STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD,

Petitioner,

vs.

MABEL JOHNSON,

Respondent.

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) Case No. 04-2713

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RECOMMENDED ORDER

Following notice to all parties, Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) held a Final Hearing in the above-styled case in Pensacola, Florida on December 8, 2004.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

Hammons and Whittaker, P. A.

17 West Cervantes Street Pensacola, Florida 32501

For Respondent: Anthony D. Demma, Esquire

Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, FL 32302-1547

STATEMENT OF THE ISSUE

The issue for determination is whether just cause exists for termination of Respondent Mabel Johnson’s employment.

PRELIMINARY STATEMENT

Johnson is a school bus operator within the Escambia County, Florida, school system. As a consequence of that employment, Johnson is subject to random drug tests. Following her selection for (and subsequent refusal of) a random drug test, Johnson entered into an agreement with the Escambia County School Board (ECSB). Upon satisfaction of the terms and conditions of a Return to Work Agreement (RWA), she would be permitted to return to work.

Informed by letter dated July 22, 2004, that the ESCB intended to consider and approve a recommendation for termination of her employment, Johnson requested formal administrative proceedings challenging the proposed termination in a note dated July 27, 2004. By letter dated July 30, 2004, ESCB transferred to matter to DOAH.

Originally scheduled for final hearing on September 16, 2004, discovery-related delays encountered by the parties and two subsequent joint motions for continuance resulted in the final hearing being held on December 8, 2004.

At the final hearing, Johnson testified on her own behalf and presented two exhibits, which were admitted into evidence. ESCB presented the testimony of two witnesses and seven exhibits that were admitted into evidence.

A transcript of the final hearing was filed on January 14, 2005. Both parties submitted Proposed Recommended Orders that have been utilized in the preparation of this Recommended Order.

All references to the Florida Statutes refer to the 2004 edition unless otherwise noted.

Findings Of Fact

1. ECSB is a governmental agency with responsibility for administration and implementation of a system of free appropriate public education to eligible students within Escambia County, Florida, acting in coordination with the elected Superintendent, who serves as the chief operating officer for the school district.

2. Johnson, the Respondent, had been employed by the ECSB as a school bus operator for approximately 17 years until the initiation by ESCB of this employment termination action. School bus operator is a safety-sensitive position within the meaning of the Florida Drug Free Workplace Act, F.S. 112.0455, and the Federal Omnibus Transportation Employee Testing Act, 49

   U.S.C. Sec. 31306.

   
   

3. ECSB, by its representative’s letter to Johnson of July 22, 2004, informed Johnson that the ESCB intended to consider and approve a recommendation for termination of her

   employment. Johnson requested formal administrative proceedings challenging the proposed termination in a note dated July 27, 2004.

4. Johnson’s duties as a school bus operator include transporting school age children from home to school and from school to home as well as other assigned destinations. Ages of students transported range from kindergarten age through high school age.

5. ECSB has, at all times material to this matter, had in place a drug free workplace policy which prohibits the use or consumption of unlawful drugs by school district employees whether at work or away from work.

6. On Aril 27, 2004, Johnson was randomly selected and required to submit to a drug screening. Over the course of the past several years, Johnson has submitted to such random drug tests five times, with negative results. Procedures for submission to the drug screening include the provision of a urine sample for analysis. While Johnson appeared at the designated location to submit the urine sample for drug analysis, she did not produce an adequate urine sample for testing. Under U.S. Department of Transportation guidelines, ECSB considered Johnson’s action as failure to submit to the drug screening test and, therefore, a default positive test result.

7. As a consequence of the refusal and in lieu of termination of employment, Johnson signed an RWA on May 10, 2004. Pursuant to the RWA, Johnson was required to submit to a substance abuse evaluation and complete any prescribed program determined appropriate through the evaluation process by personnel of ECSB’s contractually provided drug counseling service Twelve Oaks, a drug evaluation and treatment facility. Johnson was required to personally absorb the expense of that counseling and treatment and to refrain from future use of unlawful drugs.

8. Upon initial admission and evaluation at the treatment facility, Johnson was not truthful regarding recent use of marijuana, denying any use of the drug since the 1980’s. Following another drug test taken on May 19, 2004, Johnson learned of its positive result through her own telephone inquiry on June 2, 2004.

9. On June 30, 2004, Johnson finally admitted to treatment facility personnel that she had smoked marijuana at a birthday party for a friend on April 24, 2004, following a 20-year hiatus of such behavior. At that point, Johnson was recommended for an intensive outpatient treatment program consisting of three sessions per week for eight weeks with each session lasting approximately three and one half hours.

10. Starting July 13, 2004, Johnson attended three sessions for the first week and two sessions the following week, when she terminated her participation in the treatment program upon learning from ECSB’s Assistant Superintendent for Human Resources of the forthcoming approval of the proposed termination of her employment.

11. Johnson meets textbook criteria of the manual used by mental health care authorities for diagnosis, the DSM-IV (R) and its criteria for substance abuse. As of the date of the final hearing, she has not completed the recommended substance abuse

    treatment program.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. § 120.569 and 120.57(1), Fla. Stat.

13. ECSB has the burden of proof in this proceeding, and must demonstrate by preponderance of the evidence just cause for the termination of Johnson’s employment. Delio v. School Board

    of Dade County, 569 So. 2d 883(Fla. 3rd DCA 1990).

    
    

14. The Florida Drug-Free Workplace Act (the Act), Section 112.0455 (8)(m) and (n), Florida Statutes, reads in pertinent part, as follows:

    m) No employer may discharge, discipline, refuse to hire, discriminate against, or request or require rehabilitation of an

    employee or job applicant on the sole basis of a positive test result that has not been verified by a confirmation test.

    
    

    * * *

    (n) In addition to the limitation under paragraph (m):

    1. Except as provided in subparagraph 3., no employer may discharge, discipline, or discriminate against an employee on the sole basis of the employee's first positive confirmed drug test, unless the employer has first given the employee an opportunity to participate in, at the employee's own expense or pursuant to coverage under a health insurance plan, an employee assistance program or an alcohol and drug rehabilitation program, and:

       1. The employee has either refused to participate in the employee assistance program or the alcohol and drug rehabilitation program or has failed to successfully complete such program, as evidenced by withdrawal from the program before its completion or a report from the program indicating unsatisfactory compliance, or by a positive test result on a confirmation test after completion of the program . . .

    
    

15. The Act promotes the goal of drug-free workplaces within government. Notably, failure to successfully complete a rehabilitation program subjects the employee to termination solely on the basis of the first positive test in the event of the employee’s failure to successfully complete the denominated alcohol and drug rehabilitation program. § 112.0455(8)(n)1.a, Fla. Stat.

16. ECSB’s Rule 2.33 addresses the consequences of refusing to submit to a drug test. Specifically, the rule

    provides that refusing to submit to a drug test is deemed a positive result for unlawful drugs.

17. School bus operators are also subject to the requirements of the Federal Omnibus Transportation Employee Testing Act (OTETA), 49 U.S.C. Sec. 31306 and its implementing regulations, 49 C.F.R. 382.405. Applicable federal regulations provide that no employer shall permit a driver who refuses to submit to a required drug or alcohol screen to continue to perform safety-sensitive functions. 49 C.F.R. 382.211. A refusal to submit to an alcohol or controlled substances test includes, but is not limited to, failure to remain at a testing site until the testing process is completed, failing to provide a urine specimen for any drug test required, and failing to provide a sufficient quantity of urine when directed where it has been determined there is no adequate medical explanation for failure to do so. 49 C.F.R. 382.107, page 947, (2)(3), and (5).

18. Johnson, occupying a safety-sensitive position with the ECSB, was required to submit to a random drug test. The circumstances surrounding that random drug test constituted a refusal. Pursuant to ECSB rules, a refusal is deemed a positive result for the drug test. As a consequence of the inadequacy of her urine sample and the concomitant assumption of a positive result, Johnson entered into the RWA. That agreement explicitly provides that successful completion of the program and remaining

drug and alcohol free is an absolute requirement for return to normal and continued employment. Johnson’s acknowledgment through execution of the agreement that failure to comply with its provisions constituted grounds for her termination, coupled with her failure to comply with those provisions, permits only one result. While one cannot be unmindful of those great words of Henry David Thoreau that “[w]hat exercise is to the body, employment is to the mind and moral,”1 just cause for the termination of Johnson’s employment is established.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered terminating the employment of Respondent, Mabel Johnson.

DONE AND ENTERED this 2nd day of February, 2005, in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 2nd day of February, 2005.

ENDNOTE

1 Henry David Thoreau (1817–1862), U.S. philosopher, author, naturalist. Letter, December 19, 1853, to Harrison Blake, in The Writings of Henry David Thoreau, vol. 6, p. 221, Houghton Mifflin (1906).

COPIES FURNISHED:

Joseph L. Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501-3125

Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547

Tallahassee, Florida 32302

Jim Paul, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32399-0400

Daniel J. Wooding, General Counsel Department of Education

1244 Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

John Winn, Commissioner Of Education Department of Education

1244 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: 04-002713

Orders for Case No: 04-002713