Petition for Writ of Certiorari to Review Quasi-Judicial Action: Board of Local Government: EMPLOYMENT – certiorari review is limited to whether due process has been accorded, whether the essential requirements of law were observed and whether the order is supported by competent substantial evidence – whether Meaton was unlawfully terminated for filing grievances is outside certiorari review – Court cannot determine whether there were due process violations as there is no transcript nor any record evidence showing that Meaton objected to the procedure utilized by the Board in entering its Order – Order is not supported by competent substantial evidence – findings of fact do not support the legal conclusion that there was just cause to terminate Meaton - Petition granted.  Brian Meaton v. City of St. Petersburg, No. 03-5025AP-88B (Fla. 6th Cir. App. Ct. Jan. 13, 2005).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

BRIAN MEATON,

                        Petitioner,

 

vs.                                                                                                Appeal No. 03-5025AP-88B

                                                                                                    UCN522003AP005025XXXXCV

 

CITY OF ST. PETERSBURG and

CIVIL SERVICE BOARD for

CITY OF ST. PETERSBURG,

                        Respondents.

________________________________________________/

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response and the Reply.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            The Petitioner, Brian Meaton (Meaton), seeks review of the Order, entered June 13, 2003, in which the Civil Service Board of the City of St. Petersburg (Board), determined that the City of St. Petersburg (City) had factual and legal just cause to terminate Meaton’s employment.  In reviewing the administrative action taken by the City and the Board, the Court must consider whether Meaton was afforded procedural due process, whether the essential requirements of law were observed and whether the Order is supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action). 

            The record shows that Meaton was employed with the City in the Water Resources Department as a Plant Operator II for approximately 10 years at the time of his termination, effective April 8, 2003.  Meaton’s termination was the result of a series of incidents that occurred between January and March 2003 and which centered around several grievances filed by Meaton.  As set forth in the Employee Notice, dated April 3, 2003, Meaton was terminated for three Group III violations of the City’s Rules and Regulations of the Personnel Management System, to wit: 

Group III, Rule #14:  Threatening, intimidating, coercing or interfering with fellow employees, or supervision;

 

Group III, Rule #15:  Making or publishing false, vicious, or malicious statements concerning any employee, supervisor, the City, or its operation; and,

 

Group III, Rule #25:  Improper conduct either on or off the job, which would tend to affect the employee’s relationship to his job, his fellow employees, his reputation or goodwill in the community.

 

            The record shows that, leading up to his termination, Meaton filed, on March 3, 2003, a “Step 1” grievance, [1] Grievance No. 03-03, with Patricia Anderson, the Director of the Water Resources Department, [2] alleging that there had been a violation of Article 4, Section 5 of the City’s Collective Bargaining Agreement (CBA). [3]   Attached to the grievance was a memo outlining Meaton’s allegation that “Jack [Sadowski] was actively pursuing aggression towards me and this constitutes harassment.” [4]   Meaton asserted that Mr. Sadowski violated the City’s personnel rules by informally investigating a sexual harassment complaint against Meaton, [5] which turned out to be unfounded.  In the memo, Meaton requested that the violations be “reviewed.”  In response, Bruce Bates, Meaton’s immediate supervisor, sent Meaton a memo, dated March 5, 2003, which stated, “[t]his is to notify you that the issue raised in your grievance is not the proper subject under the formal grievance procedures contained within the collective bargaining agreement.”  Mr. Bates then scheduled a meeting with Meaton, on March 11, 2003, with himself, Mr. Sadowski, Chief Plant Operator, and Clarence Scott, Assistant Director. 

            Following the meeting, on March 18, 2003, Meaton filed two “Step 2” grievances: an Amended Grievance No. 03-03, and Grievance No. 03-04, which stated that Meaton was “subject to a forced and unscheduled meeting” in which management denied his request for union representation, a violation of Article 4, Section 3 the CBA, [6] denied his request to have the meeting held in an open forum instead of “behind closed doors,” and alleged that management acted with hostility towards him during the meeting.  In response to these grievances, there was a flurry of correspondence, summarized as follows: [7]

·        In a memo to Ms. Anderson, dated March 21, 2003, Mr. Scott recounted his version of events surrounding the March 11th meeting.  Mr. Scott stated that Meaton was not allowed to have Gary Brooks, Water Reclamation Plant Operator III (a supervisory position), sit in on the meeting as Mr. Brooks was “not a union official and because under the circumstances Mr. Meaton was not entitled to have union representation.”  Mr. Scott stated that Mr. Meaton requested that the meeting be rescheduled and that “as Assistant Director, I was instructing him that we were proceeding with the meeting as planned.”  During the course of the meeting, Mr. Scott cautioned Mr. Meaton about making disparaging comments, at which point Mr. Meaton stated he had nothing else to discuss and the meeting was adjourned.  [RA, F]  

·        On March 25, 2003, Meaton filed an injury report that stated that Meaton fell in the bathroom on March 24, 2003, striking his chin on an unknown object.  Meaton was sent to the hospital where he received sutures.[8]  [RA, S]

·        In a letter to Meaton, dated March 26, 2003, Ms. Anderson requested a written statement from Meaton, to be submitted no later than April 2, 2003, regarding his allegation that Mr. Sadowski had threatened him. [PA, XII; RA, H]

·        In the “Summary of Testimony,”[9] dated March 26, 2003, Mr. Bates recounted the March 11th meeting.  Mr. Bates’ version of events mirrors the events as stated by Mr. Scott, but adds that Meaton was informed both before, and then during the meeting, that “there was no expectation of a formal disciplinary action” and that the meeting was for the purpose of “promoting communication and our new Departmental Core Values.”  [RA, G]

·        In a memo to Meaton, dated March 27, 2003, Mr. Scott advised Meaton that his amended grievance would not be heard under the formal grievance procedure, but that grievance 03-04 would be submitted to the Labor Relations division, Step 3 of the grievance process.  Mr. Scott also stated that Meaton “may submit written notification of your appeal of the Department’s position in these matters to the Labor Relations Division within three working days of your receipt of this memorandum.” [PA, X; RA, L]

·        In a letter to Meaton, dated March 28, 2003, Tish Elston, Deputy Mayor/City Administrator, confirmed her conversation with Meaton on March 26, 2003, and advised that “[i]n order to properly deal with your allegations, we will need to have your concerns presented in a more formal way” and suggested a letter to Mr. Cornwell or by contacting Ms. Richardson “to arrange to give a statement.”  [RA, I]

·        In a memo to Ms. Anderson, dated March 29, 2003, Meaton recounted the alleged altercation with Mr. Sadowski on March 15, 2003, in which Mr. Sadowski verbally threatened Meaton.  [PA, XI; RA, J]

·        In a memo to Karen Richardson, Manager, Labor Relations, dated March 31, 2003, Ms. Anderson set forth in detail “the discourtesy and disrespect exhibited by Brain toward me this morning” on March 31, 2003.  As stated by Ms. Richardson in her memo, this information was provided “just for the record” in conjunction with Ms. Richardson’s consideration of Meaton’s Amended Grievance and Grievance No. 03-04.  [PA, XIV; RA, K]

·        In a memo to Gary Cornwell, Director, Human Relations, from Mr. Scott, dated April 2, 2003, stating that a departmental investigation concerning Meaton’s allegations that Mr. Sadowski had threatened him, as presented in the written statement of March 29, 2003, failed to disclose any evidence to sustain the allegations.  The memo attaches copies of interviews of Mr. Sadowski and two potential witnesses.  [PA, XIII; RA, N]

·        In the Employee Notice, dated April 3, 2003, Meaton was terminated for three Group III violations, effective April 8, 2003, the same date as Meaton’s pre-termination hearing, for misconduct beginning Janauary 24, 2003 through March 31, 2003.[10]  The Notice states that Meaton “used the forms associated with the formal grievance process as a forum by which he can demean, falsely accuse, and disrespectfully characterize his superiors.”  The Notice states “the final incident of misconduct on March 31, 2003, Mr. Meaton emphatically expressed his open disdain for his entire chain of command to his Department Director.” [PA, I; RA, O] 

·        In a letter to Meaton, dated April 4, 2003, Ms. Richardson stated that the first appeal, Grievance No. 03-03, “is not a proper subject under the formal grievance procedure contained in the collective bargaining agreement” and that “the City considers the Department’s attempt to discuss the situation with you informally [on March 11, 2003] in an attempt to provide you with more information to be a proper resolution of the issue and no further action will be taken by this office in the matter.”  In regards to the second appeal, Amended Grievance No. 03-03 and Grievance No. 03-04, which concerned the meeting held on March 11th, Ms. Richardson stated that Article 4, Section 3, entitlement to union representation, had no application to the meeting since it was called by management.  The letter also provides that the remedy Meaton requested, “written apology; counseling/training on ethical treatment of subordinate support staff, personnel Rules & Regs, and the Labor Agreement” illustrated that Meaton sought “to impose some sort of punishment or embarrassment upon your department superiors as to any legitimate claim that there has been a violation of the collective bargaining agreement or any harm done by you.”  Ms. Richardson stated the grievances would not be subject to the formal grievance procedure.  Ms. Richardson goes on to explain that “[i]t is important for you to understand that the grievance process negotiated as part of the collective bargaining agreement is intended to resolve violations of the provisions contained therein, and it is not a vehicle for employees to be disrespectful or antagonistic toward supervision within their departments.”  The letter concludes with Ms. Richardson providing her number should Meaton “have any questions or wish to discuss this further.”  [PA, XVII; RA, M]  

            In appealing his 2003 termination, the record shows that the Board considered the above-listed correspondence, the testimony of several witnesses, and also considered Meaton’s prior disciplinary record. [11]   After a 15-hour hearing, the Board made 19 findings of fact [12] and concluded that there was factual and legal just cause for the City to terminate Meaton.  Meaton argues that the City failed to accord Meaton due process by the manner in which Meaton was terminated, by the Board’s utilization of an order prepared by the City, that the Order is not supported by competent substantial evidence, and that the City unlawfully terminated Meaton for filing grievances.      

            Initially, in addressing these issues the Court reiterates the standard of review of administrative action.  As set forth in Haines City, the circuit court review of an administrative agency decision is governed by a three-part standard:  whether procedural due process has been accorded; whether the essential requirement of law were observed; and, whether the findings and judgment are supported by competent substantial evidence.  See Haines City, 658 So.2d at 530.  The Court is not entitled to reweigh the evidence or substitute its judgment for that of the agency.  See id.  As Meaton does not argue that the essential requirements of law were not followed, the Court need not address that prong.  The Court cannot address whether Meaton was unlawfully terminated in retaliation for filing grievances, except as it relates to Meaton’s due process argument, as that issue falls outside of this Court’s certiorari review.  Further, the Court emphasizes that in a certiorari proceeding it is the responsibility of “the parties to prepare and transmit copies of such portions of the record deemed necessary to the issues presented.”  See Fla. R. App. P. Rule 9.220.  The record consists of “only those materials furnished to and reviewed by the lower tribunal in advance of the administrative action to be reviewed by the court.”  See Fla. R. App. P. Rule 9.190(c)(1).    

            Meaton’s primary due process argument focuses on the Board’s use of the proposed findings of fact prepared by the City’s attorney.  The City responds that there was not a due process violation as the Board’s secretary, [13] not the City attorney, submitted the order, that the Board made significant changes to the submitted order and that Meaton was free to offer his own findings of fact to the Board, which he did.  The Court finds that it cannot determine that there was a violation of due process as there is no transcript of the proceedings nor any record evidence showing that Meaton objected before the Board to the content of the proposed order or the procedure utilized by the Board in entering its Order.  See Jellison v. Dixie Southern Industrial, Inc., 857 So.2d 365, 366 (Fla. 1st DCA 2003)(finding that an objection concerning the content of the proposed final order or the procedure being utilized should have first been presented to the Judge of Compensation Claims).  In administrative proceedings, as in court proceedings, an objection must be made before the trier-of-fact to preserve the issue for appeal.  See id.; Scritchfield v. Dept. of Highway Safety and Motor Vehicles, 648 So.2d 1246, 1247 (Fla. 2d DCA 1995)(stating that without objection the argument has been waived).

            However, the Court does write to suggest that it would be a better procedure to allow the opposing party the opportunity to submit its own order for consideration before the Board utilizes an order prepared by the City.  See Ross v. Botha, 867 So.2d 567, 572 (Fla. 4th DCA 2004)(explaining that a court should never direct only one side to prepare an order without assuring that the opposing party has had the opportunity to comment or object to its contents, or prepare its own submission).  As held by the Fourth District Court of Appeal is Ross, 867 So.2d at 572-573, “[a]n order must reflect [the] independent decision-making by the judge.”  Although Meaton did submit his own order, it does not appear from the letter to Meaton from the Board’s secretary, Rosemary McCormick, dated June 11, 2003, [14] that the Board gave Meaton’s proposed Order any consideration.   

            In addressing Meaton’s remaining due process arguments, the Court finds, as it did above, that without a transcript or other record evidence, it is impossible for this Court to determine whether the Board violated Meaton’s due process rights in including the finding of fact set forth in # 19, [15] concerning an incident that occurred on April 7, 2003.  See Jellison, supra; Scritchfield, supra.  Meaton is correct in his assertion that this alleged misconduct should not have been considered by the Board because it was not contemplated in the Employee Notice, dated April 3, 2003, that specifically provided that Meaton was being terminated for misconduct “beginning January 24, 2003 through March 31, 2003.”  Due process requires that the employee be given adequate notice of charges against him before a hearing on those charges.  See West v. Board of County Commissioners, 373 So.2d 83, 85 (Fla. 3d DCA 1979)(explaining that since there was no adequate notice of the charges against him, the subsequent hearing on those “charges” was itself not a fair opportunity to be heard to which employee was entitled); see also Creel v. District Board of Trustees of Brevard Community College, 785 So.2d 1285, 1287 (Fla. 5th DCA 2001)(concluding that the administrative law judge deprived employee of procedural due process by addressing an issue that was not noticed or otherwise raised at the hearing).  However, in West and Creel, the two cases cited by Meaton in support of this argument, a record was presented to the appellate court showing that the fired employee either objected to improper notice of the charges against him or that the issue was not raised before the Board nor tried by consent.  See id.  Nonetheless, as further explained below, finding # 19 does not support the Board’s conclusion of just cause for Meaton’s termination.  

            Likewise, the Court concludes that there was not a due process violation with the Board’s entry of findings of fact # 2 through # 6, entitled “prior warnings,” nor that there was a due process violation in the manner in which Meaton was terminated, as the procedural errors were not properly preserved for appellate review.  Indeed, from the face of the record, there were several errors committed in the proceedings below.  For example, it appears that the City reached the substance of Meaton’s grievances without formally investigating their validity.  As set forth in his Termination Notice, Meaton allegedly used the grievance forms as a “forum by which he can demean, falsely accuse, and disrespectfully characterize his superiors.”  (emphasis added). 

            Also of concern, as illustrated by the sequence of events above, is that a decision was made to terminate Meaton after the entire matter, including the March 31st incident between Meaton and Ms. Anderson, was referred up the chain of command to the Labor Relations Division.  This decision was made before Ms. Richardson, Manager of Labor Relations, had even issued her decision regarding the merits of Meaton’s grievances and the actions surrounding the grievances. [16]   As set forth in finding # 13 of the Board’s Order, Meaton did appeal his grievances to the Labor Relations Division, as suggested to Meaton by Mr. Scott in his memo on March 27, 2003.  The Court finds that within the parameters of this particular proceeding, once the matter had been referred to the Labor Relations Division with notice to Meaton, due process required that Meaton’s supervisors refrain from taking any employment action on those specific matters, pending Labor Relations’ decision.  See  e.g. Keys Citizens for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940, 948 (Fla. 2001)(stating that “[t]he specific parameters of notice and the opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of a particular proceeding”). [17]   Notably, in considering the grievances and Meaton’s actions, including those set forth by Ms. Anderson in her memo of March 31, 2003, Ms. Richardson did not impose or suggest disciplinary action, rather she gave Meaton a general warning not to use the grievance process to be disrespectful or antagonistic toward supervision.  Nonetheless, the Court cannot not conclude that there was a due process violation as there is no transcript of the hearing before the Board, nor any evidence in the record to show that Meaton raised this issue below.

            The Court now addresses whether the Order itself is supported by competent substantial evidence to sustain the Board’s conclusion that there was just cause to terminate Meaton. Competent substantial evidence has been described as such evidence that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.”  See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002)(citing De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957).  Florida courts have long recognized that verdicts or findings must be based on something more than mere probabilities, guesses, whims, or caprices, but rather on evidence in the record that supports a reasonable foundation for the conclusion reached.”  Id.

            The Court finds that, with the exception of finding # 19, also discussed above, and finding # 20, Meaton does not contest the accuracy of the Board’s findings of fact; rather, Meaton argues that those findings do not support the legal conclusion reached that there was just cause to terminate Meaton.  This Court agrees for two reasons.

            First, the Court finds there is no evidence in the record to support # 19, that Meaton hung up on Mr. Scott on April 7, 2003.  (emphasis added).  The Respondent had the same opportunity to file a transcript of the proceedings below, which may have set forth testimony regarding this finding, but did not.  See Fla. R. App. P. Rule 9.220; compare with McCray v. County of Volusia, 400 So.2d 511, 512 (Fla. 5th DCA 1981)(concluding that by omitting from appendix testimony taken before the board, discharged employee failed to present the circuit court with portions of the record that would indicate unlawful termination).

            Second, finding # 20 specifically states: “[t]hrough the above conduct, did the appellant demonstrate open criticism of his department’s leadership and a fundamental unwillingness to comply with the warnings, admonishments, and formal disciplinary action issued to him by management regarding his conduct, thereby irrevocably damaging his relationship to his employer and supervision?” [18]   The Court agrees with Meaton that this is a “catch-all” phrase and the “above conduct,” specifically as set forth in # 7 through # 18, [19] must be analyzed in relation to the evidence presented and the proposed order utilized by the Board, as contained in the record presented to this Court.  Hence, with the City’s proposed findings italicized, these findings were:      

7.      Following a telephone conversation on January 24, 2003, [in which the appellant was disrespectful and confrontational toward her], did Water Resources Department Director, Patty Anderson meet with Mr. Meaton on February 3, 2003, to discuss the demeanor he had used with her and the department’s core objectives regarding communication, respect, and courtesy?

9.      On March 4, 2003, did the appellant file a complaint using a grievance form which

included charges that his supervisor was actively pursuing aggression toward him and harassing him?

 

10.  On March 11, 2003, was an attempt made by management to address the appellant’s

complaint and to explain to him the circumstances involved in Mr. Sadowski’s inquiry? [20]

 

11.  During the meeting on March 11, 2003, was the appellant cautioned by Mr. Clarence

Scott, Assistant Director of Water Resources, to refrain from making disrespectful remarks?

 

12.  On March 18, 2003, did the appellant file a grievance which included Mr. Meaton’s

perceptions of Mr. Scott’s conduct and statements?  [On March 18, 2003, did the appellant file a grievance which included disparaging and disrespectful remarks and false characterizations against Mr. Scott?].

 

13.  On March 31, 2003, did the appellant appeal the two grievances referred to above to

      the Labor Relations step of the formal grievance procedure?

 

14.     On April 4, 2003, did Karen Richardson, Labor Relations Manager, respond to Mr. Meaton’s two grievance appeals telling him it was important for him to understand the grievance process is intended to resolve alleged violations of the collective bargaining and it is not a vehicle for employees to be disrespectful or antagonistic toward supervision within their departments?[21]

 

15.     On or about March 18, 2003, and later in writing on March 31, 2003, did the

appellant make an allegation to Director Anderson claiming that Mr. Sadowski threatened him?

 

16.    On March 26, 2003, did the appellant call Deputy Mayor Tish Elston and tell her that Mr. Sadowski threatened him and did he [falsely] represent that Director Anderson had failed to get back to him after he had reported the threat to her?

 

17.    Did the department’s investigation of the appellant’s allegation against Mr. Sadowski fail to disclose any evidence to corroborate the allegation?

 

18.    On March 31, 2003, did the appellant meet with Director Anderson and make

statements which were perceived to be[22] disrespectful, disparaging, false and ill mannered remarks to her regarding her competence and the competence of her managers?

            The Court finds that these findings are either neutral or change critical language from the City’s proposed order to an extent that there can be no conclusion of just cause for Meaton’s termination for the three, Group III violations.  Importantly, the Board, as the finder of fact charged with resolving conflicts in the evidence and weighing the credibility of the witnesses, [23] could have found that Meaton had been disrespectful and confrontational, or had made disparaging or false remarks, but did not.   There are simply no findings set forth in the Order to support the offenses Meaton was charged with violating, nor did the Board set forth findings affirming the “Description of Misconduct,” to wit: that Meaton “made a number of disrespectful, ill mannered, false, and malicious statements;” that “repeated warnings . . . have not proven effective;” that Meaton abused the grievance process; or that Meaton “expressed open disdain for his entire chain of command.”  Rather, the Board deleted from the City’s proposed findings language that Meaton was “disrespectful and confrontational” toward Ms. Anderson, that Meaton filed a “grievance which included disparaging and disrespectful remarks and false characterizations against Mr. Scott,” and that Meaton made false representations to Ms. Anderson.  The Board added to its findings that Ms. Anderson perceived Meaton’s remarks to be disrespectful, which is obviously not the same as finding Meaton was disrespectful to support the conclusion of just cause for termination. (emphasis added). 

            Therefore, without reweighing the evidence, the Court finds that the Order must be quashed, as there is not competent substantial evidence to support the Board’s decision.  See Haines City, 658 So.2d at 530.  The Court declines to directly order reinstatement with back pay, as it is not quashing the Order based on procedural due process grounds.  Compare with Patterson v. City of St. Petersburg, No. 01-3044-CI-88A (Fla. 6th Cir. App. Ct. Nov. 8, 2001); see also Broward County v. G.B.V. International, LTD., 787 So.2d 838, 844 (Fla. 2001)(stating that when an order is quashed it leaves the subject matter pending before the administrative authority as if no order had been entered). [24]  

            It is therefore,  

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby granted and this cause is remanded for action consistent with this order and opinion. 

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of January 2005.

 

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

James A. Sheehan, Esquire

341 Third Street South

St. Petersburg, FL  33701

 

Ernest Mueller, Assistant City Attorney

Post Office Box 2842

St. Petersburg, FL  33731



[1] The three grievance steps are:  Step 1, reviewed by the Manager; Step 2, reviewed by the Department Director; and, Step 3, reviewed by the Labor Relations Division.  

[2] Although restated throughout the order, for the sake of clarity, the supervisors involved in this action are as follows (beginning with Meaton’s immediate supervisor):  Bruce Bates, Manager, Water Reclamation Facilities; Jack Sadowski, Chief Plant Operater, Water Reclamation Facilities; Clarence Scott, III, Assistant Director, Water Resources Department; Patricia Anderson, Director, Water Resources Department; Karen Richardson, Manager, Labor Relations; Gary Cornwell, Director, Human Resources; and, Tish Elston, Deputy Mayor/City Administrator.

[3] This section states:  “Employees shall have the right to fair and equitable consideration of all provisions of this labor agreement, operational procedures and directives of the department, and the Rules and Regulations of the Personnel Management System.”

[4] The Court declines to address the management problems that existed in the Water Resources Department, particulary those associated with Mr. Sadowski.  The Court notes that these matters were considered by the Board.

[5] The City’s policy is that “[d]epartmental managers and supervisors are responsible for bringing any allegations or concerns related to potential cases of illegal discrimination, sexual  harassment, and/or other forms of inappropriate behavior to the immediate attention of the Employees Relations Department,” which then determines “whether or not an internal investigation is warranted.”   [Petitioner’s Appendix, VI]

 

[6] This section states:  “Employees shall have the right to Union representation if the employee desires to meet and consult with any supervisor or managerial official, via the appropriate chain of command.  The employee shall not be required to explain his reasons for wanting to consult with any supervisory or management official.  Nothing in this agreement shall be construed to prevent any employee in the bargaining unit from meeting or consulting with any supervisory or managerial official, via the appropriate chain of command without the intervention or assistance of a Union representative.”

[7] The correspondence is chronogically listed with emphasis added to the date of correspondence.  Reference to the record, Petitioner’s Appendix, PA, and Respondent’s Appendix, RA, is provided in brackets.

[8] Although there is no record of the pre-disciplinary hearing, it is undisputed that Meaton stated at the hearing that he had falsified this injury report and that the cut on his chin was from Mr. Sadowski striking him.  There was no finding made regarding this allegation and it apparently had no bearing on Meaton’s termination. 

[9] It is unclear why this “testimony” was taken and the transcription was completed by a certified court reporter.  It appears that Mr. Bates was simply recounting his version of events surrounding the March 11th meeting and that it was not sworn testimony. 

[10] It is unclear from the record what occurred in January and February of 2003.  A memo to Meaton from Ms. Anderson, dated February 5, 2003, indicates that there was a telephone conversation between them on January 24, 2003, followed by a “face-to-face” talk on February 3, 2003, regarding Meaton’s “frustration” over a winter jacket.  The memo goes on to state:  “As we discussed, it is more productive to try to influence management decisions with research, facts and data rather than emotion, assumptions based on past situations or individualistic interest.  It is important that you agree to give your support to your new manager by pointing out areas of concern at the facility, suggesting improvements and keeping lines of communication open within your chain of command in a respectful, professional manner.”  It is unclear what ultimately happened in this situation; the only other reference to the winter jacket was in the memo to Ms. Richardson from Ms. Anderson, dated March 31, 2003. 

[11] The record shows that Meaton was terminated in 2001 for two Group III violations.  Specifically, Meaton was charged with violating Rule #1, serious neglect, incompetence, or inefficiency in the performance of assigned duties, and Rule #25, as set forth above.  The 2001 termination was subsequently overturned, on March 20, 2002, by an appointed Arbitrator who concluded that Meaton should have been charged with no more than a written reprimand for violating Rule #1 (and reclassified the offense as Group I) and that Meaton did violate Rule #25 for “disrespectful and non-professional behavior” displayed toward a security officer, but should not have been terminated for the first-time offense given Meaton’s “accolades . . . for politeness and temperament” and “prior unblemished work record.”  The Arbitrator reinstated Meaton with back pay.

[12] There are 20 findings of fact listed; however, the Board failed to mark “yes” or “no” for number 8, such that number 8 cannot be considered a “finding.”

[13] The Court cannot consider the Affidavit of Rosemary McCormick as it was not developed as part of the record below.  See Fla. R. App. P. Rule 9.190(c)(1); see also City of Miramar v. Amoco Oil Company, 524 So.2d 506, 506 (Fla. 4th DCA 1988)(stating that circuit court’s certiorari review is limited to the evidence presented before the particular agency involved).  In this case, it is irrelevant whether the Board secretary or City attorney prepared/submitted the order, as both are City employees.

[14] The letter states: “[a]ttached is a copy of the Order which will be used by the Civil Service Board in making a decision in the appeal of Mr. Meaton’s termination of employment.”  (emphasis added).

[15] This finding states: “[i]n a telephone conversation with Assistant Director Scott, on April 7, 2003, concerning arrangements for Mr. Meaton to come to a pre-disciplinary hearing, did the appellant tell Mr. Scott that he was not going to follow Mr. Scott’s direct order and then did the appellant hang up on Mr. Scott?”, to which the Board marked “Yes.”

[16] The record demonstrates that utilizing the appropriate chain of command is important to the organizational structure of the City in employment matters.  The “chain of command” is explicitly referred to the CBA, Rights of Employees, and is also mentioned in Meaton’s termination notice, as well as implicitly referred to throughout the parties’ correspondence.

[17] Whether to investigate an employee’s grievance under the CBA’s formal grievance process appears to be left solely to the City’s discretion.  Except for the City’s decision to terminate Meaton for a Group III offense, the City apparently did not adhere to any other Code criteria for handling the employment action taken.  The Court finds that had the City utilized the formal grievance procedure set forth in the CBA, Article 22, Seciton 1.B., which provides specific guidelines on how a grievance is to be handled, confusion regarding who was doing what and when may have been avoided.

[18] All of the findings were in the form of questions to which the Board answered in the affirmative by placing an “X” next to the “Yes” option.

[19] While the Court finds that it is not error to have Findings # 2 through 6 in the Order, these “prior warnings” go to the type of disciplined imposed and cannot be used as a substantive basis to uphold the present disciplinary action, particularly since progressive discipline was not used in this case. 

[20] This is finding #11 from the proposed order; proposed finding #10, i.e. “[w]as it shown that the inquiries made by the appellant’s supervisor, Mr. Sadowski, were appropriate in fulfilling his supervisory responsibilities?,” was completely omitted from the final Order.

[21] As pointed out above, Meaton’s termination notice was completed on April 3, 2003.

[22] This language was added from the proposed finding.

[23] See e.g. Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998)(explaining that the trier of fact has the first-hand opportunity to hear and observe witnesses as they testify and is in a superior position to weigh the evidence and credibility of the witnesses).

[24] The Court notes that unlawful deprivation of employment, a protected property interest, may compel only one remedy, reinstatement with back pay.  See e.g. West v. Board of County Commissioners, Monroe County, 373 So.2d 83 (Fla. 3d DCA 1979)(holding that reinstatement with back pay was required for unlawfully discharged employee).  The parties can file a timely motion for rehearing on this matter, as each may deem appropriate.