vs. ) Case No: 97-0390
Respondent. )
A formal hearing was held by the Division of Administrative Hearings, before Administrative Law Judge, Daniel M. Kilbride, in Sanford, Florida, on May 1, 1997. The following appearances were entered:
For Petitioner: Ned N. Julian, Jr., Esquire
For Respondent: John J. Chamblee, Jr., Esquire
Whether the Respondent’s failure to submit to random drug testing on December 18, 1996, when given notice to do so by her supervisor, constitutes insubordination; violation of the collective bargaining agreement between Petitioner and the Seminole County School Bus Drivers’ Association, Inc.; and just
cause for termination/discipline.
On December 18, 1996, Respondent was suspended with pay.
Subsequently, the Superintendent of Public Schools for Seminole County, Florida, submitted a recommendation to the School Board of Seminole County, Florida, that the Respondent, a school bus driver, be terminated as an employee of the Seminole County School Board because it is alleged that she refused to submit to a random drug test as required pursuant to Article VIII of the relevant collective bargaining agreement. Respondent, subsequent to receipt of the notice of the recommendation, requested a hearing pursuant to the provisions of Section 120.57(1), Florida Statutes. This matter was referred to the Division of Administrative Hearings on January 28, 1997. An Amended Petition for Termination was filed on February 7, 1997. Respondent filed her Answer and Affirmative Defenses on February 11, 1997.
The formal hearing was held in Sanford, Florida, on May 1, 1997. During the hearing Petitioner presented the testimony of seven witnesses: John Reichert, Johnnie May Andrews, Josephine Delude, Julie Green, Jean Crampton, Kathy Dent, and Jerry Yontz. Seventeen exhibits were admitted in evidence. Respondent presented testimony from seven witnesses: Edwin Ronda, Janet Box, William Perkins, Kathy Dent, Betsy Ross, Connie Bass, Jill Miller, and testified in her own behalf. Eight exhibits were offered in evidence. A transcript was prepared and filed on June
10, 1997. The parties’ proposals have been given careful consideration in the preparation of this order.
Petitioner, Seminole County School Board, is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate control and supervise all public schools and personnel in the Seminole County School District. Paul J. Hagerty is the Superintendent of Public Schools for Seminole County, Florida.
Respondent, Linda McKenzie, at all relevant times, was an employee in the Transportation Department of the Seminole County School Board, including December 18, 1996. Her position is school bus driver.
Respondent is a member of the bargaining unit represented by the Seminole County School Bus Drivers’ Association, Inc., which entered into a collective bargaining agreement with the Employer, the Seminole County School Board.
Article VIII of the collective bargaining agreement provides that Seminole County School Board will implement and abide by all aspects of the Federal Omnibus Transportation and Employee Testing Act (the Federal Act).
The Federal Act was, at all times relevant, including December 18, 1996, applicable to bargaining unit members who hold a Commercial Driver’s License (CDL), including the Respondent who was then employed as a school bus driver.
Four times a year, once every three months, and on or before the 15th day of the month preceding the beginning of the quarter for which a random list will be requested, John Reichert, Director of Human Services, prepares a disk containing the name of employees currently in the pool for random testing. That disk is sent to a contractor, Corning MetPath, for generation of the list of persons to be tested in that quarter.
Reichert is responsible for determining when employees whose names appear on the list for a given quarter will report for testing. He is solely responsible for the determination of the testing date for each employee and consults with no other persons.
In assigning dates for testing to employees whose names appear on the quarterly random drug testing list, Reichert is required to start with the first person named and continue through the last person named. Dates are assigned starting in the first or second week of the quarter. Usually two to three employees are assigned to a particular date, and usually two or three days are assigned each week. The exact assignments depend upon the number of employees to be tested in a given quarter, the number of weeks in that quarter, and the operational needs of the Transportation Department.
Each list is generated from a pool of employees consisting of all active employees who hold CDL licenses and who drive a particular type of vehicle. McKenzie’s name appeared on
the random drug testing list for the fourth quarter of 1996 (October, November, and December) as an alternate.
Upon receipt of the random drug test list for a given quarter, Reichert’s office prepares a packet consisting of the donor notice form, the donor checklist, and a map giving the employee to be tested directions to the collection site.
Respondent was the number three alternate on the random drug testing list for the fourth quarter of 1996. An alternate is a person who is selected for random drug testing in the event a person on the original list of persons to be tested is not available for testing due to termination, leave, resignation or otherwise. Reichert determines when an alternate is substituted for a person on the main list for random drug testing.
In accordance with the procedure, Respondent was selected for random drug testing on December 18, 1996, in place of Andrew Rogers who had terminated his employment with the School Board after the list of persons to be tested for the fourth quarter of 1996 had been prepared.
Respondent had previously been selected for random drug testing on September 26, 1996; October 2, 1995; and May 4, 1995. On each of those occasions, Respondent reported to the collection site as directed by her supervisor.
Johnnie May Andrews is an area manager for the Seminole County Schools Transportation Department. In that capacity, it is her responsibility to deliver the notices for random drug
testing to the area managers for delivery to the persons required to report for testing on a given day.
On December 18, 1996, Andrews delivered a notice for random drug testing for Respondent to Josephine DeLude.
Josephine DeLude is an area manager for the Seminole County Schools Transportation Department. She was Respondent’s direct supervisor on December 18, 1996.
DeLude met Respondent at the Lake Brantley High School bus ramp on December 18, 1996 for the purpose of giving Respondent her notice for drug testing after Respondent finished her high school run.
DeLude understood that bus drivers were to be given random drug testing notices after the drivers had completed their high school run. School Board policy did permit the notice to be given after the elementary run, also.
On December 18, 1996, Respondent was on duty during the morning from 6:16 a.m. until 9:07 a.m. Respondent’s morning bus schedule in December of 1996 was as follows: First pick up–-high school--6:36 a.m.; drop-off–-high school--7:05 a.m.; first pick- up-–elementary school--7:43 a.m.; drop-off--elementary—
8:30 a.m.; first pick-up--middle school--8:44 a.m.; drop-off-- middle school--9:07 a.m. At the time she was directed to report for random drug testing, Respondent was on duty and would have remained on duty until approximately 9:07 a.m. However, drivers
were permitted to leave the area between runs.
When DeLude observed Respondent’s arrival at Lake Brantley High School, DeLude told Respondent to unload the students on her bus, and then directed her to pull forward and put her hazards [lights] on. At that time, Respondent asked if she had been selected for another random drug test. When she was told yes, she became upset and said that she would not go. After Respondent pulled up as directed by DeLude, she complained that she was being picked on and stated that she had to go home and get her mother out of bed and feed her breakfast.
After being advised by Respondent that she would not go for the drug test, DeLude called her supervisor for directions. Her supervisor told her to advise Respondent that she did not have a choice and that if she refused to go for the test, her refusal would be treated as a positive test for drugs.
DeLude then advised Respondent that her refusal would be treated as a positive drug test. Respondent then stated that that is how it had to be because she was going home to take care of her mother.
At no time did Respondent ask if she could go home first and then report for drug testing.
While DeLude was again discussing the situation with her supervisor, Respondent drove off without permission.
DeLude then contacted Respondent at her home. DeLude offered to stay with Respondent’s mother while Respondent went
for the testing. McKenzie refused and stated that she would go for testing when she finished caring for her mother.
Previously, when Respondent was notified on September 26, 1996, that she was to report for random drug testing, she had told DeLude that she had to go home to get her mother out of bed, fix her breakfast, and get her dressed.
Between September 26, 1996, and December 18, 1996, Respondent had no conversation with DeLude about needing to care for her mother, the extent of her mother’s condition, or of an absolute need to go home to take care of her mother between her high school and elementary school bus runs.
Julie Green, who was DeLude’s supervisor was aware that Respondent went home between her high school and elementary bus runs to take care of her mother, but was not aware of the specifics of the care needed. At no time, between September of 1996 and December 18, 1997, did McKenzie discuss that she always needed to be able to go home between her high school run and her elementary run to take care of her mother.
Jean Crampton, Director of Transportation, did not become aware that Respondent had expressed a need to take care of her mother between her high school and elementary school bus runs in September of 1996. At no time, prior to September of 1996 or between September of 1996, and December 18, 1997, did McKenzie discuss with Crampton that she always needed to be able to go home between her high school run and her elementary run to take
care of her mother, or the extent of her mother’s condition.
Once a bus driver has been given the donor notice form and, thus, notified that he/she is to report for random drug testing, he/she must report directly to the test site.
Refusal of a bus driver to report for random drug testing upon being given notice is very serious because otherwise a driver could avoid taking a test by asserting sickness or some other excuse. Crampton considers such a refusal, that is to fail to report immediately for testing upon being notified, obstruction of the test process.
Failure to report for drug testing upon being notified to do so by one’s supervisor is not the same as not being able to report for drug testing because of some eventuality which occurs after the bus driver starts on the way but does not arrive or arrives late due to events which occur along the way.
The fact that Respondent obtained testing later in the day and that the result was negative for drug use does not excuse Respondent’s failure to report for drug testing when directed to do so by her supervisor.
The decision as to when a bus driver is to report for drug testing is a decision to be made by the driver’s supervisor and not the driver.
On December 12, 1996, Respondent declined a voluntary field trip assignment during off duty hours because her mother was sick. She also declined one on December 3rd for the same
reason. She declined on December 10th, but no reason was given. Janet Box, the field trip supervisor never spoke to Respondent’s supervisor, DeLude, about Respondent’s not taking three field trips due to the fact that Respondent’s mother was sick.
The nature of the care given by Respondent to her mother is non-emergency daily personal care, that is getting her out of bed, assisting her with her morning hygiene, fixing her coffee and juice, and setting out her extensive medication.
In September of 1996, when Respondent was directed to report for a drug test, she did so. Although at that time Respondent said that she had to take care of her mother, she was able to get her husband to check on her mother until she could get there. He was not able to provide care of Respondent’s mother, however.
Respondent’s mother has had serious health conditions since 1994. Respondent’s mother was suffering from congestive heart failure and evidenced a myocardial infarction, hip fracture, lumbar spine fracture, and mild dementia in May of 1994.
Respondent’s mother has been debilitated and unable to meet her physical hygiene needs without assistance since May of 1994. Respondent’s mother was taking the same medication in May of 1994 that she was taking in December of 1996, perhaps with the exception of Ibuprofen.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
The School Board, through its superintendent, pursuant to Section 230.33(7), is responsible for directing the work of personnel in their positions, qualifications, compensations, suspension, and dismissal. Section 230.33(7)(e), Florida Statutes.
Disciplinary action, especially termination against a regular status School Board employee, must be taken in accordance with the provisions and terms of employment. Williams vs. Department of Transportation, 531 So. 3d 994 (Fla. 1st DCA 1988); Section 231.3605(b), Florida Statutes.
The burden is on Petitioner to establish by a preponderance of the evidence that the disciplinary action it proposes is justified. Dileo vs. School Board of Dade County,
569 So. 2d 883, 884 (Fla. 3rd DCA 1990); McNeil vs. Pinellas County School Board, 678 So. 2d 476 (Fla. 1996).
The Collective Bargaining Agreement between the School Board and Bus Drivers’ Association permits the termination of an employee who is required to submit to random testing for the presence of drugs and controlled substances and who tests positive.
The Rules and Regulations governing the administration of drug testing of individuals who drive commercial vehicles is set out in 49 Code of Federal Regulations, Part 40, Subparts a and b. The Federal regulations provide mandatory procedures governing the drug testing of bus drivers and employers, including this School Board. Petitioner was responsible to see that regulations are enforced and testing is done in compliance with those regulations. See 49 C.F.R. Subpart A, Section 40.1.
Article VIII, Section 2.K. [p. 31] of the Collective Bargaining Agreement with the Seminole County School Bus Drivers’ Association, states as follows:
K. Refusal to Submit: Refusal to submit to an alcohol or controlled substances test means that an employee:
fails to provide an adequate breath for testing without a valid medical explanation after he or she has received notice of the requirement for breath testing;
fails to provide adequate urine for controlled substances testing without a valid medical explanation after he or she has received notice of the requirement for urine testing; or,
engages in conduct that clearly obstructs the testing process.
If it were determined that Respondent refused to submit, the School Board may deem that the drug test had a positive test result, pursuant to Article VIII, Section 6. Article VIII Section 10, states:
positive test for drug use shall be just
cause for termination.
Article VIII, 2.k.(2) is not applicable to this case. Respondent did not fail to “provide adequate urine for controlled substances” test.
The issue in this case turns on VIII Section 2.k.(3), i.e., whether the Respondent “engage[d] in conduct that clearly obstructs the testing process” by not immediately reporting to the test site and, instead, going to her home to care for her mother.
Respondent’s conduct of December 18, 1996, when advised that she was to submit to random drug testing constituted obstruction of the testing process:
Respondent did not raise the issue of the need to care for mother with her supervisor until after she had been notified on
December 18, 1996.
Respondent had been advised of the drug testing requirements in a training session, and was so advised by her supervisor on December 18, 1996.
Respondent’s need to provide care for her mother had been long standing and did not involve an emergency situation.
Respondent had previously complied with directions to submit to random drug testing on September 26, 1996, October 2, 1995, and May 4, 1995. At no time did she advise her supervisors, DeLude, Green or Crampton that it was absolutely necessary that she be permitted to go home each day between her high school and elementary bus runs to get her mother out of bed, help her with her personal hygiene needs, administer
medications and prepare her mother’s morning meal.
Respondent left the area of Lake Brantley High School, while on duty, while her immediate supervisor was attempting to resolve the situation of Respondent’s unwillingness to immediately report for random drug testing and without her supervisor’s permission or leave to do so.
Respondent’s decision to leave the Lake Brantley bus ramp area was a deliberate decision on her part.
Because the Respondent had not discussed any continuing need on her part to be able to go home each day between her high school and elementary school bus runs to provide personal care for her mother, there was no reason for Respondent’s supervisor to consider that giving Respondent her notice to submit to random drug testing as Respondent completed her high school run would create a problem or a hardship for Respondent.
Respondent’s supervisor was acting in good faith and in accordance with her understanding of when bus drivers were to be given notices to submit to random drug testing.
Refusal to submit to random drug testing when directed by a supervisor is conduct which “clearly obstructs the testing process.”
A school bus driver may not refuse to submit to a random controlled substance test, and any driver who so refuses shall not be permitted to perform or continue to perform bus driving duties. 49 C.F.R. S. 382.211. (the Federal Act).
Once a bus driver has been given the donor notice form and, thus, notified that he/she are to report for random drug
testing, he/she must report directly to the test site. 49 C.F.R.
S. 382.305(a)(1) (the Federal Act).
Insubordination, as contrasted to “gross insubordination” may consist of a single act which evidences disobedience of orders, infraction of rules, or a generally disaffected attitude toward authority. Insubordination is a lower degree of misconduct than “gross insubordination.” Insubordination only requires a showing of a willful or overt defiance of authority or of an act which is contemptuous of authority. Muldrow vs. Board of Public Instruction of Duval County, Florida, 189 So. 2d 414 (Fla. 1st DCA 1966) and Jacker vs. School Board of Dade County, Florida, 426 So. 2d 1149 (Fla. 3rd DCA 1983).
Insubordination may be shown by a single act of disrespect on the part of a noninstructional employee for the authority of supervisors or managerial employees employed by a school board. Jacker vs. School Board of Dade County, Florida, supra, Muldrow vs. Board of Public Instruction of Duval County, Florida, supra, and Ford vs. Southeast Atlantic Corporation, 588 So. 2d 1039 (Fla. 1st DCA 1991).
The Respondent was insubordinate on two counts. She refused to submit to random drug testing when directed to do so by her supervisor, and while her supervisor was attempting to deal with the situation thus created, the Respondent left the Lake Brantley High School bus ramp without obtaining leave to do
so. At the time the Respondent left the Lake Brantley High School bus ramp, Respondent was on duty and subject to the lawful orders of her supervisor.
The refusal of a bus driver to report for random drug testing upon being given notice to do so is serious because, otherwise, a driver could avoid taking a test by asserting sickness or some other excuse. The refusal to report immediately for testing upon being notified is obstruction of the test process.
Just cause for termination/discipline regarding a non- administrative, non-instructional employee of the school board is not limited by the exemplar list of offensive conduct set forth in Article IX, Section 3.C. of the collective bargaining agreement, Dietz vs. Lee County School Board, 647 So. 2d 217 (Fla. 2nd DCA 1994).
Progressive discipline is not inherent in the concept of just cause. The focus of a just cause analysis is the employee’s misconduct and whether the employee had notice that such conduct would be grounds for discharge. See State ex rel Hathaway vs. Smith, 35 So. 2d 650 (Fla. 1948).
The purpose of the Family Medical Leave Act (FMLA) is to balance the demands of the workplace with the needs of families, 28 U.S.C. S. 2601(b), P.L. 103-3. The FMLA provides for unpaid leave for an employee to care for a parent who has a
serious health condition. Under FMLA an eligible employee is permitted to take leave to care for a parent who is unable to care for his or her own basic hygienic or nutritional needs and safety. Such leave may be taken intermittently, when medically necessary. 28 U.S.C. Sections 6382(a)(1)(C) and 6382(b)(1), P.L. 103-3. Committee Views, S. Rep. No. 3, 103D Cong., 1993 U.S.C.C.A.N.22.
When an eligible employee requires FMLA leave to care for a seriously ill parent, the employee is required to give the employer 30-days notice before the date the leave is to begin. Employees who face emergency medical conditions or unforeseen changes are not precluded from taking leave if they are unable to give 30-days advance notice, 28 U.S.C. Sections 6382(e)(2), P.L. 103-3., Section 102(e), Committee Views, S. Rep. No. 3, 103D Cong., 1993 U.S.C.C.A.N. 23-24.
The changed conditions relate to the condition of the parent cared for in terms of an “emergency” need generated by a change in that person’s condition which requires immediate attention, thus precluding the giving of substantial notice. In any event, however, an employer is entitled to reasonable notice. Manuel vs. Westlake Polymers Corporation, 66 F. 3d 758, 763 (5th Cir. 1995).
The changed condition provision, which excuses an employee from the giving of notice does not preclude any notice and does not permit the employee to abandon his/her employment
obligations without authorization from the employee’s appropriate supervisor. Respondent may not bootstrap herself out of a disciplinary infraction, without authorization, into a protected activity under the FMLA. See Den Hartog vs. Wasatch Academy, 909 Fed. Supp. 1393 (D. Utah 1995) (Employee raised prohibition of discrimination by reason of an associational disability as a defense to termination. Court stated that the ADA was not intended to shield such an employee from the consequences of misconduct and that an employee could not “bootstrap” an associational disability into a shield against discipline for the employee’s own misconduct.) and Martinson vs. Kinney Shoe Corporation, 104 F. 3d 686 (4th Cir. 1996) (an employer is free to terminate an employee for misconduct related to a disability).
Respondent was on notice that she could be selected for random testing during any quarter and that, should she be selected, the requirement that she report for testing immediately could interfere with her established schedule for providing morning personal care for her mother. Respondent took no formal action to put her employer on notice of her continuing need so that her employer could take such steps as were reasonably necessary to accommodate the employer’s practice regarding random drug testing and the employee’s established practice for providing morning care for her invalid mother.
Respondent’s action in refusing to report for random drug testing immediately upon notification and in leaving Lake
Brantley High School while on duty are not protected activities under FMLA.
The collective bargaining agreement does not provide for progressive discipline except in situations involving employee tardiness. Respondent’s action did not involve tardiness within the contract. Respondent’s action involved insubordination in refusing to report for drug testing when so directed and in leaving Lake Brantley High School, while on duty, without the authorization of her supervisor. Article IX, Section 17, Collective Bargaining Agreement Between the School Board of Seminole County, Florida and Seminole County School Bus Drivers’ Association, July 1, 1995 through June 30, 1998, as amended August 13, 1996.
Respondent did not raise a concern about the sufficiency of the test procedures as a reason for her refusal to report for testing. Her stated reason was that she had to go home and take care of her mother.
Even if the Respondent had such a concern, that is that the testing procedures were inadequate or insufficient, she did not raise that concern in any of her previous random drug tests. Further, such a concern does not justify or excuse non-compliance with a lawful order of a supervisor. See Hillsborough Community College Chapter of the Faculty United Service Association vs. Hillsborough Community College, 15 FPER Section 20062 (PERC 1989).
An administrative law judge does not have the jurisdiction or the authority to pass upon the facial constitutionality of a law or rule. Key Haven Associated Enterprises, Inc. vs. Board of Trustees of the Internal Improvement Trust Fund, 427 So. 2d 153 (Fla. 1982); Smith vs. Willis, 415 So. 2d 1331 (Fla. 1st DCA 1982); and Butler vs. State of Florida, Department of Insurance, 680 So. 2d 1103 (Fla. 5th DCA 1996).
The burden is not on the Respondent’s supervisors to anticipate that or when the lawful and good faith demands of the workplace might interfere with the Respondent’s established routine of providing morning care for her mother. It is not the responsibility of the Respondent’s supervisors to speculate as to the condition of the Respondent’s mother and the degree of her needs. It is the responsibility of the Respondent to frankly and directly appraise her supervisor of her need and to dialogue with them to develop an appropriate accommodation that will balance the demands of the workplace against the need of the Respondent regarding care for her mother.
Not having given her supervisor reasonable notice of her need to provide morning care for her mother, Respondent cannot now bootstrap that need into a justification for refusal to submit to drug testing when so directed to do so in accordance with the employer’s routine practice and into a justification for
leaving Lake Brantley High School while her supervisor was attempting to resolve the matter in a manner that served both the demands of the workplace and the need of the employee.
Respondent’s need to care for her mother was clearly foreseeable and not an emergency situation; the Petitioner can only conclude that the Respondent was insubordinate and that her employment can be terminated for her insubordination.
RECOMMENDED that the Superintendent’s recommendation to terminate the employment of Linda McKenzie be APPROVED.
RECOMMENDED this 18th day of August, 1997, at Tallahassee, Leon County, Florida.
Ned N. Julian, Jr., Esquire Seminole County School Board Educational Support Center
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997.
John J. Chamblee, Jr., Esquire
Dr. Paul J. Hagerty, Superintendent Seminole County Public Schools Education Support Center
Frank T. Brogan, Commissioner Department of Education
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.
