The Issue The issue in this case is whether Respondent has violated the personnel policy established by 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. Respondent was hired by Petitioner as a utility service worker. Currently, Respondent works on the “manhole truck” on the 7:00 a.m. to 3:30 p.m. shift. At some point in time, Respondent was given a copy of the employee handbook. The handbook is a summary of Petitioner’s human resources policies. Specific human resources policies are contained in Petitioner’s Human Resources Policy Manual. The manual is available to all employees; both documents provide for the discipline of employees. The Human Resources Policy Manual states as follows: SECTION F-4 DISCIPLINARY OFFENSES * * * (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 . . . . ECUA has a policy that annual leave must be requested in advance and coordinated with an employee’s supervisor. The reason for the requirement is to ensure that a sufficient number of employees are present to perform necessary and ongoing maintenance repairs on ECUA’s sewage and water system. Such coordination is especially important during holiday time periods, such as Thanksgiving and Christmas. In particular, the utility wastewater service department requires employees seeking annual leave to put their request in the computer, fill out a leave request slip, discuss the request with the supervisor, and post the request on the board in the supervisor’s office. These requirements were verbally given to all wastewater utility employees by their supervisor Doug Gibson beginning about five years ago. Since that time, employees, including Respondent, were periodically reminded of these requirements during the time periods when many employees seek time off, such as major holidays and hunting season. Indeed, the evidence was clear that Respondent knew about these requirements since he had been personally counseled and/or reprimanded for not following them on April 26, 2010; May 12, 2010; June 25, 2010, and July 21, 2010. Around mid-November 2010, Mr. Gibson met with his employees, including Respondent, to remind them of the leave requirements and the necessity to schedule such leave in advance since many employees wanted the same time off during the upcoming holidays and hunting season. His goal was to develop a list of employees who wanted time off so that required utility work during that time period could be maintained. On November 17, 2010, Mr. Gibson again met with his employees, including Respondent, to advise them that this was the last chance to schedule annual leave during the holiday period and that no further leave would be granted unless there was an “extreme” emergency. At that time, Respondent did not request any time off. On November 22, 2010, Respondent worked his regular shift. He did not mention that he wanted to take November 23 off and did not fill out a leave request slip or follow any of the other procedures for such leave. In particular, he did not discuss such leave with his supervisor. On November 23, 2010, Respondent arrived at work before his supervisor and filled out a leave slip requesting annual leave for that day. Respondent intentionally dated the slip for November 22, 2010, to make it appear that he had filled it out the day before. He placed the slip in his supervisor’s box and left work. When his supervisor arrived at work, he found the leave slip and denied Respondent’s request for annual leave. On November 24, 2010, Respondent was questioned by his supervisor about the request. Respondent told his supervisor that he had a doctor’s appointment on November 23, 2010. Respondent did not indicate that the appointment was unanticipated or for an emergency. Respondent did indicate that he should have requested a different type of leave for the doctor’s appointment. Additionally, later in this disciplinary process, Respondent indicated the doctor’s appointment was not his, but was for his girlfriend who had some sort of dental problem on November 23. There was no evidence that the girlfriend’s dental problem was an emergency or one that she could not handle herself. In fact, the only evidence regarding a medical appointment attended by Respondent reflected an appointment after 3:00 p.m. on November 23rd, close to the end of Respondent’s regular shift. Such evidence indicates that Respondent did not have a medical emergency on November 23rd. Additionally, Respondent’s basis for missing work is not credible, given Respondent’s changing story about his absence from work on November 23 and/or whether such absence was due to an emergency medical issue for either himself or his girlfriend. On November 30, 2010, Respondent again did not follow ECUA policy for requesting leave. On that day, Respondent left a leave slip in his supervisor’s box asking for one hour of leave at the end of his shift. He did not discuss the leave with his supervisor. Respondent returned to the ECUA office about an hour before the end of his shift because he thought it was not a problem to ask for time off without following procedure. Respondent’s supervisor advised him his request was denied and instructed Respondent to “get back on the truck” and finish his shift.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utilities Authority find that Respondent violated its human resources policy F-4(33), and impose such discipline on Respondent as determined appropriate under the provisions of the Human Resources Policy Manual. DONE AND ENTERED this 22nd day of April, 2011, 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 22nd day of April, 2011. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Willie Leigh 2101 Scenic Highway, Apartment C108 Pensacola, Florida 32503 Richard C. Anderson, Director Human Resources and 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
The Issue Whether Respondents committed the offenses set forth in the Administrative Complaint and, if they did, the penalties, if any, which should be imposed.
Findings Of Fact On May 15, 1989, Petitioner filed an Order to Cease and Desist, Administrative Charges and Complaint with Notice of Rights against several parties including the following Respondents to the instant proceeding: Habersheir Securities, Inc. (Habersheir); Raymond Hayden (Hayden); Sharieff Mustakeem (Mustakeem); and Frank J. Hurt, III (Hurt). By Order Imposing Sanctions entered November 30, 1989, a default pursuant to Rule 1.380(b)(2)(C), Florida Rules of Civil Procedure, was entered against Habersheir, Hayden, and Mustakeem. No appearance was made by Habersheir, Hayden, or Mustakeem at the formal hearing, although Notice of Hearing was served upon them. Habersheir is a corporation whose main office in Atlanta, Georgia, has been registered with Petitioner as a broker/dealer since June 22, 1987. The Florida branch office of Haersheir was located at 100 West Cypress Creek Road, Suite 810, Fort Lauderdale, Florida 33309. The branch office was registered with Petitioner on September 29, 1988. At all times pertinent hereto, Mustakeem was the president of Habersheir and the majority owner of its stock, while Hayden was a vice- president of Habersheir. At the time of the final hearing, neither Mustakeem nor Hayden was registered with Petitioner. At all times pertinent hereto, Hurt was qualified for registration with Petitioner as a principal. Hurt's registration with Petitioner had not, prior to the filing of this matter, been disciplined. The application submitted by Habersheir to Petitioner on September 7, 1988, listed Hurt as the "Designated Manager in Charge Registered as Principal in Florida". Form BD is a form required by Petitioner in the application process. On Schedule E of the Form BD filed by Habersheir on November 14, 1988, Hurt is listed as the "Supervisor" of the Florida Branch. Hurt's name and his registration with Petitioner as a principal were used in connection with the registration of the Florida Habersheir branch to gain a favorable review of the application by Petitioner. Such use was without compensation to Hurt, but was with his knowledge and permission. Hurt was a salesman who had been employed by Habersheir for a short period of time when the application for the Florida branch office was filed. He was not an officer of Habersheir and had no managerial authority. At no time did Hurt intend to serve the Florida branch office of Habersheir in any capacity and at no time did he have any authority to supervise or otherwise manage that office. Representatives of Habersheir transacted business in Florida between September 7, 1988 and September 28, 1988, prior to Habersheir's branch office being registered in Florida with Petitioner on September 29, 1988. Associated persons working for Habersheir sold securities in or from the branch office in Fort Lauderdale, Florida prior to the associated persons being registered with the Petitioner. Habersheir's branch office in Fort Lauderdale, Florida, failed to maintain records and make available for Petitioner's inspection its cash receipt and disbursement blotter, securities received and delivery blotter, order tickets, and customer confirmations on all transactions as required by Section 517.121, Florida Statutes, and by Rule 3E-600.014(4), Florida Administrative Code. Habersheir also failed to maintain copies of its associated persons files as required by Rule 3E- 600.0014 (5)(a), Florida Administrative Code. At all times pertinent to this proceeding, Habersheir was a member of the National Association of Securities Dealers (NASD). Between November 7, 1988, and November 30, 1988, Habersheir's authority to transact business was suspended by NASD. Habersheir failed to notify its Fort Lauderdale, Florida, branch office of its suspension by NASD. Consequently, business was transacted by that branch office while Haersheir's authority to transact business was suspended by NASD.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that the State of Florida, Department of Banking and Finance, Division of Securities, enter a final order which: Revokes all registrations presently held by Habersheir Securities, Inc., and which assesses an administrative fine against Habersheir Securities, Inc. in the amount of $10,000.00 for its violations of Sections 517.12(5), and 517.121(1), Florida Statutes; and Which dismisses the administrative complaint against Sharieff Mustakeem, Raymond Hayden, and Frank J. Hurt, III. DONE AND ENTERED this 27th day of February, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-3886 The following rulings are made on the findings of fact submitted by Petitioner: The proposed findings of fact In paragraphs 1-10 are adopted in material part by the Recommended Order. The proposed findings of fact In paragraph 11 are adopted in part by paragraph 1 of the Recommended Order, and are rejected in part as being unnecessary to the findings made. COPIES FURNISHED: Randall L. Rubin, Esquire Assistant General Counsel Office of Comptroller 401 N.W. 2nd Avenue Suite N-708 Miami, Florida 33128 Oliver Lee, Esquire Troutman, Sanders, Lockerman & Ashmore Candler Building, Suite 1400 127 Peachtree Street, N.E. Atlanta, Georgia 30303-1810 Frank J. Hurt, III 6666 Powers Ferry Road Suite 202 Atlanta, Georgia 30339 Preston Spears 91 Farmington Drive Woodstock, Georgia 30188 Rahim Davoudpour 1972 Benthill Drive Marietta, Georgia 33062 Honorable Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking and Finance The Capitol Plaza Level, Rm. 1302 Tallahassee, Florida 32399-0350 =================================================================
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. Approximately 20 years ago, Respondent was hired by Petitioner as a sanitation equipment operator. At some point in time, Respondent was given a copy of the employee handbook. The handbook is a summary of Petitioner’s human resource policies. Specific human resource policies are contained in Petitioner’s Human Resources Policy Manual. The manual is available to all employees. Both documents provide for the discipline of employees. The Human Resources Policy Manual, states as follows: Section F-4 Disciplinary Offenses * * * (4) Conduct Unbecoming an ECUA Employee Any act or activity on the job or connected with the job which involves moral turpitude, or any conduct, whether on or off the job, that adversely affects the employee's effectiveness as an ECUA employee, or that adversely affects the employee's ability to continue to perform their job, or which adversely affects the ECUA's ability to carry out its assigned mission. Conduct unbecoming an ECUA employee includes any conduct which adversely affects the morale or efficiency of the ECUA, or any conduct which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the provision of ECUA services. The seriousness of the conduct which constitutes a "conduct unbecoming an ECUA employee" offense determines the appropriate penalty. Further, the repetition of the same or similar conduct may lead to progressive discipline. If an employee repeatedly engages in conduct unbecoming, but the acts or conduct which are unbecoming are dissimilar to each other, cumulative discipline may be imposed. * * * (16) Insubordination An employee's unwillingness or deliberate refusal to comply with a direct order, directive, or instruction of the immediate or higher-level supervisor whether in writing or orally communicated. Insubordination also includes an expressed refusal to obey a proper order, as well as, willful or direct failure to do an assigned job or follow orders. Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. Insubordination is a serious offense. (28) Threatening and/or Abusive Language The use of language which is threatening or abusive, whether directed toward a supervisor, other employees, or the public. Includes offensive language, whether or not directed toward anyone in particular and regardless of intent. On November 19, 2010, Respondent arrived at work around 5:00 a.m. He entered the sanitation department’s cafeteria. The department's time clock is located in the cafeteria. At the time, the cafeteria was noisy with a number of employees in the room. Another department co-worker who knew Respondent, Ronnie Prim, was clocking in at the time clock. Both Mr. Prim and Respondent are black. Respondent said hello to his supervisor and got in line to clock in behind Mr. Prim. The supervisor's desk was located about 10 to 15 feet away from the area of the time clock. Notably, because of the noise and the fact that other employees were involved in other things, there were no independent witnesses to the entire interaction between Mr. Prim and Respondent. Likewise, there were no independent witnesses to the entire conversation between the two men. The entire incident lasted about 5 minutes. After clocking in, Mr. Prim turned and saw Respondent and said good morning. Respondent did not respond to Mr. Prim’s greeting. Mr. Prim responded with words like “What? You are not going to talk to me?” Respondent denies becoming angry. However, all of the independent witnesses to the incident and the better evidence demonstrated that Respondent became angry and indicated to Mr. Prim that he should not talk to him. He called Mr. Prim "boy." Other witness testimony differed on the number of times that Respondent called Mr. Prim "boy." However, the better evidence was that the reference was made at least two to three times by Respondent. Respondent testified that he did not intend the word “boy” to be offensive. However, use of the term "boy" towards a black man is generally considered offensive. In fact, Mr. Prim was insulted at being called "boy" and became angry at the reference and Respondent's attitude. Given these facts, Respondent is guilty of using offensive language towards a co- worker in violation of Section F-4(4), Conduct Unbecoming an Employee and Section F-4(28), Threatening and/or Abusive Language. Thereafter, Respondent indicated to Mr. Prim that "they could settle this in the street" or "we can handle (settle) this after work." Shortly afterwards, Respondent left the cafeteria. However, the evidence was not clear whether Respondent was escalating the argument or was trying to calm the situation down by his statement. Respondent's testimony was that he was trying to calm the situation down and walk away. Independent witnesses disagreed on what was said and the meaning of the statement. Given the conflict and the short duration of the incident, the evidence did not demonstrate that Respondent escalated the incident with Mr. Prim before he left the cafeteria. Moreover, the overall seriousness of the incident was moderately low given the short duration of the incident and the fact that only a few derogatory words were involved. Respondent's supervisor overheard the term 'boy' and saw that the "conversation was not good." From about 10 to 15 feet away, he instructed Respondent to "go on to work." During the incident, the supervisor instructed Respondent to "go to work" about 3 times. Respondent gave no indication that he heard his supervisor's instructions. Indeed, the better evidence was that Respondent did not hear his supervisor's instructions since Respondent has significantly impaired hearing and poor word recognition in his right ear. Additionally, another coworker, who was at a table approximately five feet away, could only hear pieces of the conversation between Respondent and Mr. Prim. Given that Respondent did not hear his supervisor's instruction and was therefore unaware of that instruction, he did not fail or refuse to follow a direct order of his supervisor and is not guilty of insubordination As an employee, Respondent received a written reprimand on April 22, 2010. The reprimand was for his use of profanity and refusal to follow a direct order of his supervisor in violation of Sections F-4(4), (7) and (16) of the ECUA Human Resource Policy Manual. The only similarity between the April offense and the present offense was the use of different derogatory terms.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utilities Authority find that Respondent violated its Human Resource Policies F-4(4) and (28), and impose such discipline on Respondent as determined appropriate under the provisions of the Human Resource Policy Manual. DONE AND ENTERED this 21st day of March, 2011, 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 21st day of March, 2011. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Michael J. Edler 801 West Baars Street Pensacola, Florida 32501 Ryan Barnett, Esquire Whibbs & Stone 801 Romana Street, Unit C Pensacola, Florida 32502 Richard C. Anderson, Director Human Resources and 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
The Issue Whether Petitioner was wrongfully terminated from his position at the City because of his physical handicap, diabetes, in violation of Section 760.10(1(a), Florida Statutes. Whether Petitioner could be reasonably accommodated to perform the essential functions of his duties as an Engineer I position with the City Sewer Department.
Findings Of Fact Petitioner is a 40 year old male. Petitioner was diagnosed with Diabetes Mellitus in 1979. This is a Type I Classification of diabetes which required that Petitioner must take insulin from its onset. Petitioner is further classified as a "brittle" diabetic, which is a type that is difficult to control. Additionally, Petitioner has hypothyroidism (underactive thyroid) and an adrenal insufficiency. This combination is rare. Petitioner is a handicapped person. Petitioner worked steadily at a variety of jobs in the engineering construction field from 1979 to the time he was hired by the City of Tampa on December 12, 1990. Petitioner's diabetic condition did not place any restrictions on his ability to fulfill his job responsibilities at any of his places of employment between 1979 and December 12, 1990. Petitioner was hired by the City of Tampa, an employer, as an Engineer Tech 2 on December 12, 1990. As an Engineer Tech 2, Petitioner was responsible for monitoring the electrical and instrumentation construction at a sanitary sewage treatment plant, and for sewage pumping stations throughout the city. He was essentially an inspector. Prior to accepting employment with the City, Petitioner talked with his prospective supervisors, Jack Kulik and Jeff Taylor, about his diabetic condition. During the period Petitioner was employed as an Engineer Tech 2, he had some insulin reactions on the job in the office. Those reactions were caused by a lowering of Petitioner's blood sugar level. When these reactions occurred, office personnel would assist Petitioner by encouraging him to eat a food product containing sugar. The episodes would take 15-30 minutes to subside. During the period Petitioner was employed as an Engineer Tech 2, he drove a City car alone while at work, and drove his personal car to and from work. When at a construction site, Petitioner went near high voltage panels, into manholes, and also into open pits with open wells on a regular basis. The supervisor, Jack Kulik, did not have any concerns about Petitioner's ability to drive a car. Petitioner received a good performance evaluation for his work as an Engineer Tech 2 on June 12, 1990. He was rated as either "Excellent" or "Fully meets Expectations" in all 13 rating categories. Petitioner's diabetes did not prevent him from performing the essential functions of his job. Petitioner was promoted to an Engineer I position in August 1990. From August 1990 through early February 1991, Petitioner worked half- days at the Hookers Point facility, and then commuted to downtown Tampa to work a half-day. The Engineer I position was primarily an office job, with 80% of the responsibilities in-office and 20% at various job sites. During the period between August 1990 and February 1991, Petitioner had several insulin reactions in the office of the Engineer I position. His new supervisor Korchak did not recognize the symptoms of Petitioner's reaction. He characterized Petitioner as being "asleep" on the job on three occasions, and was impaired on numerous other occasions. Due to his physical handicap, Korchak lost confidence in Petitioner's ability as an engineer. Petitioner ate food to counteract the reactions, which took 20 to 30 minutes to subside. In August 1990, shortly after Petitioner was promoted to an Engineer I position, he was involved in an automobile accident, while driving his personal car. The accident resulted from a diabetic reaction. When he was able, Petitioner called his supervisor, Mr. Korchak, and reported the accident. Mr. Korchak relayed the information about the accident to Andy Cronberg, a deputy director, second in command of the department, who was in an office adjacent to Mr. Korchak when he received the call from Petitioner. Mr. Cronberg made a decision, at that moment, in August 1990, based solely on his conversation with Mr. Korchak, to revoke petitioner's privilege to drive a City car. The decision to revoke Petitioner's driving privileges was made in accordance with a general policy of the City, and not on individualized analysis of Petitioner's condition. The decision to restrict Petitioner's driving privileges was not communicated to Petitioner until a performance review on February 8, 1991. In addition, during this same period, Korchek began tailoring and limiting Petitioner's position to in-office functions only, based on what Korchek believed Petitioner could accomplish safely, and downgraded his evaluation when he rated him on his performance review. Prior to the implementation of the decision to restrict Petitioner's driving privileges on February 8, 1991, the City's representatives did not speak to Petitioner about his driving abilities; they did not speak or consult in any way with Petitioner's doctors; nor did they speak with Petitioner's previous supervisor with the City, Jack Kulik. The first contact the City had with Petitioner's doctor was a response to a questionnaire sent to Dr. Sumesh Chandra and, received by the City on February 27, 1991, wherein Dr. Chandra indicated that Petitioner could safely and effectively operate an automobile. The City's representative Mr. Rice indicated that Dr. Chandra's response raised more questions than it answered, and the City did not restore Petitioner's driving privileges. Neither Mr. Rice, nor any other City employee ever consulted with Dr. Chandra to clear up the confusion they had over Dr. Chandra's statement that Petitioner could safely and effectively drive a car. Petitioner is licensed to drive by the State of Florida. His license has never been revoked, either in Florida or any other state. Dr. Chandra stated that, in his opinion, Petitioner could safely and effectively operate an automobile because, "He's capable, dexterous, and coordinated. He's like any normal individual except that he is unfortunately diabetic. So for routine capacity his skills are like any other normal individual." Twenty percent of the Engineer I position required travel to various job sites. Because Petitioner was not allowed to drive an automobile on city time, and was restricted in in-office functions while performing his Engineer I position, he was not able to fulfill the essential functions of the Engineer I position. Following a request by Phil Rice of the Sewer Department, the City received a letter from Dr. Jai H. Cho, a physician on May 15, 1991, that Petitioner had seen for a short period of time. Dr. Cho's letter indicated, among other things, ". . . it is inevitable, that he will develop hypoglycemia with loss of consciousness in the future because of his concurrent illness with diabetes and adrenal insufficiency." Dr. Cho never specifically addressed the issue of whether Petitioner could safely drive an automobile or work alone at job sites, either in writing or in phone conversations with Mr. Rice. No City representatives ever discussed Petitioner's ability to drive a car or work alone on a job site with Petitioner, Dr. Chandra, Dr. Cho, Petitioner's previous supervisors with the City, or Petitioner's previous supervisors with other employers. On May 20, 1991, the City terminated Petitioner's employment. Petitioner was informed of his termination by Mr. Korchak, Mr. Hoel, and Mr. Rice. Mr. Rice told Petitioner that the reason for the termination was the City's concern about its potential liability. Following his termination, Petitioner was unemployed for nine months. Petitioner was then hired in September, 1992, by Omega Tech in Hardee County, Florida, to work at the Hardee Power Station, performing the same duties as he performed as an Engineer Tech 2 for the City of Tampa. Petitioner commutes the 68 miles each way from Tampa to Hardee County every day in his own car. At the Hardee Power Plant, Petitioner is exposed to the same conditions to which he was exposed while working for the City of Tampa. During the 13 years since Petitioner was diagnosed with diabetes, he has never injured any other person as a result of his diabetes, nor received any serious injury to himself. At the present time, the position of Engineer I with the City of Tampa has been eliminated, and has been replaced by a person holding a contractors license. If Petitioner had remained employed with the City of Tampa, he would have earned $36,294.44 from the period June 20, 1991, through September 18, 1992, exclusive of health benefits.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A Final Order be entered that Petitioner was discriminated against on the basis of his handicap when his employment was terminated; The Petitioner receive back pay and health benefits in accordance with applicable law; and The Petitioner be awarded the attorney's fees and costs incurred as a result of this action. DONE and ENTERED this 28th day of December, 1992, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39(in part), 40, 41, 42, 43 Rejected as against the greater weight of evidence: paragraph 15, 39 (Petitioners was hired by Omega Tech) Rejected as hearsay: paragraph 33 Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1,2,3,4,5,6,7,10,11(in part), 12,13,14(in part),15,17,18,19,20(in part),22(in part),23,25,26,30,31 Rejected as irrelevant or immaterial or argument: paragraphs 8,9,11(in part),14(in part), 20(Petitioner's written comment),21,24(in part),27,28,29 Rejected as hearsay: paragraphs 16,22(in part),24(in part) COPIES FURNISHED: Mark Herdman, Esquire KELLY, McKEE, HERDMAN & RAMUS, P.A. 1724 E. Seventh Avenue Tampa, Florida 323605 Margaret A. Jones, Clerk Commission On Human Relations 325 John Knox Rd. Building F Suite 240 Tallahassee, Florida 32303-4113 Mr. Kenneth C. Perry City of Tampa 306 East Jackson Street 7N Tampa, Florida 33602 Dana Baird, Esquire Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
The Issue The issue in this case is whether Respondent has failed to comply with the personnel policy established by 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. In 1995, Respondent was hired by Petitioner as a utility service technician II. The position involved skilled work of average to considerable difficulty in the installation, maintenance, and repair of water and waste service lines. The job also required a significantly strong person with sufficient strength, fitness and mobility to work in a field environment involving all types of weather and temperature conditions and with slippery, uneven or rough surfaces and terrain. Additionally, the job required a person who could walk, stand, and sit for prolonged periods of time; frequently stoop, bend, kneel, crouch, crawl, climb, reach, twist, grasp, and make repetitive hand movements; and lift, carry, push, and/or pull moderate to heavy amounts of weight, which could exceed 50 pounds. Finally, the job required a person to be able to drive commercial vehicles and maintain a commercial driver's license. Around June 28, 2012, Respondent was given a copy of the ECUA’s revised Human Resources Manual and Employee Handbook. The manual is a publication containing all of Petitioner's human resource policies, including discipline and termination of employees. The manual states, in pertinent part, as follows: B-13(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. * * * B-13(33) – Violation of ECUA rules or guidelines or state or federal law. The failure to abide by ECUA rules, guidelines, directive, or state or federal statutes. * * * D-16 A.2. - Leave * * * 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. On December 18, 2013, while repairing an ECUA line, something snapped in Respondent’s right arm which caused him severe pain in that arm to the extent he could not lift it or perform his job duties. That same day, Respondent reported the injury to ECUA and saw Dr. Bruce Albrecht, M.D., at Sacred Heart Medical Group. Dr. Albrecht initially diagnosed Respondent with a strain of the right shoulder and released Respondent to return to work with light duty conditions, including no lifting, pushing or pulling over 15 pounds with both arms (5 pounds with the right arm), no stooping, kneeling, climbing or crawling, and no commercial driving. Such conditions prevented Respondent from performing the essential requirements of his job. As a result of the injury, Respondent took authorized leave beginning December 19, 2013, and continued to be followed by medical staff over the next several months. He also received physical therapy for his shoulder and arm. Around January 23, 2014, Dr. Albrecht recommended that Respondent be seen by an orthopedic specialist. By that time, Respondent’s diagnosis included rupture of the right biceps tendon. Ultimately, after evaluation by an orthopedic specialist and some unspecified delay due to the approval process used by ECUA’s workers’ compensation coordinator, Respondent was referred to an orthopedic surgeon and scheduled for surgery on March 14, 2014. The surgery was to reconstruct Mr. Billups’s shoulder by performing a biceps tenodesis and revision acromioplasty, as well as debriding a torn labrum (cartilage rim of the shoulder socket). Biceps tenodesis is a procedure that removes part of the biceps tendon and cuts the normal attachment of the biceps tendon on the labrum of the shoulder socket. After detachment, the biceps tendon is reattached to the arm bone, thereby removing the pressure of the biceps attachment off of the shoulder socket labrum. Revision acromioplasty is a surgical reshaping of the acromion, the bone which forms the point of the shoulder blade that covers the shoulder joint. As indicated, Respondent’s surgery was scheduled for March 14, 2014. However, that surgery was delayed due to cardiovascular concerns over Respondent’s ability to undergo surgery. Ultimately, Respondent had surgery on his right shoulder and bicep on April 16, 2014. After the surgery, Respondent’s physician, Dr. Kirby Turnage, M.D., prescribed physical therapy to build up strength and increase range of motion in his shoulder and arm. Additionally, Respondent was not released by his doctor to return to work even at a sedentary level. By May 27, 2014, slightly more than five months after Respondent went on leave, he was released to work but only at a sedentary or light duty level. Respondent’s physician indicated that it would be at least six (6) weeks before Respondent could possibly return to work without restrictions. At the time, ECUA did not have any light duty jobs that Respondent could perform and it was unlikely that such jobs would be available in the future given the nature of the work performed by ECUA and the department in which Respondent was employed. During Respondent’s leave, the Pensacola area experienced a 100-year rain event which placed significant pressure on ECUA’s wastewater system creating a backlog of repairs and wastewater compliance requirements placed on ECUA by the Florida Department of Environmental Protection. At some point, temporary employees were assigned to help in the work Respondent’s section had to perform. However, the temporary employees were insufficient to meet the work loads of that section and a fully trained utility service technician was needed in the department. Due to the utility service department’s needs, Respondent’s supervisor determined that Respondent’s position needed to be filled by a person who could physically perform all of the duties the position required. On June 3, 2014, Respondent’s supervisor advised Respondent that, if he could not return to work by June 18, 2014, six months from the date of his injury, he would be terminated under sections B-13(10), B-13(33) and D-16 of ECUA’s employee handbook. The letter also scheduled a predetermination hearing for June 19, 2014, to provide Respondent the opportunity to demonstrate that he was released for work or demonstrate circumstances for extending Respondent’s inactive work status beyond the six months permitted in the employee handbook. The predetermination hearing was held on June 19, with Respondent in attendance. Up to that date, ECUA had not received a medical clearance for Respondent to return to full duty. Respondent indicated that his physical therapy was proceeding well and he felt that he would be cleared to return to work very soon. In light of Respondent’s representation, he was given until June 20, 2014, to provide medical clearance for work to ECUA. On June 20, Respondent provided a letter from Sacred Heart Occupational Health Strategies, his physical therapy provider. The letter stated that Respondent’s shoulder was improving and that the physical therapist anticipated Respondent could possibly return to work without restrictions following completion of such therapy. However, the physical therapist further stated that a medical release to full duty from Dr. Turnage was required before such return to work. However, his next appointment with Dr. Turnage was not scheduled until July 8, 2014, more than seven months after the date of Respondent’s injury. Further, the evidence did not demonstrate that Respondent was medically cleared by Dr. Turnage to perform full work duties without restriction at the July appointment. Notably, the evidence showed that Respondent was not discharged from physical therapy until August 13, 2014, almost eight months after his injury. These facts demonstrate that Respondent could not perform the essential requirements of his job after six months of inactive status. Additionally, the evidence did not demonstrate a reasonable basis to extend Respondent’s inactive work status beyond the six months already provided. Such inability to perform his work duties caused Respondent not to comply with sections B-13(10), B-13(33) and D-16.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Respondent could not return to work within six months from the date of his injury, did not comply with ECUA’s human resources policy B-13(10), B-13(33) and D-16, and impose such action as determined appropriate under the provisions of the Human Resources Manual and Employee Handbook. DONE AND ENTERED this 27th day of October, 2014, 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 October, 2014. COPIES FURNISHED: Roderick E. Billups 6613 Black Oak Place Pensacola, Florida 32526 Cynthia S. Sutherland Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311 John Edmund Griffin, Esquire Carson and Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 (eServed) Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
The Issue Whether Respondent violated provisions of Petitioner’s Human Resources Manual and Employee Handbook (Manual) on February 28, 2019, as charged in the agency action letter dated March 18, 2019.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove, and suspend its employees, and fix their compensation. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost- effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. Mr. Packer acknowledged on April 14, 2009, that a copy of the Manual was available to him. During all times relevant to the instant case, Mr. Packer was employed as a sanitation equipment operator assigned to one of ECUA’s commercial sanitation routes. Although Mr. Packer had been employed for several years as a residential sanitation worker (crane operator), he had been assigned to a commercial route for only two weeks and was still in training at the time the mishap occurred. The events giving rise to the proposed disciplinary action are not in dispute. As described by Mr. Packer in his written statement of March 5, 2019, in the pre-dawn hours of February 28, 2019, he “drove into establishment (to) pick up a can. Attempted to back up-slightly turned my wheel to the left. The ground gave way due to the weight of the vehicle. The ground was saturated due to rain.” According to Kenneth Vinson, the sanitation equipment operator who was accompanying Mr. Packer on the morning of the mishap, conditions at the site were “early morning dark, some fog, time about 5:15 a.m.” Mr. Vinson accompanied Mr. Packer on the morning of February 28, 2019, in order to familiarize Mr. Packer with the route. This was only the second time that Mr. Packer had been to the Custom Specialties (Custom) location, and the first occasion on which he was the driver of the sanitation truck. On the first occasion, Mr. Packer opened the entrance gate (and remained there) and observed the process while Mr. Vinson drove straight in, dumped the container, and backed out through the gate. When the mishap occurred, Mr. Packer had “no knowledge of a soft spot in the ground that could cause a problem.” Photographs were taken of the sanitation truck and the surrounding environs at the time it was stuck at the Custom location. Several of the photographs show an indentation in the ground, surrounded by three landscape timbers in a “U” formation. There are no signs indicating that a septic tank was buried at this location, or that soft ground presented a driving hazard. ECUA vehicles are only permitted to access dumpsters on commercial properties on routes authorized by the business owners. However, nobody told Mr. Vinson (or Mr. Packer) that the sanitation truck was not authorized to take the route of egress attempted by Mr. Packer at the time of the incident; nor did the owner notify Mr. Vinson or Mr. Packer that the landscape timbers surrounded a septic tank which must be avoided. While training Mr. Packer on the commercial route, Mr. Vinson never told Mr. Packer that he must enter and leave all properties in the same manner that Mr. Vinson had. Indeed, when Mr. Vinson was first assigned to the route, he taught himself how to drive it and was not trained on the route by another driver. The daily route that Mr. Packer was being trained to service consisted of 120 stops, which took between eight to ten hours to complete. When asked why he tried to turn the truck around to leave, rather than back out, Mr. Packer testified that the route to back out of the property was at least 70 feet, and with the fog and darkness it would have been difficult to successfully back out of the property. Rather, in Mr. Packer’s judgment, it would have been much safer to turn around and drive the truck forward off the property. Mr. Packer believed there was adequate space to turn the truck around on the property in order to drive straight out. Some of the commercial properties serviced by ECUA sanitation trucks do involve turning the truck around after servicing the dumpster, and then driving straight out. Mr. Packer further testified that his goal is to drive the ECUA trucks as safely as possible, and that he felt he was using due care when attempting to leave the Custom site. Following the mishap, Mr. Packer later returned to the Custom location and met with the boss, Roy Reyes. Mr. Reyes informed Mr. Packer that the landscape timbers were not surrounding a septic tank, but rather sunken ground due to rain. Mr. Reyes advised that the septic tank was located elsewhere on the property. ECUA sanitation truck drivers are awarded quarterly bonuses when they are accident/incident-free during the quarter, and therefore deemed to be “safe drivers.” In addition to the one-day suspension without pay, Mr. Packer was also denied his quarterly bonus, of approximately $600.00, as a result of the mishap on February 28, 2019. The preponderance of the evidence demonstrates that Mr. Packer is not guilty of the offenses he has been charged with. Although it is unfortunate that Truck 32G got stuck in a mud bog on the morning of February 28, 2019, the mishap did not occur due to the negligence of Mr. Packer, or due to violation of safety practices or applicable rules or law. Rather, a series of unfortunate events led to the mishap, including: the property owner not adequately marking the hazard and informing ECUA that the hazard existed; poor visibility; Mr. Packer not being advised that he was not authorized to deviate from the route shown him by Mr. Vinson; and this being the first time Mr. Packer had actually driven the truck onto the property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Robert L. Packer did not commit any of the violations set forth in ECUA’s discipline letter of March 18, 2019. DONE AND ENTERED this 19th day of July, 2019, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 July, 2019.
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
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Based on an Administrative Complaint filed on July 6, 1979, the Florida Construction Industry Licensing Board (herein sometimes referred to as the Petitioner or the Board) seeks to take disciplinary action against Licensee Richard E. Ulbricht, d/b/a Ulbricht Construction, Inc., and to impose an administrative fine or $500.00. Respondent is a registered contractor who holds the following licenses: RG 0011921 - Registered General/Active/Issued RGA 0011921 - Registered General/Active/Issued RG OB 11921 - Registered General/Delinquent RM 0014920 - Registered Mechanical/Active/Issued RM 0017586 - Registered Mechanical/Delinquent RS 0019201 - Registered Sheet Metal/Active/Issued RC 0019264 - Registered Roofing/Active/Issued Respondent was first licensed by the Petitioner during February, 1972. On June 14, 1977, Respondent qualified Ulbricht Construction, Inc., as the business entity through which he would conduct his contracting business. The construction activities involved herein took place in the City of Palm Bay, Florida. Palm Bay has no local licensing board. On June 12, 1978, Respondent entered into a contract with Michael D. and Karen K. McCammack to construct a residence for the sum of $39,900.00. Respondent received the full contracted price and the transaction closed on January 4, 1979. Chelsea Title and Guaranty Company closed the transaction for Respondent and the McCammacks on January 4, 1979. Camille Guilbeau is the manager for the Palm Bay branch of Chelsea Title and Guaranty Company. Ms. Guilbeau is in charge of all closing and as such ensures that all outstanding obligations of record are paid. In keeping with Chelsea's policy of protecting itself in the event of outstanding unrecorded claims of liens, Chelsea has a policy of requiring contractors and builders such as Respondent to declare in an affidavit that there is no outstanding work which has been performed, or labor or materials for which a lien could be filed on property in which Chelsea is closing the mortgage transaction. Respondent executed such an affidavit relative to the McCammacks' property, which Chelsea relied on to close the transaction on January 4, 1979 (Petitioner's Exhibit 4). On January 4, 1979, Chelsea Title and Guaranty Company paid Rinker Materials Corporation of Melbourne, Florida, $1,201.02 based on a claim of liens filed December 15, 1978, for materials consisting of concrete block, steel and miscellaneous items which were used on the McCammack property (Petitioner's Exhibit 6). Subsequent to the date of closing, January 4, 1979, liens amounting to approximately $2,761.62 have been filed against the McCammack property based on Respondent's failure to pay bills for labor and/or materials used in connection with the construction of the McCammacks' residence. These lien claims were filed against the McCammacks' property for a drilled well, installation of a pump and tank by Perry and Leighty, Inc., of Melbourne, Florida; two septic tanks, drains and sand supplied by Pence South Brevard Sewer and Septic Tank of Melbourne, Florida (Petitioner's Exhibits 7, 8 and 9). On December 22, 1978, Respondent entered into a contract with Robert J. Greene to construct a residence for $30,500.00 in Palm Bay, Florida. Respondent filed an affidavit of no liens relative to the Greene property on January 10, 1979. Chelsea Title and Guaranty Company relied on this affidavit to close the Greene property transaction on January 10, 1979 (Petitioner's Exhibit 5). Respondent was paid thee entire contract price. On February 12, 1979, Pence South Brevard Sewer and Septic Tank filed a claim of lien in the amount of $1,015.36 for two septic tanks, drains and sand which had been furnished the Respondent for the property of Robert J. and Alice Greene of Palm Bay, Florida, on December 15, 1978 (Petitioner's Exhibits 10 and 11). Approximately $3,496.40 was retained by Chelsea Title and Guaranty Company to satisfy outstanding recorded obligations on the date the Greene transaction closed (Petitioner's Exhibit 13). On February 21, 1979, Respondent caused to be filed in the United States District Court of the Middle District of Florida, a Voluntary Petition for Bankruptcy for Ulbricht Construction, Inc. (Petitioner's Exhibit 2 Composite).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's contractors licenses set forth hereinabove be REVOKED. RECOMMENDED this 6th day of May, 1980, 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 6th day of May, 1980.
