The Issue Whether there was just cause to terminate Respondent’s annual employment contract during the term of the contract.
Findings Of Fact 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). During all times relevant hereto, Petitioner employed Respondent as a classroom teacher working pursuant to an annual contract. Between the years 1986 through 2000, Respondent worked as an educator for the School District of Hillsborough County, Florida. 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. 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. 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. 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. 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. 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. 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. 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.” 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/] 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. 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. 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. 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.” 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.” 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. 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. 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/ 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. 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. 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. 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. Reasonable Suspicion Indicators 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 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. 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. 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. 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. 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. Morphine and Imitrex 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. 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. 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] [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. Petitioner, when first interviewed by Respondent on January 13, 2017, denied soliciting pain medication from Ms. Pellegrino.
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.
The Issue Whether Respondent (“Desiree Seaton”) violated Petitioner, the School Board of Marion County’s (“the School Board”),1 drug-free workplace policy; 1 The School Board’s official name is “The School Board of Marion County.” § 1001.40, Fla. Stat. (2020)(providing that “[t]he governing body of each school district shall be a district school board. Each district school board is constituted a body corporate by the name of ‘The School Board of County, Florida.’”). The case style has been amended accordingly. and, if so, whether her employment with the School Board should be terminated.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record of this proceeding, and matters subject to official recognition, the following Findings of Fact are made: The School Board maintains an alcohol and drug-free workplace. Section 6.33 of the School Board’s Human Resources Manual provides that: It is further the intent of the School Board of Marion County to comply with the Omnibus Transportation Employee Testing Act (OTETA), regulations of the Federal Highway Administration (FHWA) contained in 49 CFR Parts 40 and 382, et al, Section 2345.091, Florida Statutes, the provisions of the Drug-Free Workplace Act, and other applicable state and federal safety programs. This policy shall also affirm the Board’s position that an employee in a safety sensitive position may be considered impaired at any measurable level by the use of alcohol and/or controlled substances. Pursuant to OTETA and its implementing regulations, drug and alcohol testing is mandated for all safety sensitive identified employees who function in a safety sensitive position. Section 6.33 further specifies that prohibited substances include “marijuana, amphetamines, opiates, phencyclidine (PCP), and cocaine.” In 3 Ms. Seaton’s exhibits were misnumbered in that there was no Respondent’s Exhibit 10. addition, “[i]llegal use includes the use or possession of any illegal drug, and the misuse of legally prescribed or obtained prescription drugs.” Also, “when the use of a controlled substance is pursuant to the instructions of a physician, the employee shall immediately notify his/her supervisor.” Section 6.33 states that random drug testing “may take place at any time, with or without proximity to driving,” and that there will be random drug testing for “all identified safety sensitive positions.” A “safety sensitive position” is defined as “[a]ny function for which a commercial driver’s license is mandated and in which a driver operates a vehicle designed to carry sixteen (16) or more passengers, a vehicle which weighs 26,000 + 1 pounds, or a vehicle which carries a placard indicating hazardous cargo.” Furthermore, drug testing shall be conducted by “independent, certified laboratories utilizing recognized techniques.” While the School Board maintains a drug and alcohol-free workplace, it encourages employees with chemical dependency to seek treatment: The School Board of Marion County recognizes that chemical dependency is an illness that can be successfully treated. It is the policy of The School Board of Marion County to seek rehabilitation of employees with a self-admitted or medically determined drug problem. The School Board of Marion County will make every effort to assist those self-admitted and/or referred employees while being treated. Employees who are unwilling to participate in rehabilitation may be subject to appropriate action, pursuant to School Board policy, applicable Florida Statutes, State Board of Education rules, and applicable provisions of collective bargaining agreements. Substance Abuse Program – At any time prior to notification of a required test, an employee is encouraged to contact the Employee Assistance program. Such employees may be required to submit to testing as a part of a treatment program. The laboratory that conducts drug-testing for the School Board randomly selects individuals who will be tested during the upcoming quarter. The School Board then schedules those individuals for testing throughout the quarter so that a large number of drivers are not unavailable for work at the same time. During the next quarter, a different set of individuals are selected. Brent Carson is the School Board’s Director of Professional Practices. He becomes involved in employee disciplinary cases that rise above the level of a reprimand. Mr. Carson testified that the School Board has no ability to test employees other than the individuals the laboratory selects for testing: Q: To protect the integrity of the random testing, do you have the ability to vary from that random list provided by the outside lab? A: We have to test who they say – who they identify as the random employees. Q: So if you decided to pick and choose – if they pick someone and you said, no, I’m not going to bother with that person today, do you believe that could affect the randomness, if you will, if that’s the right word, of the test procedure, that it could affect the testing procedure and call into question if you start picking and choosing who’s not giving tests to people on the list? A: Yes, that would definitely, I think, impugn the efficacy of having random tests. If an employee has a positive drug test for a prescription medication, then the School Board’s Medical Review Officer (“MRO”) gives that employee three days to produce a valid prescription for that medication. If the employee produces a valid prescription, then the positive test is deemed to be a negative test. In addition, an employee can have a urine sample retested at his or her own expense. If there is no retest and no valid prescription is produced, then the School Board puts the employee on paid administrative leave pending the outcome of disciplinary proceedings. With regard to the consequences of a positive test, the Manual states that “[c]overed employees testing positive at any level for alcohol or controlled substances are in violation of district policy and will be immediately removed from their safety sensitive positions. A violation of federal, state, or District requirements shall be grounds for dismissal.” Mr. Carson testified that there is no progressive discipline for safety- sensitive positions. The first time an employee tests positive for an illegal substance or one for which that employee does not have a prescription, that employee is recommended for termination. Mr. Carson testified that the Superintendent has always recommended termination for violations of the School Board’s drug-free workplace policy: “Whether it’s random, whether it’s reasonable suspicion or whether it’s a drug test based off of injury, we have always recommended the termination of the employee.” Ms. Seaton Tests Positive for Opioids Ms. Seaton began working for the School Board as a bus driver in December of 2017. On February 5, 2018, Ms. Seaton signed a document acknowledging that bus drivers must “[s]ubmit to random, post accident and reasonable suspicion drug testing.”[4] Ms. Seaton has undergone surgeries in the past and testified that she has been prescribed hydrocodone “for years on and off depending on the 4 Prior to the positive drug test at issue in the instant case, Ms. Seaton had no disciplinary issues and had no other positive drug tests. surgery.”5 Ms. Seaton claims to be allergic to oxycodone, and it has been her habit to take hydrocodone only when she has excruciating pain.6 Ms. Seaton suffered a work-related injury on October 2, 2020, and described it as follows: I always help out where I can. So we have spare buses that we need to move from one compound to the other, and on this particular day I was taking one of the spare buses back over to another compound. As I was getting off the bus, I always grab with my right hand to the bar and my left hand on the dashboard. My hand slipped off the 5 Ms. Seaton had a double knee replacement surgery in August of 2019 and was prescribed hydrocodone. Respondent’s Exhibit 7 is a photograph of a pill bottle indicating that Ms. Seaton had been prescribed 60 hydrocodone pills. However, no date is visible from the photograph. 6 Respondent’s Exhibit 8 is a letter from a physician stating that Ms. Seaton has treated with him since December 21, 2018. The letter notes that Ms. Seaton is allergic to codeine and Premarin. There is no mention of Ms. Seaton being allergic to oxycodone. Also, hydrocodone was not among the medications this particular physician has prescribed for Ms. Seaton. dashboard and I went forward. And from there I suffered a rotator cuff tear and some other, like, bone spurs.[7] After the accident, Ms. Seaton took a drug test on October 2, 2020, and the test returned negative results for opiates, marijuana, cocaine, amphetamines, propoxyphene, PCP, barbiturates, and benzodiazepines. Medical documentation from an October 5, 2020, evaluation by a workers’ compensation physician indicates Ms. Seaton had a contusion of the left elbow and shoulder, a left shoulder strain, a left elbow strain, and a neck strain. An MRI on January 5, 2021, revealed a posterior labrum tear along with a possible anterior dislocation of her left shoulder. Since her accident, Ms. Seaton had been driving her mother’s car because it is an automatic, and Ms. Seaton has a stick shift. Ms. Seaton flew out-of-town to visit her son in Baltimore on October 22, 2020. Because 7 Ms. Seaton has had a difficult recovery from her injury and is dissatisfied with the treatment she received through workers’ compensation. After receiving a second opinion from her primary care physician, Ms. Seaton had shoulder surgery on February 26, 2021. At the time of the final hearing, she did not know whether the surgery would ultimately prove to be a success: “I am still in ongoing treatment. It started October 2nd. I went through holy heck with our – the way that Concentra work[s] – which is the people they use for workmen’s comp – they make you go through physical therapy before you can actually get an MRI done, because they say that it’s required by the insurance company. They had given me ultrasound – not an ultrasound. X-rays when I first had the injuries. And from there they said I had to go through physical therapy, I went through that a month. And then from there I went for an MRI which determined that they saw something, but they couldn’t know exactly. So they, then again, another MRI, a contrast MRI. I want to say I had that done December 23rd where they finally saw that. And we still, let me still – I didn’t have my surgery until February 26th. So from October 2nd to February 26th, I did not have surgery. And I was in constant pain. At nighttime with the rotator cuff, it’s kind of – in the daytime it’s tolerable, but at nighttime it’s excruciating pain, something to do with the way the muscles go. I’m not a doctor, but – I mean, it would be online. But it’s when you’re laying down you’re in a lot of pain. I had pain from my neck all the way shooting to my arm. It would be like a shooting pain and [ ] constant. On December 23rd, when I actually had the MRI to determine that I did have a rotator cuff tear, at that point I got tired of the Concentra doctors because they weren’t doing anything for my pain, and I went to my primary care for a second opinion, [and] he sent me to a pain management doctor. As of December 30th I have been on pain management with him, which is, like, Lyrica and hydrocodone and tramadol. So between the two. I still have therapy like I go three times a week. And I’m expected – like six more weeks. I still can’t – they’re not feeling that I’m where I’m supposed to be at this point. I’m supposed to be able to lift my arm a certain way, and it’s not. So I still have another set of therapy that I have to go through. I’m praying that everything goes back to normal. But I still have neck pain and we’re waiting to see if that clears up, I might have to go back to a neck specialist next.” Ms. Seaton did not want to leave her mother without transportation, she drove her own manual-shift car to and from an airport in Orlando, 90 minutes each way. However, using her left arm for driving caused her a great deal of pain. Upon her return to Florida, Ms. Seaton took a hydrocodone during the night of Sunday, October 25, 2020, because the pain was preventing her from sleeping. The hydrocodone came from a prescription: A: I’ve had hydrocodone prescribed to me for years on and off, depending on the surgery, because I can’t take oxycodone, which is the one that they’re saying came up on my test. The one that I took for – on October 25th, I want to say, it was a Sunday, it was from my previous surgery that I had. ALJ: Hold on. We need to get this straight. It looks like your drug test was October 27th, according to Petitioner’s Exhibit 1. A: Correct. ALJ: Are you telling me you took something prior to – just prior to October 27th? A: Correct. ALJ: What did you take? A: Hydrocodone. ALJ: Did you have a prescription for hydrocodone? A: Yes. During her stay in Baltimore, Ms. Seaton ate two biscuits sprinkled with poppy seeds. On October 26, 2021, and on the morning of October 27, 2021, Ms. Seaton also ate bagels sprinkled with poppy seeds. Ms. Seaton was notified during the morning of October 27, 2020, that she had been selected for drug testing that day. At that point in time, she was on light duty due to her injury and assigned to the transportation help desk.8 On approximately November 4, 2020, the testing laboratory reported that Ms. Seaton’s urine sample had tested positive for oxycodone and oxymorphone.9 The School Board notified Ms. Seaton on November 5, 2020, that she had been placed on administrative leave, with pay, during the pendency of an internal investigation. Mr. Carson met with Ms. Seaton on December 2, 2020, to inform her of the Superintendent’s recommendation that she be terminated. Ms. Seaton told Mr. Carson that she did not know how she could have tested positive for oxycodone because she is allergic to that medication. Mr. Carson and Ms. Seaton disagree about other aspects of the meeting. Specifically, Ms. Seaton claims that she mentioned during the December 2, 2020, meeting that she took hydrocodone and had a prescription for that medication. Mr. Carson does not recall Ms. Seaton making that comment.10 8 Even though Ms. Seaton was on light duty status, Mr. Carson testified that she was still subject to random drug testing: “Employees that are subject to random drug tests based off of their status because they’re CDL holders and drivers, they’re expected to stay in the pool for random drug tests if they are on light duty. The only time they are removed from that list is if they’re in a no-work status.” 9 The laboratory report entered into evidence was not authenticated, either by a witness or by self-authentication as provided in section 90.902, Florida Statutes (2020). Furthermore, no witness was produced to testify that the laboratory report was a business record and thus subject to an exception to the hearsay rule. The laboratory report is, therefore, unreliable hearsay. 10 During questioning by Petitioner’s counsel, Ms. Seaton claimed that she told the School Board’s MRO about her hydrocodone prescription: Q: Now, the note on the drug test that says it was positive lists oxycodone. Correct? A: Yes. Mr. Carson and Ms. Seaton spoke again on January 8, 2021, and Ms. Seaton stated for the first time to Mr. Carson that she had taken a long trip during the weekend prior to the October 27, 2020,11 drug test. She relayed that she was experiencing a lot of pain after driving and took some pills to alleviate the pain. According to Mr. Carson, Ms. Seaton did not identify the pills she took, state that she had a prescription, or offer him evidence that she had a prescription for opioids.12 As described above in the Preliminary Statement, Ms. Seaton speculated in her December 11, 2020, response to the Superintendent’s allegations that the positive test result could have been caused by poppy seeds she ate in the days preceding the drug test. This was the first time that Q: Do you understand that oxycodone is a different drug than hydrocodone? A: Yes. After doing research, yes. Well, actually speaking with the MRO officer, because he called it Percocet and I said, well, that’s impossible because I can’t take Percocet because I’m allergic to it. And so I told him, I said, all the Percocets, all those things, every time I have a surgery the doctors try to give me that and I tell them, no, I can’t have that because I get really sick and break out with [a] rash and vomiting, so they don’t prescribe that. That’s why I get prescribed hydrocodone. Q: So you’re saying that you told the MRO you took hydrocodone? A: Correct, hydro. Q: And even after you told him that, he still reported a positive test. Correct? A: He said he had to go by what he has there. 11 October 27, 2020, was a Tuesday. 12 Ms. Seaton explained during the final hearing that she did not provide the School Board with a copy of her prescription because no one ever asked her to do so. Mr. Carson was aware of Ms. Seaton asserting that poppy seeds could have caused her positive test result.13 Ms. Seaton testified that she did not tell the School Board about her hydrocodone prescription because she was on desk duty following the accident and did not anticipate ever driving a school bus again: ALJ: I guess what I’m struggling with is given your accidents and the pain you were experiencing, it seems perfectly reasonable that you would be on some sort of opioid. I guess on the other hand, you know, if you tested positive, I guess it seems like a reasonable person would show the School Board a prescription for any kind of pain med, regardless [of] whether they tested positive, or not. I guess that’s what I’m struggling a little bit with. * * * So is it your testimony that – according to my notes, there were three – there have been three conversations or discussions between you and the School Board. The first one with Mr. Carson where he told you about the positive test. And let me just clarify. During that first conversation, did you mention the hydrocodone? A: Yes, I did. With Mr. Carson in the first conversation. ALJ: All right. So you disagree with his testimony that during the first conversation you said simply, I have no idea how that tested positive? 13 Mr. Carson testified that “[m]y brief understanding of it is that you would have to consume a great deal of poppy seeds for it to alter any type of drug test. I don’t know what that limit is. But that’s not something that we’re able to delineate in a drug test, whether it’s truly a substance or if it’s poppy seeds.” Mr. Carson disclosed that the basis for that aforementioned statement came from “the internet.” Because the School Board elicited no testimony indicating that Mr. Carson has any independent knowledge or expertise with drug testing or a related field, the undersigned does not credit his assertion that someone would have to “consume a great deal of poppy seeds” in order to affect a drug test. * * * A: Yes. And I did ask him because I wanted to remember that, I said to him, as much pain as I was in, if I had to do it again, I would. But the difference is I would tell my supervisor. Because I really didn’t – in the role that I was in, which was a desk job, I was not in any safety risk for anyone, I would never get on a bus, nor was I – I knew I wasn’t getting on a bus any time soon with the injury that I had. But I would never, ever put anybody at risk. I wouldn’t even get on a bus because my CDL, I figured my CDL was going to be taken. That’s another thing - - ALJ: Ms. Seaton, did you say, -- I may be mistaken. I thought I heard you testify that you’ve had a hydrocodone prescription for many years. Was that accurate or did I mishear? A: On different occasions for surgeries, correct. * * * ALJ: On the day that you injured your shoulder on the school bus and hurt your rotator cuff, the injury that we were talking about, at that time did you have any hydrocodone prescription? A: Yes. * * * ALJ: Were you taking hydrocodone at that time? A: No, sir.[14] During the final hearing, Ms. Seaton moved Respondent’s Exhibit 7 into evidence, and a portion thereof was a picture of a prescription bottle for 14 Ms. Seaton then testified that her trip to Baltimore resulted in her taking hydrocodone to alleviate pain in her left shoulder. 60 hydrocodone pills with Ms. Seaton’s name on the bottle. Ms. Seaton offered the following testimony in support of that Exhibit: ALJ: So, Ms. Seaton, this picture of the prescription bottle, can you give me some background on this? When was this prescribed to you? When do you fill it? Who prescribed it to you, and why? * * * A: The original prescription was prescribed to me in August, and it was for my double knee replacement by Dr. Raymond Weiand at the Orthopedic Institute. Petitioner’s Counsel: August, you said, prior to the injury, August of 2020? A: No, ‘19. * * * ALJ: I think you may have discussed this, but were you taking hydrocodone consistently or without a break from that date to the day of your accident and beyond? A: No, sir. I only took hydrocodone when I had excruciating pain. This is not something that I take on a regular, like – like if I have pain then I was taking it. That’s why I put Exhibit 1, it will state - - it wasn’t in my system. ALJ: But is your testimony that at some point after your accident which resulted in your injured shoulder, is it your testimony that you are taking hydrocodone to relieve the pain resulting from that accident? A: That is correct. The night when I returned from the trip, I was in so much – I kept waking up out of my sleep because the pain was so bad that I took the pill for it to go to sleep, to go back to sleep, because I did not want to miss work. ALJ: Okay. Mr. Levitt, do you have any cross on that issue regarding this exhibit? Petitioner’s Counsel: Let me think --- So you have August 2019 for a knee operation, and when was the last time you took it for the knee operation? Like back in 2019, or as the judge asked, were you continuing to take it? A: I took it around my birthday, July – July 28th of the 2020, I took some then. Petitioner’s Counsel: For what, for your knee? A: Yes. Petitioner’s Counsel: But this was never prescribed for your shoulder. Correct? A: No, sir. Ms. Seaton had left shoulder surgery on February 26, 2021. The post- operative diagnosis notes she had a rotator cuff tear and superior labral tearing. Ultimate Findings Petitioner’s Exhibit 1 is the only record evidence supporting the School Board’s allegation that Ms. Seaton “provided a urine sample and it was reported as a positive test for opioids.” Petitioner’s Exhibit 1 is a report from a laboratory indicating that the urine sample Ms. Seaton provided on October 27, 2020, tested positive for oxycodone and oxymorphone. Petitioner’s Exhibit 1 is hearsay in that it is an out-of-court statement being offered to prove the truth of the matter asserted therein, i.e., that Ms. Seaton’s urine sample from October 27, 2020, tested positive for opioids. The School Board did not present a records custodian from the testing laboratory or otherwise attempt to have Petitioner’s Exhibit 1 accepted into evidence under the business records exception to the hearsay rule. There is no record evidence supplementing or corroborating that Ms. Seaton’s urine sample was positive for opioids, the allegation specifically pled in the Administrative Complaint. Thus, there is no evidentiary support for the School Board’s allegation that Ms. Seaton committed “misconduct in office” or that there is “just cause for discipline.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be DISMISSED. DONE AND ENTERED this 28th day of May, 2021, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2021. COPIES FURNISHED: Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Dr. Diane Gullett, Superintendent Marion County Public Schools 512 Southeast 3rd Street Ocala, Florida 34471 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Desiree M. Seaton 5 Hemlock Loop Lane Ocala, Florida 34472
The Issue Whether Sapa Precision Tubing Rockledge, LLC (Respondent), discriminated against Christopher Brian Edwards (Petitioner) on the basis of age.
Findings Of Fact Petitioner is over 40 years of age, and was employed by Respondent from 2009 until May 21, 2013. Prior to his termination, Petitioner received favorable work evaluations and demonstrated good work attendance. Respondent is a manufacturing company that makes aluminum tubing for commercial purposes. Safety in the work environment is critical to Respondent’s success. Part of Respondent’s safety regimen includes maintaining a drug-free workplace. To that end, Respondent retains an outside company, Edge Information Management, Inc. (Edge), to conduct random drug tests of Respondent’s employees. Respondent’s drug-free policy is set forth in its employee handbook that is provided to all employees. Petitioner received a copy of the handbook and knew or should have known of the company’s drug-free policy upon his employment. In order to screen Respondent’s employees, Edge creates a random matrix that assigns all employees a number. The computer program used by Edge then generates a random sampling of employees for the given test date. In this case, approximately one month before the test date, Edge randomly selected employees who were to be tested on May 14, 2013. Petitioner was named among the randomly selected employees. Edge is accredited by the Drug and Alcohol Testing Industry Association and is fully authorized to conduct drug screenings. Edge employee, Leonard Clarke, was fully trained in the process of collecting samples to assure conformance with all applicable testing standards. Prior to the test date, Petitioner attended a meeting with other employees and voiced concerns to Respondent regarding working conditions by “bringing up stuff that they were not comfortable with.” Although not part of his original claim of discrimination, Petitioner now maintains that his termination was also in retaliation for his comments during that meeting. On May 14, 2013, based upon the employees randomly selected by Edge, Respondent notified supervisors to send the employees to a conference room for drug testing. Clarke prepared the paperwork and waited for the 27 employees to report for the screening. No one at Respondent selected the employees to be screened, conducted the collection of samples, or tested the samples taken. Clarke was solely responsible for the drug testing. All of the employees were required to review the testing form, sign, and date it before returning it to Clarke. Each was given a lollypop stick with a sponge attached to one end. By placing the sponge in the mouth and collecting saliva, the sample can then be tested to issue a preliminary result for drugs. Clarke had a difficult time collecting a saliva sample from Petitioner. Eventually, on the second or third attempt Petitioner produced enough saliva to place the sponge in the vial to allow the test strip to render a result. The test strips are designed to react to substances such as marijuana, cocaine, or amphetamines. In Petitioner’s case, the test strip showed positive for drug metabolites and/or alcohol. After testing positive on the saliva test (the only employee who did), Clarke asked Petitioner to give a urine sample so that a complete drug analysis could be performed by the Edge lab. Petitioner consented to all testing procedures and the collection of samples on May 14, 2013. For the purpose of the urine sample, Petitioner was given a cup and asked to go into the adjacent bathroom to produce the sample. When Petitioner returned the cup to Clarke it was noted that the cold, clear liquid did not register a temperature. Based upon his training, Clarke suspected that Petitioner had not urinated into the cup and discarded the sample. Next, Clarke accompanied Petitioner while a second sample was collected for urinalysis. Clarke marked the sample, packaged it in accordance with all applicable standards, and sent it by FedEx to Edge’s lab. Petitioner’s testing went from “random” to “reasonable suspicion/cause” based upon his saliva test and behavior with Clarke. It appeared to Clarke that Petitioner attempted to evade the drug testing process. Based upon the preliminary test results, Petitioner was suspended from work. Petitioner knew he had tested positive for drugs and that his urine sample would be further evaluated. It is undisputed that Petitioner’s urine tested positive for cocaine. Prior to notifying Respondent of the test results, Edge notified Petitioner that the sample tested positive for cocaine and gave Petitioner an opportunity to contest or explain how the result might be erroneous. Petitioner did not contest the result and has not disputed the presence of drugs in his saliva and urine on May 14, 2013. On May 21, 2013, Edge sent Petitioner’s drug results to Respondent. At that time, Respondent decided to terminate Petitioner’s employment with the company, and Chapman notified Petitioner by telephone that he was terminated because he tested positive for cocaine. Respondent gave Petitioner an opportunity to contest the drug results, but he did not. At hearing, Petitioner did not contest the drug results. Of the persons tested with Petitioner, twenty were younger than he and six were older. Only Petitioner tested positive for drugs. In the last ten years, all employees at Respondent who have tested positive for drugs have been terminated. No one younger or older than Petitioner has been retained if they tested positive for drugs. Petitioner’s age did not impact Respondent’s decision to terminate his employment. None of Petitioner’s comments were considered in the termination of his employment. Petitioner did not raise retaliation with FCHR and has not established that Respondent retaliated against him because of comments he made during a company meeting. In short, Petitioner was terminated because he tested positive for cocaine. There was no competent, substantial evidence that persons younger than Petitioner were treated differently from Petitioner or were subject to dissimilar policies or practices. All of Respondent’s employees who tested positive for drugs have been terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s claim of discrimination. DONE AND ENTERED this 8th day of July, 2015, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 8th day of July, 2015. COPIES FURNISHED: Christopher Brian Edwards 4605 Ocean Beach Boulevard Cocoa Beach, Florida 32931 Mary Susan Sacco, Esquire Ford and Harrison, LLP Suite 1300 300 South Orange Avenue Orlando, Florida 32801 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue is whether Respondent violated paragraph 2(G) of the December 14, 2010, Final Order of the Education Practices Commission ("EPC"), and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, Commissioner of Education, is the head of the Florida Department of Education, the state agency charged with the ultimate responsibility to investigate and take disciplinary actions against persons who hold a Florida Educator's Certificate and are alleged to have violated specified statutes. The EPC is charged with imposing discipline for violations of sections 1012.795 and 1012.796, Florida Statutes. Respondent holds Florida Educator's Certificate Number 519374 issued by the Department. Respondent's Employment History and Disciplinary History Respondent has been employed in the State of Florida public education system for thirty-one years, twenty-seven of which she has served as a full-time teacher. During the four years in which she was not a teacher, she served as an occupational specialist and career counselor, involved in helping at-risk students find employment and providing guidance regarding academic training for specific careers. She also served as a counselor for Project Hope, a drug rehabilitation program, and as a substitute teacher. She currently is employed as a classroom teacher by Broward County Public Schools. She has received positive job performance evaluations throughout her career. On or about May 14, 2010, Petitioner filed an Administrative Complaint against Respondent, alleging violations of specified Florida Statutes and agency rules, and seeking to impose disciplinary sanctions against Respondent's Certificate. Following an informal hearing on the Administrative Complaint conducted pursuant to sections 120.569 and 120.57(2), the EPC entered a Final Order dated December 14, 2010, placing Respondent on two employment years of probation, subject to specified conditions. The Final Order provides in pertinent part: "2. Upon employment in any public or private position requiring a Florida educator's certificate, Respondent shall be placed on 2 employment years of probation with the conditions that during that period, she shall: . . . G. [n]ot consume, inject or ingest any controlled substance unless prescribed or administered for legitimate medical purposes." To ensure compliance with paragraph 2(G)1 of the Final Order, Respondent is required to submit to random substance abuse testing, as directed by the Recovery Network Program for Educators ("RNP") or her employer.2 Pursuant to the Final Order, Respondent submitted to random substance abuse testing on January 28, 2011. Respondent was notified by letter from the RNP dated February 7, 2011, that she was in violation of the Final Order. The letter stated in pertinent part: "you failed to comply with Paragraph 2(G) of the Final Order, to wit: You consumed, ingested, or injected a controlled substance that was not prescribed by a doctor as evidenced by your drug test on January 28, 2011, that was positive for Cocaine Metabolite." On February 17, 2011, the EPC issued a Notice to Show Cause, requiring Respondent to show cause why a penalty for violating the Final Order should not be imposed. A hearing on the Notice to Show Cause was convened before the EPC on April 8, 2011. At the hearing, Respondent claimed that she had not consumed, injected, or ingested a controlled substance not prescribed or administered for legitimate medical purposes. Respondent's Random Drug Test of January 28, 2011 On January 28, 2011, Respondent reported to Occupational Medicine Centers of America ("OMC"), in Miramar, Florida, to submit to a random drug test as required under the Final Order, paragraph 2(H). Because she had to work that day, Respondent reported to OMC in late afternoon, before 5:00 p.m. Respondent brought a chain of custody form, formally known as a Forensic Drug Testing Chain of Custody Form ("Form"), with her to OMC.3 The Form for Respondent's testing was provided by the RNP or Respondent's employer.4 The Form is multi-layered, with the pages (or "layers") designated for specific recipients ——i.e., the collection laboratory, the testing laboratory, the employer, the medical review officer ("MRO"),5 and the donor. The Form lists "8543245" as the "Specimen ID No." for Respondent's random drug test conducted on January 28, 2011. Because Respondent's employer or the RNP provided the Form for her drug testing, OMC could not, and did not, generate a chain of custody form that could be used in collecting Respondent's specimen. The Form is to be filled out by the person collecting the specimen in accordance with the specific steps set forth on the Form. Step 1 lists the employer's name, address, and identification number, and the MRO's name, address, phone number, and facsimile number. Step 1 requires the specimen collector to fill in the donor's name and social security number or employee identification number; verify the donor's identity; identify the reason for the drug test; identify the type of test to be performed; and provide the collection site name, address, phone number, facsimile number, and collection side code. Step 2 is completed by the collector once the donor has provided the specimen. The collector identifies the type of specimen provided (i.e., split, single, or none provided) on the Form, reads the temperature of the specimen within four minutes of collection, and verifies on the Form whether the temperature is between 90 and 100º Fahrenheit. Step 3 requires the collector to pour the specimen into a bottle, seal the bottle with a tamper-evident label or seal, have the donor initial the seal, and place the specimen bottle in a laboratory bag along with the testing laboratory's copy of the Form. Step 4 requires the collector to certify that "the specimen given to me by the donor identified in the certification section on Copy 2 of this form was collected, labeled, sealed, and released to the Delivery System noted in accordance with applicable requirements." To complete Step 4, the collector must sign and date the form, fill in the time that the specimen was collected, and identify the courier service to which the specimen bottle is released. After the collector completes Steps 1 through 4 of the Form, the donor completes Step 5. Step 5 requires the donor to certify that he or she provided the specimen to the collector and did not adulterate the specimen, that the specimen bottle was sealed with a tamper- evident seal in his or her presence, and that the information and numbers provided on the Form and label affixed to the bottle were correct. Upon arriving at OMC, Respondent was called into the portion of the facility where drug testing is conducted. She provided the Form to OMC's medical assistant, Jackie Scialabba, who was on duty at that time. Scialabba completed Step 1 of the Form, and instructed Respondent to place her belongings in a locker, wash her hands, and provide a urine specimen in the collection cup. While Respondent was in the restroom providing the specimen, Scialabba completed Step 4 of the Form. Specifically, she signed and dated the form, filled in the portion of the Form stating the "Time of Collection" as 4:25 p.m., and checked the box identifying the delivery service courier. Respondent emerged from the restroom and handed Scialabba the specimen to pour into a specimen bottle for sealing and delivery to the testing laboratory. At that time, Scialabba discovered that Respondent had not provided a specimen of sufficient quantity to be tested. Scialabba provided water to Respondent so that she would be able to produce a specimen of sufficient quantity for testing. Respondent waited in the lobby of the facility until she was able to provide another specimen. Scialabba's shift ended at 5:00 p.m. and she left for the day. By the time Respondent was able to provide another specimen, Scialabba was gone. Before she left, Scialabba informed Christin Visbal, also a medical assistant at OMC,6 that Respondent's drug test was incomplete and that Visbal needed to complete the test. Scialabba left the partially completed Form with Visbal. Scialabba testified that Respondent did not complete Step 5 of the Form in her presence. Once Respondent indicated she was able to provide another specimen, Visbal called Respondent back into the testing facility. Both Visbal and Respondent stated that they were the only people present in the testing facility at that time.7 Visbal had Respondent her wash her hands, gave her the specimen collection cup, and instructed her regarding providing the specimen. At that time, Respondent provided a urine specimen of sufficient quantity to meet the testing requirements. Visbal checked the temperature of the specimen as required on Step 2 of the Form, and completed the portion of Step 2 requiring verification that the specimen temperature was between 90 and 100º Fahrenheit.8 Visbal poured the urine into a specimen bottle, sealed the bottle with a tamper-evident seal, and had Respondent initial the seal. Respondent then completed Step 5 of the Form, which constituted her certification that the specimen bottle was sealed with a tamper-evident seal in her presence.9 Visbal placed the sealed urine specimen and the testing laboratory's copy of the Form in a bag, and sealed the bag. Visbal provided Respondent with the donor copy of the Form. Respondent collected her belongings from the locker and left the facility. Because Scialabba had prematurely completed Step 4 of the Form while attempting to collect Respondent's specimen before she left work for the day, Visbal was unable to complete Step 4. However, Visbal provided a sworn statement and testified at hearing regarding the substance of the certification in Step 4——specifically, that the urine specimen given to her by Respondent was collected, labeled, sealed, and released to the delivery service10 in accordance with applicable requirements. The evidence establishes, and the undersigned determines, that Visbal correctly followed the established protocol in collecting, labeling, sealing, and releasing the specimen to the courier in accordance with the applicable chain of custody requirements. Accordingly, the chain of custody for Respondent's urine specimen was maintained. Scialabba's paperwork error did not compromise the chain of custody for Respondent's urine specimen. On February 7, 2011, FirstLab provided a document titled "Participant Call Test Edit" to the RNP, showing a positive test result for cocaine metabolite. The document bears "Specimen ID No. 8543245"——the same specimen identification number as was listed on the Form that Respondent brought to OMC on January 28, 2011, for use in her drug test that day. Respondent does not dispute that the tested specimen yielded a positive test result for cocaine metabolite. She maintains that she did not produce the tested specimen. Respondent's Subsequent Random Drug Test Results Since January 28, 2011, Respondent has been randomly tested for drug use each month. Respondent's drug test results have been negative every time that she has been tested since the January 28, 2011 test——nine times as of the hearing date. Respondent served a subpoena duces tecum on FirstLab in August 2011, seeking to obtain all documents related to Respondent's random drug test results, including the negative test results. The subpoena provided the correct spelling of Respondent's full name but did not list her social security number, employee identification number, date of birth, address, or school system by which she is employed. Instead of producing Respondent's test results, FirstLab produced test results for another teacher having a similar name who is employed by Miami- Dade County Public Schools.11 Ultimate Facts Regarding Alleged Violation and Penalty For the reasons set forth above, the undersigned determines that the chain of custody for Respondent's urine specimen was maintained. The evidence does not support an inference that Respondent's specimen was tampered with, tainted, or otherwise compromised in the collection, sealing, labeling, or delivery process. Therefore, either Respondent had cocaine metabolite in her system when she donated the urine specimen on January 28, 2011, or the testing laboratory or MRO made a mistake in testing or reporting the test results of her urine specimen. Respondent maintains it is the latter, but did not present any persuasive evidence to support her position. To that point, FirstLab's error in producing the wrong person's records in response to Respondent's subpoena does not provide a sufficient basis to infer that in this case, FirstLab reported another person's drug test result instead of Respondent's. It shows only that FirstLab makes mistakes when not provided sufficiently specific information about the person whose records are being subpoenaed. Accordingly, the undersigned finds that Petitioner has demonstrated, by clear and convincing evidence, that Respondent, in violation of paragraph 2(G) of the Final Order, consumed, injected, or ingested a controlled substance not prescribed or administered for a legitimate medical purpose, as revealed by the random drug test to which Respondent submitted on January 28, 2011. However, there is no evidence in the record showing that Respondent's violation of the Final Order presented any danger, or caused physical or mental harm to any students or to the public. Nor is there any evidence that the violation caused any actual damage, physical or otherwise, or that Respondent benefited from the violation. To the contrary, the sole evidence shows that Respondent is a good teacher who has performed well as a public school employee for thirty-one years. There is no evidence that the violation has in any way impaired her performance of her duties as a classroom teacher. Moreover, the sole evidence regarding Respondent's subsequent random drug test results shows that Respondent is now complying with the Final Order, and apparently has complied ever since her January 28, 2011, test. This evidences Respondent's contrition and her recognition of the seriousness of this matter. At hearing, Petitioner elicited testimony from Respondent regarding her criminal history, and an excerpt of the transcript of the EPC hearing, during which her criminal history was discussed, was admitted into evidence.12 However, her criminal history and alleged failure to report that history were the basis for the EPC's Final Order imposing penalties against Respondent, including the probation that she now is charged with violating. Respondent already has been penalized by the EPC on these bases, and they are not relevant to this proceeding. As justification for the penalty it seeks, Petitioner asserts that Respondent "never accepts responsibility for her own behavior, but blames others for her miscreant deeds." However, the evidence does not support this position. With respect to the hearing before the EPC that resulted in issuance of the Final Order, Respondent offered a plausible explanation for not having previously reported her criminal history on her Florida Educator's Certificate applications——specifically, that when she filled out the previous certification application forms, she did not realize that the form required the reporting of all prior criminal history, including offenses for which adjudication had been withheld. Indeed, when she filled out an updated version of the application form that apparently was clearer regarding criminal history disclosure requirements, she reported all prior offenses.13 Respondent acknowledged responsibility for her actions more than once during the EPC hearing. Moreover, the undersigned finds credible Respondent's testimony that she understood she was to be drug tested on a monthly basis as a condition of her probation.14 To the extent Respondent may have been incorrect regarding this detail, that mistake is more likely attributable to confusion (which is understandable under the circumstances) rather than lack of truthfulness on her part.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order determining that Respondent violated the December 14, 2011, Final Order of the Education Practices Commission, and suspending Respondent's Florida Educator's Certificate for a period of six consecutive calendar months, followed by two years of probation. DONE AND ENTERED this 17th day of November, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 17th day of November, 2011.
The Issue The issues concern the Petitioner's candidacy for licensure as a chiropractic practitioner in Florida. In particular, Petitioner stood examination for licensure in November, 1987, and was not successful in that attempt. Consequently, he has challenged the examination results in the portion of the examination related to physical diagnosis. His examination results have otherwise been sufficient to gain licensure. The Petitioner's claims in this challenge to the examination results relate to his assertions that the examination questions in dispute were not reasonable, alternatively that the answers given were sufficient and that contrary to Rule 21-11.009(2) and (3), Florida Administrative Code the examiners in the oral examination phase of his testing conferred in assigning a score to his performance instead of arriving at a score independently.
Findings Of Fact Petitioner, John G. Bahrs, is a graduate of Life Chiropractic College in Atlanta, Georgia, having graduated in June, 1987. He currently resides in Gainesville, Florida, at the address previously identified. In November, 1987, Petitioner took the Florida license examination to gain a license to practice chiropractic in Florida. The summarizing results of the various phases of that examination may be found in Respondent's exhibit no. 1 which is a copy of the examination results. It notes the requirement that the candidate receive a score of seventy-five (75) percent to pass the physical diagnosis portion of the examination. The score received by the Petitioner was sixty (60) percent. Having been unsuccessful in attempts to gain an adjustment of that score through an informal process, Petitioner requested a formal hearing in accordance with Section 120.57(1), Florida Statutes. That request was honored by the submission of this case to the Division of Administrative Hearings for assignment of a Hearing Officer and a subsequent hearing which was held on October 3, 1988. Under the general category of physical diagnosis there are various sub- elements to that examination process. In each of those areas, Petitioner received the minimum passing score of seventy-five (75) percent by the examiners, who are referred to as examiners numbers 23 and 25, with exception of scores related to laboratory diagnosis, nutrition and x-ray technique and diagnosis. The score assigned by examiner number 25 on laboratory diagnosis equates to fifty (SO) percent and the nutrition score likewise. Examiner number 23 assigned a laboratory diagnosis score of fifty (50) percent and nutrition, twenty-five (25) percent. He also gave the Petitioner a score of fifty (50) percent on x-ray technique and diagnosis. This analysis of the scores received in the sub-elements to the examination may be found in Respondent's exhibit no. 2, a copy of that compilation which has been admitted as evidence in this case. In addition to the break out of the scores, there is a comment section prepared by each of the graders; this, together with an analysis of the written recap of these phases of the examination process and the testimony of the Petitioner and the Respondent's chiropractic expert, focuses the dispute and allows a factual analysis to be made. The expert who testified for the Respondent Agency is Dr. Steven M. Ordet. He is a graduate of the National College of Chiropractic in Lombard, Illinois. He achieved that degree in 1974. At present, he is a consultant, lecturer and author. He practiced chiropractic in Ft. Lauderdale, Florida, between the years 1974 and 1985. He is a member of the American Chiropractic Association and Florida Chiropractic Association. He has been associated with the 1icensure of candidates in Florida for approximately seven (7) years as an examiner and consultant. In the subsection of the examination for which Petitioner received substandard scores on nutrition, examiner 23 noted that the Petitioner had received no training in that field. Examiner 25 made notations concerning the Petitioner's lack of understanding of the effects of use of iron and the implications of a vitamins B 6 deficiency. In his oral examination phase on nutrition, one of the questions posed related to a patient who was experiencing swelling in her hands in the morning and problems with her rings being too tight and burning in the soles of her feet. Petitioner was asked if there was some supplementation that might be provided to that patient that would assist the patient in her condition. In response, the Petitioner indicated that he had not had the type of training in his education that would lead to any specific clinical decision and that this, nutrition, was not one of his strong points. Petitioner made the suggestion by way of a query that this might sound like an edema problem to which the retort by an examiner was to the effect that you tell the examiners what you think should be done, meaning by supplementation. At hearing, the Petitioner indicated that his training in school in nutrition had related to what the food groups consist of, what vitamins are about, what minerals are and carbohydrates, proteins, again, basic information not sufficient to respond to some particular condition that a patient was experiencing. As identified by Dr. Ordet, the supplement for the problem described in the previous paragraph is pyridoxine, vitamin B 6, which is a natural diuretic that would help to reduce edema. The Petitioner did not respond sufficiently to the question under examination. Furthermore, his references provided at hearing on the topic of pyridoxine do not disturb the opinion of Dr. Ordet. Another question under the category of nutrition was to the effect that this patient, the hypothetical patient, a woman, takes vitamins and minerals regularly and is experiencing constipation and the Petitioner was asked what would cause this problem of those substances being utilized. Petitioner responded from a supplementation standpoint that he couldn't answer specifically but knows that generally you can overload a patient with supplements and can cause diarrhea or constipation. The proper answer as identified by Dr. Ordet would be that iron could cause the problem of constipation. Iron is a mineral. This is another instance in which the reference sources that the Petitioner presented did not dispel the conclusions reached by Dr. Ordet. Under the heading of x-ray technique and diagnosis, the examiners asked the Petitioner about the x-ray of a lower back involvement. He described an anterior to posterior examination in which a bucky was employed in a lateral cervical setting. He went on to describe that a non-bucky was used in x-ray of extremities measuring less than ten (10) centimeters. A further question concerned whether you would use more or less exposure going from 8 to 1 to 12 to 1 ratios and employing a bucky, to which the Petitioner indicated you would use less exposure. It is that portion of the questions which related to the ratio being increased and the belief expressed by the Petitioner that would cause less exposure that made examiner 23 grade the Petitioner down to a fifty (50) percent rating. Dr. Ordet, whose opinion is accepted on this matter, felt that the cervical view was a non-bucky projection, which contrary to the Petitioner's assertion is a matter which should be evident as a standard applied to all training in x-ray techniques. Therefore, Petitioner's claim that his schooling would allow the bucky to be employed in this form of projection is out of keeping with acceptable standards. Moreover, Dr. Ordet pointed out that the ratio increase would promote further exposure to the patient, not less exposure as answered by the Petitioner causing him to be downgraded by examiner 23. Petitioner's contention that the questions that preceded the matter of the increase in ratio were related to film exposure and not patient exposure misstates the context of those questions in this portion of the examination. It is clear that what was being referred to was the effect on the patient, not the effect on the film. The reference material which Petitioner has provided tends to confirm that the increase in ratio will increase the amount of exposure to the patient. Under the heading of laboratory diagnosis, the question was posed to the Petitioner that a female patient presents with tenderness above the pubic bone with difficulty urinating, burning sensation and pain, and he was asked to provide a statement of what laboratory tests would be ordered by the Petitioner and what would one look for through that analyses. The Petitioner responded that there is an indicated bladder infection and stated he would do an urinalysis. He was then asked what he might expect to see under that analysis and he said that he would expect to see cells, red blood cells and increased white blood cells and infection. He was asked what kind of white blood cells he would find in the urine and he said that he would see neutrophils in a microscopic examination. He again mentioned red blood cells and squamous epithelial cells in the bladder infection. In describing what he might see up in the area of the kidney, he said that he would see renal cells which are smaller and rounder compared to the epithelial cells in the area of the bladder which are larger and irregular in shape. As to a question about what he would expect to see in the way of a Ph in this case as presented compared to the normal condition, he said that he expected to see acidic values in that patient compared to the normal values which were in a range of 4.6 to 6.8 Ph. Then he stated between 4 and 6 Ph. According to Petitioner the Ph in the patient's condition would be a shift toward 4 and closer to 4 than the other end of the Ph scale. Examiner 25 had :noted that the Petitioner had insufficient knowledge of the situation in the test and Examiner 23 referenced the remarks about acidic Ph and the round kidney cells. By way of interpretation of the concerns which the examiners had In the area of laboratory diagnosis Dr. Ordet, whose opinion is accepted, noted that white cells in the urine any level show an abnormal condition. It is not the increase in those white cells that is significant. He also observed that the white cells would not be identified as neutrophils. The laboratory process, urinalysis, does not further describe the nature of the cells or than that they are white cells. Dr. Ordet identified that the nature of the cells in the kidney area were those associated with casts. Their relative size and shape are not the important factors. Consequently, the remarks by the Petitioner about size and shape of the cells in the bladder and the kidney are not significant. What is significant is to look for bonding between some foreign material and the cell forming casts in the kidney. One of the products in a cast might be calcium oxalate. Dr. Ordet noted that the Ph in the urine with the infection in this patient's case would be more alkaline, as opposed to acidic. Petitioner's reference sources concerning the urinary condition do not overturn the impressions which Dr. Ordet had of this condition in the hypothetical. Dr. Ordet has stated the opinion that the questions which were challenged were fair questions in examining a candidate for licensure as a chiropractic physician. His opinion is accepted and the opinion of the Petitioner that the questions were not fair is rejected. Petitioner, at hearing, suggested that the tape cassette of his examination which is exhibit 3 by the Respondent pointed out that contrary to Rule 21-11.009 (2) and (3), Florida Administrative Code, examiners 2 and 25 conferred in reaching conclusions about scores to be assigned to Petitioner's examination. A thorough review of that cassette does not reveal any arrangements of that sort. Their remarks indicate that the examiners were checking to see what sub-categories were involved in the examination as depicted in Respondent's exhibit number 2, and to verify that each examiner acknowledged what those sub-categories were.
The Issue Was Petitioner properly graded and given appropriate credit for his answers on the July, 1989 Florida Podiatry examination.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Robert F. Metnick, was a candidate for licensure by examination as a Podiatrist, and the Board of Podiatry, (Board), was and is the state agency in Florida responsible for the licensing of Podiatrists and the regulation of the Practice of podiatric medicine in this state. Petitioner sat for the July, 1989 Florida podiatry licensure examination. He obtained a score of 68.6 percent, representing 253 correct answers. A passing grade requires a score of 75 percent, representing 270 correct answers. The questions challenged from the morning session, (in the sequence as addressed at hearing), were questions number 116, 98, 109, 106, 189, 192, 139, 179, 130, 86, 105, 154, 186, 166, 164, 155, 103, and 102. The questions challenged from the afternoon session, (also as addressed at hearing), were questions number 3, 157, 7, 45, 23, 25, 147, 29, 33, 97, 122, 129, and 75. Either at or before the hearing, Petitioner dropped his challenge to Questions 164, 155, 103 and 102 in the morning session and to question 75 in the afternoon session. Question 116 - AM reads: The Babinski reaction is normally outgrown by which one of the following ages: A - 10 months B - 2 years C - 3 years D - 6 years Petitioner indicated "A", 10 months as his answer and the Board's answer was "B", 2 years. Petitioner claims that 2 years is too long a period and cites as authority for his position, Survey of Clinical Pediatrics, p. 198, where it is stated that "Babinski reflex is present and unsustained ankle clonus may normally be present to 2 to 4 months of age; this reflex disappears at 10 to 16 months." Dr. Joel Levy, Chairman of the Board of Podiatric Medicine defended the Board's answer of 2 years by reference to two texts, both of which state that the correct answer is 2 years. In Dr. Levy's opinion, the Babinski reflex can exist well beyond 10 months. While there appears to be a difference in authority for the divergent opinions expressed by the parties, Petitioner did not show that the Boards' decision declining to accept his answer as correct was either arbitrary or capricious or was incorrect. Question 3 - PM read: Ordinarily the kidneys can remove up to about 500 millimols of acid or alkali each day. The pH of the blood is usually about 7.4, however the pH of the normal urine is about: A. 5.0. B. 6.0. C. 7.0. D. 8.0. Petitioner's answer was "A", 5.0, and he claims that the pH factor is of little relevance. His authority, The International Handbook of Medical Science, Second Edition, states at p. 112, "Measurement of pH on random urine samples has little clinical importance because of wide variation with the time of day and with dietary intake." Respondent's expert, Dr. Stanley Nazian, a physiologist, indicated that the Board's accepted answer, "B", 6.0 is correct. The low for the normal range is generally considered to be 5.5. Anything lower is distinctly abnormal. Clearly Petitioner's answer is outside the parameters considered to be appropriate and it is his conclusion that this factor is of little relevance to the practice of podiatry is irrelevant. Question 98 - AM reads: The stance phase of gait occupies what percent of the entire walking cycle? A. 20% B. 40% C. 60% D. 80% Petitioner answered "B - 40%" whereas the correct answer was "C - 60%." Petitioner claims he cannot tell from the question if the gait referred to in the question is a normal gait or an abnormal walk, and claims the question is inadequate. He does not attack the Board's answer. The Board claims that its answer, 60%, is clear-cut and there is little basis to question the wording of the question asked. Most examination questions, unless specifically provided otherwise, assume the normal, routine situation, and this question assumes a normal functioning foot. Therefore, Petitioner should get no additional credit for this question. Question 109 - AM reads: Foot function in sprinters is characterized by which one of the following? Absence of heel contact Prolonged midstance phase Extension of float phase Increased double support Petitioner answered "C - Extension of float phase". The correct answer was "A - Absence of heel contact." Petitioner claims he can find no support in any authority for the Board's answer but can for his. Review of Petitioner's Exhibit 3, submitted in support of his position, is not conclusive. The Board claims that the question asked refers only to sprinters because of the peculiarity of the sprint wherein there is normally no heel contact, rather than other type of foot contact movement which includes both heel and ball contact. In fact, the Board's answer characterizes the gait of a sprinter and is the only correct answer. Therefore, Petitioner should receive no additional credit. Question 106 - AM reads: The period at which vertical ground reaction forces are greatest on the foot is at which period of the gait cycle? Contact Midstance Propulsion Swing Petitioner's answer was "A - Contact" and the Board's correct answer was "C - Propulsion." Here, Petitioner claims that the term, "initial spike" refers to the "contact" period coming before "propulsion." Most pathology is related to contact rather than propulsion, since there is more impact on the foot on initial contact than there is on the heel lift. The Board claims that the stem of the question requires knowing the "greatest" force at the gate cycle. The Board's answer is correct according to its authority, Clinical Biomechanics, Vol. II, at p. 167. Therefore, Petitioner should get no additional credit. Question 157 - PM, reads: Chronic dermatitis, pruritus, lichenification, elevated IgE levels, and increased susceptibility to skin infections are major features of: Lichen simplex chronicus Contact dermatitis Monilial intertrigo Atopic dermatitis Petitioner's answer, B - "Contact dermatitis", differs from the Board's answer, D - "atopic dermatitis." Petitioner has no argument with the Board's answer, but feels his is also correct. He claims both conditions can occur concurrently. In fact, one may cause the other. The Board, on the other hand, claims that Petitioner's answer could not be considered correct. The question stem refers to "chronic dermatitis." "Contact dermatitis" is different. Petitioner utilized two authorities in support of his position, but the Board claims that these authorities relate to a specific use of medicine, and Petitioner is taking the authority out of reference. It also claims that the authority does not support holding "contact dermatitis" as a correct answer. It is so found. Question 7 - PM reads: The number of strokes of pressure per minute over the sternum during external cardiac massage should be: A. 6 - 12 B. 20 - 30 C. 60 - 100 D. 200 - 300 Petitioner answered, B - "20 - 30" and the Board's correct answer was C - "60 - 100." Petitioner claims that in CPR, the rate would vary depending upon whether the procedure was being applied by 1 or 2 people. He doubts an individual could give 60 compressions and 2 breaths within a 1 minute period. He agrees that 20 - 30 is a little low, but claims it is more reasonable than the Board's suggested figure. Dr. Nazian, on the other hand, contends that 60 - 100 is clearly the best answer. He agrees with Petitioner than it is a bit high for a 1 man application, but indicates that 20 - 30 is clearly too low. The standard instruction calls for application of 60 - 100. Dr. Levy concurs, contending that 60 - 100 is clearly the correct answer and that Petitioner's response is, under any circumstances, too low to allow the patient to survive. In his opinion, the failure to define in the question whether the procedure is being applied by 1 or 2 persons does not render it deficient, since a 20 -30 stroke application is clearly too low under any circumstances. While, perhaps, there could have been a better choice than 60 - 100, Petitioner's answer is, nonetheless, incorrect. Question 45 - PM reads: The rationale behind alternate day therapy for glucocorticoids is to: minimize sodium retention minimize atrophy of the adrenal cortex prevent the occurrence of a diabetic condition prevent the emergence of infectious disease Petitioner's answer was D, "prevent the emergence of infectious disease", while the Board's correct answer was B, "minimize atrophy of the adrenal cortex." Again, Petitioner does not deny the correctness of the Board's answer, but feels his own was correct as well. According to the Board's expert, however, studies show that alternate day therapy will not minimize infectious disease. It will, however, minimize atrophy. The use of the steroid itself will raise the risk of infection no matter how often it is used. Petitioner's position, then, is not well taken. Question 23 - PM reads: In emphysema, there is an increased tendency for bronchioles to collapse during expiration. This is cause by: increased tone of bronchiole smooth muscle a decrease in the elasticity of the lungs a decrease in the amount of surfactant an increase in the surface area of the alveoli Petitioner claims that his answer, C, "a decrease in the amount of surfactant" is equally as good as the Board's preferred answer, B, - "a decrease in the elasticity of the lungs." He claims that a surfactant equalizes pressure and destruction of the glands which generate the surfactant would, therefore, decrease its production. Dr. Nazian disagrees with this, however, and while admitting that Petitioner's comments have some validity, nonetheless contends that a surfactant works on the alveolae, and the stem of the question relates to the bronchioles. Whereas the alveoli relate to the ends of the air passage, the bronchioles relate to the stem portion. There is little air conduct ion in the bronchioles which have little relation to the alveolae. They communicate but are separate. Here it appears Petitioner is looking at the question more from the unusual situation rather than the routine situation, and in an examination designed to determine minimum competency, the situation is different. An examination looks at the routine situation, and because Petitioner's response looks more to the unusual than to the routine, it is not correct and does not merit him being given additional credit. Question 25 - PM reads: The number of impulses per unit time carried toward the heart by the vagus nerve will be increased by a: rise in blood pressure fall in the heart rate fall in stroke volume standing upright from a supine position Petitioner's answer was, D - "standing upright from a supine position", whereas the correct answer was A, - "a rise in blood pressure." Again, Petitioner agrees with the Board's answer but contends his answer should be given equal consideration. His authority claims that the heart rate increase prompts a reaction in the system to compensate which, he claims, creates a rise in blood pressure. Dr. Nazian, on the other hand, contends that when an individual stands up, the blood pressure initially decreases, and there is a reflex response to raise the blood pressure to the normal set point. Petitioner has not shown that his answer is as good as the Board's. Question 147 - PM reads: Hyperkeratosis of the soles, with innumerable fissuring extending to the dorsal surface is referred to as the "Keratodermic Sandal" in which disease? Psoriasis Dermatitis Herpetiformis Pityriasis Rubras Pilaris Pityriasis Rosea Petitioner's answer was B, "Dermatitis Herpetiformis", whereas the Board's correct answer was C, - "Pityriasis Rubras Pilaris." Petitioner does not know whether the Board's answer is correct or not, but does not feel it is relevant in any case. He can find no indication of the condition in any of his authorities, and does not feel that the term is universally accepted. Therefore, he feels the question should not be counted. Dr. Levy, however, contends that the stem of the question, and the use of the term, "hyperkeratosis of the soles", or the "keratodermic sandal" is not unknown. Several standard texts use it and it is well recognized. The condition itself is seen frequently if not every day. This raises a conflict, but since the burden rests with the Petitioner to establish the irrelevance of the question, and the presumption is that the question is relevant, it is clear that Petitioner has not met the burden he carries. Question 189 - AM reads: A twenty-two year old female presents with the complaint that the skin of her legs takes on a bluish-red mottling when she is exposed to cold. Her skin never returns to normal color upon warming. No other symptoms other than the color change are described. The most likely diagnosis is: Erythermalagia Livedo reticularis Raynaud's disease Raynaud's phenomenon Petitioner indicated C. - "Raynauds disease" as the correct answer, whereas the Board claims B, - "Livedo reticularis" is correct. Petitioner contends there is ample evidence in various authorities to support his answer. He claims that since the question mentions a twenty-two year old woman, his answer should be approved. The diseases should not be distinguished, he claims, and he takes the position that his answer is as likely as that of the Board. He overlooks, however, the fact that the stem of the question asks for the "most likely" diagnosis based on the information contained in the question. Dr. Levy asserts that the question is good for evaluating the candidates skill in differential diagnosis. The part of the question which makes the difference here deals with the allegation that the skin never returns to normal with warming. Only the Board's answer relates to this qualification. Petitioner's disease results in skin changes. Question 182 - AM reads: Raynaud's phenomenon associated with thromboangitis obliterans is usually: regular and symmetric irregular and asymmetric an extremely rare occurrence found in all cases Here Petitioner's answer was A, - "regular and symmetric", whereas the Board's correct answer is B, - "irregular and asymmetric." In his challenge to this question, Petitioner used the term "bilateral" which, he claims, infers regular and symmetrical. However, bilateral is not listed as one of the choices in the answer, nor is the term contained in the question, and it is impossible to determine from the evidence, exactly what Petitioner's challenge is. Dr. Levy pointed out that the question refers to Raynaud's phenomenon associated with thromboangitis obliterans, not standing alone, and in his opinion, the answer is, therefore, clearly B. When Raynaud's phenomenon is associated with thromboangitis obliterans, it is unilateral and, therefore, the Board's answer is the only correct one Question 139 - AM reads: A patient, following a Lapidus bunionectomy, under general anesthesia, develops a fever on the day following surgery. The most likely cause of the fever is: infected wound atelectasis halothane hepatitis phlebitisn Petitioner's answer to the question of the most likely cause is A, - "infected wound", whereas the Board's acceptable answer is B, which is a pulmonary problem. Petitioner feels that the question does not give sufficient information for the candidate to make a proper diagnosis. He contends that the first consideration in a post operative situation is the potential for "infection." He contends that the fact that the fever developed, "a day after surgery", is consistent with wound infection or at least the time frame given in the question does not exclude that diagnosis. He questions what is meant by the term, "following day." Does it mean morning or evening? How long a time is involved is unclear. He contends that the term, "day" must be better defined. In the opinion of Dr. Levy, however, the question gives sufficient information to the examinee. Infections are rarely seen the day after surgery, especially if a general anesthesia is used. The "most" likely cause is pulmonary, and while Dr. Levy does not deny an infection could occur the day after surgery, since the question calls for the "most likely" cause, Petitioner's answer of "infection" is not correct. Question 179 - AM reads: Which of the following best describes rheumatoid factors? Their presence is pathogonomic for rheumatoid arthritis. They are usually present at lower titers in rheumatoid arthritis than in other diseases. They are auto antigens. They are auto antibodies. Petitioner answered, A, - "their presence is pathogonomic for rheumatoid arthritis", whereas the Board's correct answer is D, - "they are auto antibodies." Petitioner claims there is no evidence to support any conclusive answer, and that, therefore, the question is improper and should be disregarded. Dr. Levy, however, asserts that the Board's answer is the only correct one, and is supported by several authorities. The stem of the question calls for the "best" answer, and in this case, he claims the Board's answer is the best. Questions calling for a "best" answer, are quite common in competency examinations, and Petitioner's claim that there is no authority does not support his receiving extra credit for this question. Question 29 - PM reads: The hormone that is primarily responsible for controlling testosterone secretion is: Luteinizing hormone ACTH growth hormone Vasopressin Here again, the question calls for a "primarily" type answer, and Petitioner's answer, B, - "ACTH", was considered by the Board as less correct than its answer, A, - "Luteinizing hormone." Petitioner claims that ACTH is above the Board's hormone on the pathway, and is, therefore, on a higher level than the other, but both are responsible. Dr. Nazian, however, asserts that the Board's answer is unquestionably the only correct answer. ACTH has little, if any, effect on the area of the body which produces testosterone. Luetinizing hormone is the primary substance responsible for the production of testosterone and it is abnormal for ACTH to be largely involved. In fact, if it were, it would be a pathological situation. Question 33 - PM reads: A movement in the colon considered principally one of mixing is: rhythmic segmentation haustral contraction mass movement peristalsis Petitioner claims the correct answer is D, "peristalsis", whereas the Board claims the correct answer is B, - "haustral contraction." Petitioner claims he is unable to determine how to differentiate peristalsis from haustral contraction when both involve movement within the colon. He fails to see a difference, and therefore claims that the question is irregular and should be disregarded. Dr. Nazian, through the use of a simple descriptive diagram, was able to differentiate between the two, indicating that peristalsis results in a one way movement toward the rectum, whereas haustal contraction results in the contents of the colon being forced in both directions, toward and away from the rectum. There being a definite difference, the Board's answer appears to be correct. Question 130 - AM reads: A bone graft which is taken from one area of the body and transplanted to another, is known as: xenograft homogenous graft heterogenous graft autogenous graft Petitioner's answer was B, - "homogenous graft" when the Board's answer considered correct was D, - "autogenous graft." The question uses the term, "another", and Petitioner claims he originally thought that word meant another person. The evidence is clear, however, that the question concerns itself with areas of the body, and the use of that term did not indicate to him that the question was referring to another area of the body rather than to another person. Nonetheless, Dr. Levy pointed out that the term, "autogenous", means from one part to another part, and since that is the most reasonable connection with the question, it is clearly correct. It is obvious that Petitioner misinterpreted the question and his answer is wrong. Question 86 - AM reads: Rearfoot eversion is compensated for by: forefoot eversion ankle dorsiflexion forefoot inversion ankle plantarlexion Petitioner's answer to this question is, B, - " ankle dorsiflexion" and the correct answer is C - "forefoot inversion. "Rearfoot eversion is movement of the foot outward and according to Petitioner, the Board's answer would be valid if the foot in issue were on the floor. However, in the gait cycle, the foot is sometimes in swing and sometimes on the ground. Petitioner concedes that the Board's answer is correct if the foot is on the ground, but he contends that the question does not call for that conclusion. Dr. Levy, however, claims that the Board's answer is the only correct answer. Compensatory motion is the inversion of the forefoot, and the Petitioner's answer does not do this. Again, it is clear that Petitioner read into this question, as he has done elsewhere, matters which are not relevant to the question. While the Petitioner's answer is a compensatory motion, it is not the compensation for rearfoot eversion. Question 105 - AM reads: Which one of the following conditions compensates by longitudinal axis midtarsal joint compensation? Forefoot varus Forefoot valgus Rearfoot varus Gastrocnemius equinus Petitioner answered, A, - "forefoot varus", while the correct answer is B, - "forefoot valgus." Petitioner agrees on the Board's reference source. He claims there are two axes of the multitarsal joint. The longitudinal axis allows inversion and eversion, and he is unable to see any variance between his answer and that of the Board. Dr. Levy, however, contends that fore foot valgus deformities are usually compensated by fore foot inversion/eversion. Forefoot varus is not mentioned because it does not occur as a compensatory mechanism for this condition. The mere fact that the authority cited by Petitioner does not say that his answer is wrong does not, however, make it right when the answer is considered in light of the facts in the question. In other words, Petitioner's answer does not relate to the terms of the question asked and is, therefore, not correct. Question 154 - AM reads: A patient presents with paralytic talipes equino varus deformity. Which of the following procedures best corrects the deformity. Anterior transfer of the tibialis posterior tendon Split tibialis anterior tendon transfer Tendo achilles lengthening Peroneus longus lengthening Petitioner answers, C - "tendo achilles lengthening" while the Board's answer is A, - " anterior transfer of the tibialis posterior tendon." According to Petitioner, the patient has a paralytic condition and Petitioner is unable to tell from the question if the patient has sufficient muscle strength for correction. His authority contends there is no consensus on the appropriate method of surgical correction. Dr. Levy, on the other hand, while agreeing there are a number of corrective procedures appropriate for club foot, claims the instant question relates to a specific type of club foot deformity and the "best" procedure cited in the main sources of podiatric surgical literature list the Board's answer as appropriate. The Petitioner's answer is not even recognized as a consideration. Even though Petitioner claims that the use of the term, "paralytic" is insufficient to describe the patient's actual loss, Dr. Levy contends that the condition described in the question by definition should tell him what the actual situation is. It is so found. Question 186 - AM reads: An acute postoperative arthritis may be due to: gout osteoarthritis Wilson's disease Whipple's disease Petitioner has claimed D, - "Whipple's disease" as the correct answer, whereas the Board cites A, - "gout" as correct. Petitioner contends that the term, "may be due to", means what is a possibility, and that in considering treatment for the condition, the professional should consider a variety of problems involving the patient and what other factors may exist. Whipple's disease is a disease of the intestines, and it may present itself as a type of arthritis. It may also come about as a result of surgery. Petitioner admits his answer may be a "dark horse", but since it is a possibility, it is an appropriate answer, he claims. He agrees that the Board's answer is also correct. According to Dr. Levy, however, the use of the term "acute" describing the arthritis is the key, and renders gout the obvious diagnosis. Whipple's disease is not "acute" if it came from surgery, and he has never seen that disease come about as a result of surgery. Gout, on the other hand, can be the result of surgery and he has seen it happen. In light of the phrasing of the question, however, that calls for the examinee to determine what the condition "may" be due to, since the Petitioner's answer is correct within the parameters of that phrasing, he should be given credit for this question. Question 97 - PM reads: Viral pneumonia is primarily: alveolar interstitial pleural mediastinal Petitioner selects C - "pleural" as his answer while the Board claims B, - "interstitial" as the correct one. According to Petitioner, a viral infection is sometimes found in the pleural lining. In fact, he, himself, has had it, and it is not inconceivable that a pleural virus could result in pneumonia. However, he can find no evidence to support the Board's answer that viral pneumonia is primarily interstitial. Dr. Levy, however, refers to the use of the term, "primarily" in the question. He points out that the Board's two authorities indicate that viral pneumonia is found "primarily" interstitial. The question does not ask for secondary areas where viral pneumonia may be found. Dr. Levy does not dispute that it can be found in the pleural lining, but it is not "primarily" found there. Question 122 - PM reads: Dermographism is usually evident in one of the following types of skin lesions: wheal bullae tumor pustule Petitioner selects B, "bullae" as his answer and the Board claims A - "wheal" is the correct one. Petitioner claims that a wheal and a welt are the same, just as a bulla and a blister are the same. He is of the opinion that a wheal and a bulla are similar in size and appearance and could be interchanged. On the other hand, Dr. Levy claims that the wheal and the bulla are two distinctly different lesions. Dermographism by definition calls for the answer, wheal, to be selected, and it is so found. Question 129 - PM reads: Overgrowth of the cuticle in lichen planus, with attachment to the nail plate is known as: onycholysis onychomadesis pterygium onychauxis Petitioner's answer is D, - "onychauxis", (thickening), and the Board's answer is C, - "pterygium", (ridging and furrowing). Petitioner claims that his answer, by definition, is "similar enough" to the Board's selection to support credit. He claims both deal with a thickening of the nail. Whereas one deals with thickening only, the other deals with ridging and grooving. Dr. Levy asserts, however, that by definition, the Board's answer is the only acceptable one. The two conditions are distinctly different. One is found in only 10% of lichen planus cases. Petitioner's answer is, according to Levy, a condition unto itself and does not occur in lichen planus, and, therefore, can not be a correct answer. It is so found. Question 166 - AM reads: The diagnosis of tarsal tunnel syndrome is best established by: a positive Valleux sign a positive Tinel sign hyperactive reflex nerve conduction velocities Petitioner has selected B, - "a positive Tinel sign", and the Board claims D - "nerve conduction velocities" as the correct answer. Petitioner's answer calls for the practitioner to percus a nerve and get a painful response. He claims this is a cheaper and better way to diagnose than to use fancy tests. In his answer to the question, he interprets the term, "best" as meaning best for the patient's pocketbook, rather than best technologically. He admits that the Board's answer is more accurate, and more appropriate, and it appears he has again misinterpreted the meaning of the stem word "best" as used in the question. Dr. Levy asserts that the question is best answered by recognizing the difference between subjective and objective tests. If an objective measurement can be made it should be made. Technological tests are objective. Percussion is subjective. Also, the community standard of care, as applied in this state, indicates that action should be taken only on the basis of the best available evidence. A nerve conduction test is the standard of care in the Florida podiatric community for this type of diagnosis. The examination process utilized here comports with all standards of preparation, administration and review. Prior to the examination, specialists with the Department of Professional Regulation pick out questions for double review. After the examination has been administered, the questions are statistically analyzed. If a large group of candidates miss a particular question, that question is again reviewed by experts in the subject matter to see if anything is wrong with the question. In the case of question 98 - AM, challenged by the Petitioner on the basis of its unfairness, five specialists reviewed it and found it to be acceptable. In addition, it was not missed by a group of candidates sufficiently large to raise a cautionary flag.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner, Robert F. Metnick, be awarded one additional point for his answer to question 186 in the morning session of the examination in issue, but that his challenge as to the other questions in issue be dismissed. RECOMMENDED this 23rd day of July, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1990. COPIES FURNISHED: Harper Field, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Robert F. Metnick 1326 South Hercules Avenue Clearwater, Florida 34624 Kenneth E. Easley General Counsel DPR 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Patricia Guilford Executive Director Board of Podiatric Medicine 1940 North Monroe Street Tallahassee, Florida 32399-07921
