19-001625 Emerald Coast Utilities Authority vs. Robert L. Packer Status: Closed Recommended Order on Friday, July 19, 2019.

Summary: Sanitation truck driver did not commit any of the violations set forth in Utility Authority's discipline letter of March 18, 2019.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES

AUTHORITY,

Petitioner,

vs. Case No. 19 - 1625

ROBERT L. PACKER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a forma l administrative hearing was

conducted before Administrative Law Judge W. David Watkins of

the Division of Administrative Hearings (DOAH), in Pensacola,

Florida, on May 29, 2019.

APPEARANCES

For Petitioner: Diane Marie Longoria, Esquire

Q uintairos, Prieto, Wood & Boyer, P.A.

114 East Gregory Street, 2nd Floor

Pensacola, Florida 32502

For Respondent: Robert L. Packer, pro se

2329 Silverside Loop

Pensacola, Florida 32526

STATEMENT OF THE ISSUE

Whether Respondent violated provisions of PetitionerÓs

Human Resources Manual and Employee Handbook (Manual) on

February 28, 2019, as charged in the agency action letter dated

March 18, 2019.

PRELIMINARY STATEMENT

Via a letter hand - delivered on March 12, 2019, the Emerald

Coast Utilities Authority (ECUA) notified Robert L. Packer of

allegations that he violated multiple provisions of the Manual

on February 28, 2019. The letter informed Mr. Packer of a

predetermination hearing 1/ sch eduled for March 18, 2019, at which

he would have an opportunity to address the allegations.

Mr. Packer did not attend the scheduled predetermination

hearing, nor did he notify a member of ECUAÓs Human Resources

Office that he would not be present at the h earing.

By letter dated March 18, 2019, ECUA notified Mr. Packer of

its intention t o suspend him for one (1) eight - hour day without

pay on March 27, 2019. Making r eference to its letter of

March 12, 2019, ECUA notified Mr. Packer it was taking

disciplina ry action against him for the following reason:

On February 28, 2019, while servicing the

dumpster at 3627½ Andrew Avenue, Sanitation

truck #32G became stuck after falling

through an area on the property where a

septic tank is located. Riding with a

senio r driver and having another driver on

the ground as ground guide, this incident

could have been prevented by taking the

safest route, backing out of the yard.

ECUAÓs letter of March 12, 2019 , also noted two previous

incidents which resulted in disciplinar y action (written

reprimands) being taken against Respondent in 2017. At hearing,

Mr. Packer contested the validity of the two reprimands.

However, as those reprimands were not identified as aggravating

factors in the March 18, 2019 , agency action letter , they are

not legally relevant to the determinations made herein.

Mr. Packer timely requested a hearing to challenge ECUAÓs

decision. In accordance with the terms of the ÐAdministrative

Law Judge Services ContractÑ (Contract), entered into between

ECUA and DOAH, ECUA forwarded the request for hearing to DOAH.

At the final hearing, which took place as scheduled on

May 29, 2019, ECUA called three witnesses: Rebecca Lester,

employed by ECUA as a human resources generalist; Kenneth

Vinson, employed by ECUA as a commercial sanitation route

driver; and Keith Kyles, employed by ECUA as sanitations

collections manager.

ECUA Exhibits 3 through 7 were admitted into evidence. In

addition, at the request of ECUA, o fficial r ecognition was taken

of c hapters 2001 - 324 and 2004 - 398, Laws of Florida.

Mr. Packer testified on his own behalf and offered

Exhibits 1 through 4 that were admitted into evidence.

ECUA made a digital audio recording of the proceedings and

provided it to the undersigned after the conclusion of th e final

hearing.

Unless otherwise indicated, all statutory references are to

the 2018 version of the Florida Statutes.

FINDING S OF FACT

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

Escambia County Utilities Authority an independent special

distric t 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 appoint, remove , and suspend its employees, and fix

their compensation.

2 . ECUAÓs mission statement specifies that the Board and

employees of ECUA Ðare committed to providing the highest

quality serviceÑ 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. Mr. Packer acknowledged on

April 14, 2009, that a copy of the Manual was available to him.

4 . During all times relevant to the instant case,

Mr. Packer was emplo yed as a sanitation equipment operator

assigned to one of ECUAÓs commercial sanitation routes.

Although Mr. Packer had been employed for several years as a

residential sanitation worker (crane operator), he had been

assigned to a commercial route for only two weeks and was still

in training at the time the mishap occurred.

5 . The events giving rise to the proposed disciplinary

action are not in dispute. As described by Mr. Packer in his

written statement of March 5, 2019, in the pre - dawn hours of

Febru ary 28, 2019 , he Ðdrove into establishment (to) pick up a

can. Attempted to back up - slightly turned my wheel to the left.

The ground gave way due to the weight of the vehicle. The

ground was saturated due to rain.Ñ

6 . According to Kenneth Vinson, the s anitation equipment

operator who was accompanying Mr. Packer on the morning of the

mishap, conditions at the site were Ðearly morning dark, some

fog, time about 5:15 a.m.Ñ

7 . Mr. Vinson accompanied Mr. Packer on the morning of

February 28, 2019 , in order to familiarize Mr. Packer with the

route. This was only the second time that Mr. Packer had been

to the Custom Specialties (Custom) location, and the first

occasion on which he was the driver of the sanitation truck. On

the first occasion, Mr. Packer ope ned the entrance gate (and

remained there) and observed the process while Mr. Vinson drove

straight in, dumped the container, and backed out through the

gate.

8 . When the mishap occurred, Mr. Packer had Ðno knowledge

of a soft spot in the ground that coul d cause a problem.Ñ

9 . Photographs were taken of the sanitation truck and the

surrounding environs at the time it was stuck at the Custom

location. Several of the photographs show an indentation in the

ground, surrounded by three landscape timbers in a Ð UÑ

formation. There are no signs indicating that a septic tank was

buried at this location, or that soft ground presented a driving

hazard.

10 . ECUA vehicles are only permitted to access dumpsters

on commercial properties on routes authorized by the busi ness

owners. However, nobody told Mr. Vinson (or Mr. Packer) that

the sanitation truck was not authorized to take the route of

egress attempted by Mr. Packer at the time of the incident ; n or

did the owner notify Mr. Vinson or Mr. Packer that the landscape

timbers surrounded a septic tank which must be avoided.

11 . While training Mr. Pack er on the commercial route,

Mr. Vinson never told Mr. Packer that he must enter and leave

all properties in the same manner that Mr. Vinson had. Indeed,

when Mr. Vinson w as first assigned to the route, he taught

himself how to drive it and was not trained on the route by

another driver.

12 . The daily route that Mr. Packer was being trained to

service consisted of 120 stops, which took between eight to ten

hours to compl ete.

13 . When asked why he tried to turn the truck around to

leave, rather than back out, Mr. Packer testified that the route

to back out of the property was at least 70 feet, and with the

fog and darkness it would have been difficult to successfully

ba ck out of the property. Rather, in Mr. PackerÓs judgment, it

would have been much safer to turn around and drive the truck

forward off the property . Mr. Packer believed there was

adequate space to turn the truck around on the property in order

to drive s traight out.

14 . Some of the commercial properties serviced by ECUA

sanitation trucks do involve turning the truck around after

servicing the dumpster, and then driving straight out.

15 . Mr. Packer further testified that his goal is to drive

the ECUA tru cks as safely as possible, and that he felt he was

using due care when attempting to leave the Custom site.

16 . Following the mishap, Mr. Packer later returned to the

Custom location and met with the boss, Roy Reyes. Mr. Reyes

informed Mr. Packer that th e landscape timbers were not

surrounding a septic tank, but rather sunk en ground due to rain.

Mr. Reyes advised that the septic tank was located elsewhere on

the property.

17 . ECUA sanitation truck drivers are awarded quarterly

bonuses when they are acci dent/incident - free during the quarter,

and therefore deemed to be Ðsafe drivers . Ñ In addition to the

one - day suspension without pay, Mr. Packer was also denied his

quarterly bonus, of approximately $600.00, as a result of the

mishap on February 28, 2019.

18 . The preponderance of the evidence demonstrates that

Mr. Packer is not guilty of the offenses he has been charged

with. Although it is unfortunate that Truck 32G got stuck in a

mud bog on the morning of February 28, 2019, the mishap did not

occur due to the negligence of Mr. Packer, or due to violation

of safety practices or applicable rules or law. Rather, a

series of unfortunate event s led to the mishap, including: the

property owner not adequately marking the hazard and informing

ECUA that the haz ard existed; poor visibility; Mr. Packer not

being advised that he was not authorized to deviate from the

route shown him by Mr. Vinson; an d this being the first time

Mr. Packer had actually driven the truck onto the property.

CONCLUSIONS OF LAW

19 . DOAH has jurisdiction over the parties and the subject

matter of these proceedings pursuant to sections 120.65(6)

and 120.57(1), Florida Statutes.

20 . As the party asserting the affirmative of a factual

issue, ECUA has the burden of demonstrating by a preponde rance

of the evidence that Mr. Packer committed the violations cited

in the March 18, 2019, letter. Balino v. DepÓt of HRS , 348 So.

2d 349 (Fla. 1st DCA 1977). 2/ ÐProof by a ÒpreponderanceÓ of the

evidence means proof which leads the factfinder to find t hat the

existence of the contested fact is more probable than its

nonexistence.Ñ Smith v. State , 753 So. 2d 703, 704 (Fla. 5th

DCA 2000).

21 . ECUA alleges that Mr. Packer violated the following

Manual provisions: Section B - 13 A (4), conduct unbecoming a n

ECUA employee; Section B - 13 A (22), negligent operation of ECUA

vehicles or equipment; Section B - 13 A (32), violation of safety

practices; and Section B - 13 A (33), violation of ECUA rules or

guidelines or state or federal law.

22 . Section B - 13 A (4) pro hibits conduct unbecoming 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 e mployee, 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.Ñ

23 . The preponderance of the evidence does not demonstrate

that Mr. Packer violated S ection B - 13 A (4) on February 28,

2019, when he inadvertently got his sanitation truck stuck in a

muddy bog.

24 . Section B - 13 A (22) prohibits the negligent operation

of ECUA vehicles or equipment which may or may not result in

personal injury. ÐNegli gent operationÑ means a failure to

operate ECUA vehicles or equipment with proper care. The

evidence does not establish that Mr. Packer was negligent in the

operation of the sanitation truck, but rather that he

encountered an unknown hazard while attempti ng to leave the site

in as safe a manner as he deemed possible.

25 . The preponderance of the evidence does not demonstrate

that Mr. Packer violated Section B - 13 A (32) on February 28,

2019, by violating any safety practices or established safety

procedure s. The evidence does not support a finding that

Mr. Packer failed to wear safety equipment or performed any

unsafe action.

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

rules or guidelines or state or federal lawÑ and refers to

Ð[t]he failur e 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 corr ective action or report rule violations and employee

misconduct.Ñ The preponderance of the evidence does not

demonstrate that Mr. Packer violated Section B - 13 A (33) on

February 28, 2019, by violating ECUA rules or guidelines, or

state or federal law.

27 . The preponderance of the evidence demonstrates that

Mr. Packer is not guilty of any of the offenses charged in the

discipline letter of March 18, 2019. 3/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED t hat the Executive Director of the

Emerald Coast Utilities Authority find that Robert L. Packer did

not commit any of the violations set forth in ECUAÓs discipline

letter of March 18, 2019.

DONE AND ENTERED this 19th day of July , 2019 , in

Tallahassee, Leo n County, Florida.

S

W. DAVID WATKINS

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.d oah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of July , 2019 .

ENDNOTE S

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

violated a provision of the Manual are entitled to notice of the

allegati ons and a predetermination hearing conducted by ECUA.

If an employee is dissatisfied with the outcome of the

predetermination hearing, the employee is entitled to a hearing

before DOAH after making a timely request. The parameters of

the hearing are gove rned by the contract entered into between

ECUA and DOAH.

2/ The contract specifies that ÐECUA has the burden of proof by

a preponderance of the evidence.Ñ

3/ The contract between ECUA and DOAH specifies that the ALJ

Ðwill determine whether the employee has committed the violation

as charged, but the ALJ will not comment on, or recommend, any

disciplinary penalty.Ñ

COPIES FURNISHED:

Diane Marie Longoria, Esquire

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

114 East Gregory Street, 2nd Floor

Pensacola, Flori da 32502

(eServed)

Robert L. Packer

2329 Silverside Loop

Pensacola, Florida 32526

Stephen E. Sorrell, Executive Director

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

Cynthia Sutherland, Director

Human Resources a nd Administrative Services

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Pursuant to paragraph 7(m) of the contract between ECUA and

DOAH, all parties have the right to submit wri tten 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 t he

Respondent.