The Issue Whether Respondent failed to maintain good moral character, in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2015), and Florida Administrative Code Rule 11B- 27.0011(4)(d); and, if so, the appropriate penalty.
Findings Of Fact Petitioner is an agency of the State of Florida responsible for the certification and the revocation of certification of law enforcement officers and instructors pursuant to section 943.12, Florida Statutes. Respondent is a certified corrections officer in the State of Florida. Petitioner issued Corrections Certification No. 332010 to Respondent on July 24, 2003. As part of her employment agreement with the Florida Department of Corrections (DC), Respondent agreed to submit to random drug testing. See also § 944.474, Fla. Stat. (providing DC with the authority to develop a program for random drug testing of all employees). On June 22, 2018, DC requested that Respondent submit to a random drug test and she provided a urine sample that same day. Prior to her submission of the urine sample, Respondent provided photo identification to the lab technician to verify her identity. Respondent did not notify DC of any reason why her urine sample might test positive for a controlled substance. After submitting her urine sample, Respondent signed a form that stated: I [the Respondent] certify that I provided my urine specimen to the collector; that I have not adulterated it in any manner, each specimen bottle used was sealed with a tamper-evident seal in my presence; and that the information provided on this form and on the label affixed to each specimen bottle is correct. Respondent does not dispute the testing procedures, chain of custody, qualifications, or accreditation of the laboratory and its employees that analyzed her urine specimen. Respondent also does not dispute that this was a “drug test” as defined under section 112.0455(5)(j), Florida Statutes. Section 112.0455 is known as “the Drug-Free Workplace Act,” and authorizes random testing, establishes collection procedures to avoid sample contamination, requires accurate labeling, provides for chain of custody, and sets requirements for testing laboratories to conduct initial screening and confirmation testing. Petitioner did not introduce into evidence the actual results of Respondent’s June 22, 2018, drug test. Instead, it relied on the testimony of Dr. Widerspan, the medical review officer who analyzed Respondent’s drug test, and Dr. Schwimmer, the director of medical review services at Doctor’s Review Services, which employs Dr. Widerspan, to establish those results. Dr. Schwimmer testified as to the testing and evaluation procedures utilized generally at Doctor’s Review Services. He noted that his office does not conduct the drug test, but rather, a separate laboratory conducts it. Medical review officers within his office review the results of positive tests. With respect to marijuana, Dr. Schwimmer testified that the laboratory conducts a two-stage testing process. First, the laboratory conducts an immunoassay, or screening test, that he described as a reactive test. If that first test reveals presence of delta-9 tetrahydrocannabinol/marijuana (delta-9 THC) for the marijuana metabolite at or above 15 ng/ml, the laboratory will then conduct a gas spectrometry test, which he described as more detailed and not reactive. If the gas spectrometry test confirms the concentration of delta-9 THC for the marijuana metabolite at or above 15 ng/ml, Dr. Schwimmer explained that the laboratory then refers the test to Doctor’s Review Services for review by a medical review officer. Dr. Schwimmer further testified that when a medical review officer receives the results of a test that reflects a concentration of marijuana in excess of 15 ng/ml, the medical review officer speaks with the subject of the test to determine if the subject has a valid medical explanation that the medical review officer can verify. According to Dr. Schwimmer, the only verifiable valid medical explanation for a positive marijuana test is if a subject presented a prescription for Dronabinol, also known as Marinol, and the subject ingested Dronabinol prior to the drug test. If a subject provides a verifiable, valid medical explanation for a positive marijuana test, a medical review officer may overturn the laboratory’s findings. Dr. Widerspan is a practicing physician and has been a certified medical review officer since 2015; she testified that she has evaluated over 50 urine specimens as a medical review officer. Dr. Widerspan was the medical review officer who reviewed the results of Respondent’s drug test. She testified that she saw the results of the marijuana metabolite concentration in Respondent’s drug test, which were transmitted electronically to her from the testing laboratory, and which she stated reflected a positive marijuana test. Again, Petitioner did not introduce into evidence the actual results of Respondent’s June 22, 2018, drug test. Dr. Widerspan testified that she contacted Respondent to determine if a valid medical explanation existed to justify the positive result of the drug test, and after that conversation, determined that Respondent did not present a valid medical explanation. Respondent, an approximately 16-year veteran of DC, testified and presented credible evidence that she suffered from multiple issues related to her back, starting in 2017. As a result, Respondent stated that she took over-the-counter cannabidiol oil (CBD) for back pain around the time of her drug test. Respondent testified that she explored, and ultimately decided to ingest the over-the-counter CBD oil as an alternative to other prescribed pain medication, so that she would not be “woozy” or “goofy” at work, and because, as a correctional officer, she needed to be “aware and alert.” Petitioner and Respondent both provided evidence that Respondent purchased an over-the-counter CBD oil product from a local pharmacy near the time of the drug test. However, Respondent did not provide evidence that a medical professional prescribed the use of CBD oil or any marijuana-related products for her back. Respondent denied ingesting illegal marijuana during her employment with DC, but admitted ingesting over-the-counter CBD oil around the time of her drug test. Dr. Schwimmer testified that the medical review officers at Doctor’s Review Services will not consider a subject’s claim that he or she ingested CBD oil to overturn a drug test that is positive for marijuana because “it is not verifiable.” He further explained: If they are taking a product that is sold legally in the State of Florida, we don’t believe that normal usage would be a valid medical explanation because the levels required are well beyond what you would expect to see from that normal usage. Dr. Schwimmer further testified that “normal” CBD oil should have no more than 0.3% THC, which is very low, and thus should not trigger a positive marijuana test, even if the subject ingests it regularly. Dr. Widerspan similarly testified: Because the THC content within a CBD oil product is a trace amount, which is not - - would not be expected to come up as a positive test. It is not expected to develop a concentration strong enough to show up as a confirmed positive test. Respondent testified that she spoke with Dr. Widerspan after receiving a phone call where Dr. Widerspan indicated that her drug test was positive for marijuana, and Respondent told Dr. Widerspan that she ingested over-the-counter CBD oil. Respondent further provided copies of the bottle of the CBD product, as well as receipts of purchase, to Doctor’s Review Services. Dr. Widerspan stated that she advised Respondent that Respondent failed to provide her with a valid medical explanation that would permit her to overturn the result because over-the- counter CBD oil is not an acceptable prescribed medication, such as Dronabinol. It bears repeating that Petitioner did not introduce into evidence the actual result of Respondent’s June 22, 2018, drug test. Instead, Petitioner apparently relies solely on the testimony of Dr. Schwimmer and Dr. Widerspan to establish that Respondent’s June 22, 2018, drug test resulted in a positive test for marijuana, and in turn, that Respondent failed to maintain good moral character. The only exhibit that Petitioner introduced was a receipt from the local pharmacy where Respondent stated she purchased the over-the-counter CBD product. Respondent introduced into evidence, among other things, a series of letters from current and past co-employees of DC, that attest to her professionalism, strong work ethic, and leadership abilities at DC, as mitigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Florida Criminal Justice Standards and Training Commission enter a final order dismissing the Amended Administrative Complaint against Terri D. Roberts. DONE AND ENTERED this 4th day of October, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 4th day of October, 2019. COPIES FURNISHED: Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed) Terri D. Roberts (Address of Record-eServed) Dean Register, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jason Jones, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed)
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 issues in this proceeding is whether Petitioner was the subject of unlawful sexual harassment by Respondent and whether Petitioner was subjected to unlawful retaliation for participation in an activity protected under Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Julie Hembrough, was a female employee of Respondent, Sikorsky Support Services. She was employed as a senior calibration technician at the Pensacola Naval Air Station (Pensacola NAS). As part of her duties she was in charge of monitoring the quality of the work her section performed and the employees who performed that work. Petitioner came to work at Pensacola NAS with Sikorsky’s predecessor, Lear Siegler (LSI). Sikorsky is a “drug free” workplace and has a written policy, entitled "Sikorsky Support Services, Inc. Strike Pensacola, Florida Drug-Free Work Force and Work Place Manual,” as part of its collective bargaining agreement. The drug free workplace policy requires periodic random drug testing of employees. The policy states: An employee who refuses to take a drug test under Section . . .V.5 Random Testing will be terminated for violation of this policy. Petitioner went through an initial drug test when Sikorsky took over the Pensacola NAS maintenance contract and hired the LSI workers. Petitioner was aware that random drug testing occurred and was required by Respondent. She knew that there had been previous random drug tests at the Pensacola NAS. Petitioner was considered a hard worker and competent technical leader of her calibration section. However, there were personality conflicts throughout the section in which Petitioner worked. The problems in the section stemmed from a weak supervisor, who was eventually terminated, who did not hold employees to the performance standards for the section, and who did not support the technical leaders, like Petitioner, when they tried to enforce those performance standards. The supervisory problems resulted in various factions in the work place. The factions were comprised of both male and female employees. Petitioner had particular conflicts with two employees, Roger York and Leon Mills. Petitioner herself testified that her conflicts with Roger York stemmed from a work disagreement regarding the repair of certain Navy radios. Mr. Mills did not want to perform certain tests on Navy radios that Petitioner thought were required for thorough testing of the radios. Petitioner also felt, with some factual basis, that Mr. Mills was not honest with her when he represented to her that he had performed such tests. Petitioner’s problems with Leon Mills were of a similar nature to those with Mr. York. However, Mr. Mills accused Petitioner of fraud in relation to trying to get rid of him. The evidence did not demonstrate that any of the difficulties with these men were related to Petitioner’s gender, but what little unspecified name-calling or derogatory statements there were was the result of animosity toward Petitioner and her supervisory role. Some workers considered Petitioner a “spy” for the Respondent. Other workers accused Petitioner of trying to “get rid of” Leon Mills through fraudulent means. Indeed Mr. Mills complained to the union about Petitioner and that he thought she was trying to get rid of him. Feelings against Petitioner were so strong that, even though she was a member of the union, she was asked by the union shop steward to not attend a union meeting. Respondent had no input or control over the union’s request to Petitioner. In September 2000, Petitioner orally complained to her manager, Joe Diehl, that another male worker used the word "bitch" and talked about his sex life and that someone else told her to put on some makeup. The details of the facts surrounding these comments were not introduced into evidence. Therefore, it is unclear if they were harassing in nature. Petitioner was never physically grabbed or groped by anyone at Sikorsky, was not sexually propositioned, and no one ever threatened her with adverse action if she refused to perform any type of sexual activity. She did not see open pornography in the workplace. Moreover, such sporadic comments do not constitute sexual harassment. She again complained in August 2001. The actual written complaints were not introduced into evidence. In essence, the bulk of the oral complaints revolved around the work problems in the section and the multi-gender employee animosity toward Petitioner. Sikorsky took Petitioner’s complaints seriously and investigated the complaints. During the investigation, people from the “upper echelon” of the company were brought in to investigate. However, the investigators could not corroborate Petitioner’s claims of sexual harassment. They did find that the section had various problems as described above. Nevertheless, to make sure that everyone understood the seriousness of sexual harassment issues, the site manager held a training session on Sikorsky’s sexual harassment policies. Petitioner attended the training session. The site manager also personally delivered the findings of the investigators to Petitioner, to show he was involved and to make Petitioner understand that Sikorsky was taking the issue seriously. Petitioner was invited to come forward with any complaints she may have at any time. After advising Petitioner of the results of the investigation, the site manager spoke to her several times encouraging her to come forward with any issues. He stopped by Petitioner’s work area in the section and asked if she was having any problems. Petitioner told him things were going okay and that she was not having any problems. Petitioner testified that sometime in May, she advised her supervisors that she intended to file another internal complaint because of actions by the union and because she had found “hot sauce” on her vehicle. Petitioner complained that the union accused her of committing fraud and that she was excluded from a union meeting. However, as indicated above, it was the union steward, not Sikorsky, that asked Petitioner not to attend the union meeting. Sikorsky was not involved in the union meeting or any accusations of fraud by the union against Petitioner. These facts do not support a finding of sexual harassment by Sikorsky. The “hot sauce” incident occurred while her vehicle was parked in an open, unfenced parking lot owned by the U.S. Navy. The Navy was responsible for security in the parking lot. Petitioner discovered that someone had poured hot sauce over her vehicle. Upon seeing the substance, Petitioner got in her vehicle and drove home. She called her manager from her vehicle to inform him about the incident. He advised her it was probably “too late” to do anything since she had left the scene. Petitioner did not see anyone put the substance on her vehicle, and does not know who did it, although she strongly suspects it was a particular coworker. Petitioner never reported the incident to Navy security. Without more detail and given the animosity in the workplace with allegations of spying and fraud, the incident does not support any finding that Petitioner was sexually harassed or that Sikorsky was responsible for such alleged harassment. On May 6, 2002, seventeen Sikorsky employees were selected for random urinalysis at Sikorsky; five employees were selected as alternates. Petitioner was one of the employees selected. Sikorsky employs a third-party contractor, Professional Health Examiners (PHE), to select the individuals to be drug tested and to administer the drug test. PHE and Sikorsky use a “name blind” system to select individuals for testing. Before a test day, Sikorsky’s administrative manager sends a list of partial social security numbers to PHE. Sikorsky does not give names to PHE, but only partial social security numbers. PHE then inputs the partial social security numbers into a computer program, which randomly selects a percentage of the numbers. Once the numbers are selected, PHE sends the list of numbers to Sikorsky. The administrative manager then matches the selected numbers with an employee list to determine the employees named. On the day of the test, those selected are called to take the test at a specific time and location. Petitioner was notified of her selection at approximately 7:15 a.m. and told to immediately report to the test site to take the test. She did not go to the drug test site, but went directly to the office of her manager, Joseph Diehl. Petitioner refused to take the drug test at the time the test was scheduled. At the time, Petitioner had no knowledge of the drug testing selection procedures and did not ask what the procedures were; she also wanted to speak with her attorney. Joseph Diehl called the administrative manager. At approximately 7:30 a.m., the administrative manager went to Diehl’s office. Since neither had been confronted with a situation similar to this one, Diehl and the manager allowed Petitioner to call her lawyer. However, her lawyer was unavailable. The morning of the drug test, the site manager and Diehl’s supervisor, Joe Colbert, had jury duty and had not arrived. Therefore, Mr. Diehl called Dan Pennington, the program manager, for guidance. Mr. Pennington stated in more colloquial language, that Petitioner must either immediately submit to the drug test per corporate policy or be terminated. Mr. Diehl, again in more colloquial language, passed the direct order to Petitioner to take the test or face termination. Petitioner said she would not take the test without calling her lawyer. Later in the morning, Petitioner spoke with Michael Neri, her supervisor, and told him she was quitting. Mr Neri had been hired only three weeks earlier and was familiar with the drug test policy. Mr. Neri told Petitioner to take the test, and that if she did not take the test, she would be terminated. Petitioner met with the site manager, Joe Colbert, after 9:00 a.m. He told her to take the test or she would be terminated. He told her that once she took the test, her lawyer could take whatever steps she wanted to take, but that she needed to take the test. All of Petitioner’s supervisors wanted Petitioner to take the test because she was a good employee whom they did not want to terminate. Petitioner did not take the test. Mr. Colbert then suspended Petitioner and gave her a letter of suspension, pending termination. The letter stated that the reason for the suspension was her refusal to take the drug test at the appointed time. Because Petitioner suggested that she had been targeted for selection for the drug test, Mr. Colbert assigned one of his managers, Frank Eggleton, to conduct an investigation of the procedures. Mr. Colbert told Petitioner that if the investigation came back clean, she would be terminated. Later in the morning, at approximately 11:00 a.m., on May 6, 2002, Petitioner called Joe Diehl and informed him that she had spoken to her lawyer and was willing to participate in the random drug testing. However, it was too late. Mr. Colbert refused to allow Petitioner to take the test at that time because she had already been suspended. Mr. Colbert testified that Petitioner had had her opportunity more than once to participate. He was concerned that if he made exceptions to the mandatory random drug testing policy, then it would open the door for everyone to seek to defer taking a random drug test. This rationale was reasonable and not pretextual. Mr. Colbert told Mr. Eggleton to investigate how individual employees were selected for the random drug test and to determine if Petitioner had somehow been targeted. Mr. Colbert did not pressure Mr. Eggleton to reach any particular conclusion and told him to conduct a thorough, open investigation. Mr. Eggleton visited the facilities of PHE to determine how individuals were selected. After conducting his investigation, Mr. Eggleton reported to Mr. Colbert that the drug-testing contractor used a name-blind system for selection and that there was no indication that Petitioner had been targeted. PHE had nothing to do with the decision to terminate Petitioner and Sikorsky did not pressure PHE to select Petitioner for the drug test. In fact, there was no evidence at the hearing that Petitioner was targeted for drug testing. After receiving the investigation report, Mr. Colbert decided to terminate Petitioner’s employment based on her refusal to take the drug test at the appointed time. He obtained the approval of the necessary authorities at Sikorsky. On May 10, 2002, Petitioner’s employment was terminated. In April 2002, employee Brian McHenry was selected for random drug testing. Mr. McHenry, prior to discovering he was going to be drug tested, used the restroom just before he was told of the drug test. As a result, Mr. McHenry was unable to produce a sufficient urine sample to allow PHE to perform a the test. He took part, tried to produce a sample, and actually produced a urine sample, but it was not enough for testing purposes. After a few hours of drinking fluids Mr. McHenry still could not produce a sufficient urine sample. Mr. Colbert wanted Mr. McHenry to stay late until he could provide a sample, but Mr. McHenry had a serious child care problem that day and needed to pick up his child in Alabama. Because Mr. McHenry had tried to complete the drug test, and because of the child care problem, Mr. Colbert told Mr. McHenry to go to the test facility in the morning. Unlike Petitioner, McHenry did not refuse the drug test; he could not provide a sufficient urine sample. The McHenry case is not similar to Petitioner’s situation. Moreover, Mr. Colbert testified that if Mr. McHenry had refused to take the test, he would have been fired. Likewise, there was no evidence at the hearing that Petitioner was terminated because of her previous internal complaints. There was no evidence Petitioner was selected for drug testing because of her previous complaints. In fact Mr. Colbert did not have knowledge of Petitioner’s two complaints, since both complaints were handled by the previous site manager. Mr. Colbert was aware of Petitioner's complaint about hot sauce thrown on her car, but said he did not even consider it a sexual harassment issue. Petitioner did not put forth sufficient evidence to prove a claim of sexual harassment. She did not introduce evidence that any conduct she complained of was severe or pervasive, or that the allegedly harassing conduct was because of her gender, as opposed to some other reason such as thinking she was a spy. Likewise, Petitioner failed to establish that she was terminated for any complaints she had made to Respondent. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of April, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gregor J. Schwinghammer, Esquire Gunster, Yoakley & Stewart, P.A. Phillips Point, East Tower 777 South Flagler Drive, Suite 500 West Palm Beach, Florida 33401 Debra Cooper, Esquire Law Offices of Debra Cooper 1008 West Garden Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 The issue is whether Respondent, Andrew Pollock (also known as Antone Pollock), should be terminated from employment with the City of Clearwater (City) after testing positive for cocaine, while on duty, as alleged in the City's Termination and Dismissal Notice (Notice) dated March 7, 2015.
Findings Of Fact Respondent began working for the City in August 2001. In November 2012 he was reclassified as a Stormwater Technician II. Pursuant to federal Department of Transportation (DOT) safety regulations, this position is considered a safety- sensitive position and requires that Respondent have a commercial driver's license (CDL) and that he submit to random drug testing. The City has a zero tolerance for drug and alcohol use while on the job. This is explained in the City's Drug/Alcohol Program Policy, also known as Policy No. 3401.2. See City Ex. 3, p. 5 ("Any employee covered by this policy who . . . fails an alcohol or drug test . . . will be immediately removed from active duty and subject to discipline, including termination."). Respondent signed documents acknowledging that he was given a copy of the policy and was responsible for complying with its terms and conditions. See City Ex. 1 and 2. Various rules, standards, and policies have been adopted by the City to govern the conduct of its employees. Specifically, the City has adopted a Performance and Behavior Management Program (PBMP) manual, which includes Personal Responsibility, Integrity, Excellence, and Citywide Standards. Pursuant to authority in the Code of Ordinances (Code), the Civil Service Board has adopted Rules and Regulations governing the conduct of all positions in the civil service. Relevant to this case is chapter 13, section 3, Rules and Regulations, which spells out grounds for suspending, demoting, or dismissing an employee. Also, as noted above, DOT safety regulations apply to employees such as Respondent who are performing safety-sensitive functions on the job. Finally, the City has adopted Policy 3401.2, which establishes guidelines and procedures regarding the use or abuse of illegal drugs by employees. Notably, these standards, rules, policy, and DOT regulations apply only to the use of drugs and alcohol by an employee while on duty. With certain exceptions not relevant here, there is no City prohibition against the use of drugs or alcohol while off-duty. But if an employee fails a drug test administered during regular working hours, it is presumed he is using, or under the influence of, drugs while on the job. In accordance with DOT regulations, on February 17, 2015, Respondent was selected for a random drug test and willingly submitted to the collection procedure that morning. See City Ex. 4, p. 5. Respondent acknowledges that he participated in the collection procedure on that date. The results of the test, conducted by Largo Medical Center, are shown on a copy of a barely legible Verification Report (Report) received in evidence as Exhibit 4. No individual from the testing facility testified, the Report is not signed by the medical review officer, and several significant sections in the Report are not completed or signed. Given these deficiencies, the City agrees that it does not have "admissible drug lab evidence." Tr., p. 77. Without objection the Report was offered only for the purpose of showing "what action [the City took] upon receipt of this document," and not to prove that Respondent failed the drug test. Tr., p. 18. On February 23, 2015, Respondent was notified that he tested positive for cocaine. While he disputes the laboratory results, he does not dispute the laboratory collection procedure. A recommendation was then made by his department head that he be terminated for violating City rules, policies, and standards, and DOT regulations. Civil Service Board regulations allow an employee to explain the circumstances which led to the positive test results and to provide mitigating facts. See ch. 13, § 8, Rules and Regs. An employee may request a disciplinary determination meeting with the Department of Human Resources; an adverse decision is then subject to review by a hearing officer (administrative law judge). Alternatively, an employee may file a grievance pursuant to the union collective bargaining agreement. If the grievance is denied, the employee may have the matter heard by an arbitration panel, but the cost of arbitration is borne by the employee. Because of financial constraints, Respondent elected to have the matter reviewed by the Department of Human Resources. A disciplinary determination meeting was conducted on March 3, 2015. Respondent was represented at the meeting by a member of his union. After Respondent's explanation was not deemed to be plausible, on March 7, 2015, the City Manager formally notified Respondent that he was being terminated effective March 11, 2015. See City Ex. 6. Respondent then requested a hearing to contest that action. At hearing, Respondent essentially repeated the explanation he gave at the disciplinary determination meeting. He testified that while at a local bar with his brother on the evening of February 15, 2015, or two days before the random drug test and while off-duty, he asked a long-time friend, Eric "Red Rock" Gibson, for a "black and mild" (a cigar). After smoking the cigar, Respondent said that something seemed different about the cigar, his tongue was numb and tingling, and he was mumbling words. However, he attributed this to being drunk at the time and gave it no further thought. After receiving the results of the random drug test, and being told that he was terminated, Respondent spoke to Gibson and learned that Gibson always laced his cigars with cocaine, including the one given to Respondent. The City relies on this admission, and not the drug test, to prove the charges in the Notice. Thus, the sum of the case is that Respondent admitted that he unknowingly smoked a cigar laced with cocaine on February 15, 2015. There is, however, no competent evidence to support the charge that he flunked a drug test two days later, as charged in the Notice, or that cocaine was in his system when he reported to work that day. Respondent testified credibly that he does not use drugs and he unknowingly injested the cocaine. He pointed out that, except for this test, he has never failed a drug test while employed by the City. Shortly after the random testing, he paid for a follow-up drug test, which produced negative results. He desires to return to work in order to reinstate his health insurance benefits and to provide a source of income for his family. It is undisputed that Respondent has a blemish-free record working for the City over the last 14 years and, among other awards, he has received over 17 certifications for exceling in his work. His last evaluation in February 2015 was "Excellent." Policy 3401.2, the City's Administrative Policy and Procedure Manual, states that an employee in a safety-sensitive position who fails a drug test "may be demoted to a non-CDL or non-safety sensitive position in accordance with the procedures outlined in this document." City Ex. 3, p. 6. Even assuming arguendo that Respondent failed a drug test, which has not been proven here, Respondent testified that he is willing to accept a demotion to a non-CDL position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board enter an order dismissing all charges against Respondent and reinstating him, with back pay, to his position as a Stormwater Technician II. DONE AND ENTERED this 1st day of October, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 1st day of October, 2015.
The Issue The issue to be determined is whether Respondent failed to maintain good moral character, in violation of section 943.1395(7), Florida Statutes (2011) and Florida Administrative Code Rule 11B-27.0011(4)(d), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent has been a certified corrections officer. As a certified corrections officer employed by the Department of Corrections, Respondent was subject to random drug testing. On or about December 9, 2011, Respondent was selected for random drug testing and directed to provide a urine sample. He reported to Labcorp in Pensacola, Florida, to provide a urine specimen for testing. Respondent gave the specimen by urinating in a specimen cup provided to him by Juston Day, an employee of Labcorp. Respondent delivered the cup containing his urine to Mr. Day, who read the temperature strip on the cup, sealed the cup, and had Respondent initial it and sign the chain of custody form. Mr. Day labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen number, in this case number 0758562291, which would not be used for any other specimen. The chain-of-custody form was then signed and dated by Mr. Day. The container with Respondent's urine specimen was sealed with a label that prevented the specimen from being opened without breaking the seal. Mr. Day packaged Respondent's urine specimen in a bag which was also sealed and labeled. Mr. Day put the bag with Respondent's urine sample in an area for pick up by Labcorp courier. The specimen was transported to a Labcorp facility in Southaven, Mississippi. The specimen was assigned a unique laboratory accession number, which was the same as the accession number used when the sample was drawn. The urine sample supplied by Respondent was received by and analyzed by Labcorp, and the report generated is for the sample provided by Respondent. Labcorp maintained the required chain-of-custody procedures in handling Respondent's specimen. The package received by Labcorp was unsealed by laboratory personnel qualified to receive it and the specimen was subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine. The initial test performed by Labcorp is an immunoassay test used to screen all samples. Any sample that is a presumptive positive by that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry. Respondent's urine sample tested presumptive positive for marijuana metabolite, and the confirmatory test results were consistent with those obtained for the screening test. The final report for marijuana metabolite was reported at a concentration of 48 nanograms per milliliter. The cutoff for a positive result for marijuana metabolites in the immunoassay screening test is 50 nanograms per milliliter. The cutoff for the confirmatory test is 15 nanograms per milliliter. The urine specimen also indicated the existence of other drugs of Respondent's system. However, those results were consistent with therapeutic levels, as opposed to abusive levels, and were below the relevant cutoff for those substances. The test results were reviewed by Dr. Neil Dash, M.D., the Medical Review Officer for Doctors Review Service. A physician in Dr. Dash's office then called Respondent with the results and asked him if there was any substance he was taking that could contribute to a positive result. He reported no such substance. Dr. Dash then reported the ultimate results of the testing to the Department of Corrections. Respondent claims that when he was given the cup for collection of the urine specimen, it was already open, and that contamination of the container must be the basis for the positive test. However, the Chain of Custody Form that Respondent signed states in part: I authorize the collection of this specimen for the purpose of a drug screen. I acknowledge that the specimen container(s) was/were sealed with tamper-proof seals in my presence and that the information provided on this form and the labels affixed to the specimen container is correct. I authorize the laboratory to release the results of the test to the company identified on this form or its designated agents. Respondent testified at hearing that he had been tested many times before, but had never been given an open container before. However, he did not indicate that he questioned the testing procedure at the time, nor was there any evidence that he reported any perceived irregularity to Dr. Dash or any of his staff. His testimony in this regard is not credited.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a final order finding Respondent in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a corrections officer be suspended for a period of 90 days, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B-27.005(7)(c). DONE AND ENTERED this 18th day of October, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 18th day of October, 2012. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 lintoneason@fdle.state.fl.us Anthony Wayne Hatcher Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
