10-010839 Emerald Coast Utilities Authority vs. Willie R. Leigh Status: Closed Recommended Order on Friday, April 22, 2011.

Summary: Evidence demonstrated Respondent violated ECUA policy on annual leave multiple times.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES ) )

AUTHORITY, )

)

Petitioner, )

vs. ) Case No. 10-10839

)

WILLIE R. LEIGH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

matter before Diane Cleavinger, Administrative Law Judge with

the Division of Administrative Hearings, on March 1, 2011, in

Pensacola, Florida.

APPEARANCES

For Petitioner: John E. Griffin, Esquire

Carson & Adkins

2930 Wellington Circle, North

Suite 201

Tallahassee, Florida 32309

For Respondent: Willie R. Leigh, pro se

2101 Scenic Highway, Apartment C108

Pensacola, Florida 32503

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent has violated

the personnel policy established by Emerald Coast Utilities

Authority.

PRELIMINARY STATEMENT

By letter dated November 30, 2010, Respondent, Willie R.

Leigh (Respondent), was advised that his supervisor recommended

a three-day suspension without pay 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(33), violation of ECUA Rules or

Policies, or State or Federal Law, when he failed to coordinate

with his supervisor and follow the procedure for obtaining

annual leave from work. The letter also advised Respondent of

his right to a predetermination/liberty interest hearing.

On December 6, 2010, a predetermination/liberty interest

hearing was held at ECUA. Respondent participated in the

hearing.

By certified letter dated December 9, 2010, Respondent was

notified that his employment with Petitioner was suspended for

three days without pay. The letter stated that ECUA’s action

was based on ECUA Human Resources Policy Manual, section F-

4(33). The letter further advised Respondent of his right to

appeal Petitioner’s employment action and request a formal

hearing before an administrative law judge with the Division of

Administrative Hearings (DOAH).

By letter dated December 17, 2010, Respondent timely filed

a request for hearing. The case was forwarded to the Division

of Administrative Hearings.

At the hearing, Petitioner presented the testimony of three

witnesses and offered 13 exhibits into evidence. Respondent

testified on his own behalf and offered three exhibits into

evidence.

FINDINGS OF FACT

1. ECUA was created in 1981 pursuant to chapter 81-376,

Laws of Florida. By law, it provides utility services

throughout Escambia County, Florida.

2. 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.

3. 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 . . . .

4. 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.

5. 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.

6. 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.

7. 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. 8 . 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.

9. 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.

10. 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.

11. 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.

12. 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.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. See Administrative Law Judge Services Contract

effective March 3, 2006; § 120.65(7), Fla. Stat. (2010).

14. As set forth above, ECUA relied on section F-4(33),

contained in the ECUA Human Resources Policy Manual. Section F-

4(33) imposes discipline on an employee for violations of ECUA

policies or directives.

15. Additionally, chapter F of the ECUA Human Resources

Policy Manual provides for progressive and cumulative

discipline, and reads in pertinent part:

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 the

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 employee, 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 expected of

them, discipline will generally be

administered progressively from minor to

major penalties. However, the seriousness

of the offense or the cumulative nature of

the offense in light of the employee's

disciplinary history may warrant more severe

discipline eliminating progressive

discipline as an option.normal

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

paragraph 7(j), contract between ECUA and DOAH.

17. In this case, the evidence demonstrated that

Respondent violated section F-4(33), on multiple occasions,

including November 23, 2010.

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

[phone]

Fax Filing [phone]

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

NOTICE OF RIGHT TO SUBMIT WRITTEN ARGUMENT

Pursuant Po paragraph 7(m) of the contract between ECUA and

DOAH, all 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.