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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALISHA FESSEL,

Petitioner,

vs. Case No. 13-1549

CITY OF CAPE CORAL,

Respondent.

/

Pursuant to the agreement of the parties, no formal hearing

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

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

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

submitted proposed final orders.

APPEARANCES

For Petitioner: Richard Siwica, Esquire

Egan, Lev and Siwica, P.A.

231 East Colonial Drive

Orlando, Florida 32801

For Respondent: Gail G. Roberts, Esquire

City of Cape Coral

1015 Cultural Park Boulevard

Cape Coral, Florida 33990

STATEMENT OF THE ISSUE

The issue in this case is whether the discipline imposed on

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

"City"), was appropriate.

PRELIMINARY STATEMENT

This case is conducted by the Division of Administrative

Hearings (DOAH), pursuant to an Administrative Law Judges

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

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

This case commenced with the issuance of a letter to

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

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

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

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

an Administrative Law Judge.

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

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

cancel the hearing and requesting that the parties be allowed to

submit the case on a stipulated record. Following a telephonic

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

parties were directed to submit the stipulated record on or

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

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

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

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

a copy of the agreement between the International Union of

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

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

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

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

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

2013. Respondent filed its proposed final order on September 5,

2013. That same day Petitioner filed an "Unopposed Motion for a

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

motion was granted, and Petitioner filed her proposed final order

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

preparation of this Final Order.

FINDINGS OF FACT

Based on the Stipulated Record, the following Findings of

Fact are made:

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

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

Florida, the City Charter, and ordinances and rules promulgated

under the Charter.

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

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

of the Union.

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

occasions regarding her work performance and behavior pursuant to

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

of Cape Coral Code of Ordinances and the Cape Coral Police

Department General Orders.

4. All disciplinary proceedings against Ms. Fessel were

initiated under the City of Cape Coral Code of Ordinances,

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

Regular Employees, and pursuant to the collective bargaining

agreement between the City and the Union.

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

120-day performance improvement plan.

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

40 hours.

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

administrative leave with pay.

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

administrative leave while the City conducted a pre-disciplinary

hearing.

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

was terminated.

10. The parties have stipulated:

The underlying discipline is not being

challenged; rather, Petitioner [Ms. Fessel]

contends that the suspension with pay during

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

including April 18, 2013, constituted

disciplinary action barring any further

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

about April 18, 2013) for the same actions.

CONCLUSIONS OF LAW

11. DOAH has jurisdiction over this matter based upon a

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

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

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

Administrative Law Judge shall issue a final order, including

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

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

12. The determination to be made by the Administrative Law

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

Id.

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

Regular Employees), further states, in pertinent part:

§ 2-31.1

No disciplinary action shall be taken

against an employee with regular status

without cause. Disciplinary actions, in

increasing order of severity, shall consist

of oral reprimand, written reprimand,

suspension without pay, demotion, and

dismissal.

§ 2-31.2

Generally, the city shall follow a policy of

progressive discipline by which less severe

forms of discipline are imposed prior to

resorting to the imposition of more severe

sanctions for the same or similar conduct by

the employee. The city, however, reserves

the right to impose even the most severe

discipline as an initial measure when

circumstances warrant.

§ 2-31.3

One or more of the following reasons shall

constitute cause for disciplinary action:

(a) Incompetence or continued rendering of

unsatisfactory service after instruction

and/or counseling;

(b) Gross neglect of duty or specific

serious failure to perform assigned duties.

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

Leave), further states, in pertinent part:

§ 2-35.12 Administrative Leave

The City Manager may grant an employee up to

a maximum of 60 days of paid leave per

fiscal year when the City Manager believes

said grant to be in the city's best

interest.

15. The parties stipulated that Ms. Fessel had been

"counseled and disciplined on several occasions regarding her

work performance and behavior." Further, the parties stipulated

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

March 7, 2013." (emphasis added).

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

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

placed on administrative leave with pay and, thereafter,

terminated. There was no discipline imposed until the

termination of her employment.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

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

termination of Ms. Fessel.

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

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

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 13th day of September, 2013.

ENDNOTES

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

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

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

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

incorporated in the Stipulated Record" are listed.

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

time of this incident.

COPIES FURNISHED:

Gail G. Roberts, Esquire

City of Cape Coral

1015 Cultural Park Boulevard

Cape Coral, Florida 33990

Richard Siwica, Esquire

Egan, Lev and Siwica, P.A.

231 East Colonial Drive

Orlando, Florida 32801

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to the local circuit court for judicial relief within 30 days

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

proceedings in circuit court shall be commended by the filing of

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

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