14-001461 Emerald Coast Utilities Authority vs. Christopher L. Pryor Status: Closed Recommended Order on Wednesday, September 24, 2014.

Summary: Petitioner proved that Respondent violated a number of ECUA policies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES

AUTHORITY ,

Petitioner,

Case No. 14 - 1461

vs.

CHRISTOPHER L. PRYOR ,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was conducted

in this case on August 27 , 2014, in Pensacola , Florida, before

James H. Peterson, III, Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: John E. Griffin, Esquire

Carson & Adkins

2930 Wellington Circle, North, Suite 201

Tallahassee, Florida 32309

For Respondent: Christopher L. Pryor, pro se

1980 Kathleen Avenue

Cantonment, Florida 32533

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated

personnel policies established by Emerald Coast Utilities

Authority .

PRELIMINARY STATEMENT

By certified letter dated March 17, 2014 (Termination

Letter) , Petitioner , Emerald Coast Utilities Authority (ECUA or

Petitioner) , notified Respondent , Christopher L. Pryor

(Respondent) , that his employment with ECUA was terminated

effective March 13, 2014 . T he Termination L etter stated that

ECUA Ós action was based on Responden tÓs violations of ECUA Human

Resources Policy Manual, section s B - 2 B [unauthor ized absence

from work], B - 13 A ( 4 ) [conduct unbec oming an ECUA employee], B -

13 A ( 16 ) & ( 2 1 ) [insubordinatio n and neglect of duty], B - 13

A ( 17 ) [leaving work station without author ization], B - 13 A ( 22 )

[negligent operation of ECUA vehicles or equipment], B - 13 A ( 33 )

[violation of ECUA rules, guidelin es, and directives], and B - 16

G ( 2 ) [failure to submit to a post - accident drug test]. The

Termination Letter further advised Respondent that he had 10

days from his receipt of the letter within which to submit a

written request for a formal evidentiary hearing on ECUAÓs

employment decision before an administrative law judge with the

Division of Administrative Hearings (DOAH).

By e mail to ECUA dated March 24, 2014 , Respondent timely

submitted a request for a n evidentiary hearing. The case was

forwarded to DOAH on March 28 , 2014. The hearing was initially

scheduled for June 24, 2014, but was twice continued and

eventually rescheduled to be heard on August 27, 2014.

At the beginning of the hearing, PetitionerÓs Request that

Administrative Law Judge Take Official Notice of Chapters 2001 -

324 and 2004 - 401, Laws of Florida, was granted. During the

hearing, ECUA presented the testimony of nine w itnesses and

offered 25 exhibits received into evidence as E xhibits P - 1

through P - 25 . 1/ Respondent testified on his own behalf ,

presented the testimony of some of the witnesses called by ECUA

through direct examination, and offered 10 exhibits received

into evidence as Exhibits R - 1 through R - 10 .

FINDINGS OF FACT

1. Escambia County Utilities Authority was declared an

independent special district with transferred assets and

enumerated powers by chapter 2001 - 324, Laws of Florida.

Escambia County Uti litie s AuthorityÓs name was changed to ECUA

by chapter 2004 - 398. By law, ECUA provides utility services

throughout Escambia County, Florida, and has the power to

appoint, remove, and suspend its employees, and fix their

compensation within the guidelines of Es cambia County Civil

Service Rules. Id.

2. Respondent was hired by Petitioner as a Utility S ervice

Technician Trainee on February 14, 2011, and remained in that

p osition until he received the Termination Letter .

3. On the first day of his employment, Respondent

acknowledged receipt of a copy of ECUAÓs Employee Handbook

(Handbook) and ECUAÓs Policies and Procedures for ECUAÓs South

Region, where Respondent was employed . Respondent also

acknowledged receipt of revisions to those documents in effect

at a ll pertinent times.

4 . The H andbook is a summary of ECUA Ós human resources

benefits, policies , procedures , and rules found in ECUAÓs Human

Resource Manual (Manual) , a copy of which is available for

review by all employees . Both the Handbook and M anual p rovide

for discipline of employees.

5. Policies from the Manual , in effect during all times

pertinent to the facts of this case , and referenced in the

Termination Letter , include the following numbered paragraphs

found under s ubsection A entitled ÐDisciplinary OffensesÑ in

Manual s ection B - 13 entitled ÐDiscipline Guidelines Ñ :

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 affects the employeeÓs

effectiveness as an ECUA employee, or that

adversely affects the employeeÓs ability to

continue to perform their job, or which

adversely affects ECUAÓs ability to carry

out its assigned mission. Co nduct

unbecoming an ECUA employee includes 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

serv ices. The seriousness of the conduct

which constitutes a Ðconduct unbecoming an

ECUA employeeÑ offense determines the

appropriate discipline. If an employee

repeatedly engages in conduct unbecoming,

but the acts or conduct which are unbecoming

are dissim ilar to each other, cumulative

discipline may be imposed.

* * *

16. Insubordination:

An employeeÓs unwillingness or deliberate

refusal to comply with a direct order,

directive, or instruction of the immediate

or higher - level supervisor whether in

writin g 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 to follow orders. Gross

insubordination or willful neglect of duties

is defined as a const ant or continuing

intentional refusal to obey a direct order,

reasonable in nature, and given by and with

proper authority. Insubordination is a

serious offense.

17. Leaving work station without

authorization:

The unauthorized absence by an employee fro m

their work station or duty assignment during

the established work period or leaving a

work station for a lunch or break period

without being properly relieved where that

station must be manned during such period.

The seriousness of this offense depends upon

the employeeÓs assigned duties.

* * *

21. Neglect of duty:

Failure to perform an assigned duty.

Carelessness or intentional action which

results in the violation or nonobservance of

ECUA guidelines, p rocedures, or rules.

22. Negligent operation o f ECUA vehicles or

equipment:

The negligent operation of ECUA vehicles or

equipment which may or may not result in

personal injury. ÐNegligent operationÑ

means a failure to operate ECUA vehicles or

equipment with proper care.

* * *

33. Violation of ECUA rules or guidelines

or state or Federal law:

The failure to abide by ECUA rules,

guidelines, directive, or state or federal

statutes. This may include, but is not

limited to, misuse of position, giving or

accepting a bribe, discrimination in

employment, or actual knowledge of an d

failure to take corrective action or report

rule violations and employee misconduct.

6 . The Termination Letter also references paragraph 2 of

subsection G entitled ÐDisciplinary ActionÑ under Manual section

B - 16 ent itled ÐDrug & Alcohol Abuse.Ñ That paragraph states:

Any employee who refuses to submit to drug

or alcohol testing provided by this

directive shall be subject to disciplinary

action, up to and including termination of

employment, and shall forfeit eligibi lity

for medical and indemnity benefits under the

Florida WorkersÓ Compensation Act. Invalid

test results of an employee who admits

tampering with or adulterating their test

are treated as a refusal to be tested.

7. In addition, the Manual has the follo wing provisions

under s ection B - 13, Discipline G uideline s :

2. Abuse of Leave:

This includes: (a) Failure to obtain

approval prior to any absence from work,

except in the case of an emergency where the

employee must be absen t prior to receiving

superviso r/manager approval for the absence;

(b) failure to notify or call in to the

office on the first day of an absence; (c)

obtaining leave based on a misrepresentation

(falsification) or takin g unauthorized leave

after the employeeÓs request for leave has

been denied; and (d) abandonment of

position.

* * *

12. Failure to report any on the job

accident, injury , or illness within 24

hours.

Manual, § B - 13 , ¶ ¶ A . 2 . and A.12.

8. The Manual provisions under s ection D - 9, Leaves of

Absence, include the following language under paragraph 2 of

subsection I regarding employeesÓ responsibilities for sick

leave:

2. Employee Responsibilities

Employees must recognize they have an

obligation to their department and employer

which requires they give reasonable advance

no tice of their absence. It is the

employeeÓs responsibility to be certain that

information concerning their inability to

work because of illness be communicated to

their supervisor. Exceptions to this

guid eline in case of extreme emergency or

injury will be evaluated by the department

director.

a. In order to be granted sic k

leave, employees must notify their

supervisor of their disability prior

to the next scheduled work shift.

Employees must notify their

supervisor each subsequent day they

are absent prior to their next

scheduled work shift and inform them

of their condition and when they

expect to return to work.

Department directors may make

modifications to this reporting

guideline for operational reasons.

Manual, § D - 9, ¶ I.2.a.

9 . Further, the Manual provides for drug testing of an

employee when there is Ðreasonable suspicionÑ that an employee

is using alcohol or drugs at work. ÐReasonable suspicion,Ñ as

defined in the Manual, includes Ð [ i ] nformation that an employee

has caused, contributed to , or been involved in an accident

while at work.Ñ Manual, § B - 16, ¶ B.5.e.

10 . ECUA Ós South Region has written procedures for

operating crew trucks. Paragraph 5 of those procedures states:

ÐSecure all material on the back of the truck.Ñ Respondent

sign ed copies of those procedures in effect during the pertinent

time period, acknowledging his awareness of the procedures.

1 1 . In his employment with ECUA as a Utility Service

Technician Trainee, Respondent was required to perform semi -

skilled work in the i nstallation, maintenance, and repair of

water and sewer utility lines and meters under immediate

supervision. In order to perform his job, Respondent was

re quired to obtain and maintain a Class 3 Distribution System

Operator license (Class 3 license) issu ed by the Florida

Department of Environmental Protection (DEP) . Respondent was

issued a Class 3 license on October 10, 2012. It is valid until

April 30, 2015.

1 2 . In order to maintain a Class 3 license and other water

and wastewater treatment licenses , licensees are requir ed to

obtain certain continuing education units (CEUs) every two

years.

1 3 . ECUAÓ s division of Regional Services arranged for

training for its employees to be held in Panama City on

February 18, 2014, in order for them to obtain CEUs to maintain

their licenses issued by DEP. The name of the course was ÐFocus

on Change.Ñ ECUA paid for the course and its attending

employees received their normal daily pay to attend . Five

employees from ECUAÓs South Region were signed up for the

course, including Respondent. Four of the employees traveled to

the course together that day in a n ECUA vehicle, but Respondent

drove his o w n vehicle to the course after receiving permission

t o do so.

1 4 . The course began in Panama City at 8:00 a.m. , local

time, on February 18, 2014 , and lasted until approximately

4:00 p.m. that day . Responde nt and the other four ECUA South

Region employees arrived prior to the start of the course.

1 5 . That morning, at the beginning of the course, a roster

was passed around for all who attend ed to sign. Approximately

200 people attended the course. Respondent signed the morning

roster. There were two or three scheduled breaks in the course

that morning. I n addition to those breaks, Respondent took two

or more bathroom breaks during the morning session.

1 6 . The course recessed for lunch from approximately 12:00

noon until 1:00 p.m. Respondent attended lunch. While in the

lunch line, Respondent bumped int o a large placard with the

lunch menu on it which struck Respondent on the neck or head.

He grabbed his neck, but did not seem to be injured.

1 7 . After lunch, the course resumed. Approximately 45

minutes to an hour into the afternoon session, another ro ster

was passed around for attendees to sign. Respondent pushed

ahead in line to sign the afternoon roster and was seen leaving

the course a short time later, over an hour before the course

ended. Although Respondent testified that he stayed until the

en d, all of the other testifying witnesses that attended the

course said that they did not see Respondent return after

leaving the course before the end.

1 8 . At the end of the course, a CEU certificate was handed

out to the attendees to sign as evidence of completion of the

course, with a pink copy to return to ECUA. While the other

attendees from the South Region submitted their copies to ECUA

upon their return, Respondent did not have one. Respondent

insisted that he never received a certificate even though he

stayed until the end, but a preponderance of the evidence showed

that the reason that he did not receive a certificate is because

he left the course over an hour before it was over and never

returned.

1 9 . On February 21, 2014, after investigation, the ECUA

Director of Regional Services issued a Notice of

Pre determination/Liberty Interest { Name Clearing } Hearing (First

Predetermination Notice) to Respondent stating that

investigation had disclosed that Respondent left the

Februar y 18, 2014, training class early without authorization

and that the Director intended to recommend that Respondent

receive a three - day suspension . The First Predetermination

Notice also notified Respondent that a predetermination hearing

was scheduled for February 26, 2014, during which Respondent

would have the Ðopportunity to address [his] alleged

violations.Ñ

20 . Thereafter, o n the morning of February 25, 2014, while

Respondent was working with a co - worker who was driving a n ECUA

service truck, a groun d - penetrating radar device (GPR) that was

in the back of the truck fell out and was damaged. The GPR was

about the size of a push lawn mower. The GPR lost its handle

and one of its control knobs was damaged when the GPR fell out

of the truck.

2 1 . Accord ing to the driver, Respondent was the one who

placed the GPR into the back of the truck and was responsible

for securing it in a lockbox and closing the tailgate while the

driver was up front in the driverÓs seat filling out paperwork.

Respondent, on the other hand, testified that both he and the

driver loaded the GPR into the truck . Under either scenario, it

is clear that Respondent was at least partly responsible for

placing the GPR into the truck and securing the lockbox and

tailgate.

2 2 . That morning, p r ior to the GPR incident, Respondent

complained to the driver that he had something wrong with his

arm.

2 3 . In 2013, Respondent missed approximately six months

from work while on worker s Ó compensation leave ending in

December 2013, as he was r ecovering from an infection from a

mosquito bite. At the time of the GPR incident, Respondent was

still experiencing weakness in one of his hands and arm, and his

weight - lifting capacity was restricted.

2 4 . Although damaged, the GPR was still operating a fter

falling from the truck. Therefore, Respondent and the driver

performed a c ouple more jobs with the GPR that day . Before

returning to the shop, Respondent suggested to the driver that

they report that the GPR was damaged because Respondent dropped

it as a result of the weakness in his hand. The driver declined

to go along with the story.

2 5 . According to Respondent, around 10:30 a.m. that

morning , he told the driver that Respondent had just received

word from his doctor that there was an appointment opening that

afternoon at 2:00 p.m. and that Respondent planned to attend the

appointment to have his arm checked. A lthough , in his

testimony, the driver recalled that Respondent had complained

about his arm that day, he did not recall Respondent telling him

about the alleged doctorÓs appointment.

2 6 . That sam e morning, Respondent sent an e mail to the

ECUA human resources director requesting postponement of his

predetermination hearing that was schedule d to occur the next

da y. The e mail is dated February 25, 2014, at 11:17 a.m. The

evidence is insuffic ient to determine whether the e mail was sent

before or after the GPR fell out of the truck. I t is clear,

however, that the e mail was sent after the time Respondent

allegedly told the driver that he had a doctorÓs appointment .

T here is no mention of a doctorÓs appointment or any medical

problem in the e mail.

2 7 . Just after 1:00 p.m. that day, February 25, 2014, the

driver decided to return to the ECUA Warrington Plant (the

shop ) . In his testimony, the driver recalled that he decided to

return to the shop to report the accident involving th e GPR to

his supervisors.

2 8 . According to Respondent, the decision to return to the

shop was s o that Respondent could clock - out and attend his

doctorÓs appointment.

2 9 . When they got back to the shop, the driver and

Respondent told their supervisors ab out what had happened to the

GPR . When their supervisors, ECUA South Region Senior Utilities

Tec hnician Thomas Taylor, and his boss, ECUA South Region

Superintendent Harry J. Shoemore, heard about the incident , they

asked Respondent to fill out an accident report and to undergo a

drug test.

30 . Respondent responded by telling them he had no time to

fill out an accident report and that he could not take a drug

test because he had to leave for a doctorÓs appointment. That

was the first time that Respondent mentioned to either of the

supervisors that he had a doctorÓs appointment.

31 . Respondent th en left and clocked - out of work at

approximately 1:30 that afternoon without permission.

32 . T he fact that Respondent did not mention his alleged

doctorÓs appointment to his supervisors until after being asked

to fill out an accident report and und ergo a drug test casts

doubt on RespondentÓs contention that he had a doc torÓs

appointment. Considering that fact, along with the driverÓs

lack of recall that Respondent had mentioned a doctorÓs

appointment , and RespondentÓs lack of reference to a doctorÓs

appoi ntment in his e mail sent to the ECUA human resources

director earlier that day, it is found that Respondent did not

mention his alleged doctorÓs appointment to anyone at ECUA prior

to being asked to fill out an accident report and undergo a drug

test. And , the evidence does not reasonably suggest that

Respondent was experiencing a medical emergency that day.

33 . It is further found that it is improbable that

Respondent had a scheduled doctorÓs appointment that day and

that Respondent used his alleged do ctorÓs appointment as an

excuse to ignore the directives of his supervisors to fill out

an accident report and undergo a drug test.

34 . Later that afternoon, Respondent faxed a doctorÓs hand

written note naming Christopher Pryor and purportedly signed by

Dr. Roy R. Reyes, M.D., stating, Ðto whom it may concern:

Please excuse from work 2/25/14 thru 2/28/14 due to sickness.

thanks, [signed] R. R e yes.Ñ Dr. Reyes was not RespondentÓs

regular doctor who was treating him for his worker s Ó

compensation injury i nvolving the mosquito bite.

35 . Respondent never filled out an accident r eport

regarding the GPR incident and never underwent a drug test as

directed.

36 . Respondent did not attend the pre - determination

hearing scheduled for February 26, 2014 . Thereafter , EC U A sent

Respondent an amended predetermination notice dated February 28,

2014 ( Second Predetermination Notice), which added additional

grounds for discipline, including RespondentÓs early departure

from work, failure to fill out an accident r eport , and failure

to sub mit to a drug test on February 25, 2014 , as well as

reference to RespondentÓ s discipline history . Th e Second

Predetermination Notice recommended RespondentÓs termination

from employment and scheduled another predetermination heari ng

for Friday, March 7, 2014. Respondent requested postponement of

t he March 7, 2014, predetermination hearing and it was

rescheduled for March 13, 2014. After Respondent failed to

attend the rescheduled hearing on March 13, 2014, EUCA sent

Respondent th e Terminat ion Letter dated March 17, 2014,

following whic h this proceeding was initiated.

CONCLUSIONS OF LAW

37 . The Division of Administrative Hearings (DOAH) has

jurisdiction over the subject matter and parties to this

proceeding. See Administrative Law Judge Services Contract

eff ective March 3, 2006; § 120.65(6 ), Fla. Stat. (20 14 ).

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

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

39. In this case, ECUA demons trated by a preponderance of

the evidence that Respondent left the ÐFocus on ChangeÑ CEU

course over an hour before it was over and never returned. He

then insisted that he attended the entire course, but the

evidence showed otherwise. These acts constitute absence from

work without authorization and a violation of a number of the

ECUA Manual section s, quoted above, including section B - 13 A ( 2 ) ,

for failing to obtain approval prior to his absence; B - 13 A ( 4 ) ,

for cond uct unbecoming an ECUA employee ; B - 13 A ( 16 ) , for

insubordination; B - 13 A ( 21 ) , for neglect of duty; and B - 13

A ( 33 ) , for violation of ECUA rules, guidelines and directives .

40. Moreover, RespondentÓs actions in cutting line to sign

the afternoon roster during the ÐFocus on Chang eÑ course also

constituted conduct unbecoming an ECUA employee in violation of

Manual s ection B - 13 A ( 4 ) .

41. RespondentÓs role in fa iling to properly secure the

GPR in the back of the truck on February 25, 2014, resulting in

an accident, constituted a violation of paragraph 5 of ECUAÓs

South RegionÓs written procedures for operating crew trucks

which requires employees to Ð[s]ecure all material on the back

of the tru ck.Ñ It also constituted a vio lation of Manual

section B - 13 A ( 21 ) , for neglect of duty ; B - 13 A ( 22 ) , for

negligent operation of ECUA ve hicles or equipment; and B - 13

A ( 33 ) , for failure to follow ECUA rules.

42. Further, RespondentÓs early departure for an alleged

doctorÓs appointment without prior notice or permission and his

failure to fill out an accident report and submit to a drug test

as directed on the afternoon of February 25, 2014 , violated a

number of ECUA Manual provisions . RespondentÓs early dep arture

on February 25, 2014, constituted a vio lation of Manual section

B - 13 A ( 2 ) , abuse of leave ; B - 13 A ( 17 ) , leaving work station

without authorization; s ection D - 9, failure to give proper

notice of his alleged sick leave ; and B - 13 A ( 33 ) , for violation

of ECUA rules, guidelines and directives.

43. Moreover, it is concluded that RespondentÓs failure to

fill out the accident report or submit to a post - accident drug

test as directed constituted violations of Manual section B - 13

A ( 12 ) , failur e to report an accident within 24 hours; B - 13

A ( 16 ) , insubordination; B - 13 A ( 21 ) , neglect of duty; B - 16 G ( 2 ) ,

failure to submit to a post - accident drug test; and B - 13 A ( 33 ) ,

violation of ECUA rules, guidelines and directives.

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 those

provisions of its ECUA Human Resources Policy Manual and ECUAÓs

S outh Region written procedures for operating crew trucks , as

concluded above , and impose such discipline on Respondent as

determined appropriate under the provisions of said Manual.

DONE AND ENTERED this 24th day of September , 2014, in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of September , 2014.

ENDNOTE

1/ All of ECUAÓs exhibits were received into evidence without

limitation except for P - 5, which was deemed to be hearsay and

admitted for corroborative purposes only.

COPIES FURNISHED:

John E. Griffin, Esquire

Carson & Adkins

2930 Wellington Circle , North, Suite 201

Tallahassee, Florida 32309

(eServed)

Christopher L. Pryor

1980 Kathleen Avenue

Cantonment, Florida 32533

(eServed)

S teve Sorrell , Executive Director

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

Cynthia Sutherland , Director

Human Resources and Administrative Services

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pen sacola, Florida 32514

NOTICE OF RIGHT TO SUBMIT WRITTEN ARGUMENT

Pursuant t o 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

R esponden t.