20-000030 Emerald Coast Utilities Authority vs. James V. Smith, Sr. Status: Closed Recommended Order on Thursday, March 26, 2020.

Summary: The preponderance of the evidence demonstrates that Mr. Smith cannot tolerate the physical demands associated with his former postition as a sanitation equipment operator II.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

E MERALD C OAST U TILITIES A UTHORITY ,

Petitioner ,

vs. Case No. 20 - 0030

J AMES V. S MITH , S R . ,

Respondent .

/

R ECOMMEND ED O RDER

Pursuant to notice, a formal administrative hearing was conducted before

Administrative Law Judge Garnett W. Chisenhall of the Division of

Administrative Hearings (ÑDOAHÒ), in Pensacola, Florida, on March 2, 2020.

A PPEARANCES

For Petitioner: Jes sica Scholl, Esquire

Moore, Hill, & Westmoreland, P.A.

Post Office Box 13290

Pensacola, Florida 32591

For Respondent: James V. Smith, Sr., pro se

901 Booker Street

Cantonment, Florida 32533

S TATEMENT OF T HE I SSUE

Whether P etitioner must be discharged from his position as a sanitation

equipment operator II because he can no longer perform the essential

functions of that job, with or without a reasonable accommodation.

P RELIMINARY S TATEMENT

Via a letter dated December 3, 201 9, Keith Kyles , Sr. , the s anitation

c ollections m anager for the Emerald Coast Utilities Authority (ÑECUAÒ),

notified James V. Smith, Sr. , that he intended to recommend that

Mr. SmithÔs employment be terminated because he could no longer perfo rm

the essential functions of his position, with or without a reasonable

accommodation. The letter informed Mr. Smith of a predetermination

hearing scheduled for December 10, 2019, during which he would have an

opportunity to address Mr. KylesÔ s assessment of his capabilities.

Following the predetermination hearing , ECUA notified Mr. Smith via

a letter dated December 12, 2019, of its intention to terminate his

employment. In support thereof, the letter noted that Mr. SmithÔs alleged

inability to perfor m the essential functions of a sanitation equipment

operator II, with or without a reasonable accommodation, amounted to a

violation of Section B - 13 A (10) of ECUAÔs Human Resources Manual and

Employee Handbook (Ñthe ManualÒ).

Mr. Smith requested a heari ng to challenge ECUAÔs decision, and ECUA

requested the services of DOAH as described in the terms of the

ÑAdministrative Law Judge Services ContractÒ (Ñthe ContractÒ) entered into

between ECUA and DOAH.

At the final hearing, which took place as scheduled on March 2, 2020,

ECUA presented the testimony of Kimberly Scruggs, ECUAÔs d irector of

H uman R esources; Ciquita Payne, ECUAÔs senior Human Resources

g eneralist; and Keith Kyles, ECUAÔs sanitation collections manager. ECUA

Exhibits 1 through 15 were admitt ed into evidence.

Mr. Smith testified on his own behalf and presented the testimony of

Ms. Payne; John Gaines, an ECUA customer service representative; Robert

Packer of ECUA; and Tim Dean, ECUAÔs lead compost technician.

Mr. SmithÔs Exhibits 1 through 3 were deemed to be demonstrative exhibits,

and the undersigned took custody of them. However, they will not serve as

the basis for any findings of fact. Mr. SmithÔs Exhibit 4 was accepted into

evidence.

ECUA made a digital audio recording of the procee dings and provided it to

the undersigned immediately after the conclusion of the final hearing.

Unless indicated otherwise, all statutory references shall be to the 2019

version of the Florida Statutes.

F INDINGS OF F ACT

1. Chapter 2001 - 324, Laws of Flori da, declared the Escambia County

Utilities Authority an independent special district with transferred assets

and enumerated powers. Chapter 2004 - 398, Laws of Florida, changed the

Escambia County Utilities AuthorityÔs name to ECUA. By law, ECUA

provides uti lity services throughout Escambia County, Florida, and has the

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

compensation within the guidelines of Escambia County Civil Services Rules.

2. ECUAÔs mission statement specifies that ECUA and its employees Ñare

committed to providing the highest quality serviceÒ and that ÑECUA will

always provide cost - effective services.Ò

3. ECUA has adopted standards set forth in the Manual in order to govern

employee conduct. For instance, Section B - 11 provi des that Ñ[r]easonable

accommodation is available to all disabled employees, where his or her

disability affects the performance of job functions.Ò Section B - 13 A (10) of the

Manual requires ECUA employees to maintain all capabilities that are

necessary f or them to perform their assigned duties.

4. Mr. Smith is 52 years old and initially worked for ECUA as a sanitation

equipment operator from March 1997 through October 2002. He returned to

his previous position at ECUA in January 2018.

5. ECUAÔs descripti on of the sanitation equipment operator II position

describes the Ñessential job functionsÒ as follows:

Operates a heavy duty, highly technical, and

specially designed, one - person automated

residential or commercial refuse collection truck

equipped with a hydraulically operated container

loading and waste packing mechanism in order to

remove solid waste on an assigned collection route.

Required to manually load yard trash, brush, or

bulk waste when assigned to yard - trash duty.

Operates a heavy duty residen tial rear - loading,

semi - automated refuse collection truck equipped

with a hydraulically operated container leading

and waste packing mechanism in order to remove

solid waste on an assigned collection route, while

acting as crew leader for the two/three per son

assigned crew.

6. Other Ñessential job functionsÒ include activities such as manually

picking up waste containers for disabled customers, climbing in and out of

trucks, climbing stairs and ladders, and walking refuse containers to and

from residences.

7. As for the positionÔs physical requirements, the job description states

that:

While performing the essential functions of this job

the employee is regularly required to sit, stand, or

walk, use hands to finger, handle, or feel, reach

with hands and arm s, stoop, kneel, jump, step, or

crouch, and lift and/or move up to 100 pounds and

occasionally required to lift over 100 pounds.

8. On June 25, 2019, Mr. SmithÔs right knee collided with the rear door or

bumper of a refuse truck while he was dumping refus e into a landfill.

He sought medical attention that day, and the resulting Ñwork status reportÒ

from the Sacred Heart Medical Group indicated he could return to work on

June 26, 2019, but was prohibited from bending at the waist, stooping,

kneelin g, crawling, climbing, or squatting for the next eight days.

9. ECUA learned of Mr. SmithÔs injury on June 25, 2019, and he was

promptly placed on leave pursuant to the Family and Medical Leave Act

(ÑFMLAÒ). The standardized form memorializing that action advised

Mr. Smith that Ñ[y]ou will be required to present a fitness - for - duty certificate

to be restored to employment.Ò

10. Mr. SmithÔs injured knee did not improve to a point at which he could

return to his position as a sanitation equipment operator I I, and he

exhausted his 12 weeks of FMLA leave in September of 2019. 1 At that point,

ECUAÔs Human Resources department placed him in two light - duty

positions. The first was a temporary position counting inventory.

That temporary position come s open for a week at the end of every ECUA

fiscal year. After Mr. Smith completed that work, he was assigned to

removing paper and plastic from ECUAÔs composting operation. Mr. SmithÔs

tenure with the compost operation was brief because he was unable to wa lk

or stand for long periods of time. 2

1 Mr. Smith enjoyed working for ECUA and was interested in other employment

opportunities there following his accident. Because he has 20 years of customer service

experience and associates degrees in culinary management and hotel and restaurant

ma nagement, Mr. Smith inquired about becoming a customer service representative.

However, ECUA only had one such opening between March and November of 2019 and

typically receives hundreds of applications when such a position comes open . Also, ECUAÔs

Human Re sources department does not have the authority to reassign employees from one

department to another. An employee interested in a position outside his or her department

must apply for the position, and the department seeking to fil l that opening makes the f inal

decision as to who is hired.

2 The witnesses disagreed about how long Mr. Smith worked at the compost operation.

Chiquita Payne, a senior human resources generalist at ECUA, and Tim Dean, ECUAÔs lead

compost technician, testified that Mr. Smith spen t no more than a few days with the compost

operation. Mr. Smith testified that he was there for 2.5 weeks.

11. Mr. Smith never returned to his position as a sanitation equipment

operator II. The medical restrictions prohibiting Mr. Smith from activities

such as bending at the waist, stooping, kneeling, crawling, climbing, or

squatting were not lifted. A note from Dr. Juliet De Campos, Mr. SmithÔs

attending physician at the Andrews Institute of Orthopedics & Sports

Medicine, gave the following assessment of Mr. Smith:

This 52 - year - old male, truck driver had an impact

injury to the anterior [of] the right knee in the

patellofemoral area with a fall to the ground which

may have twisted his knee. He had a laceration

which healed uneventfully but had recurrent

swelling and giving way of his knee. X - ray showed

no fracture or loose body. MRI suggested abnormal

MRI and medial meniscus. What was not read was

a prepatellar bursitis and contusion. The contusion

has resolved but the patient still has recurrent

swelling, catching, and giving way. He has had

physical therapy and a knee sle eve. Exam today

shows findings consistent with medial meniscus

tear but no ACL injury, atrophy. Prepatellar

bursitis has resolved. He continues to have

recurrent swelling and instability. He has been in

physical therapy which has helped but [has not

restor ed] normal function. Within a reasonable

degree of medical certainty, this injury was caused

by the job injury and treatment is necessary on

that basis.

The note continued by recommending that Mr. Smith have right knee

surgery, and he ultimately did so on January 22, 2020.

12. Following the surgery, Mr. SmithÔs attending physician anticipated

that Mr. Smith would have a Ñpermanent impairment ratingÒ and

recommended that he do no stooping, squatting, or kneeling. The attending

physician also recommended th at Mr. Smith not lift anything over 10 pounds.

Thus, the attending physician noted that Ñ[o]ffice work would be appropriateÒ

and counseled against Mr. Smith engaging in Ñcommercial driving.Ò

13. Section D - 16 of the Manual contains a section on workersÔ

com pensation providing that:

Employees will return to work anytime they are

medically able, with or without reasonable

accommodations, within six (6) months of the date

of injury. If after six (6) months from the date of

injury the employee remains unable to perform the

essential functions of his or her job, with or without

reasonable accommodation, the employeeÔs

department director, in consultation with the

Human Resources Director, shall consider the

employeeÔs prognosis and anticipated return - to -

work date, the departmentÔs present and projected

workload and needs, and all other relevant factors

in determining whether additional leave is

appropriate under the circumstances. Should the

employee remain unable to perform the essential

functions of his or her jo b, with or without

reasonable accommodation, after passage of six (6)

months from the date of the injury and any

extension thereof, if any, he or she shall retire,

resign, or be terminated.

14. Keith Kyles Sr., ECUAÔs sanitations collections manager, is sued a

letter to Mr. Smith on December 3, 2019, stating the following:

The most recent medical note in your file shows you

were last seen by your treating physician,

Dr. DeCampos, on November 19, 2019. Regarding

your ability to return to work to perform t he

essential functions of your job, Dr. DeCampos

stated, ÑNo change Ï will need to schedule surgery.Ò

Based on the above, it is clear you are unable to

perform the essential functions of your position as a

Sanitation Equipment Operator II. Moreover, a

ret urn to work date is unknown and there is no

estimated date for your return to work at this time.

Your continued absence, without a probable date of

your return to work, creates a substantial hardship

on the operational needs of the Sanitation

Department an d impairs ECUAÔs ability to

properly fulfill its responsibilities to its ratepayers.

ECUA is also unaware of any reasonable

accommodations which would enable you to

perform the essential functions of your job.

Moreover, ECUA cannot indefinitely hold your

p osition open, as the duties which it entails simply

must be performed.

We have done everything reasonably possible to

accommodate your work restrictions. However, we

can no longer allow your continuing inability to

perform the essential functions of your job, with or

without a reasonable accommodation, to create a

substantial hardship and impair ECUAÔs ability to

properly fulfill its business obligations.

15. The letter closed by notifying Mr. Smith that Mr. Kyles had scheduled

a predetermination hearing for December 10, 2019, so that Mr. Smith could

have an opportunity to discuss whether he could perform the essential

functions of a sanitation equipment operator II, with or without a reasonable

accommodation.

16. After the predetermination hearing, Mr. Ky les issued another letter to

Mr. Smith on December 12, 2019, notifying him that his employment with

ECUA had come to an end:

During your hearing, you provided information that

your knee surgery is scheduled for December 26,

2019. After surgery, you stated that you would be

required to be on crutches for 10 days, followed by

an additional eight weeks off work for recovery

post - surgery. Based on the information provided, I

have determined your continued inability to

perform the essential functions of your pos ition,

with or without reasonable accommodation, creates

a substantial hardship and impairs ECUAÔs ability

to properly fulfill its business obligations.

Your inability to perform the essential functions of

your job, with or without reasonable

accommodatio ns, constitutes a violation of

Section B - 13 A (10) . . . of ECUAÔs Human

Resources Manual

Therefore, it is with regret I notify you that your

employment with ECUA is hereby terminated

effective close of business December 12, 2019.

17. The preponderance of the evidence demonstrates that Mr. Smith

cannot tolerate the physical demands associated with his former position as a

sanitation equipment operator II, nor is there any reasonable accommodation

that could be made that would allow him to perform the dut ies of a sanitation

equipment operator II. Thus, Mr. Smith is not in compliance with Section B -

13 A (10) of the Manual.

18. Mr. Smith did not meaningfully contest ECUAÔs argument that he

could no longer perform the physical tasks associated with a sanitati on

equipment operator II. Instead, Mr. SmithÔs case focused on arguing that

there are other, less demanding positions, within ECUAÔs Sanitation

Department and that assigning him to one of those positions would be a

reasonable accommodation. However, Mr. Sm ith failed to prove that he was

capable of handling the physical demands associated with those positions.

19. For instance, Mr. Smith raised the possibility of being assigned to

ECUAÔs Ñmiss truck.Ò ECUAÔs standard refuse trucks occasionally miss refuse

p ick - ups due to inadvertence on the driversÔ part or residentsÔ failure to place

their garbage on the curb in a timely manner. The miss truck is not as large

as a typical refuse truck and is more automated. Therefore, miss truck duty

is not as physically de manding as driving a typical refuse truck.

Nevertheless, Mr. KylesÔ s testimony demonstrated that miss truck duty is

still a physically demanding position in that the miss truck driver must be

capable of transporting large refuse cans to and from residences over all

types of surfaces and distances. Because ECUAÔs standard refuse trucks

typically miss 40 - 50 refuse pickups a day, the preponderance of the evidence

indicates that the physical demands associated with miss truck duty are not

appropriate for someon e with Mr. SmithÔs physical limitations.

20. Mr. Smith also raised the possibility of transporting ECUAÔs fuel

trailer. ECUA obtains fuel for its refuse trucks by transporting a fuel trailer

to the Alabama - Florida line, acquiring the fuel, and transportin g it back to

ECUA. While this work is probably not as physically demanding as operating

a refuse truck, Mr. Kyles testified that a fuel trailer operator would still have

to satisfy the physical requirements associated with the sanitation equipment

operator II position. Mr. Smith did not present any evidence to rebut

Mr. KylesÔ s testimony, and it is therefore accepted.

21. Finally, Mr. Smith mentioned Ñmonitoring pilesÒ during his direct

testimony. However, he presented no details about such duty. As a resu lt,

there is no competent, substantial evidence indicating that pile monitoring

would be within his physical limitations, or that it would be a reasonable

accommodation.

C ONCLUSIONS OF L AW

22. DOAH has jurisdiction over the parties and the subject matte r of this

proceeding pursuant to section s 120.65(6) and 120.57(1), Florida Statutes.

23. The Contract provides that ECUA Ñhas the burden of proof by a

preponderance of the evidence.Ò In the instant case, ECUA had to prove by a

preponderance of the evidence that Mr. Smith , contrary to Section B - 13 A

(10) of the Manual , is unable to perform the essential functions of a

sanitation equipment operator II, with or without a reasonable

accommodation. ÑProof by a ÓpreponderanceÔ of the evidence means proof

which le ads the factfinder to find that the existence of the contested fact is

more probable than its nonexistence.Ò Smith v. State , 753 So. 2d 703, 704

(Fla. 5 th DCA 2000).

24. As found above, the preponderance of the evidence demonstrates that

Mr. Smith canno t tolerate the physical demands associated with his former

position as a sanitation equipment operator II, and is thus out of compliance

with Section B - 13 A (10) of the Manual.

25. During the final hearing, Mr. Smith mentioned three other positions

within ECUAÔs Sanitation Department and c onsidered each of them to be a

reasonable accommodation for him. On this point, Mr. Smith was the party

asserting the affirmative of a factual issue and thus had the burden of

demonstrating by a preponderance of the eviden ce that the other positions

were reasonable accommodations. Balino v. DepÔt of HRS , 348 So. 2d 349

(Fla. 1 st DCA 1977). However, and as discussed above, Mr. Smith was unable

to satisfy his burden of proof.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the e xecutive d irector of the Emerald Coast Utilities

Authority find that James V. Smith, Sr. , is no longer qualified to perform the

functions of a sanitation equipment operator II and take such action as

deemed appropriate under the pertinent provisions of the Human Resources

Manual and Employee Handbook.

D ONE A ND E NTERED this 26th day of March , 2020 , in Tallahassee, Leon

County, Florida.

S

G. W. C HISENHALL

Administrative Law Judge

Division of Administ rative 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 26th day of March , 2020.

C OPI ES F URNISHED :

Kimberly E. Scruggs

Emerald Coast Utilities Authority

Post Office Box 17089

Pensacola, Florida 32522 - 7089

James V. Smith, Sr.

901 Booker Street

Cantonment, Florida 32533

Jessica L. Scholl, Esquire

Moore, Hill & Westmoreland, P.A.

Post Of fice Box 13290

Pensacola, Florida 32591

(eServed)

Steve E. Sorrell, Executive Director

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

(eServed)

Cynthia Sutherland, Director

Human Resources and Administrative Services

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

(eServed)

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 arg ument 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

Respo ndent.