13-001549 Alisha Fessel vs. City Of Cape Coral
 Status: Closed
DOAH Final Order on Friday, September 13, 2013.


View Dockets  
Summary: Respondent had just cause to terminate Petitioner's employment.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ALISHA FESSEL,

10Petitioner,

11vs. Case No. 13-1549

15CITY OF CAPE CORAL,

19Respondent.

20/

21Pursuant to the agreement of the parties, no formal hearing

31was held in this case. Rather, the parties submitted the case FINAL ORDER

44for decision by Administrative Law Judge Lynne A. Quimby-Pennock

53based on a Stipulated Record filed on August 22, 2013, and

64submitted proposed final orders.

68APPEARANCES

69For Petitioner: Richard Siwica, Esquire

74Egan, Lev and Siwica, P.A.

79231 East Colonial Drive

83Orlando, Florida 32801

86For Respondent: Gail G. Roberts, Esquire

92City of Cape Coral

961015 Cultural Park Boulevard

100Cape Coral, Florida 33990

104STATEMENT OF THE ISSUE

108The issue in this case is whether the discipline imposed on

119Petitioner, Alisha Fessel, by Respondent, City of Cape Coral (the

"129City"), was appropriate.

133PRELIMINARY STATEMENT

135This case is conducted by the Division of Administrative

144Hearings (DOAH), pursuant to an Administrative Law Judges

152Services Contract (Contract No. C-003) between the City and DOAH,

162as amended by way of an addendum dated September 12, 2007.

173This case commenced with the issuance of a letter to

183Petitioner, which advised Ms. Fessel of the decision to terminate

193her employment and provided her the ability to seek a review. On

205April 18, 2013, Ms. Fessel sought an appeal of the city manager's

217decision, and that appeal was forwarded to DOAH for assignment of

228an Administrative Law Judge.

232A final hearing was scheduled for August 9, 2013; however,

242on August 8, 2013, the parties filed a joint motion seeking to

254cancel the hearing and requesting that the parties be allowed to

265submit the case on a stipulated record. Following a telephonic

275case conference, an Order Canceling Hearing was issued, and the

285parties were directed to submit the stipulated record on or

295before August 22, 2013. The Stipulated Record was filed on

305August 22, 2013. Included with the Stipulated Record were two

315exhibits. 1/ Exhibit 1 was a copy of Article III, Personnel Rules

327and Regulations of the City's Code of Ordinances. Exhibit 2 was

338a copy of the agreement between the International Union of

348Painters and Allied Trades AFL/CIO- District Council #78, Local

357Union 2301 (representing the "Blue Collar" Unit) (the Union), and

367the City of Cape Coral, Florida, dated October 1, 2009, through

378September 30, 2011. 2/ Thereafter, the parties were ordered to

388file proposed final orders on or before Friday, September 6,

3982013. Respondent filed its proposed final order on September 5,

4082013. That same day Petitioner filed an "Unopposed Motion for a

419One Day Extension of Time to File Proposed Final Order." The

430motion was granted, and Petitioner filed her proposed final order

440on September 9, 2013. Each has been considered in the

450preparation of this Final Order.

455FINDINGS OF FACT

458Based on the Stipulated Record, the following Findings of

467Fact are made:

4701. The City has the authority to monitor and regulate its

481employees in accordance with the laws and rules of the State of

493Florida, the City Charter, and ordinances and rules promulgated

502under the Charter.

5052. Ms. Fessel was employed by the City as an administrative

516secretary in the City's Police Department, and she was a member

527of the Union.

5303. Ms. Fessel had been counseled and disciplined on several

540occasions regarding her work performance and behavior pursuant to

549the City's personal rules and regulations as codified in the City

560of Cape Coral Code of Ordinances and the Cape Coral Police

571Department General Orders.

5744. All disciplinary proceedings against Ms. Fessel were

582initiated under the City of Cape Coral Code of Ordinances,

592Chapter 2, Article III, Division 7, entitled, Discipline of

601Regular Employees, and pursuant to the collective bargaining

609agreement between the City and the Union.

6165. On September 30, 2011, Ms. Fessel was placed on a

627120-day performance improvement plan.

6316. On November 2, 2012, Ms. Fessel was suspended for

64140 hours.

6437. On March 7, 2013, Ms. Fessel was placed on

653administrative leave with pay.

6578. On March 12, 2013, Ms. Fessel remained on paid

667administrative leave while the City conducted a pre-disciplinary

675hearing.

6769. On April 18, 2013, Ms. Fessel's employment with the City

687was terminated.

68910. The parties have stipulated:

694The underlying discipline is not being

700challenged; rather, Petitioner [Ms. Fessel]

705contends that the suspension with pay during

712the period March 7, 2013[,] up to and

721including April 18, 2013, constituted

726disciplinary action barring any further

731discipline (i.e., Fessel's termination on or

737about April 18, 2013) for the same actions.

745CONCLUSIONS OF LAW

74811. DOAH has jurisdiction over this matter based upon a

758contract between DOAH and the City of Cape Coral. Pursuant to

769the contract and related City Code provisions, the City has the

780burden of proof by a preponderance of the evidence standard. The

791Administrative Law Judge shall issue a final order, including

800findings of fact and conclusions of law. City of Cape Coral Code

812of Ordinances, Article III, Div. 8, § 2-32.5(h).

82012. The determination to be made by the Administrative Law

830Judge is whether there is just cause for the discipline imposed.

841Id.

84213. The Code of Ordinances, Division 7 (Discipline of

851Regular Employees), further states, in pertinent part:

858§ 2-31.1

860No disciplinary action shall be taken

866against an employee with regular status

872without cause. Disciplinary actions, in

877increasing order of severity, shall consist

883of oral reprimand, written reprimand,

888suspension without pay, demotion, and

893dismissal.

894§ 2-31.2

896Generally, the city shall follow a policy of

904progressive discipline by which less severe

910forms of discipline are imposed prior to

917resorting to the imposition of more severe

924sanctions for the same or similar conduct by

932the employee. The city, however, reserves

938the right to impose even the most severe

946discipline as an initial measure when

952circumstances warrant.

954§ 2-31.3

956One or more of the following reasons shall

964constitute cause for disciplinary action:

969(a) Incompetence or continued rendering of

975unsatisfactory service after instruction

979and/or counseling;

981(b) Gross neglect of duty or specific

988serious failure to perform assigned duties.

99414. The Code of Ordinances, Division 11 (Attendance and

1003Leave), further states, in pertinent part:

1009§ 2-35.12 Administrative Leave

1013The City Manager may grant an employee up to

1022a maximum of 60 days of paid leave per

1031fiscal year when the City Manager believes

1038said grant to be in the city's best

1046interest.

104715. The parties stipulated that Ms. Fessel had been

"1056counseled and disciplined on several occasions regarding her

1064work performance and behavior." Further, the parties stipulated

1072that Ms. Fessel "was placed on administrative leave with pay on

1083March 7, 2013." (emphasis added).

108816. The City met its burden of proof by a preponderance of

1100the evidence. The stipulated evidence proves that Ms. Fessel was

1110placed on administrative leave with pay and, thereafter,

1118terminated. There was no discipline imposed until the

1126termination of her employment.

1130ORDER

1131Based on the foregoing Findings of Fact and Conclusions of

1141Law, it is ORDERED that just cause exists for the employment

1152termination of Ms. Fessel.

1156DONE AND ORDERED this 13th day of September, 2013, in

1166Tallahassee, Leon County, Florida.

1170S

1171LYNNE A. QUIMBY-PENNOCK

1174Administrative Law Judge

1177Division of Administrative Hearings

1181The DeSoto Building

11841230 Apalachee Parkway

1187Tallahassee, Florida 32399-3060

1190(850) 488-9675

1192Fax Filing (850) 921-6847

1196www.doah.state.fl.us

1197Filed with the Clerk of the

1203Division of Administrative Hearings

1207this 13th day of September, 2013.

1213ENDNOTES

12141/ Although both parties indicate that "all the Exhibits included

1224in the City's Referral of Fessel's appeal to DOAH" were "attached

1235to and incorporated in the Stipulated Record as Exhibits," such

1245is not accurate. The only two exhibits "[a]ttached to and

1255incorporated in the Stipulated Record" are listed.

12622/ The parties agreed this was the agreement in effect during the

1274time of this incident.

1278COPIES FURNISHED:

1280Gail G. Roberts, Esquire

1284City of Cape Coral

12881015 Cultural Park Boulevard

1292Cape Coral, Florida 33990

1296Richard Siwica, Esquire

1299Egan, Lev and Siwica, P.A.

1304231 East Colonial Drive

1308Orlando, Florida 32801

1311NOTICE OF RIGHT TO JUDICIAL REVIEW

1317A party who is adversely affected by this Final Order may apply

1329to the local circuit court for judicial relief within 30 days

1340after rendition of the final order by the hearing officer. The

1351proceedings in circuit court shall be commended by the filing of

1362a petition for writ of certiorari. City of Cape Coral Code of

1374Ordinances, Article III, Division 8, § 2-32.5(i).

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PDF
Date
Proceedings
PDF:
Date: 09/13/2013
Proceedings: DOAH Final Order
PDF:
Date: 09/13/2013
Proceedings: Final Order. CASE CLOSED.
PDF:
Date: 09/09/2013
Proceedings: Petitioner's Proposed Final Order filed.
PDF:
Date: 09/06/2013
Proceedings: Order Granting Extension of Time.
PDF:
Date: 09/05/2013
Proceedings: Unopposed Motion for a One Day Extension of Time to File Proposed Final Order filed.
PDF:
Date: 09/05/2013
Proceedings: City's Proposed Final Order filed.
PDF:
Date: 08/27/2013
Proceedings: Order (parties shall file proposed final orders on or before Friday, September 6, 2013).
PDF:
Date: 08/23/2013
Proceedings: Exhibit 1 - Cape Coral Code of Ordinances filed.
PDF:
Date: 08/23/2013
Proceedings: Exhibit 2a - CBA 2009-2011 filed.
PDF:
Date: 08/23/2013
Proceedings: Exhibit 2 - CBA 2009-2011 filed.
PDF:
Date: 08/23/2013
Proceedings: Notice of Filing Exhibits filed.
PDF:
Date: 08/22/2013
Proceedings: Notice of Filing Stipulated Record filed.
PDF:
Date: 08/22/2013
Proceedings: Stipulated Record filed.
PDF:
Date: 08/09/2013
Proceedings: Order Canceling Hearing (parties to advise status by August 22, 2013).
Date: 08/08/2013
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 08/08/2013
Proceedings: Joint Motion to Reschedule Hearing Pending Submission of a Stipulated Record filed.
PDF:
Date: 08/05/2013
Proceedings: Notice of Filing Joint Pre-hearing Stipulation filed.
PDF:
Date: 06/07/2013
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for August 9, 2013; 9:00 a.m.; Fort Myers, FL).
Date: 06/06/2013
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 06/04/2013
Proceedings: Joint Response to Order Granting Continance filed.
PDF:
Date: 05/24/2013
Proceedings: Order Granting Continuance (parties to advise status by June 6, 2013).
PDF:
Date: 05/23/2013
Proceedings: Petitioner's Unopposed Motion for Continuance filed.
PDF:
Date: 05/23/2013
Proceedings: Notice of Appearance (Richard Siwica) filed.
PDF:
Date: 05/23/2013
Proceedings: Notice of Appearance (Richard Siwica) filed.
PDF:
Date: 05/22/2013
Proceedings: Order Disallowing Respondent to be Represented by a Qualified Representative.
PDF:
Date: 05/22/2013
Proceedings: Amended Order of Pre-hearing Instructions.
PDF:
Date: 05/21/2013
Proceedings: Notice of Ex-parte Communication.
PDF:
Date: 05/21/2013
Proceedings: Affidavit in Support of Motion for Qualified Representative to Appear on Behalf of Alisha Fessel-Petitioner filed.
PDF:
Date: 05/21/2013
Proceedings: Motion for Qualified Representative to Appear on Behalf of Alisha Fessel filed.
PDF:
Date: 05/06/2013
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 05/06/2013
Proceedings: Notice of Hearing (hearing set for June 6, 2013; 9:00 a.m.; Cape Coral, FL).
PDF:
Date: 05/03/2013
Proceedings: Petitioner's Response to Initial Order filed.
PDF:
Date: 05/03/2013
Proceedings: Notice of Appearance (filed by Steve Hall).
PDF:
Date: 04/29/2013
Proceedings: City of Cape Coral's Response to Initial Order filed.
PDF:
Date: 04/26/2013
Proceedings: Initial Order.
PDF:
Date: 04/26/2013
Proceedings: Administrative Law Judge Services Contract between the City of Cape Coral and the Florida Division of Administrative Hearings filed.
PDF:
Date: 04/26/2013
Proceedings: The City of Cape Coral Code Personnel Rules and Regulation filed.
PDF:
Date: 04/26/2013
Proceedings: A. Fessel's request for an appeal from J. Szerlag's decision filed.
PDF:
Date: 04/26/2013
Proceedings: Decision on Appeal of Disciplinary Action dates April 11, 2013 from City Manager terminating Alisha Fessel's employment filed.
PDF:
Date: 04/26/2013
Proceedings: Final Disciplinary Notice dated March 14, 2013 filed.
PDF:
Date: 04/26/2013
Proceedings: Memo dated March 11, 2013 from Captain M. Torregrossa to Chief of Police J. Murphy through Deputy Chief of Police B. Connelly summarizing disciplinary actions filed.
PDF:
Date: 04/26/2013
Proceedings: Memo dated March 7, 2013 placing Alicia Fessel on paid administrative leave pending a pre-disciplinary conference filed.
PDF:
Date: 04/26/2013
Proceedings: Pre-disciplinary Notice dated March 6, 2013 filed.
PDF:
Date: 04/26/2013
Proceedings: Final Notice of Disciplinary Action dated November 2, 2012 and notice that discipline was not appealed filed.
PDF:
Date: 04/26/2013
Proceedings: Pre-disciplinary Notice dated October 25, 2012 filed.
PDF:
Date: 04/26/2013
Proceedings: City of Cape Coral Police Department Internal Affairs Report dated October 22, 2012 filed.
PDF:
Date: 04/26/2013
Proceedings: Final Notice of Disciplinary Action dated October 10, 2012 filed.
PDF:
Date: 04/26/2013
Proceedings: Pre-disciplinary Notice dated September 26, 2012 filed.
PDF:
Date: 04/26/2013
Proceedings: Final Notice of Disciplinary Action dated July 9, 2012 filed.
PDF:
Date: 04/26/2013
Proceedings: Memo dated May 26, 2012 and Pre-disciplinary Notice dated June 21, 2012 filed.
PDF:
Date: 04/26/2013
Proceedings: City of Cape Coral Police Department Internal Affairs Report dated June 4, 2011 filed.
PDF:
Date: 04/26/2013
Proceedings: Performance Improvement Plan filed.
PDF:
Date: 04/26/2013
Proceedings: Agency referral filed.

Case Information

Judge:
LYNNE A. QUIMBY-PENNOCK
Date Filed:
04/26/2013
Date Assignment:
04/26/2013
Last Docket Entry:
09/13/2013
Location:
Fort Myers, Florida
District:
Middle
Agency:
Contract Hearings
 

Counsels

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