04-002398 City Of Safety Harbor vs. Christopher Alexander Status: Closed Recommended Order on Friday, November 5, 2004.

Summary: Petitioner had just cause to terminate Respondent for violating four of Petitioner`s rules within 18 months.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF SAFETY HARBOR, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2398

)

CHRISTOPHER ALEXANDER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notic e, a final hearing was held in this case

on October 5, 2004, in Safety Harbor, Florida, before Susan B.

Kirkland, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Alan S. Zimmet, Esquire

Zimmet, Unice, Salzman,

Heyman & Jardine, P.A.

Post Office Box 15309

Clearwater, Florida 33766

For Respondent: No appearance.

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate Respondent.

PRELIMINARY STATEMENT

By letter dated June 14, 2004, Petitioner, City of Safety

Harbor (City), advised Respondent, Christopher Alexander

(Alexander), that his employment with the City was terminated

effect ive June 14, 2004, for having four or more violations of

the City's Code of Conduct in less than 18 months. Alexander

appealed his termination, and the case was referred to the

Division of Administrative Hearings to conduct a final hearing.

The case was originally assigned to Administrative Law Judge

William F. Quattlebaum, and was reassigned to Administrative Law

Judge Susan B. Kirkland to conduct the final hearing.

Alexander was provided written notice of the final hearing

scheduled for October 5, 2004, commencing at 9:30 a.m.

Alexander failed to appear at the scheduled time. The

undersigned delayed the commencement of the final hearing for

30 minutes to provide Alexander an opportunity to appear. He

failed to appear for the final hearing and failed t o contact the

Division of Administrative Hearings concerning his failure to

appear.

At the final hearing, the City called Grover Clyde Smith

and William Charles Cropsey as its witnesses. Petitioner's

Exhibits 1 through 8 were admitted in evidence.

No tran script of the hearing was filed. The City filed its

proposed recommended order on October 7, 2004. Alexander did

not file a proposed recommended order.

FINDINGS OF FACT

1. The City is a municipality located in Pinellas County,

Florida.

2. Alexander w as hired by the City on October 7, 2002, as

a Service Worker in the Sanitation Division of the Public Works

Department. He was a backup sanitation driver, working on

residential collection routes.

3. Grover Smith (Smith), the City's Sanitation Supervis or,

supervises 17 employees, including Alexander. He is responsible

for the daily operations of the collection of solid waste by the

City's Sanitation Division. Smith has worked for the City as a

sanitation supervisor for five years and was employed in t he

City's Sanitation Department for 17 years prior to becoming a

supervisor. His work experience includes driving a sanitation

truck and being a crew leader in the Sanitation Division.

4. As an employee of the City, Alexander was subject to

the City's Code of Conduct, which lists different groups of

offenses for which City employees may be disciplined. The

City's Code of conduct lists the following offense as a Group I

offense:

Tardiness, as defined as reporting late

for work, overextending breaks o r meal

periods within one year of the first

occurrence. Occurrences of tardiness shall

only be considered for a year in applying

progressive discipline. When determining

the proper discipline go back only one year

from the most recent occurrence and foll ow

the progression of discipline as indicated.

(Guide for determining tardiness: three

times in any thirty (30) calendar day

period, or six (6) times in any ninety (90)

calendar day period or a continuous pattern

of tardiness.

5. From May 12, 2003, thr ough June 6, 2003, Alexander was

tardy to work four times. On June 10, 2003, Smith issued a

verbal warning to Alexander for his tardiness.

6. During November 2003, Alexander was tardy ten times.

Smith issued Alexander a written warning on November 26, 2 003,

for his tardiness. Alexander was warned that any further

violations would result in progressive disciplinary action up to

and including termination.

7. The City's Code of Conduct provides that "[f]ailure to

immediately report an accident or injury i n which the employee

is involved in while on the job" is a Group II offense for which

a City employee may be disciplined. On December 9, 2003,

Alexander struck a pine tree in a trailer park while driving a

sanitation truck. Alexander did not immediately report the

accident.

8. Smith learned of the accident from another employee on

December 9, 2003. Smith questioned Alexander the same day about

the accident, and Alexander denied hitting the tree. The next

day Smith investigated the incident and found e vidence that a

pine tree in the trailer park had been struck and that there

were remnants of the pine tree on the bumper of the right side

of the sanitation truck that Alexander had been driving.

9. Smith again questioned Alexander, who continued to deny

that he hit the tree. Only after two other employees who had

been working with Alexander on the day of the accident admitted

that the truck had struck the tree did Alexander admit that he

had hit the pine tree. On December 16, 2003, Smith issued

Alexande r a written warning for failing to immediately report

the accident.

10. From February 27, 2004, through March 22, 2004,

Alexander was tardy four times. Alexander received a two - day

suspension for this offense, which was in accordance with the

guidelines of the City's Code of Conduct which provides for a

one to three - day suspension for a third Group I offense.

11. The City's Code of Conduct provides that "[n]eglect or

carelessness which results in a preventable accident" is a

Group I offense for which a C ity employee may be disciplined.

On May 20, 2004, Alexander, while driving a City sanitation

truck, made a left turn and failed to swing wide enough,

striking a series of mailboxes. The following day Alexander had

another accident when he was backing a C ity sanitation truck

down the street in a mobile home park and struck an awning on a

mobile home. Both of these accidents occurred on the driver's

side of the vehicle and could have been avoided if Alexander had

been paying attention.

12. The City's Code of Conduct provides that a City

employee may be discharged for a Group IV offense, which

includes the following:

Chronic offender of the Code of Conduct.

(Guide: four (4) violations of any

departmental or City rule or regulation in

an eighteen (18) m onth period which results

in a Verbal Warning or other disciplinary

action (effective upon adoption of the

revised Personnel Rules).

13. Smith recommended to Kurt Peters (Peters), the

Director of Public Works for the City, that Alexander be

suspended for five days. Peters consulted the City's Personnel

Director, Bill Cropsey (Cropsey). Cropsey determined that

Alexander was a chronic offender and could be discharged.

14. On June 9, 2004, Cropsey sent Alexander a letter

advising him that he was in violat ion of the City's Code of

Conduct as a chronic offender of the Code of Conduct and that a

pre - disciplinary hearing was scheduled for June 14, 2004.

Alexander was placed on administrative leave with pay, pending

the pre - disciplinary hearing.

15. The pre - d isciplinary hearing was held on June 14,

2004, at which time Cropsey and Peters determined that Alexander

should be discharged as a chronic offender. By letter dated

June 14, 2004, Cropsey advised Alexander that he was terminated

from his employment with the City.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 1, Rule 4, City of Safety Harbor

Resolution 91 - 01 (February 19, 1991).

17. Alexan der is a chronic offender pursuant to the City's

Code of Conduct. From May 12, 2003, to May 21, 2004, he

committed a Group I offense for his tardiness from May 12, 2003,

through June 6, 2003; a Group I offense for his tardiness during

the month of Novembe r 2003; a Group II offense for failing to

immediately report his accident on December 9, 2003; a Group I

offense for his tardiness from February 27, 2004, through

March 22, 2004; and a Group I offense for neglect that resulted

in two accidents on May 20 an d 21, 2004. Alexander was

disciplined for his offenses relating to tardiness and for his

failing to immediately report an accident.

18. Alexander was disciplined in accordance with the

City's Code of Conduct and was afforded a pre - disciplinary

hearing.

1 9. The City's Code of Conduct provides that discharge is

the penalty for a chronic offender. The City had just cause to

discharge Alexander.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final o rder be entered terminating

Christopher Alexander's employment with the City.

DONE AND ENTERED this 5th day of November, 2004, in

Tallahassee, Leon County, Florida.

S

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th d ay of November, 2004.

COPIES FURNISHED :

Christopher T. Alexander

6324 150th Avenue, North

Clearwater, Florida 33760

Alan S. Zimmet, Esquire

Zimmet, Unice, Salzman,

Heyman & Jardine, P.A.

Post Office Box 15309

Clearwater, Florida 33766

Jeff Bronso n, Chairman

Personnel Review Board

City of Safety Harbor

750 Main Street

Safety Harbor, Florida 34695