first came to work at ECUA. She described it as being a function of being single and was flirting mostly as a mechanism to "fit in, in an all male staff." That fact, however, does not obviate the clear import of her testimony, that of Nathan Thomas, and that of Sharon Griffin. Ms. Griffin is a Human Relations Generalist II, working in employee relations for ECUA. She does recruiting, knows Ms. Deron and helped her get hired and "processed-in" to her job. Just before Thanksgiving in November 2008, she observed Ms. Deron outside her office and had a conversation with her. She noticed Ms. Deron appeared somewhat nervous and asked her how she was getting along with an all male crew. At that point they agreed to have a private talk within Ms. Griffin's office. Ms. Deron at that point tearfully told her of the conduct of the Respondent. Ms. Deron also gave Ms. Griffin access to the video made on Ms. Deron's cell phone. The gravamen of Ms. Griffin's testimony is that Ms. Deron clearly appeared sincere and genuinely upset about the matter and this helped to convince Ms. Griffin that it was a truthful account of what had happened. Nathan Thomas, in his testimony, stated that the Respondent made him afraid for his job so he did not report what he had observed. He testified that he felt, at first, that it was not his place to report the Respondent's conduct. When he saw how upset Ms. Deron was he apologized to her for not reporting it, and realizes that he should have. The Respondent's testimony, and that of his witnesses, was to the general effect that Ms. Deron was not a "quiet person" and freely engaged in sexually suggestive joking conversation with them, and other workers, regarding sexual matters such as "penis size" and how long it had been since one had sex. The Respondent and his witnesses described Ms. Deron as being flirtatious. The Respondent, for his part, testified that "me and Deni did fool around" but the Respondent contends that it was just flirting, was not forced and was consensual. In considering the testimony of Ms. Griffin, Ms. Deron and Mr. Thomas, versus that of the Respondent and the Respondent's witnesses, it is observed that the Respondent's witnesses are his co-workers, in a relationship that pre-dates Ms. Deron's employment. Their testimony may cast Ms. Deron in a less favorable light by inferring that the activity may have been consensual. It does not establish that fact, however, and does not refute the Respondent's perpetration of the above- described conduct. They did not observe the conduct. Ms. Deron and Mr. Thomas did observe it and the manner of its occurrence is corroborated by Ms. Griffin's testimony. The testimony of Ms. Deron, Mr. Thomas, and Ms. Griffin is more germane, credible and worthy of belief and is accepted. It is thus established that the inappropriate touching and other sexually-related behavior, inflicted by the Respondent on Ms. Deron occurred in the manner described above. It was not consensual. Even if Ms. Deron attracted such behavior, or seemed to invite it, based upon being somewhat flirtatious, the behavior of the Respondent was still not appropriate and, by any measure, constitutes sexual misconduct and harassment, occurring in the course of employment. This is particularly so since the Respondent occupied a position of superior power, as the supervisor of Ms. Deron and Mr. Thomas, and in fact threatened their employment, at least implicitly, if they revealed the subject conduct. Moreover, even if the Respondent's version were somewhat true (which is not accepted), and Ms. Deron invited this conduct, and was a willing participant in it, it is still a violation of the above-referenced rules applying to ECUA employees. Engaging in such conduct, even if consensual, on the employer's truck, when attention should be paid to duties, and with all the negative circumstances that such sexually-related conduct can cause, displays extremely bad judgment on the part of the Respondent. Such a lavish display of poor judgment, even if the conduct did not amount to sexual harassment, clearly is conduct unbecoming a ECUA employee within the meaning of the Petitioner's above-referenced rule.
The Issue Whether the Petitioner was subject to an unlawful employment practice by Respondent, Emerald Coast Utilities Authority, as a result of its failure to accommodate Petitioner’s disability, in violation of section 760.10, Florida Statutes (2014).
Findings Of Fact ECUA is a local governmental body which was formed by the Florida Legislature. It provides water, wastewater (sewer), and sanitation collection services in and around defined areas of Escambia County, Florida. ECUA employs more than 15 full- time employees at any given time. Petitioner began his employment with ECUA in September 1995 as a Refuse Collector/Driver in ECUA's Sanitation Department. In 1999, Petitioner transferred to ECUA's Regional Services Department. At all times relevant hereto, he held the position of Utility Service Technician II. On or about June 28, 2012, Petitioner was given a copy of the ECUA’s revised Human Resources Manual and Employee Handbook (Manual). The Manual contains ECUA's human resource policies, including those for discipline and termination of employees. Section B-13 of the Manual establishes disciplinary guidelines, including “general examples of unacceptable employee conduct for which the employee may be disciplined up to and including termination of employment.” Section B-13 A.10. provides that “disciplinary offenses” include: 10. Failure to maintain job qualifications: Failure to maintain required licenses, certifications, or other similar requirements such that an employee is no longer qualified for a position or can no longer perform assigned duties. Section D-16 of the Manual establishes procedures for work related injuries suffered by ECUA employees. In addition to procedures for reporting and treating injuries, the Manual establishes that “[w]hen temporary, light, or unusual duties are suggested; these will be reviewed and, if available, arranged by the Human Resources Department staff, the supervisor and/or department head.” Section D-16 A.2. further provides that: Employees will return to work anytime they are medically able, up to six (6) months from the date of injury. At that point, if unable to return to work the employee must retire, resign, or be terminated. The department head, after consultation with the Human Resources Director, may extend this time based on evaluation of the employee's ability to return to work. ECUA’s Regional Services Department has 111 employees, who are responsible for the maintenance of all water and wastewater services and infrastructure for the ECUA, including, approximately, 1,200 miles of water lines; 1,000 miles of wastewater lines; 22,000 manholes; 20,000 valves; 10,000 water hydrants; and 473 air-release valves. Many of the valves are underground, often under asphalt or concrete. The ECUA position description for Utility Service Technician II (UST II) describes the requirements of the position as: having sufficient physical ability and mobility to work in a field environment; to walk, stand, and sit for prolonged periods of time; to frequently stoop, bend, kneel, crouch, crawl, climb, reach, twist, grasp, and make repetitive hand movement in the performance of daily duties; to lift, carry, push, and/or pull moderate to heavy amounts of weight; to operate assigned equipment and vehicles; and to verbally communicate to exchange information. Lifting heavy objects is a daily component of the UST II position. Items that are routinely lifted off of the job- site truck include pumps that can range from 50 to 80 pounds, 50 to 70 pound jackhammers, ductile and friction saws that weigh 50 to 60 pounds, and sections of pipe that can weigh from 25 to 100 pounds. While the pumps, saws, and other equipment can be retrieved from the bed of the truck, lengths of pipe are frequently carried on overhead racks. In addition to lifting tools and equipment from the truck, the job requires lifting 100-pound manhole covers using a hook, cutting asphalt and concrete with saws, digging to find leaks and access valves, and loosening valves that may not have been turned for decades. Manual dexterity is necessary when a utility worker is in a hole, where they may be called on to grab tools and items passed down to the UST, or get past items in the hole. Mr. Dawson testified credibly that UST work is very strenuous, involving work conditions and positions that are “not ergonomically sound,” and becomes more-so when fatigue sets in. He further testified that given the demands of the job, one cannot expect to perform while keeping his or her arms close in to their body, stating that “it’s hard to short-arm a heavy pump.” On December 18, 2013, the Petitioner incurred an on- the-job injury to his shoulder. The injury occurred while Petitioner was bearing down to loosen a valve that had become “frozen” as a result of having not been turned for a long period of time. While pulling up, he felt something “pop” in his arm. He finished up the job as well as he could. The shoulder injury was initially described as a strain or sprain. After his work injury, Petitioner was directed to Sacred Heart Medical Group to be treated. Dr. Albrecht placed initial restrictions on Petitioner to avoid stooping, kneeling, crawling, climbing, and commercial driving. He was also limited to lifting only up to 15 pounds and pushing and pulling 15 pounds. As a result of the injury, Petitioner took authorized leave under the Family Medical Leave Act (FMLA) beginning December 19, 2013. As such, Petitioner was entitled to job- protected leave for a period of twelve weeks. At that time, Petitioner became eligible for, and received, workers’ compensation benefits. In January 2014, when it became apparent that Petitioner was going to be out for an extended period, a temporary employee was hired. However, the temporary employee was insufficient to meet the workloads of the Regional Services department, requiring closer supervision, and being limited in the work that the employee could perform independently. On January 2, 2014, Petitioner was treated by his physician and was restricted from pushing, pulling, or lifting more than 15 pounds. He was to avoid climbing and commercial driving. He was also to avoid lifting more than five pounds with his right arm. His physician further opined that he was to be kept on a light-duty status and prescribed physical therapy. The diagnosis was “revised to strain of right shoulder.” On January 23, 2014, Petitioner was treated by his physician, Dr. Albrecht, who opined that conservative treatment had been maximized and a referral to orthopedic physician was made. Petitioner's restrictions remained the same, namely he was restricted from pushing, pulling, or lifting more than 15 pounds. He was to avoid climbing and commercial driving. He was also to avoid lifting more than five pounds with his right arm. Petitioner was seen on February 11, 2014, by Dr. Turnage, an orthopedic specialist. Dr. Turnage’s impression was that Petitioner had “probable labral pathology and/or partial rupture of the biceps.” Surgery was recommended. Surgery was originally scheduled for February 19, 2014, but was delayed due to a problem in the process of approving the procedure by ECUA’s third-party administrator for workers’ compensation claims. Approval was ultimately obtained, and Petitioner was scheduled for surgery on March 14, 2014. Although Petitioner’s authorized FMLA leave was exhausted on March 12, 2014, Petitioner was not terminated from employment. Petitioner presented for the scheduled surgery on March 14, 2014. As the procedure commenced, Petitioner’s blood pressure fell to a degree that the surgeon terminated and postponed the surgery so that Petitioner could be evaluated by a cardiologist to determine if he could safely undergo surgery. Petitioner passed the “cardio test,” and the surgery was rescheduled. By letter dated March 26, 2014, Petitioner was advised that, before he could be restored to employment, he would have to be able to perform the essential functions of his position, as evidenced by a “fitness-for-duty certificate.” The surgery on Petitioner’s right shoulder and bicep was finally performed on April 16, 2014. Petitioner next saw Dr. Turnage on April 29, 2014, approximately two weeks after surgery. Petitioner was, at that time, in a sling and an immobilizer. At that point, Dr. Turnage was of the opinion that Petitioner could not perform duties even at the sedentary level, and recommended that Petitioner undertake physical therapy. On April 30, 2014, the Pensacola area experienced a 200-year rain event which caused significant damage to ECUA’s water and wastewater systems. Mr. Dawson described the damage to ECUA’s infrastructure as being worse than that caused by Hurricane Ivan. Repair of the water and wastewater systems was not work that could be delayed. In addition, ECUA was implementing Department of Environmental Protection requirements for its air release valves, as well as performing routine maintenance and upgrades. Due to the Regional Service department’s extraordinary needs, Mr. Dawson determined that Petitioner’s position needed to be filled by a person who could physically perform all of the required duties. ECUA proved it was under extraordinary pressure due to the 200-year storm event of April 30, 2014, and needed “all hands on deck” who could perform the essential functions of the job. Maintaining the UST II position open for an indefinite period while waiting for Petitioner to recover from his injury, thus necessitating the continued use of a less-capable temporary employee, would have been contrary to the interests of ECUA’s customers, and an undue hardship to ECUA. At some unspecified time after his surgery, Petitioner inquired as to whether he could repair water meters as a light- duty job with ECUA. He had performed that job during a period in 2005 in which he was restricted from duty due to a work- related injury. Repairing meters is not an essential function of a UST. A meter repair technician is a separate position within ECUA, with a separate job title. Petitioner also requested that he be allowed to perform “cut-non-pay” work, which involves the termination of water service connections for non-paying customers. “Cut-non- pay” is performed by a service technician, which is a separate position within ECUA’s Customer Service department, with a separate job title. Petitioner’s inquiries regarding light-duty work were forwarded to Ms. Scruggs. Ms. Scruggs testified that she made inquiry to the Regional Services department and to the Sanitation department as to the availability of light-duty work for Petitioner, but there was none. Ms. Scruggs’ inquiries continued after the expiration of Petitioner’s FMLA leave, and up to the date of his termination, but there were no light duty opportunities within his restrictions and qualifications. Mr. Dawson also testified that the meter technician positions were fully staffed. There was no evidence to the contrary. On May 27, 2014, Dr. Turnage executed a Workers’ Compensation Uniform Medical Treatment/Status Reporting Form in which he identified Petitioner’s work restrictions as sedentary duty, with a “likely” return to duty with no restrictions six weeks hence. By letter dated June 3, 2014, Petitioner was advised by ECUA that, if he could not return to work by June 18, 2014, six months from the date of his injury, he would be terminated pursuant to sections B-13(10) and D-16 of ECUA’s employee handbook, and that ECUA had reviewed the circumstances and determined there to be “no cause for any further extension of your inactive work status.” The letter also advised Petitioner of his right to a predetermination/liberty interest hearing to contest the basis for his recommended termination, including the opportunity to “provide any documents, explanations, or comments.” On June 19, 2014, the predetermination/liberty interest hearing was held. Up to that date, ECUA had not received a medical clearance for Petitioner to return to full duty. Petitioner indicated that his physical therapy was proceeding well and he believed that he would be cleared for duty on July 15, 2014. Petitioner stated that he could get a letter to that effect from Dr. Turnage on that day, since the doctor would be in his office, and asked that ECUA hold off on its decision. Petitioner also indicated that he would go to the office of his physical therapist immediately upon the conclusion of the hearing to get a current assessment of his status. In light of Petitioner’s representation, he was given until June 20, 2014, to provide ECUA with medical clearance for work. During the predetermination hearing, Petitioner made no additional request for a light-duty assignment, nor did he ask for any form of accommodation other than the additional day to provide letters from his doctor and physical therapist. On June 20, 2014, Petitioner provided ECUA with a letter from his physical therapy provider. The letter stated that Petitioner’s shoulder was improving and that the physical therapist anticipated Petitioner could return to work as a UST “following completion of his course of physical therapy.” However, the physical therapist further stated that a medical release would ultimately be up to Dr. Turnage, and if there remained doubts regarding Petitioner’s readiness to return to work, a Functional Capacity Evaluation could be administered to identify his functional abilities. No specific dates were provided for the completion of therapy or the release for duty. Upon receipt of the additional information, which suggested that Petitioner’s ability to return to work as a UST II remained an unknown, ECUA determined that Petitioner still could not perform the essential duties of his job, either with or without accommodation. There were, at the time, no other jobs in the Regional Services department that could be performed by Petitioner, the only jobs not requiring strenuous activity being those of Mr. Dawson and his two assistants, all of which were filled. Thus, for a job in the Regional Services department, there were no reasonable accommodations for one who was unable to lift, carry, maneuver, and use heavy tools and equipment. Based on the information available at the time, the decision was made to terminate Petitioner’s employment with ECUA. On June 23, 2014, ECUA notified Petitioner that his employment with ECUA was terminated, and advised him of his right to request a formal hearing to appeal the employment action. The letter closed by stating that “[s]hould your medical condition improve, you are welcome to apply for any open position for which you are qualified and can perform the essential functions.” Petitioner’s next appointment with Dr. Turnage was scheduled for July 8, 2014. The appointment was canceled, and rescheduled for July 22, 2014. On July 22, 2014, Petitioner was released for work involving no overhead lifting of greater than 20 pounds, and with the restriction that he keeps his arms close in to his body, i.e., no extending his arms. On August 13, 2014, Petitioner was discharged from physical therapy, with the conclusion that Petitioner “[a]chieved the established therapy and RTW [return-to- work]/Functional goals.” That information was not provided to ECUA. In September 2014, Petitioner applied to ECUA for the position of lift-station mechanic assistant, a position that he became aware of through an ECUA on-line job posting. Petitioner did not meet the minimum qualifications for that position, and was therefore not hired. Based thereon, it is apparent that Petitioner was capable of accessing ECUA job opening announcements. On October 23, 2014, Petitioner was released for duty with no restrictions. That information was not provided to ECUA. From October 2014 to February 2015, at least five UST positions became available. Petitioner did not apply for any of those openings. Between October 23, 2014, and January 1, 2015, ECUA hired thirty to forty sanitation truck drivers, positions for which Petitioner was qualified. Petitioner did not apply for any of those openings. Petitioner did not perceive himself as disabled, and never complained to anyone at ECUA that he was disabled. He did not assert a disability at his predetermination hearing. Petitioner did not report that he believed he was being discriminated against, on the basis of his disability or otherwise, to his supervisor, to Mr. Dawson, or to anyone in the Human Resources department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Emerald Coast Utilities Authority, did not commit an unlawful employment practice in its actions towards Petitioner, Roderick Billups, and dismissing the Petition for Relief filed in FCHR No. 2014- 01582. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 19th day of June, 2015. COPIES FURNISHED: Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Bradley S. Odom, Esquire Odom and Barlow, P.A. 1800 North E Street Pensacola, Florida 32501 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
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
Findings Of Fact Petitioner graduated from a technical high school in Massachusetts and studied electricity at the Wentworth and Coyne Institutes. He served a three year apprenticeship and subsequently obtained the Massachusetts journeyman and master electrician licenses. He entered the electrical contracting business in 1960 and thereafter engaged in commercial, industrial, and residential electrical contracting work in Massachusetts. All projects were completed without default. Petitioner moved to Florida one year ago intending to set up an electrical contracting business here. However, Respondent denied his application for licensure by endorsement and he has deferred his business plans until the licensing issue is resolved.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Robert F. Toscano for licensure as an electrical contractor by endorsement be denied. DONE AND ENTERED this day of March, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6 day of March, 1981. COPIES FURNISHED: Susan Tully, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Mr. Robert F. Toscano Post Office Box 1563 Belleview, Florida 32620
The Issue The issue in this case is whether the termination of Respondent was in accordance with the personnel policy and procedures established by Emerald Coast Utility 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. On September 25, 2006, Respondent was employed by Petitioner as a lead service worker. At the time, Respondent was given a copy of the employee handbook and the Drug Free Work Place Program notice. Receipt of both documents was acknowledged by Respondent. Until the time of the incident described in this order, Respondent was considered an excellent employee with high potential for advancement. The handbook is a summary of Petitioner’s human resource policies. Specific human resource policies are contained in Petitioner’s Human Resource Policy Manual. The Human Resource Policy Manual states, in relevant part, as follows: * * * Section F-4 Disciplinary Offenses (29) Use of or Being Under the Influence of any Controlled Substance as Defined in Section 893.03, Florida Statutes or Federal regulation, Not Pursuant to Lawful Prescription While on Duty; or Possession, Sale, ‘Illegal drug’ means any controlled substance as defined in Section 893.03, Florida Statutes or Federal regulation, which is not possessed, sold, distributed, or dispensed in accordance with law. * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes . . . . Chapter G Drug and Alcohol Abuse Policy It is a condition of employment with the Escambia County Utilities Authority for an employee to refrain from reporting to work or working with the presence of drugs and alcohol in his or her body. If an employee tests positive for alcohol or drugs, his or her employment may be terminated . . . Section G-2 Definitions B. ‘Drug abuse’ means the use of any controlled substance as defined in Section 893.03, Florida Statutes, as amended from time to time, not pursuant to lawful prescription. The term ‘drug abuse’ also includes the commission of any act prohibited by Chapter 893.03, Florida Statutes, as amended from time to time. The use of illegal drugs, or being under the influence of illegal drugs on the job, by ECUA employees is strictly prohibited. Section G-5 Rehabilitative/Corrective Action B. Any employee found to have possessed, used or been under the influence of illegal drugs or alcohol while on duty shall be subject to disciplinary action, up to and including dismissal . . . . E. Any employee who tests positive for alcohol or who tests positive for illegal drugs on a confirmation test shall be subject to disciplinary action, up to and including dismissal . . . . On August 14, 2009, Respondent was driving an ECUA vehicle while performing his job duties for Petitioner. Respondent did not see a low-hanging tree branch and struck the branch with the vehicle, causing minor damage to the vehicle. Respondent contacted his supervisor to report the accident. Respondent’s supervisor met Respondent at the accident site. He did not observe any behavior by Respondent that would indicate he was under the influence of any substance. However, because a vehicle accident had occurred, Respondent was required by ECUA policy to undergo a urine test for drugs and alcohol. That day, Respondent reported to LabCorp, ECUA’s occupational testing services company. LabCorp is a licensed facility under state and federal law to obtain urine samples for drug-testing purposes. Respondent was seen by a LabCorp technician who was well-qualified to obtain and process urine samples. The technician checked Respondent’s identification and had him empty his pockets prior to the test. The technician gave Respondent a sample cup, with a temperature strip on it. The temperature strip helps ensure that the liquid in the cup is close to body temperature indicating the liquid is urine and has not been adulterated. Respondent took both cups in the bathroom and urinated in them. Respondent returned the sample to the technician. In the presence of Respondent, the technician checked the temperature of the sample, which was normal. The technician then split the sample into to two test tubes, sealed each tube, labeled them and had Respondent initial each tube. The technician recorded her activity in processing the sample on a custody and control form which Respondent then signed, acknowledging the sample-taking process. Again in the presence of Respondent, both the custody and control form and the two samples were placed in a sample bag which was sealed with an evidence sticker and placed in a locked specimen box for transport to a licensed testing facility in North Carolina. There was no evidence that appropriate procedures were not followed by LabCorp in processing Respondent’s urine sample. Respondent’s sample arrived at LabCorp’s testing facility at Triangle Park in North Carolina on August 17, 2009. Sample A was used for initial testing and Sample B was frozen to preserve it for later testing if required. The sample was tracked through the test process by number and the name of Respondent is not known to the technician performing the tests. The first test performed on Respondent’s sample A was an immunoassay test. The sample was initially tested with a cut-off level of 15 nanograms per milliliter. The cut-off level is used to limit the possibility of a positive result due to secondhand exposure. Respondent’s sample tested positive for Cannabis. Since the sample was positive, it was sent for gas chromatography/mass spectrometry (GCMS) confirmation testing. GCMS tests for the presence of THC, the exact metabolite of marijuana. Respondent’s sample produced a positive result for THC. The results were reported to ECUA’s medical review officer and to ECUA. Upon learning of the positive test results, Respondent requested that the second sample be tested by another lab. The sample was sent to another LabCorp testing facility in Houston, Texas. Unfortunately, the second sample tested positive for marijuana. Respondent had no explanation for the positive test results and testified that he had not used marijuana for some 15 years. However, no credible evidence was produced at hearing that demonstrated the samples were adulterated, mixed up or improperly tested. Given these facts, Petitioner has established that Respondent tested positive for marijuana and that such results violate its drug policy.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utility Authority find that Respondent violated its Human Resource Policies F-4 (29) and (33) and impose such discipline on Respondent as determined appropriate. DONE AND ENTERED this 27th day of May, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 27th day of May, 2010. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Terrance D. Peace 5748 Juergen Way Milton, Florida 32570 Richard C. Anderson, SPHR Director of Human Resources & Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514
