14-003100 Emerald Coast Utilities Authority vs. Roderick E. Billups Status: Closed Recommended Order on Monday, October 27, 2014.

Summary: Evidence demonstrated Respondent could not perform essential requirement of his job for more than six months, thereby violating ECUA policies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES

AUTHORITY,

Petitioner,

vs. Case No. 14 - 3100

RODERICK E. BILLUPS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a fi nal hearing was conducted in this

matter before Diane Cleavinger, Administrative Law Judge with

the Division of Administrative Hearings, on September 15, 2014,

in Pensacola, Florida.

APPEARANCES

For Petitioner: John Edmund Griffin, Esquire

Carson and Adkins

Suite 201

2930 Wellington Circle, North

Tallahassee, Florida 32309

For Respondent: Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent has failed to

comply with the personnel policy established by Emerald Coast

Utilities Aut hority.

PRELIMINARY STATEMENT

By letter dated June 3, 2014, Respondent , Roderick

E. Billups (Respondent), was advised that his supervisor

recommended termination of his employment with Petitioner,

Emerald Coast Utilities Authority (ECUA o r Petitioner), for

alleged failure to comply with ECUA personnel policies .

Specifically, the letter alleged that Respondent failed to

comply with ECUA policy section B - 13 (10) and (33) when , due to

an on - the - job injury, he could no longer perform the required

functions of h is job as required by ECUA policy ; and section

D - 16 when , again due to his injury, he was unable to return to

work for a period longer than six months. The letter also

advised Respondent of his right to a predetermination/liberty

interest hearing.

On Jun e 19, 2014, a predetermination/liberty interest

hearing was held at E CUA . Respondent participated in the

hearing.

By certified letter dated June 23, 2014, Respondent was

notified that his employment with Petitioner was terminated.

The letter stated that ECUA's action was based on ECUA Human

Resources Policy Manual, section s B - 13 (10) , B - 13 (33) and D - 16.

The letter further advised Respondent of his right to appeal

Petitioner's employment action and request a formal hearing

before an administrative law judg e with the Division of

Administrative Hearings (DOAH).

By letter dated June 23, 2014, 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 t wo

witnesses and offered 21 exhibits into evidence. Respondent did

not testify but offered six exhibits into evidence. On

September 22, 2014, a CD containing the transcript of the

hearing was filed with the Division.

FINDING S 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. In 1995, Respondent was hired by Petitioner as a

utility service technician II. The position involved skilled

work of aver age to considerable difficulty in the installation,

main tenance, and repair of water and waste service lines. The

job also required a significantly strong person with sufficient

strength, fitness and mobility to work in a field environment

involving all t ypes of weather and temperature conditions and

with slippery, uneven or rough surfaces and terrain .

Additionally, the job required a person who could walk, stand,

and sit f or prolonged periods of time; frequently stoop, bend,

kneel, crouch, crawl, climb, reach, twist, grasp, and make

repetitive hand movement s; and lift, carry, push, and/or pull

moderate to heavy amounts of weight , which could exceed 50

pounds. Finally , the job required a person to be able to drive

commercial vehicles and maintain a commer cial driver's license.

3. Around June 28, 2012, Respondent was given a copy of

the ECUAÓs revised Human Resources Manual and Employee Handbook.

4 . The m anual is a publication containing all of

Petitioner's human resource policies, including discipline and

termination of employees. The manual states , in pertinent part,

as follows:

B - 13(10) - Failure to maintain job

qualifications:

Failure to maintain required licenses,

certifications, or other similar

requirements such that an employee is no

longer qua lified for a position or can no

longer perform assigned duties.

* * *

B - 13(33) Î 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.

* * *

D - 16 A.2. - Leave

* * *

Employees will return to work anytime they

are medically able, up to six (6) months

from the date of injury. At that point, if

unable to return to work the employee must

retire, resign, or be terminated. The

department head, after consult ation with the

Human Resources Director, may extend this

time based on evaluation of the employee's

ability to return to work.

5 . On December 18, 2013, while repairing an ECUA line ,

something snap ped in RespondentÓs right arm which caused him

severe pain in that arm to the extent he could not lift it or

perform his job duties. That same day, Respondent reported the

injury to ECUA and saw Dr. Bruce Albrecht, M.D., at Sacred Heart

Medical Group. Dr. Albrecht initially diagnosed Respondent with

a strain of the right shoulder and released Respondent to return

to work with light duty conditions, including no lifting,

pushing or pulling over 15 pounds with both arms (5 pounds with

the right arm) , no stooping, kneeling , climbing or crawling , and

no commercial d riving. Such conditions prevented Respondent

from performing the essential requirements of his job .

6 . As a result of the injury, Respondent took authorized

leave beginning December 19, 2013 , and continued to be followed

by medical staff over the next several months. He also received

physical therapy for his shoulder and arm.

7 . Around January 23, 2014, Dr. Albrecht recommended that

Respondent be seen by an orthopedic s pecialist . By that time,

RespondentÓs diagnosis included rupture of the right bice ps

tendon.

8 . Ultimately, after evaluation by an orthopedic

specialist and some unspecified delay due to the approval

process used by ECUAÓs workers Ó compensation coordinator ,

Respondent was referred to an orthopedic surgeon and scheduled

for surgery on March 14, 2014. The surgery was to reconstruct

Mr. BillupsÓs shoulder by performing a biceps tenodesis and

rev ision acromioplasty, as well as debriding a torn labrum

(ca r tilage rim of the shoulder socket).

9 . B iceps tenodesis is a procedure that rem oves part of

the biceps tendon and cuts the normal attachment of the biceps

te ndon on the labrum of the shoulder socket. After detachment,

the biceps tendon is reattached to the arm bone , thereby

removing the pressure of the bice p s attachment off of the

shoul der socket labrum . Revision acromioplasty is a surgical

reshaping of the acromion, the bone which forms the point of the

shoulder bla de that covers the shoulder joint .

10 . As indicated , RespondentÓs surgery was scheduled for

March 14, 2014. However, tha t surgery was delayed due to

cardiovascular concerns over RespondentÓs ability to undergo

surgery. Ultimately, Respondent had surgery on his right

shoulder and bicep on April 16, 2014.

11 . After the surgery , RespondentÓs physician, Dr. Kirby

Turnage, M .D., prescribed phy sical therapy to build up strength

and increase range of motion in his shoulder and arm.

Additionally , Respondent was not released by his doctor to

return to work even at a sedentary level. By May 27, 20 14,

slightly more than five mont hs after Respondent went on leave,

he was released to work but only at a sedentary or light duty

level. RespondentÓ s physician indicated that it would be at

least six (6) weeks before Respondent could possibly return to

work without restrictions . At the time, ECUA did not have any

light duty jobs that Respondent could perform and it was

unlikely that such jobs would be available in the future given

the nature of the work performed by ECUA and the department in

which Respondent was employed.

12 . During Re spondent Ó s leave, the Pensacola area

experienced a 100 - year rain event which placed significant

pressure on ECUAÓs wastewater system creating a backlog of

repairs and wastewater compliance requirements placed on ECUA by

the Florida Department of Environmen tal Protection. At some

point, temporary employees were assigned to help in the work

RespondentÓs section had to perform. However, the temporary

employees were insufficient to meet the work loads of that

section and a fully trained utility service techni cian was

needed in the department.

13 . Due to the utility service departmentÓs needs,

RespondentÓs supervisor determined that R espondentÓs position

needed to be filled by a person who could physically perform all

of the duties the position required. On J une 3, 2014,

RespondentÓs supervisor advised Respondent that, if he could not

return to work by June 18, 2014, six months from the date of his

injury, he would be terminated under sections B - 13 (10) , B - 13 (33)

and D - 16 of ECUAÓs employee handbook. The lette r also scheduled

a predetermination hearing for June 19, 2014, to provide

Respondent the opportunity to demonstrate that he was released

for work or demonstrate circumstances for extending RespondentÓs

inactive work status beyond the six months permitted i n the

employee handbook.

14 . The predetermination hearing was held on June 19 , with

Respondent in attendance. Up to that date, ECUA had not

received a medical clearance for Respondent to return to full

duty. Respondent indicated that his physical thera py was

proceeding well and he felt that he would be cleared to return

to work very soon. In light of RespondentÓs representation, he

was given until June 20, 2014, to provide medical clearance for

work to ECUA.

15 . On June 20 , Respond e nt provided a lette r from Sacred

Heart Occup ational Health Strategies , his physical therapy

provider. The letter stated that RespondentÓs shoulder was

improving and that t he physical therapist anticipated Respondent

could possibly return to work without restricti ons followi ng

completion of such therapy. However, the p hysical therapist

further stated that a medical release to full duty from

Dr. Turnage was req uired before such return to work . However,

his next appointment with Dr. Turnage was not scheduled until

July 8, 201 4, more than seven months after the date of

RespondentÓs injury. Further, the evidence did not demonstrate

that Respondent was medically cleared by Dr. Turnage to perform

full work duties without restriction at the July appointment.

Notably, the evidence showed that Respondent was not discharged

from physical therapy until August 13, 2014 , almost eight months

after his injury .

16 . These facts demonstrate that Respondent could not

perform th e essential requirements of his job after six mon ths

of inactiv e status. Additionally, the evidence did not

demonstrate a reasonable basis to extend RespondentÓs inactive

work status beyond the six months already provided. Such

inability to perform his work duties caused Respondent not to

comply with s ection s B - 13 (1 0), B - 13 (33) and D - 16.

CONCLUSIONS OF LAW

17 . The Division of Administrative Hearing s 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).

18 . As set forth above, ECUA relied on section B - 13(10),

contained in the ECUA Human Resources Policy Manual. Section

B - 13(10) requires that an employee maintain his ability to

perform the essential functions of his job. Failure to main tain

such ability violates section B - 13(33) of the ECUA manual.

Further, failing to maintain the ability to perform the

essential requirements of such job for more than six months

causes an employee to not comply with section D - 16 of the

manual.

19 . EC UA has the burden of proof by a preponderance of the

evidence to demonstrate the facts underlying the action it

outlined in its letter of termination . See paragraph 7(j),

contract between ECUA and DOAH.

20 . In this case, the evidence demon strated that

Re spondent failed to comply with section B - 13(10) , B - 13(33) and

D - 16.

RECOMMENDATION

Based on 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 could not return

to work within six mon ths from the date of his injury, did not

comply with ECUAÓs human resources policy B - 13(10) , B - 13(33) and

D - 16, and impose such action as determined appropriate under the

provisions of the Human Resources Manual and E mployee Handbook .

DONE AND ENTERED this 27th day of October , 2014 , 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 27th day of October , 2014.

COPIES FURNISHED :

Roderick E. Billups

6613 Black Oak Place

Pensacola, Florida 32526

Cynthia S. Sutherland

Emerald Coast Utilities Authority

9255 Sturdevant Street

Post Office Box 15311

Pensacola, Florida 32514 - 0311

John Edmund Griffin, Esquire

Carson and Adkins

2930 Wellington Circle, North, Suite 201

Ta llahassee, Florida 32309

(eServed)

Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

(eServed)

Steve Sorrell, Executive Director

Emerald Coast Utilities Authority

9255 Sturdevant Street

Post Of fice Box 15311

Pensacola, Florida 32514 - 0311

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.