vs. ) Case No. 98-4158
Respondent. )
Pursuant to notice, Don W. Davis, a duly designated Administrative Law Judge of the Division of Administrative Hearings, held a formal hearing in the above-styled case on January 19, 1999, in Pensacola, Florida.
For Petitioner: Joseph L. Hammons, Esquire
Hammons and Whittaker, P. A.
For Respondent: Ronald G. Meyer, Esquire
Meyer and Brooks, P.A.
The issue for determination is whether just cause exists for termination of Respondent’s employment.
It is alleged that on June 18, 1998, following a work- related automobile accident on the previous day, Respondent went to First Physicians Clinic to determine the existence of possible
injuries.
Respondent was required to give a urine sample while at the facility which would be tested for the presence of drugs in Respondent’s body.
On July 14, 1998, Petitioner received the results of Respondent’s drug test. The test disclosed the presence of marijuana in the urine specimen alleged to have been obtained from Respondent.
On August 11, 1998, Respondent received notice of termination of his employment with Petitioner as a result of violation of the Drug-free Workplace program and unlawful use of a controlled substance.
Respondent disputed the allegations of the termination notice and requested formal administrative proceedings. On September 23, 1998, the matter was transferred to the Division of Administrative Hearings for conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes.
At the final hearing, Petitioner presented the testimony of three witnesses and seven exhibits. Respondent testified in his own behalf and presented five exhibits.
No transcript of the final hearing was provided. The parties requested and were granted leave to file proposed recommended orders more than 10 days after the final hearing. Proposed findings of fact were submitted by the parties on February 8, 1999, and have been considered in the preparation of this recommended order.
Respondent is Henry Harrison, an employee of Petitioner for approximately 16-17 years, the last 10 years as a plumber. Respondent’s job performance and competence are not at issue in this proceeding.
On June 17, 1998, while operating a vehicle owned by Petitioner, Respondent was the victim of an accident when another driver ran a stop light and “broad-sided” him. Respondent was not at fault. Respondent’s supervisors, including his immediate supervisor, came to the scene of the accident. Respondent did not appear to these people to be under the influence of alcohol or drugs. Respondent worked the remainder of his shift.
The next morning, June 18, 1999, Respondent was directed by Petitioner’s personnel to go to the First Physicians Clinic as a result of discomfort experienced by Respondent the night before. Respondent was aware that he would be asked by Clinic personnel to give a urine sample. Respondent waited for approximately two hours at the Clinic, surrounded by other people, where he handled newspapers, magazines and furniture in the common waiting room. Numerous other persons in the facility that morning were there for the purpose of drug testing.
At approximately 10:00 a.m. on June 18, 1999, Laura Byrd, an employee of First Physicians, came to the waiting room and summoned Respondent. Respondent followed Byrd to a counter located in a hallway of the facility adjacent to the restroom
used for obtaining urine specimens for drug testing. Bryd asked
Respondent to sign a drug-testing chain-of-custody form and to initial labels attached to the form which were to be used to seal the specimen container.
Respondent complied with Byrd’s request for signature and initialing. The form stated:
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 affixed to each specimen bottle is correct.
At the time of his signing and initialing, Respondent had not yet provided a specimen nor observed any subsequent transfer of the specimen or sealing of specimen containers.
Following Respondent’s initialing and signing of the forms, Byrd picked up a “clean catch” container utilized at First Physicians for collection of urine specimens during physical exams and directed Respondent to a restroom to provide a sample of his urine. The “clean catch” container was obtained from the counter in the hallway and was not sealed or packaged in any way.
Respondent was not directed by Byrd to wash his hands before providing the sample, instead she directed that he was not to turn on any water in the restroom prior to providing his sample.
Respondent provided a urine specimen in the “clean catch” container, vacated the restroom and gave the container to Byrd. She attached a small thermometer strip to the container
containing Respondent’s urine sample. Byrd noted the temperature of the specimen, placed the container on the counter in the hallway, and directed Respondent to follow her to the examining room. When Respondent told Byrd that he wanted to wash his hands, she told him that he could do this in the examining room.
Byrd left Respondent in the examining room where he remained until the physician arrived to assess Respondent’s condition. Respondent never saw his urine specimen again and did not observe it being transferred from the “clean catch” container to any other containers. He did not observe the previously initialed paper seals being affixed to any container.
On July 14, 1998, Petitioner received a report from its Medical Review Officer (MRO) stating that Respondent’s urine specimen had tested positive for marijuana. The MRO did not contact Respondent for an explanation, i.e., whether he was taking medication or had any explanation for the positive test result.
The MRO, contrary to requirements of Rule 59A- 24.008(7)(a), Florida Administrative Code, did not contact Petitioner with directions that Respondent contact the MRO.
Notably, no efforts to contact Respondent was made during the period June 18, 1998, through August 6, 1998, although Respondent was residing in a trailer at a school site providing security services for Petitioner. Additionally, Respondent was
in regular contact with Petitioner's personnel in regard to medical treatments he was receiving as a result of his injury.
It is undisputed that Petitioner's employees would have known how to get in touch with Respondent to direct him to contact the MRO, had such contact been requested.
Instead, Petitioner’s personnel finally notified Respondent of the positive test result on August 6, 1998, when it provided him a notice of proposed disciplinary action. That notice included a copy of the July 14, 1998 drug test report.
On August 11, 1998, armed only with the positive test result, Petitioner terminated Respondent’s employment for violation of the Drug-free Workplace policy and use of illegal drugs while on duty.
The only evidence of illegal drug use in Petitioner’s possession was the positive test result. No evidence was adduced at the final hearing of any witness observation of Respondent that he had ever been observed exhibiting behaviors suggesting that he was under the influence of, or using, illegal drugs.
Respondent’s testimony in total at the final hearing was candid, direct, and creditable. He did not use illegal drugs, specifically marijuana; he and no one in his home or among his social acquaintances to his knowledge used marijuana or any illegal drugs.
The drug test results disclosed an extremely low level of cannaboids present (60ng/ML, where the cutoff is 50ng/ML; 28ng/ML, where the cutoff is 15ng/ML on the confirmation test).
Byrd, the employee of First Physicians who collected Respondent’s specimen, had no specific recollection at the final hearing of collection of Respondent’s specimen. Instead, Byrd recited the procedure that she normally followed in obtaining drug test specimens.
According to Byrd, her regular collection procedure did not include affixing her own initials to the seal placed on the specimen bottles for transport to the laboratory for analysis, nor was she aware of a requirement to do so.
Byrd testified that her regular procedure included having the specimen donor sign the chain-of-custody document and initial the specimen seals before the time when the seals are placed on specimen bottles.
Following termination and upon legal advice, Respondent sought a voluntary drug test at another collection facility. The results of that drug test from a specimen collected on August 17, 1998, were negative with regard to disclosing the presence of marijuana or any other illegal substance in Respondent’s body.
Respondent’s testimony regarding procedures followed at First Physicians was further bolstered by the testimony of another Petitioner employee, Joe McCormick. McCormick had also previously been sent to First Physicians for drug testing by
Petitioner in conjunction with an injury he had received on the job. McCormick confirmed that he was treated similarly to Respondent; he was provided a “clean catch” container that he did not observe to come from a sealed package, he was not present when his specimen was transferred from the “clean catch” container to any other vessel for shipment to the laboratory, and he did not observe the paper seals he had earlier initialed being placed on any specimen container. McCormick also was directed and did sign the chain-of-custody form and initial the paper sealing strips prior to providing a urine specimen.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
Under the provisions of Section 230.22, Florida Statutes, Petitioner has the authority to adopt rules and regulations which will contribute to the efficient operation of the school system. Consistent therewith, Petitioner’s Rule 2.33 has been adopted. The Rule includes, among other things, notice to employees regarding the requirements of a drug-free workplace, specifically apprising employees that a condition of employment is refraining from the use of drugs on and off the job. Petitioner implements its drug-free workplace program through a requirement that employees who are injured on the job and seek medical treatment also submit to a drug screen.
Petitioner has the burden of proof in this proceeding. Petitioner must show by a preponderance of the evidence that Respondent has violated Petitioner’s Rule 2.33 with the resultant “good cause” for his employment termination. Dileo v. School Bd. of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990). Accord, Allen v. School Bd. of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990).
There does not exist a preponderance of evidence in this case to support Petitioner’s action. Petitioner failed to offer any proof of misconduct by Respondent as the result of the use of controlled substances. Additionally, Petitioner has not shown strict compliance with the mandatory procedures associated with drug testing.
The sole fact offered by Petitioner to support the allegation that Respondent engaged in the conduct of unlawful use of controlled substances was the positive drug test alleged to have been obtained from Respondent’s urine specimen.
With regard to urine tests, reliability of the test is essential. That reliability in turn requires strict compliance with testing guidelines, since such tests are otherwise inherently incapable of determining the presence of an active drug in a person’s body. Hall v. Recchi America, Inc. 671 So. 2nd 197 (Fla. 1st DCA 1996).
With regard to the July 18, 1998 urine specimen of Respondent, there were departures of a substantial nature from Rules contained in Chapter 59A, Florida Administrative Code,
which has been promulgated by the Agency for Health Care Administration for the implementation of the Drug-free Workplace statute.
The evidence adduced at hearing established that Respondent was confined in a waiting room for almost two hours with other individuals, some waiting for drug testing, and handled various objects in that time frame. He was neither directed nor provided an opportunity to wash his hands prior to providing the specimen, a prescription of Rule 59A-24.005(3)(c)6, Florida Administrative Code. Requiring Respondent to have washed his hands would have mitigated against likelihood of specimen contamination.
Petitioner did not introduce evidence of the type of containers utilized to transmit specimens to the laboratory for analysis nor seals affixed thereto and whether or by whom they were initialed. Byrd testified that she did not initial specimen seals contrary to Rule 59A-24.005(3)(c)16, Florida Administrative Code. She also acknowledged that specimen donors were required to initial paper seals to be later used on specimen bottles and that such initialization took place before the specimen was collected or transferred from the “clean catch” container to specimen bottles. This is a major departure from Rules 59A- 24.005(3)(c)14-16, Florida Administrative Code, which require initialization by the donor after the specimen has been placed in the vial to be used in shipping the specimen to the laboratory.
The specimen of Respondent was left sitting on a counter before it was placed in specimen bottles or seals attached. Here as in Seminole County School Board v. Jones and Foster, DOAH Case Nos. 95-5532 and 96-0506 (Recommended Order issued July 29, 1996), a lack of substantial compliance with regulatory requirements in the process of obtaining the urine specimen affects the reliability of test results and dictates that such results are not creditable or acceptable.
Further, where regulations and rules as to taking urine samples are violated, test results are unreliable and in violation of test providers constitutional rights, namely the Fourth Amendment requirement of reasonableness. See e.g., Egloff v. New Jersey Air National Guard, 648 F. Supp. 1275 (D. N. J. 1988); Miciotta v. McMickens, 118 A. D. 2d 489, 499 N. Y. S. 2d 960, leave to appeal denied, 68 N. Y. 2d 601, 505 N. Y. 2d 1025 (1986) (testing procedure is flawed where samples are improperly handled and collected); O'Connor v. Smithkline Bio-Science Labs, Inc., 36 Mass. App. Ct. 360, 631 N.E. 2d 1018, review denied 418 Mass. 1106, 639 N. E. 2d 1082 (1994) (failure to follow company rules in handling samples).
Where there is prelabeling of samples, sealing samples outside the presence of employees and a failure to strictly adhere to sample collection regulations, the testing procedure is fraught with the danger of mishaps and false positive readings. National Treasury Employees Union v. Von Raab, 649 F. Supp. 380
(E.D.La. 1986); See also, Harvey v. Johnson, 95 Ohio App. 3rd 51, 629 N E 2nd 1066 (1993) (Per curiam). Balappert v. Dept. of Police, 647 So. 2d 139 (La.Ct.App. 1994) (unrebutted evidence of sloppy labeling of samples occurred and exemplary employee record justified reinstatement).
Under Florida Law, scientific tests shall be performed pursuant to statutory requisites. When the agency fails to show substantial compliance with those statutory guidelines, the test results are not admissible. See Fla. Dept. of Highway Safety and Motor Vehicles v. Fairly, 633 So. 2d 69 (Fla. 5th DCA 1994); Robinson v. State, 604 So. 2d 783 (Fla. 2d DCA 1993); State v. Hill, 618 So. 2d 42 (Fla. 2d DCA 1993). Due to the lack of such compliance with guidelines in the matter at hand, it is determined that Respondent’s Motion In Limine is granted with regard to laboratory test results arising from Respondent’s June 18, 1998, specimen and that portion of Petitioner’s exhibit nine is not admitted in this proceeding.
Equally significant and unexplained by Petitioner is the substantial delay (July 14, 1998, until August 6, 1998) in Petitioner’s notification to Respondent, an employee residing on school property, of the positive test results. When Petitioner’s MRO received the test result on July 14, 1998, notification by the MRO of Respondent should have occurred within three days pursuant to Rule 59A-24.008(1)(d)4., Florida Administrative Code, and inquiry made regarding whether prescriptive or over-the-
counter medications were responsible for the test result. Instead the MRO passed the result on to Respondent’s employer, Petitioner.
Section 440.102(5)(h), Florida Statutes, provides that the employer must, within five working days of receipt of a positive test result, “inform an employee . . . in writing of such positive test result, the consequences of such result, and the options available to the employee.”
Instead of being notified no later than July 21, 1998, Respondent was not informed until August 6, 1998. Such failure to timely notify Respondent constitutes a serious error. Timely notification would have placed Respondent on notice earlier and permitted him to obtain re-testing through proper collection methods with the likelihood of a timely test result in opposition to the positive result reported to the MRO.
The unreliability of the drug test to establish the presence of illegal drugs in Respondent’s body, coupled with testimony at hearing that no witness had ever observed Respondent
using drugs or appearing to be under the influence of same, dictate a finding that Respondent is not guilty of any misconduct relating to unlawful use of illegal drugs.
RECOMMENDED that the Notice Of Disciplinary Action be dismissed and that Respondent be reinstated to his former position without diminution or loss in pay or benefits.
DONE AND ENTERED this 15th day of February, 1999, in Tallahassee, Leon County, Florida.
DON W. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1999.
Ronald G. Meyer, Esquire Meyer and Brooks, P.A.
Joseph L. Hammons, Esquire Hammons and Whittaker, P.A.
Jim May, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470
Michael H. Olenick, General Counsel Department of Education
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.
