STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 13-3346

CARLA J. HOLMES,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted before Administrative Law Judge Mary Li Creasy, by video teleconference at sites in Tallahassee and West Palm Beach, Florida, on May 6, 2014.

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire

School District of Palm Beach County Office of General Counsel

Post Office Box 19239

West Palm Beach, Florida 33416-9239

For Respondent: Carla J. Holmes, pro se

615 Mango Drive, Apartment 117 West Palm Beach, Florida 33415

STATEMENT OF THE ISSUE

Whether Petitioner, Palm Beach County School Board, has just cause to suspend and terminate the employment of Respondent, Carla J. Holmes, for violations of school board policies

resulting from her refusal to take a reasonable suspicion drug test on January 7, 2013.

PRELIMINARY STATEMENT

At its regular meeting on August 7, 2013, Petitioner, Palm Beach County School Board (the Board), voted to suspend Respondent, Carla J. Holmes, without pay for a 15-day period and then terminate her employment effective August 23, 2013.

Respondent timely requested a formal administrative hearing to contest the Board's action. On September 6, 2013, the matter was referred to the Division of Administrative Hearings (DOAH) for further proceedings.

The final hearing was scheduled for November 13, 2013, but was continued until February 4, 2014, at the request of both parties, in part because Respondent had not secured counsel.

Because Respondent refused to have her deposition taken, the matter was rescheduled at the request of the Board for May 6, 2014. Respondent made an ore tenus motion for continuance at the final hearing on May 6, 2014, on the basis that she did not have an attorney. The motion was denied, and the hearing proceeded as scheduled.

The Board called the following witnesses: Respondent, Rose Niva-Joseph, Andrew Kline, Kathy Harris, Commander Terry Moore, and Britoni Garson. Petitioner's Exhibits 1 through 16

and 18 through 20 were admitted into evidence. Respondent testified on her own behalf and offered no exhibits.

The final hearing Transcript was filed on June 24, 2014. Petitioner timely filed a Proposed Recommended Order that has been considered in the preparation of this Recommended Order.

Unless otherwise noted, citations to the Florida Statutes, applicable rules, and policies refer to the 2013 versions.

FINDINGS OF FACT

1. The Board is the duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Palm Beach County, Florida (the District), pursuant to Article IX, Florida Constitution, and section 1001.32, Florida Statutes.

2. From 2006 until her termination, Respondent was employed by the District as a food service assistant assigned to Palm Springs Elementary School.

3. The District has a Drug and Alcohol Free Workplace Policy (the Policy) that prohibits staff from coming to work under the influence of alcohol or illegal drugs and provides for the District to undertake "reasonable suspicion" drug testing when warranted by certain circumstances.

4. On January 7, 2013, a cafeteria worker, Rose Niva-Joseph (Niva-Joseph), heard the bell for the cafeteria door ring. When she opened the door, Respondent stumbled into the kitchen.

   
   

   Respondent sat in a chair, fell, and dropped her bag. According to Niva-Joseph, Respondent smelled like alcohol. Niva-Joseph reported her observations to the cafeteria manager, Lisa Rosenthal (Rosenthal).

5. Rosenthal observed that Respondent had fallen and sprayed water all over the floor. Rosenthal went to assistant Principal Andrew Kline (Kline) and reported that Respondent was acting very unusual. She told Kline that Respondent fell and sprayed water all over the kitchen floor.

6. Kline went to the kitchen to investigate. Kline observed that Respondent was swaying back and forth, slurring her speech and had alcohol on her breath. Kline directed Respondent to return with him to his office.

7. Kline contacted Human Resources Manager Britoni Garson (Garson) in the District’s Professional Standards Office to report Respondent's unusual behavior. Garson directed Kline to fill out an Observable Behaviors Checklist (Checklist). On this Checklist, Kline noted that Respondent was argumentative, her speech was slurred, she appeared restless, and had an unsteady gait. Kline also noted that Respondent had an odor of alcohol on her breath, she fell, and appeared agitated and nervous. Kline faxed the Checklist back to Garson who determined reasonable suspicion existed to suspect Respondent was under the influence of alcohol or drugs. Garson contacted the testing technicians to

   
   

   go to the school and collect a specimen for a drug and alcohol test on Respondent.

8. While in Kline's office, Respondent was agitated and belligerent. Because this was not the first time Kline had observed Respondent acting in this manner, he asked for the school district police to send an officer.

9. Kline previously observed similar behaviors from Respondent in September 2008 for which Respondent received a written reprimand for a positive drug or alcohol test. As a result of Respondent's aggressive behavior during the 2008 incident, Respondent also received a verbal reprimand with a written notation for her unprofessional behavior displayed in threatening Kline.

10. Commander Terry Moore (Moore) was dispatched on January 7, 2013, and was directed to stand by because a cafeteria worker appeared to be under the influence of alcohol or drugs, and he was to be present to deter any problems. When Moore arrived, Respondent was in the office with Kline, and Kline was trying to explain to Respondent why she was asked to submit to

    testing. Respondent was aggressive, resistant, and accused Kline of being a racist. Moore smelled the strong odor of alcohol on Respondent's breath from three to four feet away.

11. Principal Kathy Harris (Harris) was starting her first day at Palm Springs Elementary School on the morning of

    
    

    January 7, 2013. She heard yelling from Kline's office, and she looked in to see what was going on. Respondent was talking to Kline in a very argumentative tone. When Harris looked in the office, Kline was on the telephone. He came out to speak to Harris and told Harris that Respondent exhibited unusual behaviors including slurred speech and an unsteady gait. Harris personally observed Respondent being argumentative, belligerent, talking with slurred speech, and not making any sense. She believed these behaviors warranted a drug test.

12. When the technician arrived to take Respondent's specimen, Respondent refused. Harris and Kline told Respondent that refusing to take a drug test constitutes an automatic positive test pursuant to the Board's policies. Harris had not previously met Respondent, and she was unaware that Respondent had a prior positive drug or alcohol test. Kline explained to Respondent that if she refused to take the drug test, she could lose her job.

13. Respondent refused to take the test and walked out of the school. Moore followed Respondent to make sure that she was safe and that she did not drive. Moore observed Respondent boarding a public transit bus.

14. Several days later, the lab sent the District a report indicating that Respondent refused to provide a sample for a drug test. Board Policy 3.96 provides that refusal to take a

    
    

    reasonable suspicion drug test constitutes a positive test and that the appropriate discipline for a positive drug test shall be in conformance with the applicable collective bargaining agreement.

15. Pursuant to notice dated January 28, 2013, Respondent was informed that the District was undertaking an investigation into her actions and that she was scheduled for pre-determination meeting for February 1, 2013. Respondent attended this meeting and offered no explanation for her behavior on January 7, 2013, including her refusal to take the drug test. Respondent denied spraying water on the kitchen floor and stated that, if Kline wanted her to submit to a drug test, everyone else in the kitchen would need to be drug tested because they were using drugs. She denied that she had an odor of alcohol or demonstrated any risky behavior, slurred speech, or increased loud talking.

16. Significantly, prior to January 7, 2013, Respondent never reported to anyone her belief that her co-workers were using drugs or alcohol while at work. No other member of the cafeteria staff was observed engaging in behavior that would suggest that they were under the influence of drugs or alcohol at work.

17. Respondent signed a Drug and Alcohol Free Workplace Acknowledgment form on January 11, 2007, verifying her receipt and understanding of Board Policy 3.96 and that violation of the

    
    

    Policy would result in disciplinary action up to, and including, termination. Respondent signed the Code of Ethics Acknowledgment Receipt on April 24, 2010.

18. The applicable collective bargaining agreement requires progressive discipline, and the District's policy and practice since 2008 has been that every employee who has a second positive drug or alcohol test was terminated for that offense.

19. On August 7, 2013, the Board voted to terminate Respondent's employment effective August 23, 2013, for violation of Board Policy 3.96(2)(v) and (4)(f), Drug and Alcohol Free Workplace Policy; Board Policy 3.02(4)(a), (4)(f) and (4)(h), Code of Ethics; Board Policy 3.10(6), Conditions of Employment; and Board Policy 1.013(1), Responsibilities of School District Personnel and Staff.

20. No evidence was introduced at the final hearing to substantiate Respondent's contention that the request for her to take a drug and alcohol test on January 7, 2013, was the result of a "conspiracy" against her, racism on the part of Kline, or that she was being singled out for testing when other co-workers were allegedly using drugs.

    Determination of Ultimate Facts

    
    

21. The Board demonstrated by a preponderance of the evidence that reasonable suspicion existed on January 7, 2013, to require Respondent to submit to a drug and alcohol test.

    
    

    Respondent's refusal to take such test was not justified and constituted a "second offense" for purposes of the Policy.

    Accordingly, "just cause" existed to suspend and terminate

    
    

    Respondent's employment.

    
    

    CONCLUSIONS OF LAW

    
    

22. DOAH has jurisdiction over the parties to and the subject matter of these proceedings pursuant to sections 120.569 and 120.57(1), Florida Statutes.

23. Respondent was employed as an educational support employee as defined by section 1012.40(1)(a), Florida Statutes. In accordance with section 1012.22(1)(f), the Board has the authority to suspend or dismiss educational support employees.

24. The Board has the burden of proving just cause exists to terminate Respondent's employment by a preponderance of the evidence. See McNeil v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476 (Fla. 1996); Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883

    (Fla. 3d DCA 1990).

    
    

25. Board Policy 3.96(4)(f) states, "No employee shall refuse to submit to a post-accident drug (alcohol or controlled substances) test; nor shall an employee refuse to submit to a reasonable suspicion drug test." This section of the policy also states, "any obstruction to and lack of cooperation with the testing process shall be considered a refusal to test and deemed a positive test result."

    
    

26. Respondent's disciplinary history reveals a prior violation of the Policy. Respondent received a written reprimand in September 2008 for violating Board Policy 3.96 by being under the influence of a prohibited substance while on duty.

27. Board Policy 3.96(v) defines a "second offense" as, "any violation of this drug-free workplace policy (whether by alcohol or other drugs) following the initial violation, whether either violation involves alcohol or other drugs constitutes the second offense." As discussed above, Respondent previously signed a Drug and Alcohol Free Workplace Policy acknowledgement form verifying that she had reviewed the Policy and understood that compliance was mandatory.

28. Respondent also submitted an acknowledgment receipt for the Code of Ethics, Board Policy 3.02, verifying that she had read, understood, and agreed to comply with this policy. Under section 4, Respondent agreed "(a) To provide the best example possible; striving to demonstrate excellence, integrity and responsibility in the workplace; (g) To take responsibility

    and be accountable for his or her acts or omissions; and

    
    

    (h) Cooperate with others to protect and advance the district and its students."

29. As part of the written reprimand issued to Respondent in September 2008, Respondent was advised that future failure to

    
    

    abide by the Policy would result in a disciplinary recommendation for termination of employment with the district.

30. Board Policy 3.10(6) states that, "the district requires its employees to carry out their responsibilities in accordance to school Board Policy 1.013 (as may be amended), their job descriptions and reasonable directives from their supervisors that do not pose an immediate serious hazard to health and safety or clearly violate established law or policy."

31. Further, violations of the above-referenced Board policies are prohibited by Board Policy 1.013 which states, "it shall be the responsibility of the personnel employed by the district school board to carry out their assigned duties in accordance with federal laws, rules, state statutes, state Board of Education rules, school board policy, superintendent's administrative directives and local school and area rules."

32. The Board established, by a preponderance of the evidence, that Respondent's refusal to submit to the drug and alcohol test on January 7, 2013, constituted a second positive test and violation of the Policy. Respondent's actions also violated Board Policy 3.02(4)(a), (4)(f), and (4)(h), Code of Ethics; Board Policy 3.10(6), Conditions of Employment; and Board Policy 1.013(1), Responsibilities of School District Personnel and Staff. Accordingly, just cause exists to terminate Respondent's employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Palm Beach County School Board, sustaining Respondent's suspension without pay and terminating her employment.

DONE AND ENTERED this 23rd day of July, 2014, in Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2014.

COPIES FURNISHED:

Jean Marie Middleton, Esquire

School District of Palm Beach County Office of General Counsel

Post Office Box 19239

West Palm Beach, Florida 33416-9239

Carla J. Holmes

615 Mango Drive, Apartment 117 West Palm Beach, Florida 33415

E. Wayne Gent, Superintendent Palm Beach County School Board Suite C-316

3300 Forest Hill Boulevard

West Palm Beach, Florida 33406

Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

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.

Docket for Case No: 13-003346

Orders for Case No: 13-003346