STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PINELLAS COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 00-2011
)
GLENN D. CROMARTIE, )
)
Respondent. )
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Largo, Florida, on September 27, 2000.
APPEARANCES
For Petitioner: Jacqueline M. Spoto, Staff Attorney
Pinellas County School Board
301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779-2942
For Respondent: no appearance
STATEMENT OF THE ISSUE
The issue is whether Respondent is guilty of violating Petitioner's rule requiring that all employees Respondent's job classification submit to random drug testing.
PRELIMINARY STATEMENT
By letter dated April 13, 2000, Petitioner informed Respondent that he had a right to an administrative hearing prior to Petitioner's consideration of the Superintendent's
recommendation that he be terminated for refusing to submit to a random drug test.
By letter filed May 5, 2000, Respondent demanded a formal hearing on the allegations.
At the hearing, Petitioner called six witnesses and offered into evidence 11 exhibits, which were all admitted. Respondent did not appear at the hearing.
The court reporter filed the Transcript on October 10, 2000.
FINDINGS OF FACT
At all material times, Petitioner employed Respondent as a school bus driver.
On January 12, 1995, Petitioner's representatives conducted a Drug Free Workplace Employee Training Session, which was attended by Respondent. This training session was one of many such sessions at which Petitioner's representatives explained to each covered employee the provisions of Petitioner's drug policies. These provisions include a provision that a refusal to take a random drug test is tantamount to failing a drug test and a basis for termination.
The Employee Information on Drug and Alcohol Testing, which is the handbook distributed to Petitioner's school bus drivers, including Respondent, informs each driver that Petitioner will annually administer random drug tests to half of the driver positions and that, if selected for a random drug
test, the driver must report immediately to the testing laboratory.
The employee handbook informs drivers that a refusal to submit to a random drug test is prohibited. The employee handbook explains that engaging "in conduct that clearly obstructs the testing process" constitutes a refusal to submit to a random drug test. The employee handbook notes that conduct obstructing the testing process includes a "failure to immediately report to the testing facility after notification." Finally, the employee handbook warns that Petitioner may terminate drivers who have engaged in prohibited behavior.
Article 32, Section 2, of the 1998-2000 Agreement Between the School Board of Pinellas County, Florida, and School Employees Union, Local 1221, Firemen & Oilers, An Affiliate of Service Employees International Union, AFL/CIO, CLC, contains the same requirements as those set forth above in the employee handbook. Section 3 warns that a violation of any of these requirements by a covered employee may result in termination.
On March 21, 2000, Petitioner's Transportation Clerk Specialist II summoned Respondent to the transportation offices. When Respondent reported to her office, the clerk informed Respondent that she had selected him for random drug testing.
Obviously, element of surprise is an important feature of random drug testing. Equally important to random drug testing is the control of the subject between the point at which he is
informed that he is to take a random drug test and the production of the sample or samples to be tested; given enough time between the notification and the test, a subject might be able to ingest substances that could interfere with the ability of the test to detect drugs. Also important to random drug testing is the confirmation that the person presenting himself at the testing laboratory is the person who has been randomly selected for testing. Each of these elements plays a role in this case.
Petitioner's clerk checked Respondent's identification, including his driver's license, and explained to him the procedures that he was to follow. Respondent had undergone random drug testing in the past while employed by Petitioner. In brief, Petitioner's clerk told Respondent that he had to report immediately to the testing laboratory, which is a short drive from the office. The clerk instructed Respondent to sign in upon arrival at the laboratory and, when called, to present all of the paperwork that she was giving him, as well as his driver's license. Petitioner's clerk warned him that he could not leave the laboratory premises until he had completed the drug test.
Respondent reported immediately to the laboratory and signed in, as instructed. When called, Respondent presented his paperwork to the laboratory clerk, but he did not produce his driver's license, claiming that he did not have it with him.
Respondent is not the first employee to appear at the laboratory without suitable identification. Petitioner's
procedure is to maintain a photocopy of each employee's driver's license and fax the photocopy to the laboratory when employees report to the laboratory without identification. If the laboratory clerk cannot positively confirm the identification of the employee from the photocopied identification, then the laboratory employee detains the employee while Petitioner sends the employee's supervisor to the nearby laboratory to confirm the identity of the employee. Once done, the drug test proceeds.
Pursuant to this procedure, the laboratory clerk telephoned Petitioner's clerk and informed her that Respondent had failed to produce his driver's license. The testimony of the laboratory clerk and Petitioner's clerk diverges at this point; each claims that the other clerk spoke to Respondent. However, the laboratory clerk testifies that she summarized the instructions given Respondent over the telephone by Petitioner's clerk. Just before Respondent left the reception room to search the bus for his driver's license, the laboratory clerk told him that he could go to the bus to look for his driver's license, but he was to return to the reception room. In any event, the clerks agree that Respondent received permission to return, unescorted, to his bus to search for his driver's license--a deviation from established procedure that prohibits the employee from leaving the laboratory once he has reported for a random drug test.
The testimony of the clerks establishes that Respondent was permitted to return, unescorted, to his bus to search for his
driver's license. The testimony of the laboratory clerk establishes that she clearly directed Respondent to look for his driver's license in the bus and return to the reception room.
The discrepancy in the testimony of the clerks as to who conveyed the substance of the additional instructions to Respondent is, ultimately, immaterial; the possibility that one of the clerks could have given Respondent permission to leave the laboratory parking lot to search for his driver's license, or the possibility that Respondent could have misunderstood the clerk to have given him this permission, is negated by Respondent's later conversation with the Assistant Director of Transportation, as set forth below.
Following his conversation with the laboratory clerk and possibly Petitioner's clerk, Respondent left the laboratory and went to his bus, ostensibly to search for his driver's license. Respondent did not return to the laboratory, but, instead, drove his bus back to the bus compound.
Evidently, Respondent went home after returning his bus. One to one and one-half hours after leaving the laboratory, Respondent telephoned Petitioner's clerk and informed her that he had not found his license and had instead become sick, so he had gone home to eat something and take his medicine. Respondent told her that he had retraced his steps, but had not found his driver's license.
At this point, Petitioner's clerk transferred the call to her supervisor, who is the Assistant Director of Transportation. The Assistant Director of Transportation started their conversation by stating her understanding that Petitioner had sent Respondent for a random drug test, but he had not completed it. Respondent answered that he could not find his driver's license and believed that Petitioner's clerk may have failed to return it to him earlier in the morning when she had examined it. The Assistant Director of Transportation replied that the clerk had looked for the driver's license and failed to find it, so that they were sure that she had not failed to return it to Respondent.
Pausing for about five seconds, Respondent answered, "I wasn't feeling well. I had to go home and take my medication." The Assistant Director of Transportation replied that she would treat this as a refusal to submit to a drug test. They spoke for a few moments more, confirming that Respondent was calling from his home and that the bus was at the compound. The Assistant Director then directed Respondent not to report to work and told him that a personnel employee would be contacting him.
Respondent concluded the conversation by repeating that he had not been feeling well.
At no point in the conversation with Petitioner's clerk or the Assistant Director of Transportation did Respondent ever claim that he left the laboratory parking lot with the permission
of Petitioner's clerk or the laboratory clerk or that he left the laboratory parking lot thinking that he had the permission of one of the clerks. It appears that he had ample opportunity in his conversation with the Assistant Director of Transportation to make this claim. Instead, Respondent merely repeated his claim that he became ill. Thus, it is very likely that Respondent clearly understood the final directions of the laboratory clerk: Respondent was to search his bus for the driver's license and then return to the laboratory reception room.
It is thus not difficult to determine that it is considerably more likely than not that Respondent left the laboratory parking lot, knowing that he did not have the permission of either clerk to do so. Petitioner's witnesses testified candidly. The Assistant Director of Transportation did not appear overbearing or intimidating, so as to deter Respondent from presenting all of the facts in his defense, such as a claim that he had left the parking lot with the accurate or mistaken impression that he could do so in an effort to find his driver's license.
It is only a little more difficult to determine that Respondent's claim of illness as the cause for his departure from the parking lot is more likely than not to be a fabrication. The coincidence of a random drug test, misplaced driver's license, and sudden onset of debilitating illness is unlikely.
Presumably, the illness would have arisen after Respondent had
spoken to the laboratory clerk, or else Respondent would have mentioned something to her when he was in the reception room. Even if Respondent had been suddenly struck by some illness while on his way to search the bus or while searching the bus, he would have been able to return to the reception room and tell the laboratory clerk either that he had fallen ill and had to go home immediately or that he had fallen ill and needed to produce a urine sample immediately, with or without further identification. Obviously, the illness had not been so debilitating to have prevented Respondent from returning to the reception room and telling the laboratory clerk of the illness; after all, Respondent was able to drive the bus to the bus compound and then drive himself home.
Based on all of the facts, Petitioner properly treated Respondent's acts and omissions as the equivalent of refusing to submit to a random drug test and, as authorized by the collective bargaining agreement, properly terminated Respondent's employment as a school bus driver.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)
As a noninstructional employee of Petitioner, Respondent is not entitled to a hearing under Section 230.23(5)(f). However, Section 231.3605(2)(f) requires that
Petitioner conform to the provisions of the collective bargaining agreement and Petitioner's rules in terminating most noninstructional employees, including an employee assigned to the transportation department. As noted above, the collective bargaining agreement provides for termination for the refusal to submit to a random drug test.
Petitioner has proved by a preponderance of the evidence that Respondent refused to submit to a random drug test and thus may be terminated from employment as a school bus driver.
It is
RECOMMENDED that Petitioner enter a final order terminating Respondent's employment.
DONE AND ENTERED this 17th day of October, 2000, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2000.
COPIES FURNISHED:
Dr. Howard Hinesley, Superintendent Pinellas County School Board
301 4th Street Southwest Largo, Florida 33770
Jacqueline M. Spoto, Staff Attorney Pinellas County School Board
301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779-2942
Honorable Tom Gallagher, Commissioner Department of Education
The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Michael H. Olenick, General Counsel Department of Education
The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Glenn Cromartie
1639 26th Street, South
St. Petersburg, Florida 33712
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 must be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 07, 2000 | Agency Final Order | |
| Oct. 17, 2000 | Recommended Order | Bus driver declined to submit to random drug test when he left laboratory grounds without permission. |
