18-003309 Emerald Coast Utilities Authority vs. Tadarel S. Page Status: Closed Recommended Order on Tuesday, September 18, 2018.

Summary: Petitioner proved by a preponderance of the evidence that Respondent violated several provisions of Petitioner's Human Resources Manual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES

AUTHORITY,

Petitioner,

vs. Case No. 18 - 3309

TADAREL S. PAGE,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted before Administrative Law Judge Garnett W. Chisenhall ,

of the Division of Administrative Hearings, in Pensacola,

Florida , on August 21, 2018.

APPEARANCES

For Petitioner: Diane M arie Longoria, Esquire

Quintairos, Prieto, Wood & Boyer, P.A.

114 E ast Gregory Street, 2nd Floor

Pensacola, Florida 32502

For Respondent: Tadarel S. Page , pro se

2419 North Tarragona Street

Pensacola, Flori da 32503 - 3761

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

agency action letter dated June 21, 2018.

PRELIMINARY STATEMENT

Via a letter dated June 13, 2018, Emerald Coast Utilities

Authority (ÐECUAÑ) notified Tadare l S. Page of allegations that

he violated multiple provisions of ECUAÓs Human Resources Manual

(Ðthe ManualÑ) on May 10, 11, and 24, 2018. ECUA also notified

Mr. Page that a predetermination hearing was scheduled for

June 18, 2018, and that Mr. Page woul d have an opportunity at the

predetermination hearing to contest the allegations.

After the predetermination hearing, 1/ ECUA issued a letter on

June 21, 2018, stating its intention to terminate Mr. PageÓs

employment:

In summary, the findings from the

i nvestigation have confirmed you were loafing

and performed a substandard quantity of work

on May 10, 2018, and May 11, 2018. The

G.P.S. report for your assigned vehicles

(#1624 and #1622) clearly showed you engaged

in an excessive amount of wasted time wh en

driving aimlessly to fill your day without a

work purpose on May 10 and 11, 2018. The

G.P.S. report further shows you drove to your

residence on May 11, and there was no

business purpose for that excursion. In

fact, such behavior would not appear to h ave

been atypical for you, as records show you

drove to your home address thirty times in

thirty days during the period of May 9, 2018,

through June 9, 2018. Your testimony during

the hearing regarding your lack of

productivity on May 10 - 11, 2018, was ent irely

self - serving and was not credible.

Additionally, it has been confirmed that you

knowingly submitted an inaccurate timesheet

for May 24, 2018, when you claimed you worked

until 3:30 p.m., when you did not. On

May 24, 2018, surveillance video capt ured

your departure from your ECUA workplace at

12:59 p.m. and you did not return. At the

hearing, you confirmed you left work early

and admitted your timesheet was inaccurate.

It is undisputed your timesheet for May 24,

2018, is false, and you never not ified your

supervisor of the discrepancy. As specified

in Section B - 3 [Attendance Records] in the

Human Resources Manual, it is every

employeeÓs responsibility to verify his or

her hours worked Ðand notify his or her

supervisor of any discrepancy.Ñ [ 2/ ]

(italics in original).

Mr. Page requested a hearing to challenge ECUAÓs decision.

In accordance with the terms of the ÐAdministrative Law Judge

Services ContractÑ (Ðthe contractÑ) entered into between ECUA and

the Division of Administrative Hearings (Ð DOAHÑ), ECUA forwarded

the request for hearing to DOAH, which scheduled and conducted

the hearing.

At the final hearing, which took place as scheduled on

August 20, 2018, ECUA called three witnesses: Kimberly Scruggs,

ECUAÓs Assistant Director of Human Resources and Administrative

Services; Brian J. Reid, ECUAÓs Director of Regional Services;

and Terry Willette, private investigator.

ECUAÓs Exhibits 1 through 17 were admitted into evidence.

Mr. Page appeared at the final hearing but voluntarily left

prio r to the completion of ECUAÓs case - in - chief and the

initiation of his own case. A discussion ensued between the

undersigned and counsel for ECUA as to whether Mr. Page had

waived his right to an administrative hearing. In an abundance

of caution, the und ersigned elected to complete the

administrative hearing and make findings as to whether ECUA

proved its allegations by a preponderance of the evidence. The

ECUA may ultimately determine that Mr. Page waived his right to

an administrative hearing and dismi ss the matter. 3/

Unless otherwise indicated, all statutory references are to

the 2017 version of the Florida Statutes. 4/

FINDING S OF FACT

1. Chapter 2001 - 324, Laws of Florida, declared the Escambia

County Utilities Authority an independent special dis trict with

transferred assets and enumerated powers. Chapter 2004 - 398, Laws

of Florida, changed the Escambia County Utilities AuthorityÓs

name to ECUA. By law, ECUA provides utility services throughout

Escambia County, Florida, and has the power to appoi nt, remove

and suspend its employees, and fix their compensation within the

guidelines of Escambia County Civil Services Rules.

2. ECUAÓs mission statement specifies that the Board and

employees of ECUA Ðare committed to providing the highest quality

serv iceÑ and that ÐECUA will always provide cost - effective

services.Ñ

3. ECUA has adopted standards set forth in the Manual in

order to govern employee conduct.

4. During the relevant time period, ECUA employed Mr. Page

as the utility service worker in the p atch services division

(Ðthe patch crewÑ).

5. Mr. Page acknowledged on October 10, 2016, that a copy

of the Manual was made available to him.

6. The patch crew normally works from 7:00 a.m. to

3:30 p.m., with a 30 - minute lunch break. The patch crew als o

receives two 15 - minute breaks each day.

7. Mr. Page would normally begin each workday by reporting

to an ECUA building on Sturdevant Street where the patch crewÓs

trucks are maintained. The patch crew would use one or more of

those vehicles to comple te the dayÓs assignments and return them

to the Sturdevant Street location at the end of each day.

8. ECUAÓs management received information in May of 2018,

that members of the patch crew were leaving work early without

authorization. This information le d ECUAÓs management to

initiate an investigation.

9. Part of that investigation involved the installation of

tamper - proof global positioning devices (ÐGPSÑ) in ECUA vehicles.

Those devices transmit a vehicleÓs precise location to ECUA at

two - minute int ervals. The GPS devices also inform ECUA whether a

vehicle is moving, idle, or stopped.

10. ECUAÓs management also hired a private investigator,

Terry Willette, to observe and record the activities of the patch

crew.

Findings Regarding the Allegations fr om May 10, 2018

11. On May 10, 2018, Mr. Page received at least four

assignments to fill holes at locations in Pensacola. Mr. Page

recorded in ECUAÓs work tracking system that he spent two hours

completing two of those jobs and one hour completing the ot her

two.

12. Mr. Willette followed Mr. Page that day, and his

observations contradict those time entries. Mr. Willette

observed Mr. Page driving all over Pensacola, stopping on several

occasions, and performing significant work at only one location.

13. ECUA has proven by a preponderance of the evidence that

Mr. Page wasted an excessive amount of time on May 10, 2018.

Findings Regarding the Allegations from May 11, 2018

14. The May 11, 2018, GPS report for truck #1624 indicates

that it stopped at or near Mr. PageÓs residence from

approximately 9:21 a.m. to 9:28 a.m.

15. It is possible that Mr. Page used one of his 15 - minute

breaks to stop at his residence, and there is no evidence that

ECUA expressly prohibits employees from stopping at their home s.

16. The preponderance of the evidence does not demonstrate

that Mr. Page violated any Manual provisions on May 11, 2018.

Findings Regarding the Allegations from May 24, 2018

17. The patch crew employees use an electronic timekeeping

system to rec ord the amount of hours they work each day. The

Manual specifies that every ECUA employee is responsible for

verifying the accuracy of those time entries.

18. Mr. PageÓs entry for May 24, 2018, indicates he worked

eight hours that day.

19. Mr. Willette observed Mr. Page leaving work at

12:59 p.m. on May 24, 2018.

20. Also, one of the ECUA trucks often utilized by Mr. Page

was in use from 7:01 a.m. until 12:57 p.m. on May 24, 2018, and

was not used again that day.

21. The preponderance of the evidenc e demonstrates that

Mr. Page failed to verify the accuracy of his time entry for

May 24, 2018.

CONCLUSIONS OF LAW

22. DOAH has jurisdiction over the parties and the subject

matter of these proceedings pursuant to sections 120.65(6)

and 120.57(1), Flo rida Statutes.

23. As the party asserting the affirmative of a factual

issue, ECUA has the burden of demonstrating by preponderance of

the evidence that Mr. Page committed the violation s cited in the

June 21, 2018, letter. Balino v. DepÓt of HRS , 348 So. 2d 349

(Fla. 1st DCA 1977). ÐProof by a ÒpreponderanceÓ of the evidence

means proof which leads the factfinder to find that the existence

of the contested fact is more probable than its nonexistence.Ñ

Smith v. State , 753 So. 2d 703, 704 (Fla. 5th DCA 20 00).

24. ECUA alleges that Mr. Page violated several provisions

within the Manual.

25. Section B - 3 of the Manual states in pertinent part that

Ð[e]ach employee is required to verify his or her hours worked

for each biweekly pay period, and notify his or her supervisor of

any discrepancies.Ñ

26. The preponderance of the evidence demonstrates that

Mr. Page violated Section B - 3 of the Manual by failing to verify

that his timesheet for May 24, 2018, was accurate.

27. Section B - 13 A (4) prohibits conduct un becoming an ECUA

employee and refers to Ð[a]ny 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 affect ECUAÓs ability to carry out its

assigned mission.Ñ

28. The preponderance of the evidence demonstrates that

Mr. Page violated Section B - 13 A (4) by perfor ming virtually no

work on May 10, 2018, and by failing to verify the accuracy of

his timesheet for May 24, 2018.

29. Section B - 13 A (13) prohibits the falsification of

records and refers to Ð[t]he knowing, willful, or deliberate

misrepresentation or omiss ion of any facts with the intent to

misrepresent, defraud or mislead.Ñ The section defines the term

ÐrecordsÑ to include Ðemployee attendance and leave records.Ñ

30. The preponderance of the evidence demonstrates that

Mr. Page violated Section B - 13 A (1 3) by falsely recording the

amount of work he performed on May 10, 2018, and by submitting a

false timesheet on May 24, 2018.

31. Section B - 13 A (18) prohibits ÐloafingÑ and refers to

Ð[t]he continued or repeated idleness or non - productiveness

during work hours which diverts the employee fr o m performing

assigned tasks.Ñ

32. The preponderance of the evidence demonstrates that

Mr. Page violated Section B - 13 A (18) by performing virtually no

work on May 10, 2018.

33. Section B - 13 A (21) prohibits Ðneglec t of dutyÑ and

refers to Ð[f]ailure to perform an assigned duty.Ñ

34. The preponderance of the evidence demonstrates that

Mr. Page violated Section B - 13 A (21). He received at least four

work assignments on May 10, 2018, but the preponderance of the

evi dence demonstrates that he only completed one.

35. Section B - 13 A (26) refers to Ð[s]ubstandard quality

and/or quality of workÑ without elaboration.

36. The preponderance of the evidence demonstrates that

Mr. Page violated Section B - 13 A (26) by perfo rming virtually no

work on May 10, 2018.

37. Section B - 13 A (33) prohibits the violation of ÐECUA

rules or guidelines or state or federal lawÑ and refers to Ð[t]he

failure to abide by ECUA rules, guidelines, directive, or state

or federal statutes.Ñ The section states such violations

include, but are not limited to, Ðgiving or accepting a bribe,

discrimination in employment, or actual knowledge of and failure

to take corrective action or report rule violations and employee

misconduct.Ñ

38. The prepondera nce of the evidence demonstrates that

Mr. Page violated Section B - 13 A (33) through his violations of

Sections B - 3, B - 13 A (4), B - 13 A (13), B - 13 A (18), B - 13 A (21),

and B - 13 A (26).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

Law, it is RECOMMENDED that the Executive Director of the Emerald

Coast Utilities Authority find that Tadarel S. Page violated

Section B - 3, attendance records; Section B - 13 A (4), conduct

unbecoming an ECUA employee; Section B - 13 A (13), falsification

of records; Section B - 13 A (18), loafing; Section B - 13 A (21),

neglect of duty; Section B - 13 A (26), substandard quality and/or

quantity of work; and Section B - 13 A (33), violation of ECUA

rules or guidelines or state or federal law.

DONE AND ENTERED th is 18 th day of September , 2018 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

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 18 th day of September, 2018 .

ENDNOTE S

1/ Non - exempt and non - key employees of ECUA alleged to have

violated a provis ion within the Manual are entitled to notice of

the allegations and a predetermi nation hearing conducted by ECUA.

If an employee is dissatisf ied with the outcome of the

pre determination hearing, the employee is entitled to a hearing

before the Division of Administrative Hearings (ÐDOAHÑ) after

making a timely request. The parameters of the hearing are

governed by the contract entered into between ECUA and DOAH.

2/ The undersigned considers the June 21, 2018, letter to be the

functional equivalent of a c harging document.

3/ Mr. Page gave a short statement regarding his version of the

events on May 10, 11, and 24, 2018, during his cross examination

of a witness and left the hearing room . Because that statement

was made before Mr. PageÓs case - in - chief , the undersigned must

disregard the statement because it was not under oath .

4/ The undersigned disregarded any information regarding past

violations of the Manual by Mr. Page in ascertaining whether he

committed the violation s alleged in the June 21 , 2018, letter .

Also, the contract between ECUA and DOAH specifies that the

Administrative Law Judge Ðwill determine whether the employee has

committed the violation as charged, but the ALJ will not comment

on, or recommend, any disciplinary penalty.Ñ

CO PIES FURNISHED:

Diane Marie Longoria, Esquire

Quintairos, Prieto, Wood & Boyer, P.A.

114 East Gregory Street, 2nd Floor

Pensacola, Florida 32502

(eServed)

Tadarel S. Page

2419 North Tarragona Street

Pensacola Beach, Florida 32503 - 3761

Stephen E. Sorr ell , 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

Pensacola, Florida 32514

NOTICE OF RIGHTS TO SUBMIT WRITTEN ARGUMENT

Pursuant to 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

Dire ctor 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.