10-010591 Emerald Coast Utilities Authority vs. Michael J. Edler Status: Closed Recommended Order on Monday, March 21, 2011.

Summary: The evidence showed a violation of policy for use of derogatory term "boy" in a short verbal altercation. Insubordination was not shown because Respondent is partially hearing impaired and did not hear supervisor's instructions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST )

UTILITIES AUTHORITY , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10591

)

MICHAEL EDLER , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuan t to notice, a formal he aring was conducted in this

matter before Diane Cleavinger, Administrative Law Judge with

the Division of Administrative Hearings, on February 14, 2011,

in Pensacola, Florida.

APPEARANCES

For Petitioner: John E. Griffin, Esquire

Carson & Adkins

2930 Wellington Circle, North

Suite 201

Tallahassee, Florida 32309

For Respondent: Ryan Barnett, Esquire

Whibbs & Stone

801 Romana Street , Unit C

Pensacola , Florida 3250 2

STATEMENT OF THE ISSUE

The is sue in this case is whether Respondent has violated

the pers onnel policy established by Emerald Coast Utilities

Authority .

PRELIMINARY STATEMENT

By letter dated October 19, 2010, Resp ondent, Michael

Edler, was advised that his supervisor recommended termination

of his employment with Petitioner , Emerald Coast Utilities

Authority (ECUA or Petitioner ), for alleged violations of the

ECUA personnel policy. Specifically, the letter alleged that

Respondent violated ECUA policy Section F - 4(4), Conduct

Unbecoming an Employee , and Section F - 4(28) , Threatening and/ or

Abusive Language, when he allegedly engaged in a verbal

altercation with a coworker in the sanitation d epartment's

cafeteria. The letter also advised Respondent of his right to a

predetermination/liberty interest hearing.

On November 3, 2010, a predetermination/ liberty interest

hearing was held in ECUAÓs Board Room. Respondent participated

in the hearing.

By certified letter da ted December 3, 20 10 , Respondent was

notified that his employment with Petitioner was terminate d .

The letter stated that ECUAÓs action was based on ECUA Human

R elations Policy Manual, Section F - 4( 4 ) C onduct U nbecoming an

E mployee , Section F - 4( 16) Insubord ination, and Section F - 4(28)

Threatening and/ or Abusive Language . The letter further advised

Respondent of his right to appeal PetitionerÓs employment action

and request a formal hearing before an Administrative Law Judge

with the Division of Administrati ve Hearings (DOAH).

By letter dated December 5 , 20 10 , Respondent timely filed a

request for heari ng. The case was forwarded to the Division of

Administrative Hearings .

At the hearing, Petitioner presented the testimony of five

witnesses and offered ei ght e xhibits into evidence. Respondent

testified o n his own behalf and offered one e xhibit into

evidence .

FINDINGS OF FACT

1. ECUA w as created in 1981 pursuant to c hapter 81 - 376,

Laws of Florida. By law, it provides utility services

throughout Escambia County, Florida.

2. 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 .

3. The handbook is a summary of PetitionerÓs hum an

resource policies. Specific human resource policies are

contained in PetitionerÓs Human Resource s Poli cy Manual . The

manual is available to all employees . Both documents provide

for the discipline of employees. T he Human Resource s P olicy

Manual, sta te s 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 affect s 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 inc ludes 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 condu ct 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,

b ut 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 th e 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 insubordinati on

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 Languag e

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.

4 . On November 19, 2010, Respondent arrived at work around

5:00 a.m. He entered the sanitati on departmentÓs cafeteria.

T he department's time clock is located in the cafeteria . At the

time, the c afeteria was noisy with a number of employees in the

room.

5. Another depart ment co - worker who knew Respondent ,

Ronnie Prim, was clocking in at the time clock. Both Mr. Prim

and Respondent are black.

6. 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 empl oyees

were involved in other things, there were no independent

witnesses to the entire interaction between Mr. Prim and

Respondent. Likewi se, there were no independent witnesses to

the entire conversation between the two men. The entire

incident lasted about 5 minutes.

7 . After clocking in, Mr. Prim turned and saw Respondent

and said good morning. Respondent did not respond to Mr. Pr imÓs

greeting.

8 . Mr. Prim responded with words like ÐWhat? You are not

going to talk to me?Ñ Respondent denies becoming angry.

However, all of the independent witnesses to the incident and

the better evidence demonstrate d that Respondent became ang ry

and indicated to Mr. Prim that he shoul d not talk to him . He

called Mr. Prim "boy." O ther witness testimony differed on the

number of times that Respondent called Mr. Prim "boy. " However,

the better evidence was that t he reference was made at least t wo

to three times by Respondent .

9. Respondent testified that he did not intend the word

ÐboyÑ 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/ o r Abusive

Language .

10 . 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, t he evidence was not clear whe ther

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 disagree d on what was said and the meanin g

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, t he overall seriousness of the incident

was moder ately low given the short duration of the incident and

the fact that only a few derogatory words were involved .

11 . Respondent's supervisor overheard the term 'boy' and

saw that the "conversation was not good." From about 10 to 15

feet away, h e in structed 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 instruction s . Indeed, the better

evidence was that Respondent d id not hear his supervisor's

instruction s since Respondent has significantly impaired hearing

and poor word recognition in his right ear. Additionally,

another co worker, wh o was at a table approximately five feet

away , could only hear pieces of the conver sation between

Respondent and Mr. Prim. Given that Respondent did not hear his

supervisor's instruction a nd 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 insubordinatio n

12 . 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 Section s F - 4(4), (7) and (16) of the ECUA Human

Resour ce Policy Manual. The only similarity between the April

offense and the present offense was the use of different

derogatory terms.

CONCLUSIONS OF LAW

13 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the partie s to this

proceeding. See Administrative Law Judge Services Contract

effective March 3, 2006 ; § 120.65(7), Fla. Stat. (20 1 0) .

14 . As set forth above, ECUA relied on Section F - 4(4),

C onduct U nbecoming an E mployee, Section F - 4(16 ),

I nsubordination, and Section F - 4 (28), Threatening and/or Abusive

Language contained in the ECUA Human Resource Policy Manual .

15 . Additionally, Chapter F of the ECUA Human Resource

Policy Manual provides for progressive and cumulative

discipline, and reads in pertinent par t:

Section F - 1 Progressive and Cumulative

Discipline

In determining the severity of the

discipline to be applied, the supervisor

should take into account the following

variables:

(a) The seriousness of the offense.

(b) The circumstances surrounding t he

offense.

(c) The effect of the employee's actions on

the ECUA's operations and ability to carry

out its responsibilities, and on other

employees.

(d) The overall work record of the

employee.

(e) If the offense is not a first offense

for the employ ee, the length of time since

earlier disciplinary actions, the similarity

or dissimilarity of offenses, and the

severity of earlier offenses shall be

considered.

(f) Other factors may be considered as

appropriate.

Progressive discipline is based on the idea

that once employees have been informed of

the performance and behavior e x pected of

them, discipline will generally be

administer e d progressively from minor to

major penalties. However, the seriousness

of the offense or the cumulative nature of

the of fense in light of the employee's

disciplinary history may warrant more severe

discipline eliminating progressive

discipline as an option.

For example, major disciplinary infractions,

because of their serious nature, may warrant

suspension or dismissal on the first

occurrence even though the employee has no

prior record for discipline. . . .

16 . ECUA has the burden of proof by a preponderance of the

evidence. See p aragraph 7(j), contract between ECUA and DOAH.

17 . In this case, the evidence did not d emonstrate that

Respondent violated Section F - 4 (16) (insubordination).

Respondent was hearing impaired and did not hear his

supervisor's instructions. He , therefore , was unaware of any

direct instructions given by his supervisor to him .

18. However, the evidence did demonstrate that Respondent

violated Section F - 4(4) (conduct unbecoming an ECUA employee)

and Section F - 4(28) (threatening or abusive language) when he

engaged in a verbal argument with Mr. Prim and derogatorily

referred to him as "boy" se veral times during that argument.

19 . Finally, Respondent did not demonstrate that

Respondent escalated or threatened Mr. Prim when he suggested

that the matter could be settled elsewhere. There was conflict

in the evidence about what was said and it is debatable whether

the statement made by Respondent was a threat or an

escalation/de - escalation of the argument. In fact, the argument

was of short duration. Thus, Respondent should be found guilty

of two violations of the ECUA Human Resources Policy Man ual

arising out of one incident and discipline should be imposed

according to ECUA policies .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

Recommended that the Executive Direc tor of the Emerald

Coast Utili ties Authority find that Respondent violated its

H uman Resource P olicies 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 Ma rch , 20 1 1 , 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 , 201 1 .

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 S turdevant Street

Pensacola, Florida 32514

Steve Sorrell, Executive Director

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

NOTICE OF RIGHT TO SUBMIT WRITTEN ARGUMENT

Pursuant to Paragraph 7(m) of the contract betwee n ECUA and

DOAH, a ll parties have the right to submit written argument

within 10 days of the issuance of this Recommended Order with

the Executive Director of the ECUA as to any appropriate penalty

to be imposed. The Executive Director will then determine the

appropriate level of discipline to be imposed upon the

Respondent.