STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLOTTE COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 17-1541TTS

LORI LORENZ,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held in Port Charlotte, Florida, on May 25, 2017, before Linzie F. Bogan, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas Martin Gonzalez, Esquire

Thompson, Sizemore, Gonzalez and Hearing, P.A.

Suite 1600

201 North Franklin Street Tampa, Florida 33602

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A. Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

Whether there was just cause to terminate Respondent’s annual employment contract during the term of the contract.

PRELIMINARY STATEMENT

On or about February 22, 2017, Petitioner Charlotte County School Board (Petitioner/School Board), through Assistant Superintendent Chuck Breiner, served on Respondent Lori Lorenz (Respondent) a letter recommending Respondent’s termination from employment. Respondent timely filed a request for administrative hearing, and this matter was referred to the Division of Administrative Hearings for a disputed-fact hearing. The disputed-fact hearing was held on May 25, 2017.

During the hearing, Petitioner offered the testimony of David Carter, Lisa Pellegrino, Amy Haggarty, Louis Long III, and Chuck Breiner. Respondent testified on her own behalf and called no other witnesses. Petitioner’s Exhibits 1 through 16 and 20 through 25 were admitted into evidence. There were no exhibits received into evidence on behalf of Respondent.

A Transcript of the disputed-fact hearing was filed with the Division of Administrative Hearings on June 8, 2017. Petitioner filed its Proposed Recommended Order on June 19, 2017.

Respondent requested and received an extension, and filed her Proposed Recommended Order on June 23, 2017.

FINDINGS OF FACT

1. Petitioner is the duly authorized entity responsible for the operation, control, and supervision of all public schools (grades kindergarten through 12) in Charlotte County, Florida,

   
   

   and for otherwise providing public education to school-aged children in the county. Art. IX, § (4)b, Fla. Const.;

   § 1001.32, Fla. Stat. (2016).

   
   

2. During all times relevant hereto, Petitioner employed Respondent as a classroom teacher working pursuant to an annual contract.

3. Between the years 1986 through 2000, Respondent worked as an educator for the School District of Hillsborough County, Florida.

4. During the late 1990s, Respondent had multiple surgeries on her lungs and jaw. Respondent was prescribed various pain medications following her surgeries, and unfortunately she became addicted to the medication.

5. Around 1998, Respondent’s addiction to pain medication caused her to engage in criminal activity (i.e. attempting to obtain a controlled substance by fraud), which resulted in her arrest.

6. Respondent, at the time of her arrest in 1998, was employed as a teacher by the Hillsborough County School District. As a result of her arrest, Respondent resigned from employment with the Hillsborough County School District. Additionally, the Florida Department of Education (DOE) was notified of Respondent’s arrest and as a result thereof suspended Respondent’s teaching certificate for two months, imposed a

   
   

   two-year probationary period, and required Respondent to submit to substance abuse treatment.

7. Respondent left the teaching profession in 1998 and did not return to the profession until 2014, when she became employed by Petitioner. When Respondent returned to the profession in 2014, she still needed to complete the two years of probation imposed against her teaching certificate by DOE. As part of her probation, Respondent was required to submit to two years of random drug testing. For the 2014-2015 and 2015-2016 school years, Respondent passed each of her randomly imposed drug tests and has subsequently been released from probation by DOE.

8. Respondent has suffered from migraine headaches for several years and would often miss work due to migraine-related symptoms. Although Respondent missed several days of work during the 2016-2017 school year as a result of migraine headaches, her absences did not rise to the level to where it became necessary for her school principal to speak with her regarding the issue.

9. On the morning of January 3, 2017, which was a teacher planning day, Respondent awoke with a migraine headache. Teachers are expected to report to work by 6:35 a.m. on teacher planning days.

10. Respondent and Lisa Pellegrino were colleagues and friends. On January 3, 2017, at 7:16 a.m., 7:20 a.m., and at 10:29 a.m., respectively, Respondent called Ms. Pellegrino, who

    
    

    was at work. Respondent’s calls were not answered by

    
    

    Ms. Pellegrino because at the time, Ms. Pellegrino did not have her phone in her possession.

11. At 9:01 a.m., on January 3, 2017, Respondent sent a text message to Ms. Deb Capo, who is the school’s secretary. The text message states: “Woke up with a headache . . . will be in ASAP.” At 10:36 a.m., Ms. Capo responded to the text message asking: “Are you here yet. Lou needs to see you.” Respondent replied and stated, “Not yet . . . I’ll be there by noon. All ok?” Ms. Capo then replied, “Yes. See you then.”

12. At approximately 10:50 a.m., Ms. Pellegrino retrieved her cellphone and noticed that she had missed three calls from Respondent. Fearing a possible emergency, Ms. Pellegrino immediately called Respondent. Ms. Pellegrino testified during the final hearing as follows:

    I just called her because I wanted to see what was going on. I figured I had three missed calls; maybe there was an emergency. And when I spoke with her, she informed me that she had a really bad migraine, she didn’t think she was going to be able to make it, or she was trying to get pain pills because she couldn’t get her Imitrex prescription for a couple of days, and she was having a hard time getting to work to get her grades completed by the end of the day.

    And she asked me for pain pills or if I had any, and I said no.[1/]

    
    

13. Within an hour or so of speaking with Respondent, Ms. Pellegrino and a few of her colleagues were preparing to leave for lunch when the question was asked, “did Lori [Respondent] come in yet?” One of the teachers in the lunch group was Amy Haggarty, who is the chairperson of the school’s math department and was aware of Respondent’s history of addiction to pain medication.

14. Ms. Pellegrino, in response to the question about Respondent’s whereabouts, mentioned to Ms. Haggarty that she had just gotten off the phone with Respondent and that it was a weird conversation because Respondent said, according to

    Ms. Pellegrino, “that she has a bad migraine headache and she can’t fill her pain medication,” and asked her [Ms. Pellegrino] “if she had any pain medication.” Ms. Haggarty, because she knew of Respondent’s history with addiction to pain medication, became alarmed by Ms. Pellegrino’s statement and she immediately arranged to meet with the school principal, Mr. Long, to discuss what she had been told about Respondent.

15. During her meeting with Mr. Long, Ms. Haggarty informed him of what she had been told by Ms. Pellegrino. Mr. Long, upon concluding his meeting with Ms. Haggarty, then met with

    Ms. Pellegrino. Upon questioning by Mr. Long, Ms. Pellegrino confirmed that she had spoken with Respondent that morning and that Respondent asked her for pain medication.

    
    

16. Mr. Long then contacted the school board’s office of human resources to report what he had been told by

    Ms. Pellegrino. Mr. Long was advised by a representative from the office of human resources that Dave Carter would report to the school on the morning of January 4, 2017, to “possibly place Ms. Lorenz on administrative leave.”

17. Dave Carter is a “human resources investigator” for the Charlotte County School Board and he reports to, among others, Mr. Chuck Breiner, assistant superintendent for the school board. According to Mr. Carter, his job responsibilities include conducting “personnel investigations based on allegations of misconduct or violations of school district policies, rules, or the Department of Education code of ethics.”

18. During his testimony, Mr. Carter explained that when Mr. Breiner, or others as appropriate, believes that reasonable suspicion exists to subject an employee to drug testing, he

    [Mr. Carter] will go to the employee’s worksite, perform “an on- scene concurrence evaluation” of the employee, and, if necessary, transport the employee to the drug testing facility.

19. Mr. Carter testified that an on-scene concurrence evaluation consists of him “interview[ing] the principal, call[ing] the employee down, [and] mak[ing] a physical observation of [the employee].” Mr. Carter testified that upon completion of the concurrence evaluation, if he believes that

    
    

    reasonable suspicion does not exist for drug testing, he will contact Mr. Breiner who will then make the final determination of whether the employee should be subjected to drug testing.

20. Respondent arrived at the school around 6:15 a.m. on the morning of January 4, 2017. Soon after arriving at the school, Respondent saw Mr. Long who informed Respondent that he needed to meet with her during the “second hour” of the day, which is her planning period. A reasonable inference from the evidence is that Respondent taught her first-period class before meeting with Mr. Long and Mr. Carter at 8:10 a.m. There is no evidence indicating that Mr. Long took any steps to observe Respondent’s “performance, appearance, or behavior” in preparation for his January 4, 2017, meeting with Respondent and Mr. Carter, or that Mr. Long reasonably believed that Respondent was under the influence of drugs such that she should be prevented from teaching her class.2/

21. At about 8:00 a.m. on the morning of January 4, 2017, Mr. Carter reported to Port Charlotte High School for the purpose of interviewing Respondent as part of an investigation into an unrelated matter. When Mr. Carter checked in at the school, he met with Mr. Long who informed him of the allegations concerning Respondent’s solicitation of pain medication from

    Ms. Pellegrino. Mr. Carter immediately contacted Mr. Breiner and informed him of the allegations against Respondent.

    
    

22. Mr. Breiner, when he spoke with Mr. Carter, was not aware of Respondent’s history of drug addiction and, consequently, this was not a factor that he considered when ordering that Respondent be drug-tested. Mr. Breiner, based on the information that Respondent allegedly solicited pain medication from Ms. Pellegrino, as reported by Mr. Long, and the fact that Respondent, like a number of other employees, had multiple absences from work, directed Mr. Carter to terminate the investigation into the unrelated matter and to proceed with taking Respondent to an authorized facility for reasonable suspicion drug testing.

23. At no time prior to directing Mr. Carter to subject Respondent to drug testing did Mr. Breiner instruct Mr. Carter to personally interview Ms. Pellegrino regarding her conversation with Respondent. Additionally, at no time prior to Respondent’s drug test did Mr. Carter even attempt to question Ms. Pellegrino about her conversation with Respondent and the circumstances related thereto. It was only after Respondent had been drug tested that Mr. Carter interviewed Ms. Pellegrino.

24. Mr. Carter, after receiving direction from Mr. Breiner, and with the assistance of Debbie Anderson, who works as a personnel analyst in Respondent’s department of human resources, met with Respondent and explained that she was required to submit

    
    

    to drug testing pursuant to the school board’s drug-free workplace policy.

    1. Reasonable Suspicion Indicators

       
       

25. Petitioner uses a form titled “Reasonable Suspicion Indicators Checklist” (checklist), when evaluating employees for suspicion of violating Petitioner’s Drug and Alcohol Free Work Environment Policy. The checklist provides as follows:

    Manager/Supervisor: This form is to be used to substantiate and document the objective facts and circumstances leading to a reasonable suspicion determination. After careful observations of the employee’s performance, appearance or behavior, please check all the observed indicators that raised the suspicion that the employee may have engaged in conduct which violates the Drug- and Alcohol-Free Work Environment Policy.

    
    

    Incident or reason for suspicion Apparent drug or alcohol intoxication Nausea or vomiting

    Abnormal or erratic behavior

    Evidence of possession, dispensation, or use of a prohibited substance

    Industrial accident requiring medical attention

    Physical altercation or assault

    
    

    Odors and/or Appearance

    Odor of alcohol (on breath or person) Distinctive, pungent aroma on clothing Excessive sweating or skin clamminess

    very flushed

    very pale

    Jerky eye movements Unfocused, blank stare Dilated or constricted pupils

    Dry mouth, frequent swallowing or wetting lips

    Bloodshot or watery eyes

    
    

    Behavior and Speech

    Slurred or incoherent speech Breathing difficulty or irregularity

    Loss of physical control, dizzy or fainting Unsteady walk, poor coordination

    Euphoric, fidgety, agitated or nervous affect Shaking hands/body, tremors, twitches Extreme fatigue or sleeping on the job Lackadaisical, apathetic attitude

    Irritable, moody, belligerent or aggressive demeanor

    Nausea or vomiting

    Suspicion of others; paranoia; accuses others Physical and/or verbal abusiveness

    Rambling, loud, fast, silly or repetitious speech

    Talkative, cursing, other inappropriate speech

    Diminished (or lack of) concentration Delayed or faulty decision making Impulsive, unsafe risk-taking Inappropriate response to instructions

    
    

26. Mr. Carter and Ms. Anderson each completed a checklist.

    
    

    None of the indicators listed above were checked by either

    
    

    Mr. Carter of Ms. Anderson as it pertains to their evaluation of Respondent.

27. There is, however, an “indicator” appearing on the respective forms that is different in substance when comparing the form completed by Mr. Carter with the one completed by

    Ms. Anderson. On the form completed by Mr. Carter, there is a marked indicator that reads “Colleague disclosed that employee solicited ‘pain medication’ (controlled substance) during a teacher work day.” By comparison, the form completed by

    
    

    Ms. Anderson notes a different indicator which states “Employee discloses that he or she has consumed alcohol, used or ingested a controlled substance during or immediately prior to duty.” Neither party offered an explanation regarding the differences between the forms. Nevertheless, both Mr. Carter and

    Ms. Anderson attached a narrative to the checklist regarding the circumstances surrounding Ms. Pellegrino’s statement about Respondent allegedly soliciting Ms. Pellegrino for pain medication.

28. Mr. Carter and Ms. Anderson each completed their respective checklist on January 11, 2017, which coincidentally, was the same date that Respondent’s lab results from her drug test were received by Petitioner.3/ The evidence does not explain why both Mr. Carter and Ms. Anderson waited several days to complete their respective checklists.

29. Mr. Carter testified that when he performed his concurrence evaluation of Respondent on January 4, 2017, the only indicator present for subjecting Respondent to reasonable suspicion drug testing was the statement of Ms. Pellegrino indicating that Respondent solicited pain medication from her on January 3, 2017. Ms. Anderson did not testify at the final hearing.

30. Mr. Breiner, who made the ultimate decision to subject Respondent to reasonable suspicion drug testing on January 4,

    
    

    2017, testified that two factors drove his determination: the first being Ms. Pellegrino’s statement, and the second being Respondent’s history of absenteeism from work during the 2016- 2017 school year.4/ On cross-examination, however, Mr. Breiner admitted that in Respondent’s notice of termination he made no reference to absenteeism being a factor in his decision to subject Respondent to reasonable suspicion drug testing.

    1. Morphine and Imitrex

    
    

31. Respondent admits that on January 3, 2017, she took morphine in order to get relief from her migraine headache. Respondent testified that she typically takes Imitrex to treat her migraines, but when that drug is ineffective she takes morphine for relief of her symptoms. According to Petitioner, she has been taking Imitrex since about 2007 and she suffers no side effects from the medication.

32. Respondent testified that she typically takes morphine about once or twice a year “when the Imitrex [is not] working” and that the effects of the morphine last “[a]nywhere from four to six hours, sometimes eight, but nothing after that.” Petitioner did not rebut Respondent’s statement and offered no evidence regarding the effects of morphine and the period of time after ingestion that a person is typically under the influence of the drug.

    
    

33. According to medical records from Peace River Medical Center, Respondent was discharged from the hospital on August 23, 2007, following treatment for: 1. “[c]hest pain, myocardial infarction protocol; 2. [p]leuritic pneumonia; [and]

1. [m]igraine.” At the time of release from the hospital, Respondent was “discharged home with Morphine 60 mg p.r.n.” According to Respondent’s unrefuted testimony, the morphine pill that she took on January 3, 2017, was part of the batch of pills that she received when discharged from the hospital in 2007.

   1. Petitioner, when first interviewed by Respondent on January 13, 2017, denied soliciting pain medication from

      Ms. Pellegrino.

      
      

      CONCLUSIONS OF LAW

      
      

   2. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2016).

   3. Petitioner seeks to terminate Respondent's employment.

      
      

      Petitioner bears the burden of proving by a preponderance of the evidence that just cause exists for Respondent's termination.

      McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla.

      3d DCA 1990).

      
      

   4. Petitioner’s policy 3124 is the drug-free workplace policy and it provides in part that “[t]he School Board believes

      
      

      that quality education is only possible in a drug free environment [and] [i]t will seek, therefore, to establish and maintain an educational setting which is not tainted by the use or evidence of use of any controlled substance.”

   5. Petitioner’s policy 3162.01 (Drug Testing), provides in part as follows:

      In accordance with Policy 3124 – Drug-Free Workplace, it is the intent of the School Board to eliminate substance abuse and its effects in the workplace. While the Board has no intention of intruding into the private lives of its employees or future employees, involvement with drugs and alcohol off the job can take its toll on the safety and job performance of employees and students’ safety. The Board’s concern is that employees are in a condition to perform their duties safely and efficiently, in the interest of students, fellow workers, and the public as well as themselves. The presence of drugs and alcohol on the job and the influence of these substances on the employee during working hours are inconsistent with this objective.

      
      

   6. Petitioner’s administrative procedure 3162.01 sets forth the following administrative responsibilities and procedures with respect to reasonable suspicion drug testing of employees:

      1. Administrative personnel are responsible for reasonable enforcement of this procedure;

         
         

      2. Administrative personnel who have a reasonable suspicion that an employee is intoxicated or under the influence of drugs or alcohol while on the job shall document in writing the facts constitution [sic]

         
         

         reasonable suspicion and place the employee in a secured and supervised location;

         
         

         1. “Reasonable suspicion” is a belief based on objective facts sufficient to lead a reasonably prudent administrator to suspect that an employee is under the influence of drugs or alcohol so that the employee’s ability to perform the functions of the job is impaired or so that the employee’s ability to perform his/her job safely is reduced;

            
            

         2. Reasonable suspicion includes, but is not limited to, the following examples;

            1. Slurred speech;

            2. Alcohol odor on breath;

            3. Unsteady walking and movement;

            4. An accident involving Board property or employees;

            5. Physical Altercation;

            6. Verbal altercation;

            7. Unusual behavior;

            8. Possession of alcohol or drugs;

            9. Information obtained from a reliable person with personal knowledge.

            
            

      3. Any administrator who has reasonable suspicion that an employee is intoxicated or under the influence of drugs or alcohol shall contact Human Resources immediately;

         
         

      4. Once the situation has been reported to Human Resources, HR will contact the site administrator and will proceed according to the following procedures;

         
         

         1. An HR designee will come to the worksite with the appropriate paperwork and meet with the administrator and other witnesses.[5/]

            
            

   7. The evidence establishes, and Petitioner readily concedes, that the decision to subject Respondent to a drug test was based on Ms. Pellegrino’s statement and Mr. Breiner’s

      
      

      awareness that Respondent was one of several employees with multiple absences during the school year.

   8. The evidence also establishes that prior to subjecting Respondent to drug testing, Petitioner failed to take into consideration that Respondent had timely submitted her grades prior to the January 3, 2017, 2:00 p.m. deadline.

   9. The evidence also establishes that prior to subjecting Respondent to drug testing, Petitioner failed to take into consideration that Respondent informed Mr. Long’s secretary that she “woke up with a headache” and that Respondent then took appropriate steps to keep Mr. Long’s office apprised of her work status.

   10. The evidence also establishes that prior to subjecting Respondent to drug testing, Mr. Long, on January 4, 2017, took no steps to observe Respondent’s “performance, appearance, or behavior,” and allowed Respondent to meet with students and teach her class despite knowing of Ms. Pellegrino’s allegations and Respondent’s history of addiction to pain medication.

   11. The evidence also establishes that prior to subjecting Respondent to drug testing on January 4, 2017, Mr. Carter did not interview Ms. Pellegrino when it was evident that she was the only person, other than Respondent, “with personal knowledge” of what Respondent allegedly said during the conversation in question.

       
       

   12. The evidence also establishes that prior to subjecting Respondent to drug testing on January 4, 2017, Petitioner failed to take into consideration that Respondent was at work on January 4, 2017, between 6:15 a.m. and 8:10 a.m. and that there were no complaints from anyone about her “performance, appearance, or behavior,” and that she taught her students without incident.

   13. The evidence also establishes that prior to subjecting Respondent to drug testing on January 4, 2017, Petitioner failed to take into consideration that not one of the 34 categories of “objective facts” set forth on the indicators checklist was observed by either Mr. Carter or Ms. Anderson.

   14. The complete absence of objective facts suggesting impairment, when combined with Respondent’s objectively reasonable behavior and the unexplained failure by the investigative team to timely interview Ms. Pellegrino so as to test the reliability of her statement, demonstrate that on January 4, 2017, a reasonably prudent administrator would not have concluded that reasonable suspicion existed to subject Respondent to drug testing.

   15. Ms. Haggarty testified that the information that she received from Ms. Pellegrino “raised a red flag” that caused her to report Ms. Pellegrino’s statement to Mr. Long. Mr. Long certainly acted reasonably by reporting the information that he

       
       

       received from Ms. Haggarty to human resources. However, on January 3, 2017, when information about Ms. Pellegrino’s allegation reached human resources and beyond, it should have been determined, based on the information available at that time, that there was insufficient information to warrant drug testing Respondent and that, consistent with board policy, her “performance, appearance, or behavior” should have been subjected to careful observation.

   16. Petitioner interviewed Respondent on January 13, 2017, which was two days after Petitioner received notice that Respondent tested positive for opiates (morphine). It was during this interview that Respondent was asked “to explain or account for the results from the drug test being positive for opiates.” It was only because of this interview that Petitioner gleaned information from Respondent that resulted in allegations two and four of Respondent’s letter of termination.6/

   17. Petitioner should not reap any benefit from its failure to comply with its policies and procedures that ultimately resulted in Respondent being subjected to an unwarranted drug test. Accordingly, because Petitioner lacked reasonable suspicion to subject Respondent to drug testing, and given that the other grounds for termination are inextricably intertwined with the facts and circumstances surrounding the improper drug test, it is determined that Petitioner has failed to meet its

burden of proof with respect to each allegation contained in the

letter of termination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Charlotte County School Board enter a final order finding that there was no just cause to terminate Respondent’s employment during the term of her

2016-2017 annual contract with the School Board.

DONE AND ENTERED this 14th day of July, 2017, in Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

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 14th day of July, 2017.

ENDNOTES

1/ On January 5, 2017, Ms. Pellegrino was interviewed by Petitioner regarding her conversation with Respondent on January 3, 2017. According to the transcript of the interview, Ms. Pellegrino stated, in part, as follows:

Uh, she called to tell me that she wasn’t at school yet because she had a really bad

migraine. Her medication wasn’t working. Um, she was trying to find something to help her. She asked me if I had any pain pills.

I told her I didn’t. Um, she said she wasn’t going to be able to get hers for another couple of days. And I actually asked her why she didn’t just, you know, do her grades from home and log into Focus, and she said that if she could see straight, she would, but she couldn’t. So, um, I said, okay. Well, I hope you feel better. And that was pretty much the end of the conversation.

Ms. Pellegrino’s statement of January 5, 2017, gives the impression that Respondent’s Imitrex was not working and that Respondent was looking for pain pills because she would not be able to get pain pills until a few days later. Ms. Pellegrino’s testimony at the final hearing however, suggests that Respondent was looking for pain pills because she was unable to get her prescription filled for Imitrex. There was no explanation offered as to why Ms. Pellegrino’s testimony at the time of hearing differed from her previous statement of January 5, 2017.

2/ Petitioner’s administrative procedure 3162.01 directs that “[e]mployees reasonably believed to be under the influence of alcohol or drugs shall be prevented from engaging in further work and shall be detained for a reasonable time until s/he can be safely transported from the work-site.” That Mr. Long as an experienced administrator, and knowing of Ms. Pellegrino’s allegation and Respondent’s history of addiction, had no concerns about allowing Respondent to teach her class on the morning of January 4, 2017, weighs considerably against there being reasonable suspicion to subject Respondent to drug testing.

3/ On January 11, 2017, Petitioner received the results from Respondent’s drug test which indicated that Respondent tested positive for opiates (morphine).

4/ Mr. Long was aware of Respondent’s multiple absences during the 2016-2017 school year because he had to sign her leave forms. Mr. Long testified, however, that he was not particularly concerned about Respondent’s absences and never had any discussions with her regarding the same.

5/ As noted, Mr. Carter did not meet with Ms. Pellegrino prior to Respondent’s drug test, and other than Respondent, Ms. Pellegrino

is the only witness with personal knowledge of what was said during the telephone conversation at issue.

6/ The letter of termination that Petitioner provided to Respondent reads in part as follows:

This letter of termination follows a pre- determination hearing on February 09, 2017, at 8:00 a.m. in the Human Resources conference room. . . . The purpose of the meeting was to determine the validity or rejection of allegations that you had been at work under (District-policy-prohibited) the influence of controlled substances.

After careful deliberation of the facts surrounding your case, I determined that you:

1. reported to work on January 4, 2017, under the influence of the controlled substance morphine; you allege that the pill was unused and in your possession from an unspecified prescription you received “two, three . . . maybe four years ago.”

   
   

2. could not produce a valid prescription for morphine from a licensed physician; previously you stated to your principal that you were prescribed oxycodone; clearly this statement proved untrue;

   
   

3. placed repeated phone calls to a teacher- colleague on January 3, 2017; after reaching her, you made clear that you needed medication stronger (“I need something stronger. I take something stronger.”) than across-the-counter medications for a migraine headache; from that phone call’s content (in which you asked your colleague if she had any ‘pain pills’), your colleague was left with the distinct impression that you were soliciting her for pain medication. (I note here that your colleague’s husband had recently undergone surgery.) Your colleague reported the content of and concerns about that call to her department head (who, in turn, reported the concerns to her principal) at Port Charlotte High School (PCHS).

   
   

4. Contrary to Charlotte County Public Schools (CCPS)-Board policy, you failed to alert your principal to the fact that you were taking a prescribed medication (Sumatripan and/or an opiate while working at PCHS.

COPIES FURNISHED:

Thomas Martin Gonzalez, Esquire Thompson, Sizemore, Gonzalez

and Hearing, P.A. Suite 1600

201 North Franklin Street Tampa, Florida 33602 (eServed)

Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 (eServed)

Steve Dionisio, Superintendent Charlotte County School Board 1445 Education Way

Port Charlotte, Florida 33948-1052

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

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Pam Stewart, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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: 17-001541TTS

Orders for Case No: 17-001541TTS