STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MONROE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 97-3878
)
WILLIAM BARBER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on January 16, 1998, at Key West, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Richard D. Tuschman, Esquire
Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A.
First Union Financial Center Miami, Florida 33131-2338
For Respondent: William Barber, pro se
27923 Snapper Lane
Little Torch Key, Florida 33042 STATEMENT OF THE ISSUE
The issue for final determination is whether William Barber's employment with the Monroe County School Board should be terminated.
PRELIMINARY STATEMENT
William Barber was a school bus driver employed by the
Monroe County School Board (School Board). In May 1997, Mr. Barber tested positive for marijuana on a random drug test. The Superintendent of Monroe County Schools recommended termination of Mr. Barber's employment. The School Board followed the recommendation and terminated Mr. Barber. Mr. Barber contested the termination and requested a formal hearing. On August 27, 1997, the matter was referred to the Division of Administrative Hearings.
At hearing, the School Board presented the testimony of seven witnesses and entered sixteen exhibits into evidence. Mr. Barber presented the testimony on one witness, testified in his own behalf, and entered two exhibits into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript.
The parties filed post-hearing submissions which have been duly considered in the preparation of this recommended order.
FINDINGS OF FACT
The federal Omnibus Transportation Employees Testing Act (Act), enacted in 1991, mandates, among other things, that employers with fifty (50) or more employees begin drug testing programs on January 1, 1995. The Act authorizes the Secretary of the Department of Transportation (DOT) to prescribe regulations requiring motor carriers to conduct drug and alcohol tests on drivers, including random urine drug tests.
Testing procedures are mandated to be conducted in accordance with the procedures established by the federal DOT. The procedures are set forth at 49 C.F.R. Part 40, "Procedures
for Transportation Workplace Drug Testing Programs" (DOT's Regulations).
DOT's Regulations are explicit and very detailed, including providing for security measures for the test site, procedures for the taking of urine samples, chain of custody for urine samples, and guarantees of privacy for tested employees.
Monroe County School Board (School Board) began the federally-mandated drug testing in January 1995. The School Board's drug testing program (Testing Program) is administered to all employees who are required to have a commercial drivers license and who are in safety-sensitive positions, which includes all bus drivers and mechanics.
The parties agree that DOT's Regulations require the School Board's Testing Program to use the split sample method, found at 49 C.F.R. Section 40.25(f)(10)(i)(B).
The School Board's practice is to notify employees in safety-sensitive positions about the Testing Program, including the Testing Program's policies and procedures, through an informational packet of materials. Included in the informational packet are the citation to the DOT's Regulations, a brief synopsis of specific areas of the DOT's Regulations required to be included, and the policies and procedures of the School Board's Testing Program. The employees sign the first page of the packet to acknowledge that they have received the informational packet. The signed acknowledgment is retained in
each employee's personnel file.
The School Board's bus drivers are not expected to have in their possession, during working hours, the informational packet.
William Barber was employed by the School Board as a bus driver. On January 6, 1995, Mr. Barber signed an acknowledgment that he had received the informational packet.
A little more than two years later, on the morning of May 22, 1997, Mr. Barber was ordered by his supervisor to report for a random drug test at Truman Medical Center. Mr. Barber complied with the directive.
Since 1995, Truman Medical Center maintained written procedures for collecting urine for drug tests. Its procedures were consistent with DOT's Regulations.
On May 22, 1997, Truman Medical Center's lab technician collected Mr. Barber's urine. It is undisputed that the lab technician collected only a single specimen, not a split sample as required by DOT's Regulations and the School Board's Testing Program.
The lab technician had been employed at Truman Medical Center in that capacity for five years, and one of her responsibilities was collecting urine specimens for drug testing. During the five-year period, Truman Medical Center's nurse, who was also the lab manager, had provided the lab technician with
some "hands-on" training in the collection procedures followed by Truman Medical Center. During her employment, the lab technician had performed from 1,200 to 1,800 collections for DOT-mandated tests.
In May 1997, neither the lab manager nor the lab technician was aware that a split sample, rather than a single sample, collection method was required by DOT's Regulations and by the School Board.
After Mr. Barber's urine sample was collected, he signed step 4 of the custody and control form, which states as follows:
I certify that I provided my urine specimen to the collector; that I have not adulterated it in any manner; that each specimen bottle used was sealed with a tamper-evident seal in my presence and that the information provided on this form and on the label attached to each bottle is correct.
The lab technician followed the proper procedures for the collection of the single urine sample.1
Mr. Barber's urine sample was sealed in a specimen container and forwarded to the laboratory, Quest Diagnostics in Teterboro, New Jersey, for testing. The specimen container was forwarded in a sealed, tamper-proof box, together with the custody and control form.
The urine specimen received by Quest Diagnostics was not tampered with during transport. Also, at the laboratory, the specimen was not tampered with or mistaken for another specimen.
There is no evidence to indicate, and an inference is made, that the laboratory did not make a notation that a split sample was not received. Further, an inference is made that the laboratory proceeded on the basis that the urine sample was a single, not a split, urine sample.
Quest Diagnostics performed a screening test and a confirmation test (a second testing method) on the urine specimen. The testing of the urine specimen was performed in accordance with DOT's Regulations.
There were no irregularities as to chain of custody, calibration of laboratory equipment, and quality control.
A laboratory report was issued. The screening test on Mr. Barber's urine specimen was positive for the presence of marijuana. The confirmation test was also positive. A positive result indicates that anywhere from a couple of days to two and one-half weeks, Mr. Barber had taken marijuana into his body.
The laboratory results were certified. In accordance with DOT's Regulations, the positive results were forwarded to the Medical Review Officer (MRO) assigned to Mr. Barber's case. The MRO was employed by National Medical Review Offices, Inc., in Los Angeles, California.
On May 28, 1997, six days after Mr. Barber's urine sample was collected, the MRO called Mr. Barber to discuss the positive results of the tests. The telephone call was made pursuant to DOT's Regulations. During the telephone discussion,
Mr. Barber denied that he had used or had ever used marijuana, but provided no information to the MRO which tended to provide a medically alternative explanation as to the cause of a positive test. The MRO informed Mr. Barber that he had 72 hours to request a re-test or a re-analysis.
An inference is drawn that Mr. Barber expressed an interest in a re-analysis or a re-test as a result of Mr. Barber accessing a recorded message which provided information regarding the re-test or re-analysis.
Mr. Barber accessed the recorded message. The message stated, among other things, that Mr. Barber, as the donor and a DOT regulated employee, had 72 hours after the discussion with the MRO to request a re-analysis; that the urine sample would be forwarded to another certified laboratory for testing; that the cost for the re-analysis was $125.00; and that payment must be made within five (5) working days.
Mr. Barber did not request a re-analysis of the urine sample because he was unable to pay the cost of the re-analysis. Mr. Barber was aware that, pursuant to the collective bargaining agreement between the School Board and the bargaining unit of which he was a member, he was responsible for paying the cost for the re-analysis. However, Mr. Barber was unaware that he was not required to pay the cost for the re-analysis prior to the re- analysis being performed.
The evidence is not persuasive that the recorded message notified Mr. Barber that his employer may require him to re-pay the cost for the re-analysis. However, the evidence is persuasive that, had Mr. Barber known that he was not required to pay the cost for the re-analysis up front, he would have requested the re-analysis.
At no time was Mr. Barber or the MRO aware that a split sample had not been collected. According to DOT's Regulations, had Mr. Barber requested a re-analysis, the MRO would have been notified at that point that no split sample was available for a re-analysis, and the MRO would have cancelled the test and reported the testing as being negative, not positive.
As a result of Mr. Barber not requesting a re-analysis, the MRO reported the test results as positive to First Lab, the School Board's third party administrator for the Testing Program. In turn, First Lab reported the positive results to the School Board's Personnel Director and drug manager, who reported the positive results to the School Board's Executive Director of Support Services.
School Board Policy GBEC, "Drug-Free Workplace," provides in pertinent part:
No School Board employee shall
unlawfully . . . possess, or use on or in the workplace . . . marijuana. . . .
Workplaces in the District shall be considered as work performance sites; School Board property; school-owned vehicles or school-approved vehicles for transporting students to and from school or school
activities; and off-school property during any school-sponsored or school-approved activity, event, or function in which students are under District jurisdiction.
As an employment condition, individuals shall:
abide by the provisions of this School Board Rule.
* * *
The School Board based on the Superintendent's recommendation shall take one (1) or both of the following actions within thirty (30) days of receiving notification as described in Subsections (1)(b) and (2) herein:
Initiate appropriate disciplinary action against the employee which may be nonrenewal, suspension, or dismissal of employment as provided in Sections 230.23(5) and 231.36, Florida Statutes.
Allow the employee to participate in a drug abuse assistance or rehabilitation program approved by the School Board. Failure of an employee to satisfactorily complete such program may result in nonrenewal, suspension, or termination of employment.
The School Board shall offer assistance and information on drug abuse to maintain a drug-free workplace by providing School Board employees with
* * *
(c) An Employee Assistance Program or access to such a program to provide counseling, treatment, or rehabilitation.
School Board Policy GDQD, "Discipline, Suspension, and Dismissal of Support Staff," provides in pertinent part:
Noninstructional staff members may be suspended from duty by the Superintendent or the School Board. . . .
Prior to making a recommendation for dismissal, an administrative investigation shall be completed and an informal hearing
shall be conducted at which time the employee shall have an opportunity to refute the charges or provide additional information or evidence. When a recommendation for dismissal is made by the Superintendent, good and sufficient reasons shall be stated.
A noninstructional staff member may only be dismissed by the School Board's action. The School Board shall take final action on the Superintendent's recommendation.
Any suspension or dismissal shall be pursuant to Florida Statutes.
* * *
Cause for dismissal shall include, but not be limited to:
* * *
(c) Reporting to work under the influence of intoxicants or possessing alcohol or illegal drugs while on the job [refer to the School Board Rule entitled "Drug-Free Workplace" (File: GBEC);. . . .
Even though the above School Board policies do not provide for mandatory termination from employment for employees who test positive in the School Board's Testing Program, the established practice of the School Board is to terminate such employees. The rationale for the School Board's established practice is that, because the results of a positive DOT drug test does not indicate precisely when the employee used drugs, the School Board has decided to "err . . . on the side of children" and terminate the employee.
Prior to Mr. Barber, four employees had tested positive. Of the four, two employees resigned, one employee never returned to work, and one employee was terminated.
Regarding discipline, the collective bargaining agreement, Section 12: "Drug and Alcohol Testing," provides in pertinent part:
The purpose of drug and alcohol testing is to deter the use of drugs and alcohol in the workplace by establishing standard procedures for drug and alcohol testing for all employees required to hold a commercial driver's license. . . . The School Board shall be responsible for the cost of drug and alcohol testing of employees with the exception of administrative and legal challenges to test results, which shall be paid by the employee.
* * *
Return to Duty Testing
All employees who previously tested positive on a drug or alcohol test must submit to a Return to Duty Test and test negative prior to returning to duty.
Follow-up Testing
Unannounced follow-up alcohol and/or controlled substance testing as directed by a substance abuse professional in accordance with the FHWA Regulations shall occur when it is determined that a covered employee is in need of assistance in resolving problems associated with alcohol misuse and/or use of drugs. The number and frequency of follow-up testing shall be determined by the substance abuse professional. If an employee elects to request additional testing of the split urine sample, the employee shall be required to pay for the test.
Positive Tests
1. Employees who have a confirmed positive drug or positive alcohol test may be disciplined, up to and including discharge. The Board may, if the circumstances so warrant, offer rehabilitation. If the rehabilitation is offered and accepted by the employee, the employee will be responsible for all costs associated with participation in the rehabilitation program.
The informational packet of materials provided to employees, regarding the School Board's Testing Program, provides in pertinent part:
* * *
In the event a return-to-duty test is required, the driver must also be evaluated by a substance abuse professional (SAP) and participate in any assistance program prescribed.
Follow-up testing: Following a determination that a driver is in need of assistance in resolving problems associated with alcohol misuse and/or use of controlled substances, each employer shall ensure that the driver is subject to unannounced follow-up alcohol and/or controlled substances testing as directed by the substance abuse professional. The driver shall be subject to a minimum of six follow-up controlled substances and/or alcohol tests in the first 12 months.
* * *
Controlled Substances
All testing for controlled substances shall be performed on urine specimens and be accomplished by means of an initial screen (Enzyme Immunoassay or EIA), followed by a
confirmation of any positive findings by Gas Chromatography/Mass Spectrometry or GC/MS. All controlled substances testing will be carried out at a laboratory certified by the Department of Health and Human Services (DHHS).
* * *
Drivers who are known to have engaged in prohibited behavior, with regard to alcohol misuse or use of controlled substances, are subject to the following consequences:
-- Drivers shall not be permitted to perform safety-sensitive functions.
-- Drivers shall be advised by the employer of the resources available to them in evaluating and resolving problems associated with the misuse of alcohol or use of controlled substances.
-- Drivers shall be evaluated by substance abuse professional (SAP) who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and controlled substance use.
-- Before a driver returns to duty requiring performance of a safety-sensitive function, he/she shall undergo a return-to-duty test with a result indicating a breath alcohol level of less than 0.02 if the conduct involved alcohol, or a controlled substances return-to-duty test with a verified negative result if the conduct involved controlled substance use.
-- In addition, each driver identified as needing assistance in resolving problems associated with alcohol or controlled substances shall be evaluated by a SAP to determine that the driver has followed the rehabilitation program prescribed.
-- The driver shall also be subject to unannounced follow-up alcohol and controlled substances testing. The number and frequency of such follow-up testing shall be as directed by the SAP, and consist of at least six tests in the first 12 months.
The School Board's Director of Transportation admits that rehabilitation is a potential alternative to dismissal. However, the Director of Transportation is of the opinion that parents of children would have no confidence in a school bus driver who has gone through drug rehabilitation; and she, therefore, agrees that school bus drivers who test positive for drugs should be terminated. The Director of Transportation did not present any basis for her opinion.
By letter dated May 30, 1997, the Superintendent of Monroe County Schools notified Mr. Barber, among other things, that he was suspended, with pay, until the next School Board meeting, and that a conference for the record would be held prior to the School Board meeting.
On June 6, 1997, a conference for the record was held. Among those in attendance were Mr. Barber and the School Board's Executive Director of Support Services. The conference for the record was, among other things, a fact-finding meeting regarding Mr. Barber testing positive for marijuana. Mr. Barber denied that he had used or had ever used marijuana. Additionally, at the conference for the record, Mr. Barber expressed his concerns regarding the collection procedure used by Truman Medical Center for the collection of his urine sample.
The Executive Director of Support Services investigated Mr. Barber's concerns regarding the collection procedure, including talking with the employees at Truman Medical Center and the testing laboratory. The Executive Director concluded that the procedures followed by Truman Medical Center were proper and that the positive result was valid. As a consequence, the Executive Director recommended to the Superintendent that Mr. Barber be terminated.
By letter dated August 4, 1997, the Superintendent notified Mr. Barber that, among other things, he was terminated from employment with the School Board.
Mr. Barber requested a formal hearing regarding the termination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.
It is undisputed that the School Board was required by DOT's Regulations to collect a split sample in accordance with 49
C.F.R. Section 40.25(f)(10)(i)(B). It is also undisputed that neither the lab technician nor the lab manager were aware of the requirement, and, as a result, the lab technician collected a single sample.
The Act authorized DOT's Regulations to be promulgated "in the interest of commercial motor vehicle safety." 49
U.S.C.A. Section 31306(b). The federal Secretary of Transportation is mandated to develop regulations that "provide that each specimen be subdivided, secured, and labeled in the presence of the tested individual and that a part of the specimen be retained in a secure manner to prevent the possibility of tampering, so that if the individual's confirmation test results are positive that individual has an opportunity to have the retained part tested by a 2d confirmation test done independently at another certified laboratory if the individual requests the 2d confirmation test not later than 3 days after being advised of the results of the first confirmation test." 49 U.S.C.A. Section 31306(c)(5).
DOT's Regulations are found at 49 C.F.R. Part 40.
As to the procedures for specimen collection, 49 C.F.R. Section 40.25 provides for the minimum precautions required and provides in pertinent part:
(f) Integrity and identity of specimen. Employers shall take precautions to ensure that a urine specimen is not adulterated or diluted during the collection procedure and that information on the urine bottle and on the urine custody and control form can identify the individual from whom the specimen was collected. The following minimum precautions shall be taken to ensure that unadulterated specimens are obtained and correctly identified:
* * *
(10) The collection site person shall instruct the employee to provide at least 45 ml of urine under the split sample method of collection or 30 ml of urine under the single sample method of collection.
(i) (A) . . .
* * *
(B) Employers with employees subject to drug testing under the drug testing rules of the Federal Highway Administration, Federal Railroad Administration, Federal Transit Administration, or Federal Aviation Administration shall use the "split sample" method of collection for those employees.
(ii) Employers using the split sample method of collection shall follow the procedures in this paragraph (f)(10)(ii):
(A) The donor shall urinate into a collection container or a specimen bottle capable of holding at least 60 ml.
(B)(1) If a collection container is used, the collection site person, in the presence of the donor, pours the urine into two specimen bottles. Thirty (30) ml shall be poured into one specimen bottle, to be used as the primary specimen. At least 15 ml shall be poured into the other bottle, to be used as the split specimen.
(2) If a single specimen bottle is used as a collection container, the collection site person, in the presence of the donor, shall pour 15 ml of urine from the specimen bottle into a second specimen bottle (to be used as the split specimen) and retain the remainder (at least 30 ml) in the collection bottle (to be used as the primary specimen).
Nothing in this section precludes the use of a collection method or system that does not involve the physical pouring of urine from one container or bottle to another by the collection site person, provided that the method or system results in the subdivision of the specimen into a primary (30 ml) and a split (at least 15 ml) specimen that can be transmitted to the laboratory and tested in accordance with the requirements of this Subpart.
Both bottles shall be shipped in a
single shipping container, together with copies 1,2, and the split specimen copy of the chain of custody form, to the laboratory.
If the test result of the primary specimen is positive, the employee may request that the MRO direct that the split specimen be tested in a different DHHS- certified laboratory for presence of the drug(s) for which a positive result was obtained in the test of the primary specimen. The MRO shall honor such a request if it is made within 72 hours of the employee having been notified of a verified positive test result.
When the MRO informs the laboratory in writing that the employee has requested a test of the split specimen, the laboratory shall forward, to a different DHHS-approved laboratory, the split specimen bottle, with seal intact, a copy of the MRO request, and the split specimen copy of the chain of custody form with appropriate chain of custody entries.
The result of the test of the split specimen is transmitted by the second laboratory to the MRO.
Action required by DOT agency regulations as the result of a positive drug test (e.g., removal from performing a safety- sensitive function) is not stayed pending the result of the test of the split specimen.
If the result of the test of the split specimen fails to reconfirm the presence of the drug(s) or drug metabolite(s) found in the primary specimen, the MRO shall cancel the test, and report the cancellation and the reasons for it to the DOT, the employer, and the employee.
Further, as to procedures for laboratory analysis, 49
C.F.R. Section 40.29 provides in pertinent part:
(b) Receiving. (1)(i) . . .
(ii) Where the employer has used the split sample method, and the laboratory observes that the split specimen is untestable, inadequate, or unavailable for testing, the laboratory shall nevertheless test the
primary specimen. The laboratory does not inform the MRO or the employer of the untestability, inadequacy, or unavailability of the split specimen until and unless the primary specimen is a verified positive test and the MRO has informed the laboratory that the employee has requested a test of the split specimen.
In situations where the employer uses the split sample collection method, the laboratory shall log in the split specimen, with the split specimen bottle seal remaining intact. The laboratory shall store this sample securely (see paragraph (c) of this section). If the result of the test of the primary specimen is negative, the laboratory may discard the split specimen. If the result of the test of the primary specimen is positive, the laboratory shall retain the split specimen in frozen storage for 60 days from the date on which the laboratory acquires it (see paragraph (h) of this section). Following the end of the 60-day period, if not informed by the MRO that the employee has requested a test of the split specimen, the laboratory may discard the split specimen.
When directed in writing by the MRO to
forward the split specimen to another DHHS- certified laboratory for analysis, the second laboratory shall analyze the split specimen by GC/MS to reconfirm the presence of the drug(s) or drug metabolite(s) found in the primary specimen. Such GC/MS confirmation shall be conducted without regard to the cutoff levels of § 40.29(f). The split specimen shall be retained in long-term storage for one year by the laboratory conducting the analysis of the split specimen (or longer if litigation concerning the test is pending).
Additionally, as to procedures for the reporting and review of results, 49 C.F.R. Section 40.33 provides in pertinent part:
Medical review officer--qualifications and responsibilities.
* * *
(3) The role of the MRO is to review and interpret confirmed positive test results obtained through the employer's testing program. . . . .
Positive test result.
Prior to making a final decision to verify a positive test result for an individual, the MRO shall give the individual an opportunity to discuss the test result with him or her.
The MRO shall contact the individual directly, on a confidential basis, to determine whether the employee wishes to discuss the test result. A staff person under the MRO's supervision may make the initial contact, and a medically licensed or certified staff person may gather information from the employee. Except as provided in paragraph (c)(5) of this section, the MRO shall talk directly with the employee before verifying a test as positive.
If, after making all reasonable efforts and documenting them, the MRO is unable to reach the individual directly, the MRO shall contact a designated management official who shall direct the individual to contact the MRO as soon as possible. If it becomes necessary to reach the individual through the designated management official, the designated management official shall employ procedures that ensure, to the maximum extent practicable, the requirement that the employee contact the MRO is held in confidence.
If, after making all reasonable efforts,
the designated management official is unable to contact the employee, the employer may place the employee on temporary medically unqualified status or medical leave.
The MRO may verify a test as positive without having communicated directly with the employee about the test in three circumstances:
* * *
(7) Following verification of a positive
test result, the MRO shall, as provided in the employer's policy, refer the case to the employer's employee assistance or rehabilitation program, if applicable, to the management official empowered to recommend or take administrative action (or the official's designated agent), or both.
* * *
(e) In a situation in which the employer has used the single sample method of collection, the MRO shall notify the employee who has a confirmed positive test that the employee has
72 hours in which to request a reanalysis of the original specimen, if the test is verified positive. If requested to do so by the employee within 72 hours of the employee's having been informed of a verified positive test, the Medical Review Officer shall direct, in writing, a reanalysis of the original sample. The MRO may also direct, in writing, such reanalysis if the MRO questions the accuracy or validity of any test result. Only the MRO may authorize such a reanalysis, and such a reanalysis fails may take place only at laboratories certified by DHHS. If the reanalysis fails to reconfirm the presence of the drug or drug metabolite, the MRO shall cancel the test and report the cancellation and the reasons for it to the DOT, the employer and the employee.
(f)(1) In situations in which the employer
uses the split sample method of collection, the MRO shall notify each employee who has a confirmed positive test that the employee has
72 hours in which to request a test of the split specimen, if the test is verified as positive. If the employee requests an analysis of the split specimen within 72 hours of having been informed of a verified positive test, the MRO shall direct, in writing, the laboratory to provide the split specimen to another DHHS-certified laboratory for analysis. If the analysis of the split specimen fails to reconfirm the presence of the drug(s) or drug metabolite(s) found in the primary specimen, or if the split specimen is unavailable, inadequate for testing or untestable, the MRO shall cancel
the test and report cancellation and the reasons for it to the DOT, the employer, and the employee.
(2) If the analysis of the split specimen is reconfirmed by the second laboratory for the presence of the drug(s) or drug metabolites(s), the MRO shall notify the employer and employee of the results of the test.
(g) If an employee has not contacted the MRO within 72 hours, as provided in paragraphs
(e) and (f) of this section, the employee may present to the MRO information documenting that serious illness, injury, inability to contact the MRO, lack of actual notice of the verified positive test, or other circumstances unavoidably prevented the employee from timely contacting the MRO. If the MRO concludes that there is a legitimate explanation for the employee's failure to contact the MRO within 72 hours, the MRO shall direct that the reanalysis of the primary specimen or analysis of the split specimen, as applicable, be performed.
(h) When the employer uses the split sample
method of collection, the employee is not authorized to request a reanalysis of the primary specimen as provided in paragraph (e) of this section.
Mr. Barber argues that the collection procedures by the lab technician did not comply with DOT's Regulations and, therefore, the test results of his urine sample should be declared invalid. His argument is not persuasive, except as to obtaining a split sample, and specific findings have been made that the lab technician's collection procedures complied with DOT's Regulations, except for obtaining a split sample.
The School Board argues that the failure of Truman Medical Center to use the split sample method in the collection of the urine sample was harmless error. In support of its
position, the School Board relies upon an opinion letter from the General Counsel's office of DOT.2 The opinion letter was written in response to an inquiry from the School Board's counsel, based upon alleged facts provided by the School Board's counsel, regarding the effect of the failure to use the split sample method when the donor fails to request a re-analysis of a positive test. The opinion letter states, in essence, that there was no denial of a right since the donor waived the right to a test of the split sample by declining to request or failing to timely request a re-analysis and such a request would have
resulted in the MRO cancelling the test results as there was no split sample available.
The undersigned is not persuaded by the School Board's position. It was not harmless error to fail to use the split sample method. Mr. Barber was denied a fundamental right, a substantive right, provided to him by the federal government, the School Board, and the collective bargaining agreement. Mr. Barber was denied his right to the split sample method and the procedures associated therewith. The test results should not be considered valid.
In the "Operating Guidance for DOT Mandated Drug Testing Programs" dated June 1, 1992, DOT provides guidance for the application of procedures in DOT's Regulations. The intent of the document is to provide standardization of interpretation. The document addresses, among other things, the rejection of specimens presented to laboratories and the cancellation of specimen tests by the MRO when certain procedural errors occur. The document does not address errors pertaining to using the wrong sample method. However, the document does state that "Decisions about the ultimate impact of procedural errors will be determined by administrative or legal proceedings and are not within the scope of this document."
As to the opinion letter, little weight and little deference is given to it. There was no opportunity for the undersigned to compare and evaluate the alleged facts provided to
the General Counsel's office of DOT with what has been determined
as facts in the instant case because the inquiry letter was not provided to the undersigned along with the opinion letter.
Additionally, the School Board was given the option by the federal government to choose which method, the single sample method or the split sample method, to use in the School Board's Testing Program. The School Board, not its employees, chose the split sample method, and, thereby, agreed to be bound by DOT's Regulations pertaining to the split sample method. In the collective bargaining agreement, the School Board agreed that DOT's Regulations would be followed. DOT's regulations provide, among other things, the "minimum precautions" which must be taken. The failure to use the split sample method, as required by the School Board, failed to provide the minimum precautions required by DOT's Regulations and to protect the rights of the donor, Mr. Barber.
Furthermore, the evidence is clear that, if Mr. Barber was aware that the re-analysis would be performed without him paying the cost of the re-analysis up front, he would have timely requested the re-analysis. It is not clear whether the laboratory was performing the testing on the basis of a single sample method or a split sample method. However, such a request would have resulted in the MRO cancelling the test and reporting the results as negative.
Even assuming that the failure to use the split sample method and the procedures associated therewith were procedural
errors, the errors were not harmless. The impact of the errors
was detrimental and still point to the same conclusion, i.e., that the test results should not be considered valid.
Mr. Barber was employed in a safety-sensitive position. Being in such a position, DOT's Regulations require that an employee, who has tested positive, not perform in the safety- sensitive position after the employer has been notified about the positive results. Mr. Barber was not permitted to drive a school bus when the School Board received notification of the positive results.
The collective bargaining agreement provides that School Board Employees shall be disciplined, dismissed, demoted, and suspended for "just cause." Article V, Section 2. See,also, Subsection 231.3605(2)(c), Florida Statutes. Consequently, Mr. Barber should only be dismissed if just cause exists.
Just cause does not exist in the instant case. The test results are not valid. As a consequence, Mr. Barber should not be terminated.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Monroe County School Board enter a final order declaring the drug test results of William Barber to be invalid and reinstating William Barber to his position.
DONE AND ENTERED this 30th day of July, 1998, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1998.
ENDNOTES
1/ The evidence presented by the School Board is persuasive that the lab technician followed the appropriate procedures during and after the collection of the single urine sample and prior to Mr. Barber completing step 4 of the custody and control form.
2/ The opinion letter is undated but appears to have been faxed to the School Board's counsel on January 13, 1998.
COPIES FURNISHED:
Richard D. Tuschman, Esquire Muller, Mintz, Kornreich, Caldwell,
Casey, Crosland & Bramnick, P.A. First Union Financial Center Miami, Florida 33131-2338
William Barber, pro se 27923 Snapper Lane
Little Torch Key, Florida 33042
Michael J. Lannon, Superintendent School Board of Monroe County Post Office Box 1788
Key West, Florida 33041-1788
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.
| Issue Date | Proceedings |
|---|---|
| Sep. 02, 1999 | Agency appeal is dismissed for failure to comply with court order, 3rd DCA Case No. 99-612 filed. |
| Feb. 16, 1999 | Final Order of School Board filed. |
| Jul. 30, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 01/16/98. |
| Mar. 30, 1998 | Respondent`s Proposed Recommended Order filed. |
| Mar. 19, 1998 | Petitioner`s Proposed Recommended Order filed. |
| Mar. 06, 1998 | Petitioner`s Notice of Filing Notary Public Certificates; (4) Certificate of Notary Public filed. |
| Feb. 17, 1998 | (2 Volumes) Transcript of Proceedings filed. |
| Jan. 26, 1998 | Letter to Judge Powell from R. Tuschman (re: list of petitioner`s & respondent`s exhibits accepted as evidence at hearing) filed. |
| Jan. 16, 1998 | CASE STATUS: Hearing Held. |
| Jan. 14, 1998 | Petitioner`s Motion to Allow Telephone Testimony from One Additional Out of State Witness (filed via facsimile). |
| Jan. 13, 1998 | Order Authorizing Testimony by Telephone sent out. |
| Jan. 09, 1998 | Petitioner`s Motion to Allow Telephone Testimony from Out of State Witnesses (filed via facsimile). |
| Dec. 17, 1997 | Prehearing Order sent out. |
| Dec. 02, 1997 | (Petitioner) Notice of Taking Deposition (filed via facsimile). |
| Sep. 30, 1997 | Notice of Hearing sent out. (hearing set for 1/16/98; 9:00am; Key West) |
| Sep. 19, 1997 | Joint Response to Initial Order (filed via facsimile). |
| Sep. 15, 1997 | Order Granting Extension of Time sent out. (joint response to initial order due by 9/19/97) |
| Sep. 12, 1997 | (Richard D. Tuschman) Notice of Appearance (filed via facsimile). |
| Sep. 12, 1997 | Petitioner`s Motion for Extension of Time to File Joint Response to Initial Order (filed via facsimile). |
| Sep. 02, 1997 | Initial Order issued. |
| Aug. 27, 1997 | Order Of Reference; Agency Referral Letter (Respondent Verbally requested Formal Hearing at board meeting); Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 30, 1998 | Recommended Order | Respondent denied right to the School Board's required split sample method of urine collection for drug tests. Positive results not considered valid. Just cause for termination does not exist. Reinstate Respondent. |
