The Issue Whether Respondent discriminated against Petitioner in its employment decisions in violation of Section 760.10, Florida Statutes (2001).
Findings Of Fact Petitioner, Oscar Jones (Petitioner), is a black male. He began working for Respondent in July 1997, as a longshoreman working on "chicken boats." In that position, Petitioner loaded boxes of frozen chicken into the holds of refrigerated ships. Respondent, Coastal Maritime Services, LLC (Respondent), is engaged in the business of stevedoring and seaport terminal operations, including loading and unloading ships, and receiving cargo. On May 28, 1998, Respondent injured himself when a very heavy box of frozen chicken fell on his ankle. Other than first aid at the worksite, Petitioner declined further medical treatment that day. He was given a medical form authorizing treatment at the medical clinic which provided medical services to injured employees who might be covered under Respondent's workers' compensation insurance. The next day, on May 29, 1998, Petitioner sought medical treatment for his injury at the medical facility which handled Respondent's workers' compensation injuries. As part of that treatment, Petitioner was asked to take a drug test and Petitioner consented. Although no formal written drug test policy was in effect by Respondent at the time of Petitioner's injury, the general policy and practice was that a work-related injury would subject an employee to a voluntary drug test. Petitioner's drug test came back positive for marijuana. As a result of the positive drug test result, Respondent's insurance carrier controverted Petitioner's workers' compensation claim. There was no evidence that Respondent's management had any responsibility or involvement in the carrier's decision to controvert Petitioner's entitlement to workers' compensation benefits. During the 12-month time period of January 1998 through December 1998, Petitioner was not the only employee of Respondent required to take a drug test after a work place injury. In fact, in June 1998 (the same time period as Petitioner's test) seven white employees were required to take a drug test and three black employees were required to take a drug test. For the entire 1998 calendar year, 51 total drug tests were administered, with 31 of those tests administered to non- black employees (for example, white or Hispanic) and only 21 of those tests administered to black employees. Similarly, for the entire 1998 calendar year, a total of 18 employees were not administered drug tests, either because medical attention was refused or because of the severity of the injury. Of those 18 employees, 11 were non-black employees and seven were black employees. Employees who were not required to take a drug test either were those who refused medical attention or who were severely injured and had to seek treatment from hospital emergency rooms where drug tests were not given. Clearly, race played no factor in who was required to take a drug test or who received a drug test. Petitioner did cite the names of two white employees, Jay Chavers and Andy Wiley, who allegedly were treated more favorably than Petitioner, in that those two employees did not take a drug test. However, those two employees were not "similarly situated" to Petitioner. First, the injuries of both Mr. Chavers and Mr. Wiley were much more serious in nature than the contusion (bruise) that Petitioner had suffered and both were taken to emergency rooms for their injuries where drug tests were not routinely administered. Specifically, Mr. Chavers had fallen from a high distance and suffered numerous broken bones, thus, rendering him incapable of giving consent to a drug test at the hospital. As to Mr. Wiley, his injuries were not subject to workers' compensation coverage, unlike Petitioner's. Thus, given the nature of the injuries of Mr. Chavers and Mr. Wiley, those two individuals were not sufficiently "similarly situated" to Petitioner to enable him to establish a prima facie case of racial discrimination. Petitioner's positive drug test result had no other impact on his employment with Respondent, apart from the controversion of his workers' compensation benefits. Indeed, Respondent attempted to get Petitioner to return to work. Shortly thereafter, in early June 1998, Petitioner contacted the chief financial officer of Respondent, Kathleen Wiley, who in 1998 was Respondent's office manager. Petitioner expressed concern to Ms. Wiley about his workers' compensation benefits and his employment status with Respondent. Ms. Wiley informed Petitioner that he was still considered to be employed with Respondent and that he needed to contact Ben Brown for a light duty assignment. Petitioner was expressly informed that light duty work was available that would meet his medical restrictions imposed after his injury. Petitioner never followed-up with Mr. Brown about light duty work. Almost immediately thereafter in June 1998, Respondent hired Bud Underwood as its new safety manager. Mr. Underwood's responsibilities were to oversee workers' compensation cases and follow up on accidents and injured employees. Ms. Wiley informed Mr. Underwood to follow up on the situation of Petitioner to get him to return for a light duty assignment. In late June or early July 1998, Mr. Underwood contacted Petitioner as directed and offered him light duty work within his medical restrictions. Petitioner informed Mr. Underwood in very obscene terms that he was not going to accept any light duty assignments. Petitioner never appeared for any light duty assignments after that conversation. Based upon Petitioner's response to that telephonic offer of light duty employment, Respondent sent Petitioner a letter around July 9, 1998, informing him that based upon his refusal of light duty work, he had been deemed to have abandoned his employment, and thus was no longer employed by Respondent due to self-termination. Thereafter, in September 1998, Petitioner contacted Respondent by telephone seeking employment. However, by that time, opportunities for longshoremen, such as Mr. Jones were extremely limited, as the "chicken boat" operation had all but shut down for financial reasons, and no positions were available at the time. Thus, Respondent sent Petitioner a letter dated September 2, 1998, informing him that no positions were available, but encouraging him to reapply. Despite the invitation to Petitioner that he should reapply, Petitioner never submitted any subsequent inquiry for employment. Respondent's "chicken boat" operation had shut down completely by February 1999. Petitioner later applied for unemployment compensation benefits, but those benefits were denied on the ground that Petitioner had abandoned his employment by refusing the light duty work that was offered to him. In fact, in an evidentiary hearing held in his unemployment compensation matter, the Unemployment Appeals Referee found as a fact that Petitioner admitted that he had refused the light duty work offered to him. Petitioner's appeal of that adverse decision was, likewise, denied by the Unemployment Appeals Commission. Petitioner's race played no role in Respondent's determination that Petitioner had abandoned his employment or in Respondent's determination that no position existed for Petitioner in September 1998. Similarly, race played no role in the insurance carrier's decisions regarding Petitioner's workers' compensation benefits. In fact, Petitioner voluntarily settled his workers' compensation claim disputes in a settlement agreement signed by him and his attorney dated March 22, 1999. Petitioner had a family to support and needed the money. Pursuant to that settlement agreement, Petitioner agreed to accept $4,500 in full, final and complete settlement, release and discharge of any and all claims against the employer arising out of Petitioner's alleged accident, injury, and disability in issue, including, but not limited to claims for temporary total, temporary partial, permanent total, and/or permanent partial disability compensation, and past and future medical benefits. Petitioner verified that the settlement was adequate and was not entered into under duress. Rather, Petitioner of his own accord thought that the settlement was in his best interest. The Department of Labor approved the settlement. Petitioner has made no credible showing that there was any relationship between his race and the adverse employment actions of which he has complained.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of December, 2002, in Tallahassee, Leon County, Florida. 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 16th day of December, 2002. COPIES FURNISHED: Peter Reed Corbin, Esquire Richard L. Ruth, Jr., Esquire Ford & Harrison LLP 121 West Forsyth Street Suite 1000 Post Office Box 41566 Jacksonville, Florida 32203 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Oscar Jones 1817 East 27th Street Jacksonville, Florida 32206 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent violated Subsections 943.1395(7) and 943.13(7), Florida Statutes (2007),1 and Florida Administrative Code Rule 11B-27.0011(4)(d), and, if so, what discipline should be imposed.
Findings Of Fact Ms. Valderrama was certified as a law enforcement officer in the State of Florida by the Commission on September 29, 2004, and was issued Law Enforcement Certificate No. 243605. From September 27, 2004, to November 9, 2007, Ms. Valderrama was employed by the Osceola County Sheriff's Office. On or about October 17, 2007, at approximately 1:00 p.m., Ms. Valderrama reported to the Osceola County Sheriff's Office Administration Building for random drug testing pursuant to the terms of her employment and provided a urine sample under controlled conditions. A lab technician was the only other person in the restroom with Ms. Valderrama during the collection process. Ms. Valderrama provided the specimen by urinating in a sterile, previously unused specimen cup, which she subsequently provided to a lab technician who immediately sealed the sample. Neither the sample cup, nor the urine sample it contained, had been tampered with, altered, or adulterated since the initial collection of the urine sample and had remained sealed and maintained in the chain of custody until unsealed by a qualified laboratory personnel at Total Compliance Network, a licensed drug testing laboratory contracted by Florida Hospital Centra Care to conduct random employee drug screens for the Osceola County Sheriff's Office. The laboratory analysis of Ms. Valderrama's urine specimen was found by qualified Quest Diagnostic's laboratory personnel and a Total Compliance Network medical review officer to be positive for Cocaine metabolites in a concentration of 2046 nanograms per milliliter. The minimum level of detection for Cocaine is 150 nanograms per milliliter. On October 27, 2007, Ms. Valderrama discussed her test results with Dr. Seth Portnoy, the licensed medical review officer for Total Compliance Network. Ms. Valderrama could not provide Dr. Portnoy with any medical reason for the positive test result and did not challenge the positive test results. The procedures and methods employed in the handling and analysis of Ms. Valderrama's urine specimen provided reliable safeguards against contamination, a reliable chain-of-custody, and produced, through gas chromatography/mass spectrometry, a reliable, scientifically-accepted measure of the concentration of Cocaine metabolite in the body. The laboratory standards and practices observed in conjunction with the collection, preservation, shipment, handling and analysis of Ms. Valderrama's urine specimen, for the purpose of testing for drugs, were in conformance with the applicable provisions of Florida Administrative Code Chapter 59A-24 and consistent with the requirements for reliability and integrity of the testing process pursuant to Florida Administrative Code Rule 11B-27.00225. Cocaine is rapidly metabolized by the body and can be usually detected for two to three days after ingestion. Because the minimum detection level for Cocaine is 150 nanograms per milliliter and Ms. Valderrama's test results showed a level of 2046 nanograms per milliliter, it was Dr. Portnoy's expert opinion that the tests results were indicative of ingestion of Cocaine. Dr. Portnoy's opinion is credited. Ms. Valderrama had drunk some herbal tea prior to giving her urine sample. She feels that the ingestion of the herbal tea could have resulted in the positive test for Cocaine. There was no expert testimony to establish that the ingestion of the herbal tea would result in the positive drug test. Additionally, based on Dr. Portnoy's credible expert opinion, the metabolite detected in Ms. Valderama's urine could only result from Cocaine. Cocaine is listed as a Schedule II controlled substance in Chapter 893, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Vivian Valderrama violated Subsections 943.13(7) and 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(d), and revoking her certification. DONE AND ENTERED this 9th day of December, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 9th day of December, 2008.
The Issue Whether Respondent, a non-instructional employee of Alachua County School Board (School Board), should be dismissed for the reasons stated in the notification letter of November 5, 1998.
Findings Of Fact Petitioner is the governing body of the School District of Alachua County, Florida. It operates 43 public schools and centers in Alachua County and employs approximately 4,000 persons. At all times material, Respondent was employed by Petitioner in the position of maintenance helper. He is a member of Petitioner's career service bargaining unit. Petitioner has a "drug free workplace policy" which is part of the collective bargaining agreement with a non- instructional bargaining unit. The policy was implemented in June 1993. Before that time, Petitioner gave notice to its employees of the drug-free workplace policy. Petitioner's drug-free workplace policy requires that, as a condition of continued employment, employees submit to drug screening when there is reasonable suspicion of substance abuse. Following a positive drug screening, the employee is given an opportunity to participate in a treatment program. The policy also provides that, after completion of the treatment program, the employee may return to work, but if there is a second positive drug test, the employee may be disciplined up to and including termination of employment. Petitioner's Human Resources Division has attempted to be consistent in administering the drug-free workplace policy. Any employee having a second positive drug test has been recommended for termination. Pertinent to this case, Petitioner's drug-free workplace policy provides: It is the intent of the Board to provide a drug-free Workplace. Drug-Free Workplace Guidelines The purpose of these guidelines is to comply with the Drug-Free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. When a reasonable suspicion exists, the Director of Employee Relations shall be contacted. The employee, if a member of a bargaining unit, shall be afforded the opportunity to have ACEA representation. The employee will be provided an opportunity to explain his/her condition. The employee will be provided with information regarding available drug counseling, rehabilitation, assistance program, and leave options. A rehabilitation contract including drug testing may be agreed upon. Failure to participate in a treatment program following a positive drug screening will result in disciplinary action, up to and including termination. Due process will be followed. * * * 12. Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four (24) hour notification. Any employee who refuses the drug test or subsequently tests positive may be disciplined up to and including termination. (Emphasis supplied) Respondent's drug test reported on September 2, 1998, was positive for cannabinoids-THS and cocaine metabolites. Respondent entered into a rehabilitation contract with Petitioner on September 3, 1998. Respondent's entry into a rehabilitation program was not "voluntary," in that Respondent was required to enter a rehabilitation program in order to retain his public employment. The contract Respondent signed provided, in pertinent part, as follows. 2. Following release from the rehabilitation clinic/counselor and for a period of one year from that release, the employee agrees to random breath analysis or blood alcohol test upon notification and/or urine analysis within 24 hours of notification from the Director of Employee Relations. Positive results indicating alcohol and/or illegal mind-altering substances, following the initiation of this contract, is prima facie evidence of violation of this contract. I understand that failure to comply with the terms of this contract may result in termination of my employment with the School Board of Alachua County. (Emphasis supplied) In order to enter the agreed residential drug treatment program, Respondent twice applied for leave, which Petitioner granted. The last date that his leave would run out was October 30, 1998. Ms. Pamela Love-Knerr conducted an initial evaluation/screening of Respondent in September 1998, in preparation for his admission to the residential treatment program at Bridge House, a residential treatment program operated by Meridian Behavioral Health Care, Inc. She was a counselor at Bridge House until November 1998. However, she did not conduct group sessions at Bridge House after January 1998, when, due to her health problems, she was assigned to the night shift. In August 1998, she was assigned to the evening shift. Respondent entered the Sid Martin Bridge House on October 2, 1998, and was discharged or transferred from the residential program on Friday, October 23, 1998. Also on Friday October 23, 1998, Respondent telephoned the office of Catherine L. Birdsong, Petitioner's personnel supervisor, and her secretary made him an appointment to see Ms. Birdsong the following Monday about returning to work. On October 23, 1998, Respondent's Bridge House counselor of record was Larry Faulkner, not Ms. Love-Knerr. However, since the time of her initial evaluation/screening of Respondent, Ms. Love-Knerr had been the only counselor at Bridge House who maintained regular contact with Ms. Birdsong. On October 23, 1998, Ms. Birdsong believed that Ms. Love-Knerr was the counselor assigned to Respondent. While at Bridge House, Respondent had attended therapy meetings every day, and his urine tests had been drug-free. On October 18, 1998, Respondent and his counselor, Larry Faulkner, had agreed upon an "after care" program, to begin on November 1, 1998, consisting of a schedule of meetings of a men's group, an anger management group, Narcotics Anonymous, and Alcoholics Anonymous. It was planned that Respondent would not return to work until a week or two had passed, so that he could "get [himself] together." The period from October 23, 1998, to November 1, 1998, was intended by Respondent and his counselor, Larry Faulkner, as an interim between residential treatment and "after care." Normally, a client of Bridge House would participate in an "after care" program even after he returned to work. On October 23, 1998, after learning that Respondent wanted to return to work, Ms. Birdsong telephoned Bridge House and spoke to Pamela Love-Knerr. Ms. Love-Knerr told Ms. Birdsong that Respondent had completed the Bridge House residential program; that she was recommending an "after care" program for him; and that she was releasing him for work. Mr. Faulkner may not have been aware that Ms. Love- Knerr and Ms. Birdsong had spoken by telephone on October 23, 1998. Ms. Love-Knerr shared office space with Mr. Faulkner at that time, and because Bridge House was under-staffed, Ms. Love- Knerr was assisting him in getting caught up on his paperwork. Ms. Birdsong considered the written continuing care contract for Respondent, together with her October 23, 1998, telephone conversation with Ms. Love-Knerr, and determined that Respondent had completed the residential part of his rehabilitation; that he was in or would be in a "after care" program; and that he would be able to return to work immediately. Petitioner's decision to return an employee to work is normally made by the Petitioner's District Drug Free Workplace Coordinator after discussing it with the returning employee's drug/alcohol counselor. On Monday, October 26, 1998, at approximately 9:00 a.m., Respondent met, in person, with Ms. Birdsong at her office. They discussed his impressions of the Bridge House program and his desire to return to work. Because his leave was only approved through the end of that work-week, October 30, 1998, it was arranged, through a speaker-phone conversation with Respondent's immediate supervisor, that Respondent would return to work on Monday, November 2, 1998. Ms. Birdsong then sent Respondent for a follow-up drug test for return to duty. Ms. Birdsong informed Respondent that he should report for a drug test by 10:00 a.m., that morning, October 26, 1998. It is Petitioner's normal practice to require employees who are returning from a rehabilitation program to take a drug test prior to returning to work. Respondent went to Doctor's Laboratory of Gainesville as instructed, and provided a urine specimen for drug testing at 10:00 a.m. on October 26, 1998. Respondent's specimen was transported by courier to Doctor's Laboratory in Valdosta, Georgia, where it was tested and confirmed positive for cocaine metabolites as benzozlecgonine. Doctor's Laboratory reported the test result to MRO Services, Inc., in Brunswick, Georgia. After a review of the test results and a telephone consultation with Respondent, the Medical Review Officer, Robert H. Miller, M.D., reported to Petitioner that Respondent's drug test was positive for cocaine metabolites.1 On November 2, 1998, Respondent met again with Ms. Birdsong. She explained to him that because of the positive result of his October 26, 1998, drug test, he might be recommended for termination. She gave him written notice to schedule a pre-termination conference within five days. On November 5, 1998, Respondent and his mother met with Synester P. Jones, Petitioner's Assistant Superintendent for Human Resources, in a pre-termination conference. Ms. Jones explained the procedure for drug testing. She also informed Respondent in writing that, based on his second positive drug test, she would recommend suspension and termination. At its regular meeting on November 17, 1998, Petitioner School Board suspended Respondent without pay, effective November 18, 1998, pending disposition of the instant proceeding.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Alachua County School Board enter a final order terminating Respondent for violating its drug-free workplace policy and his rehabilitation contract. DONE AND ENTERED this 3rd day of August, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1999.
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.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is charged under Chapter 39, Florida Statutes, to conduct background screenings on individuals employed by any of its providers of delinquency services or programs who are working with juvenile offenders in positions of special trust. The purpose of the background screening is to determine if the individual has committed an offense which would disqualify the individual from working in positions of special trust with juvenile offenders. Petitioner was employed by the Lakeland Marine Institute (LMI) on May 24, 1994, as a counselor. LMI is a step-down program for juvenile offenders being released from boot camps and detention centers. A large percentage of the juveniles coming through LMI are convicted of drug offenses. During 1994, LMI was providing delinquency service and programs for the Department of Health and Rehabilitative Services (HRS) in connection with juvenile offenders who came through its facility and, as such, was an HRS provider. Because Petitioner was working in a position of special trust with juvenile offenders at LMI he was required to undergo background screening. Petitioner's fingerprints were taken on May 24, 1994, and submitted to HRS for processing. It is not clear from the record if HRS conducted a background screening on Petitioner. In any event, HRS did not provide LMI with any results from Petitioner's background screening. Chapter 94-209, Laws of Florida, transferred certain responsibilities concerning juvenile offenders from HRS to the Department of Juvenile Justice, a newly-created department. On January 1, 1995, the Department began background screenings on all of its providers' employees who were working in positions of special trust with juvenile offenders on January 1, 1995. On June 1, 1995, LMI submitted to the Department a Request for Preliminary FCIC/NCIC and DHSMV Screening Check and a Request for Preliminary FAHIS Screening Check on Petitioner. As part of the screening process, Petitioner signed and filed with the Department an Affidavit of Good Moral Character. His signature on this standard form affidavit indicates that Petitioner had not been convicted of any drug offenses under Chapter 893, Florida Statutes. However, it does not appear that Petitioner was attempting to conceal his convictions because at the same time he disclosed those convictions in his application for employment. The FAHIS Screening Check was negative, in that no abuse history was found. Likewise, the results of the DHSMV Screening Check indicated that Petitioner's record was clear. Preliminary FCIC/NCIC Screening Check indicated that Petitioner had been convicted of possessing cocaine with intent to sell and the sale of cocaine, a second degree felony and a disqualifying offense. The screening check was rated as Unfavorable/Disqualifying. Petitioner's criminal record revealed that Petitioner had committed the following offenses: Possession of cocaine with intent to sell - March 28, 1991. Sale of Cocaine - March 28, 1991. Both of these offenses were in violation of Section 893.13, Florida Statutes, a second degree felony and a disqualifying offense under Section 39.076(3)(y), Florida Statutes. Possession of cocaine with intent to sell - January 7, 1993. Sale of cocaine - January 7, 1993. Both of these offenses were in violation of Section 893.13, Florida Statutes, a second degree felony and a disqualifying offense under Section 39.076(3)(y), Florida Statutes. Possession of cocaine with intent to sell - February 18, 1993. Sale of cocaine - February 18, 1993, Both of these offenses were in violation of Section 893.13, Florida Statutes, a second degree felony and a disqualifying offense under Section 39.076(3)(y), Florida Statutes. Originally, Petitioner was placed on probation for the offenses committed on March 28, 1991 However, when Petitioner committed the above listed offenses in 1993, probation was revoked. On June 10, 1993, Petitioner pled nolo contendere to all of the above offenses. Petitioner was adjudicated guilty on all counts and sentenced to a term of seven years on each count listed with each sentence to run concurrently with the other sentences. Additionally, Petitioner was placed on seven years probation on each count listed above with each term of probation to run concurrently with the other terms of probation. However, the terms of probation were to run consecutively to the sentences imposed. Petitioner freely admits that he was on drugs for a period of time before his incarceration in 1993, and that the offenses were committed for the purpose of paying for his drug habit and not as a means of making money. The offenses committed by Petitioner in 1991, were his first brush with the law, and at that time Petitioner was 38 years of age. Although the March 28, 1991, offenses involved the sale of cocaine within a 1000 feet of the Fort Meade Middle School, there is no evidence that Petitioner ever sold, or attempted to sell, illegal drugs to a minor. Petitioner served his time at Hardee Correctional Institution and Madison Correctional Institution. From the record it appears that Petitioner was eligible for early release and was released by the Department of Corrections (DOC) on February 8, 1994, and placed on probation. Petitioner began his rehabilitation while still incarcerated by DOC by participating in the DOC Drug Abuse Program and Prison Fellowship. Petitioner has continued his rehabilitation since being released from prison through his work at LMI, the church and the community. Since his release from prison, and during his tenure with LMI, approximately 15 months, Petitioner has gained the respect and support of his fellow workers and supervisors at LMI. Also, during his tenure with LMI, Petitioner has gained the respect and support of Department employees with whom he came in contact as a result of his work with juvenile offenders at LMI. Petitioner has complied with all conditions of his probation, including random drug testing with all reports showing negative results, and has shown a positive attitude toward community supervision while on probation. Since being placed on probation, Petitioner has gained the support and respect of the Correctional Probation Officers who handle his case. Since his release, Petitioner has not associated with the criminal element with whom he had association before his conviction. Since his release, Petitioner has gained the respect and support of the community of Fort Meade, specifically the religious and school community, for his work with children. During his tenure with LMI, Petitioner worked closely with children. Petitioner has counseled children and their parents without any problems. There is competent substantial evidence to establish facts to show that Petitioner has rehabilitated himself such that he will not present a danger to the safety or well being of children and that he is of good moral character so as to justify an exemption from disqualification, notwithstanding Petitioner's age when he committed the offenses or that the offenses are close in time to the request for exemption or that he has only served approximately two years and two months of a seven year probation and is still under supervised probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice enter a final order granting Petitioner's request for an exemption from disqualification from employment in a position of special trust. RECOMMENDED this 23rd day of April, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, 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 April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5330J The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner and the Department in this case. Petitioner's Proposed Findings of Fact. Petitioner's proposed findings of fact 1 through 9 are set forth more as argument than findings of fact. However, where a proposed finding of fact can be gleaned from the argument it has adopted in Findings of Fact 1 through 22, with the exception of Petitioner's argument in proposed findings of fact 1, 2, 5 and 6 that his background screening with HRS had been completed by HRS and was favorable but was being disregarded by the Department. There is no evidence that HRS completed this screening or that the Department had any knowledge of any results of such screening. Department's Proposed Findings of Fact. Proposed findings of fact 1 through 12 are adopted in substance as modified in Findings of Fact 1 through 22. Proposed findings of fact 13-15 are covered in the Preliminary Statement. COPIES FURNISHED: Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Phillip White, Pro se 1370 North Charleston Fort Meade, Florida 33841 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011)1/ and Florida Administrative Code Rule 11B- 27.0011(4)(d), and if so, what penalty should be imposed?
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Ms. Lorrie Gerdon was certified as a Correctional Officer in the State of Florida by the Commission on June 8, 2009, and issued Correctional Certification #284320. Ms. Gerdon was employed by the Florida Department of Corrections from October 17, 2008, to January 19, 2011. Although originally employed as a Correctional Officer, Ms. Gerdon took a step down in assignment to a Clerk Typist due to a back injury sometime early in 2010. It was too hard for her to continue to wear all of the equipment that Correctional Officers must wear. She is still receiving payments from workers’ compensation and is under treatment for her back injuries. Lieutenant Georgiana Hand is employed at the Apalachee Correctional Institute in Sneads, Florida, where she has worked since about 1988. It is Lt. Hand’s responsibility to supervise the Corrections Officers, listen to Disciplinary Reports, and fill in for the shift supervisors when one of them is on leave. On January 14, 2011, Lt. Hand was the Officer in Charge, fulfilling the duties of a Shift Supervisor, insuring that Officers were posted at their assigned locations. Ms. Gerdon was assigned to a non-sworn position as a Clerk Typist in the Classifications Department. As Lt. Hand was posting the shift, Ms. Gerdon stated, “Me and Jarvis will go work for you in P-Dorm.” (Officer Jarvis was a Classification Officer.) Lt. Hand thought that this was an odd comment because P-Dorm had been closed down for a couple of years. Lt. Hand asked Ms. Gerdon to repeat what she said. Ms. Gerdon again volunteered to work with Officer Jarvis in P-Dorm. Lt. Hand observed that Ms. Gerdon was “real jovial” and that her speech was slurred. Ms. Gerdon’s eyes appeared to be glassy. Ms. Gerdon’s appearance and behavior concerned Lt. Hand. Ms. Gerdon was not behaving normally and Lt. Hand thought Ms. Gerdon might be on medication or “something else.” Lt. Hand notified Assistant Warden Tommy Barfield. Shortly after, Lt. Hand was asked to report to the Warden’s Office. When Warden John Palmer received the reports about Ms. Gerdon’s unusual behavior, he had asked to talk to her so that he could observe her appearance and behaviors himself. Warden Palmer has been employed in various capacities in the corrections system for over 20 years, and based upon his training and experience is able to determine whether or not there is reasonable suspicion that someone is under the influence of a controlled substance. Warden Palmer testified that he observed that Ms. Gerdon had “glassed over” eyes and slurred speech. The Warden reasonably concluded that she was under the influence of some type of substance. Lt. Hand was present in Warden John Palmer’s office as he questioned Ms. Gerdon about what was going on. Lt. Hand recalled that Ms. Gerdon was upset and crying. Lt. Hand remembered that after Warden Palmer told Ms. Gerdon that he was going to send her for a reasonable suspicion drug test, Ms. Gerdon told the Warden that she knew she would test positive and that her son had put drugs in her coffee. Warden Palmer also testified that Ms. Gerdon had told him that she had tested herself previously and had tested positive for marijuana. She told the Warden that her son had “poisoned” her coffee with marijuana. As a result of the behavioral and physical changes noted in Ms. Gerdon, on January 14, 2011, Regional Director R. Bryant approved an order requiring Ms. Gerdon to submit to a Reasonable Suspicion Drug Test. Ms. Gerdon, in compliance with the order issued to her by her employer, the Florida Department of Corrections, reported to the Marianna Family Care Center in Marianna, Florida, on January 14, 2011, at approximately 8:45 a.m., and gave a specimen of her urine, by urinating in a sterile, previously unused specimen cup provided to her by personnel at the Marianna Family Care Center. After Ms. Gerdon urinated into the specimen cup provided to her, she delivered the cup containing her urine specimen to a Marianna Family Care Center employee who immediately capped and sealed the specimen container, assigned the specimen ID# 0288508894, and labeled it in a manner making it uniquely identifiable as Ms. Gerdon’s January 14, 2011, urine sample. Ms. April Sadousky is employed as a Medical Assistant in the Marianna Family Care Center and in the office of Dr. Rodriguez, where she is responsible for operating the laboratory and conducting drug screenings. After having Ms. Gerdon sign the chain of custody form indicating that she had provided the specimen, Ms. Sadousky placed the urine sample in a bag, sealed that bag, and placed it in the refrigerated LabCorp drawer, where it was picked up that day by LabCorp personnel. Specimen ID# 0288508894 was received in LabCorp’s accession laboratory by Ms. Catherine Hess, who took the paperwork and the specimen out of the sealed chain-of-custody bag. No one had tampered with or altered the specimen since it was initially collected, as evidenced by the intact seals and the chain-of-custody records. Ms. Phyllis Chandler is a Responsible Person and Lab Manager who works in the Occupational Testing Division of LabCorp. LabCorp holds a Florida Laboratory Permit with Certificate number 052, which was in effect in January of 2011. LabCorp is also licensed by SAMHSA, the Substance Abuse and Mental Health Services Administration. LabCorp participates in proficiency testing of samples with known concentrations submitted by regulatory agencies to insure accurate testing. LabCorp conducts initial testing of urine samples by immunoassay, and confirmation testing by “GC-MS” or gas chromatography-mass spectrometry. It is the regular practice of LabCorp to make reports of the results of its testing. A marijuana metabolite is produced by the body of a person who consumes marijuana either by ingestion or by smoking it. The marijuana is absorbed into the body and it is broken down by the liver, producing the marijuana metabolite, which is excreted though the kidneys, hair, or saliva. As Dr. Dash testified, the only substance other than marijuana that produces a marijuana metabolite is the prescription medication marketed under the name “Marinol” or its generic equivalent “dronabinol.” These prescription drugs have active tetrahydrocannabinol (THC) in them, as does marijuana. LabCorp conducted immunoassay and confirmation testing on Specimen ID# 0288508894. As is their usual practice, records of the testing on Specimen ID# 0288508894 were made at or near the time of the tests and were made by a person with knowledge of the information that was recorded, as was testified to by Ms. Chandler, who is a custodian of these records. In initial screening, the THC cut-off was 50. Specimen ID# 0288508894 tested at 555. In confirmation testing, Specimen ID# 0288508894 tested at 171 nanograms per milliliter of marijuana metabolites. The confirmation cut-off was 15 nanograms per milliliter. All test batches at LabCorp contain blind controls that are run within the batch to assure that the testing process is accurate. The blind controls within the batch containing Specimen ID# 0288508894 were tested correctly. The drug analysis conducted by LabCorp indicated that urine Specimen ID# 0288508894 contained marijuana metabolites. A secure chain of custody was maintained from the time the urine sample was collected until the test results were produced. The Department of Corrections has contracted with Doctors Review Service to receive test results from the laboratory and to contact the specimen donor on all non-negative results to determine if there is any medical documentation that would explain the test results. Dr. Neil Dash is employed by Doctor Review Services and received the test results from Ms. Gerdon’s sample. After Doctors Review Service obtained the laboratory results on Ms. Gerdon’s sample, Ms. Gerdon called them on January 19, 2011. In response to questioning, Ms. Gerdon did not provide Doctor’s Review Service with information on prescriptions or any medical explanation for the finding reported by the laboratory that her sample contained marijuana metabolites. Dr. Dash prepared a Controlled Substance Test Results report indicating that specimen 0288508894 had tested positive for marijuana metabolites. These results were sent to the Department of Corrections. The drug test was conducted in accordance with sections 112.0455 and 440.102, Florida Statutes, and evidenced the introduction of a controlled substance into Ms. Gerdon’s body. Ms. Gerdon testified that her ex-husband abused her. Ms. Gerdon had three children, two girls and a boy. Her ex- husband would threaten the daughters to control Ms. Gerdon. He would not allow her to be around her parents, except when they came over to see her at the house. If she left the house, he would destroy something. Several walls and doors were damaged by her ex-husband. Ms. Gerdon’s son has been diagnosed as manic bipolar through the North Florida Therapy Center. Ms. Gerdon was experiencing a high level of domestic stress at the time of the incident. Ms. Gerdon testified that she had numerous medical problems and was on the following prescriptions at the time of the January 14, 2011, incident: Seroquel, Buspar, Cymbalta, Zoloft, Triazadone, Synthroid, Hydrocodone, Topomax, Fioricet, Nexium, Peridium, Macrodanton, Flomax, Cipro, Indocin, Skelaxin, Zofran, Medrol, Klonopin, Rstrace, Levothroxine, Atarax, Ativan, Reglan, Effexor, and Prozac. Ms. Gerdon testified that she took these medications for anxiety and depression, and that she has a thyroid disease, a kidney disease, and suffers from cluster migraine headaches. She testified that now she is down to only three or four of these medications since she is no longer in an abusive relationship. The drug Fioricet is a prescription medication that contains butalbital, often prescribed to treat migraine headaches. Butalbital is a barbiturate. Ms. Gerdon testified that she takes the Fioricet every day for migraine headaches. Ms. Gerdon testified that prior to the incident of January 14, 2011, with the help of her parents, who own the house, Ms. Gerdon was repairing walls and doors that had been destroyed by her abusive husband. Ms. Gerdon testified that her mother was making coffee and noticed that something was wrong with the coffee: . . . when my mother had noticed that there was something weird about it, she called me and I said, I’m not quite sure what that is, I said, I believe that that is marijuana, and I actually went down and I did get a test, I got a home test. It tested me for marijuana, it tested me for barbiturate and I flipped out. Ms. Gerdon testified that she had not noticed anything before, because “90 percent of the time” she did not even turn on the lights when she scooped out her coffee. Ms. Gerdon testified that she went over her list of medications and was confused about why she tested positive for marijuana. None of the drugs that Ms. Gerdon testified she was taking at the time of the incident would have resulted in a positive test for marijuana metabolites. Ms. Gerdon has been tested almost every other month since the January 14, 2011, incident, and she has not had any test that was positive for marijuana. She testified that she also has not tested positive for barbiturates, although it is not clear why her use of Fioricet would not result in a positive test. Ms. Gerdon was under the influence of marijuana on the morning of January 14, 2011, as evidenced by her physical symptoms, her statement that she knew she would test positive for marijuana, and her drug test results. As both Dr. Dash and Ms. Chandler testified in response to Ms. Gerdon’s questions, it would be possible for persons to ingest marijuana without knowing that they were doing so. It was not clear why LabCorp’s testing of the January 14, 2011, urine sample would not have tested positive for barbiturates as a result of the Fioricet. Dr. Dash testified that if a person was taking Fioricet it would show up in the drug testing if the test was screening for barbiturates and the amount taken exceeded the cut-off set at the laboratory. He did not know what cut-off amount was set by the laboratory. Ms. Gerdon’s ex-husband was incarcerated shortly after their divorce was final. Her son is also now incarcerated. Stress on Ms. Gerdon was reduced after she divorced her husband. Ms. Gerdon is no longer taking many of the medications she was taking earlier. Ms. Gerdon unlawfully injected, ingested, inhaled, or otherwise introduced marijuana into her body. Ms. Gerdon has failed to maintain good moral character. The position of Correctional Officer is one of great public trust. No evidence of any prior disciplinary history was introduced for Ms. Gerdon.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Lorrie Gerdon 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 two years, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random or scheduled drug testing and substance abuse counseling, as provided for in Florida Administrative Code Rule 11B- 27.005(7)(c). DONE AND ENTERED this 28th day of December, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 28th day of December, 2012.
The Issue The issue to be determined is whether Respondent violated section 1012.795(1)(d),(g), or (j), Florida Statutes (2012), or Florida Administrative Code Rule 6A-10.081(5)(a). If any violations are found, it must be determined what penalty should be imposed for the violation(s).
Findings Of Fact Respondent holds State of Florida Educator?s Certificate number 944511, valid through June 30, 2014, authorizing her to provide instruction in both elementary education and exceptional student education. Respondent is also licensed as a nurse by the State of Florida, although her license number was not introduced into evidence. Respondent has resided in Pensacola, Florida, for approximately six years. Respondent has never taught school full-time. Between December 2011 and August 2013, Respondent was a substitute teacher at the United Cerebral Palsy “Capstone Academy” in Pensacola, a pre-kindergarten program where she worked with special needs children. During that same time frame, Respondent also substituted at various schools in the Escambia County School District. From approximately March 2013 through the present day, Respondent was also employed PRN (i.e., “as needed”) as a nurse with Consulate Health Care. In January 2012, Respondent began working as a substitute teacher at Lincoln Park Elementary School (Lincoln Park) in the Escambia County School District. In February 2012, Respondent was offered a position as a Long-Term Substitute (LTS) teacher with Lincoln Park.1/ On March 5, 2012, while working at Lincoln Park, Respondent was notified that she must submit to a pre-employment drug screening.2/ Respondent testified that she went to the lab for the drug screening the same day she was informed of the requirement while at work. Respondent?s urine specimen was collected at 3:15 p.m. on March 5, 2012, at LabCorp Patient Service Center, 3437 North 12th Avenue, Pensacola. Respondent?s urine tested positive for amphetamines. On March 13, 2012, Lincoln Park Principal Christine Nixon notified Petitioner that her urine test was positive, that she needed to report to the Escambia School District Office, and that Petitioner would not be allowed to return to Lincoln Park until Petitioner heard further from Human Resources (HR). Respondent reported to the District HR office at approximately 2:55 p.m. on March 13, 2012. At the HR reception counter, Respondent requested to speak with someone regarding her drug test results. Dr. Kylie Henderson, Confidential Human Resources Administrative Specialist, invited Respondent into her office, and informed her that both Dr. Keith Leonard, Director of Human Resources, and Mr. Kevin Windham, Director of Risk Management, were unavailable. Dr. Henderson offered to take Respondent?s information and leave a message for Dr. Leonard to contact Respondent. Respondent?s meeting with Dr. Henderson was brief, but Dr. Henderson clarified for Respondent that she could not return to Lincoln Park until she received clearance from either HR or Risk Management. Respondent did not receive a call from Dr. Leonard or anyone else from either HR or Risk Management on either March 13 or 14, 2012. Respondent was anxious to speak with someone regarding her drug screen results. Respondent contacted HR again on March 14, 2012, and spoke briefly with Dr. Scott, Assistant Superintendent for HR Services. Dr. Scott referred Respondent to Mr. Windham. Respondent was transferred to Mr. Windham?s voicemail, where she left a message. Respondent did not receive a return call from Mr. Windham. On March 15, 2012, Respondent sent an email to Mr. Malcolm Thomas, Superintendent of Escambia County Schools, complaining that his staff was not returning her calls and requesting a call from someone with his office. On March 16, 2012, Dr. Scott answered Respondent?s email on behalf of Mr. Thomas. He explained that unless Respondent produced a prescription for the medication for which she tested positive, or successfully contested the urine screen test, the School District would have to treat it as a positive result and withdraw the employment offer.3/ By letter dated March 15, 2012, from Bill Threadgill, Coordinator of Human Resources Management, Respondent was notified that based upon the results of her pre-employment drug screen she was not eligible for employment with Escambia County Schools.4/ Education Practices Commission On or about April 13, 2012, the Escambia County School District reported Respondent to the Department of Education (DOE), Professional Practices Services, which prompted the instant action against Respondent?s Educator Certificate. Respondent responded to the allegations of misconduct brought by Professional Practices Services in a letter dated April 21, 2013, to Ms. Lambeth, Chief of Professional Practices Services for DOE?s Bureau of Professional Practice. On May 15, 2013, Respondent filed an Election of Rights requesting a formal hearing. Meeting with Dr. Henderson The dispute in this case centers on statements Respondent made during her meeting with Dr. Henderson on March 13, 2012, at the Escambia District HR Office. Dr. Henderson took notes during the brief meeting with Respondent in order to pass on to Dr. Leonard an accurate account of Respondent?s request for a meeting with him. On a message pad, Dr. Henderson noted that Respondent had come to see Dr. Leonard at the direction of Lincoln Park Principal Nixon following the results of her positive drug screen. The message asks Dr. Leonard to call Respondent to give her further direction. After Respondent left her office, Dr. Henderson made a written account of the meeting. Dr. Henderson felt documentation was necessary as Respondent?s behavior was indicative of someone under the influence of a substance. In her written statement, which was corroborated by her testimony at final hearing, Dr. Henderson described Respondent as “extremely jittery and agitated” and noted that Respondent continually shifted in her seat, spoke very rapidly, stuttered and stammered, and repeatedly picked up and replaced her purse on the floor beside her. Dr. Henderson recounted that Respondent explained she knew what drug she had tested positive for, and that she took her son?s Adderall “every now and then” for weight loss, “to keep from eating.” At final hearing, Respondent admitted telling Dr. Henderson that she knew the identity of the drug for which she tested positive. However, Respondent denied that she identified the drug as Adderall or that she took the drug intentionally. Respondent further takes issue with Dr. Henderson?s account of her behavior, denying that she was jittery or agitated, that she spoke rapidly, shifted in her seat, or repeatedly moved her purse. Credibility Respondent?s testimony that she did not identify the drug to Dr. Henderson is undermined in several ways. First, in Respondent?s letter to Ms. Lambeth, Respondent stated that she had admitted “to the District” that she took one of her son?s Adderall. At hearing, Respondent authenticated the letter and the signature as her own. In her Election of Rights, Respondent stated: “The Petitioner states on pg.2(5) that I admitted to the district?s official that I told her that I took the Adderall. I told her that I took it by mistake on that day, and I reiterated it on the 21st of April when I addressed the office of professional practices services.” Respondent?s own testimony at final hearing conflicted on this point. On cross-examination, after repeatedly testifying that she did not recall telling Dr. Henderson the name of the medication she had taken, she testified as follows: Q. That?s what you said under oath in your direct testimony sitting in that chair. You didn?t say what the drug was. You said, took one of my son?s medications, right? A. Yes, I said that. Q. You didn?t identify to her, accidentally to my son?s Adderall? A. Yes, I did. I did identify that to her.[5/] Further, when Respondent was deposed on September 4, 2013, she denied having taken Adderall at all during the time she worked at Lincoln Park.6/ Dr. Henderson?s testimony that Respondent identified Adderall as the drug for which she tested positive during her meeting with Respondent on March 13, 2012, is accepted as credible and reliable. Respondent?s position, at final hearing, is that she took her son?s Adderall by mistake and that it was a one-time occurrence. She flatly denied that she has ever taken Adderall to curb her appetite or assist in weight loss. Respondent represented on many occasions that she took the Adderall by mistake: in her March 15, 2012, email to Superintendent Thomas when expressing her frustration with lack of response from his staff; in her March 16, 2012, email to Mr. Windham explaining that a split screen test would have the same results as her first urine screening; in her letter to Ms. Lambeth, dated April 21, 2012, in response to the Commission?s allegations of misconduct; in her Election of Rights dated May 13, 2013; and throughout her testimony at final hearing. Incredulously, at final hearing Respondent made no effort to explain how she took the Adderall by mistake. Respondent was clearly incensed by the lack of communication from HR following her meeting with Dr. Henderson. She repeatedly stated that she just wanted a chance to explain herself and that she thought she would have a chance to “clear up” the mistake. However, when presented with an evidentiary hearing of her choosing, and the opportunity to present the facts as she wanted them found, she made no effort to explain the mistake. She did not offer any facts about where the Adderall was kept in relation to any medication she might have been taking, the time of day to be administered, or any other details to explain the “mistaken” ingestion of Adderall. In fact, Respondent testified that her son, who did live with her in February and March 2012, was not even on any prescription medications at the time. Specifically, she testified, “My son is not even on Adderall. He was on that a long time. And I was keeping them in case I thought he had to go back on the medication.”7/ Respondent?s testimony that she was simply keeping the medication for her son does not support her theory that she took the Adderall by mistake. More importantly, Dr. Henderson testified credibly that Respondent did not mention to her during the meeting with Respondent on March 13, 2012, anything about taking Adderall by mistake. Dr. Henderson?s testimony and written statement were clear that Respondent told her she took the Adderall intentionally, and does so occasionally to lose weight and control her appetite. Dr. Henderson?s testimony is accepted as credible and reliable. Respondent accuses Dr. Henderson of fabricating her written account of her meeting with Respondent on March 13, 2012. No evidence was introduced to support that accusation. Dr. Henderson had never met, seen, or spoken to Respondent prior to the meeting at HR on March 13, 2012. Dr. Henderson had no information from any source regarding Respondent prior to March 13, 2012, when Respondent presented at HR to discuss her test results with someone. Respondent offered no explanation for why Dr. Henderson would fabricate her written account of their meeting. In short, there was no evidence of a motive for Dr. Henderson to make up the facts in her written statement. Respondent argues that her theory that Dr. Henderson fabricated the account is supported by the fact that Dr. Henderson?s written message to Dr. Leonard is so short and includes none of the details about her behavior or the name of the medication taken. Respondent alleges that had Respondent admitted to abusing prescription medications and behaved erratically in her presence, Dr. Henderson would have included those details in the message to Dr. Leonard. Respondent?s theory is not supported by any evidence. The message to Dr. Leonard was taken on a form message pad which includes space for identification of the caller or visitor, their phone number, and the reason for their call, followed by a series of boxes from which the message-taker may choose, such as “telephoned,” “returned your call,” “came to see you,” and “will call again.” The form includes only the briefest of lines for a message to the recipient. In the limited space provided for a message, Dr. Henderson wrote “Urine test 2 weeks ago came back positive. She was contacted by the lab and her principal sent her to HR. Can?t return to LPES until cleared. Needs to know what to do.” The message does not include details about Respondent?s behavior or statements concerning the drug for which she tested positive. Contrary to Respondent?s argument, the undersigned does not infer from the facts that Dr. Henderson fabricated the more detailed statements concerning Respondent made shortly after the meeting concluded. Ultimate Facts Petitioner proved by clear and convincing evidence that on March 5, 2012, Respondent tested positive for amphetamines, a controlled substance for which she did not have a prescription. In the heat of the moment when faced with her positive test results, Respondent admitted to Dr. Henderson that the medication belonged to her son, that she took the medication intentionally, and that she does so occasionally. Subsequent to her admission, Respondent misrepresented the facts to the School District, the State Education Practices Commission investigator, and while under oath in deposition and in this forum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated section 102.795(1)(g) and (j), as well as rule 6A-10.081(5)(a), as alleged in the Administrative Complaint. It is further recommended that the Education Practices Commission suspend Respondent?s certificate for a period of 12 months; and upon employment in any public or private position requiring an educator?s certificate, place her on probation for a period of two years on such terms as the Commission deems advisable. DONE AND ENTERED this 2nd day of December, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 2nd day of December, 2013.
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 The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner are correct and, if so, what penalty should be imposed against the Respondent.
Findings Of Fact Since July 1993, and at all times material to this case, the Respondent has been licensed as a registered nurse holding Florida license number RN-2711762. On April 27, 1999, the Respondent was employed as a nurse by "Qwest, Inc." On April 27, 1999, the Respondent submitted to an employer-ordered drug screening at her workplace. The drug screen was conducted by use of a urine sample collected by Kenneth Stanley. Mr. Stanley owns and operates a business that specializes in collection of urine samples for purposes of drug screens. Mr. Stanley utilized the sample collection guidelines adopted by the "Florida Drug Free Workplace" program and the Florida Department of Transportation. Upon arriving at "Qwest, Inc." Mr. Stanley secured the rest room where the urine samples would be taken by placing blue dye in the toilet water and covering the faucet with a surgical glove secured with tape. Apparently, the purpose of the process is to prohibit the contamination of a urine sample by dilution. Mr. Stanley set up a table in the area outside the rest room to permit the processing of the samples and the completion of paperwork. Mr. Stanley called the Respondent into the area and verified her identification. He began to complete paperwork identifying the Respondent. Mr. Stanley removed a plastic cup from a sealed package that was opened for use in obtaining the sample from her. He provided the cup to her and asked her to enter the rest room, fill the cup to the proper level, set the cup on the sink counter, and then exit the rest room without washing her hands or flushing the toilet. Mr. Stanley retrieved the cup immediately after the Respondent notified him that she had completed the process and brought it back to his table. He placed the sample into a sealed tube and completed the paperwork identifying the sample as having been provided by the Respondent. The protocol utilized by Mr. Stanley requires the sample-provider to remain in the room until all paperwork is completed and the sample is properly sealed and packaged for shipment. The Respondent asserts that she left the room after providing the sample to Mr. Stanley and that Mr. Stanley failed to maintain appropriate security for her sample, permitting it to be contaminated by another employee. The evidence establishes that the Respondent remained in the area and was in the presence of the sample at all times during the collection, sealing and identification process. The Respondent was present when her sample was identified, processed, and packaged for shipment. There is no credible evidence that another employee of "Qwest, Inc." contaminated the Respondent's urine sample or that Mr. Stanley failed to maintain the proper identification of the Respondent's sample from the point of collection through the point of shipment. Mr. Stanley shipped the Respondent's sealed urine sample to Clinical Reference Laboratory (CRL) in Lenexa, Kansas. The sealed sample was received and processed by CRL, which similarly receives and processes approximately one million samples annually for purposes of drug screen testing. In performing urinalysis drug screen tests, CRL initially performs a preliminary test called an "enzyme immunoassay" on a portion of the sample. If the results of the preliminary test indicate the presence of a substance, CRL tests a second portion of the sample using a gas chromatography mass spectrometer to confirm the results of the first test and to quantify the specific amount of drug present in the urine sample. The enzyme immunoassay performed on the Respondent's urine sample indicated the presence of marijuana metabolites. Marijuana metabolites are a chemical substance contained in the Cannabis plant. Cannabis is a controlled substance pursuant to Chapter 893, Florida Statutes. The gas chromatography mass spectrometer test performed on the Respondent's urine sample confirmed the presence of marijuana metabolites and indicated the specific amount of drug present in the urine sample as 28 nanograms of marijuana metabolites per milliliter of urine. Based on the results of the testing at CRL, the evidence establishes that the Respondent's urine sample taken on April 27, 1999 tested positive for marijuana. There is no evidence that the Respondent had a prescription or a valid medical reason for using marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a Final Order reprimanding the Respondent, imposing a fine of $250 and requiring the completion of an appropriate continuing education course related to substance abuse in health professions. The continuing education course shall be in addition to those continuing education requirements otherwise required for licensure. Further, the Final Order should further require that the Respondent participate in an evaluation by the Intervention Project for Nurses (IPN) within 60 days of the issuance of the Final Order, and comply with the treatment recommendations, if any, made by the IPN, or suffer suspension of licensure until compliance with this requirement is established. DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 29th day of December, 2000. COPIES FURNISHED: William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Elizabeth A. Hathaway, Esquire Reginald D. Dixon, Esquire Agency for Health Care Administration General Counsel's Office 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Annie Scotto Downs 8708 52nd Street North Tampa, Florida 33617
The Issue The issue is whether Respondent's employment with Petitioner as a school bus driver should be terminated because he violated his rehabilitation contract and Petitioner's drug-free workplace policy and guidelines by testing positive for cocaine.
Findings Of Fact Petitioner is a Florida public school district. Respondent was employed by Petitioner as a school bus driver for about ten years and three months prior to his suspension without pay in the summer of 1996. The position of school bus driver is a safety-sensitive position. In June of 1989, Petitioner adopted a drug-free workplace policy. Petitioner directed its superintendent to develop guidelines to implement the policy. In December of 1991, Petitioner adopted Drug-Free Workplace Guidelines, GBCBA-G, which state as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-Free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. Employees in job classification which require an annual physical will be required to submit to a drug screening as part of the annual physical. As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services . . . . The procedures established by the laboratory shall be followed in administering drug tests to employees. * * * Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four hour notification . . . . Random testing of employees shall not be conducted. Respondent signed a notice to all applicants and employees on April 15, 1992, advising him in advance that the drug-free workplace policy would become effective on June 15, 1992. This notice stated as follows: All pre-employment applicants will be drug-tested prior to being hired. All employees who require fitness-of-duty examination will be drug-tested at least once annually. An employee will be drug-tested when reasonable suspicion of substance abuse exists. An employee will be drug-tested following any work-related accident or mishap involving actual or potential injury or property damage. An employee will be drug-tested during any probationary period following a drug- related suspension or approved drug treatment program. Petitioner acknowledged that he received a copy of the drug-free workplace policy and understood the consequences of violating the drug-free workplace guidelines by signing the notice. The notice clearly states that failure to comply with the guidelines could result in termination of employment and forfeiture of eligibility for workers' compensation medical and indemnity benefits. The guidelines for the drug-free workplace policy are a part of Petitioner's Collective Bargaining Agreement with the instructional and non-instructional bargaining units of the Alachua County Education Association (ACEA). The ACEA ratified the policy and guidelines in January of 1993. The Petitioner's drug-free workplace policy and guidelines have been continuously in effect since that time. Article XI, Section 1(B) of the 1995-1996 Collective Bargaining Agreement between Petitioner and the ACEA requires Petitioner to provide school bus drivers with an annual physical as required by the rules of the State Board of Education. Appendix F of the 1995-1996 Collective Bargaining Agreement sets forth the drug-free workplace guidelines. It states as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. * * * Employees in job classifications which require an annual physical will be required to submit to a drug screening as part of the annual physical. * * * As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * When a reasonable suspicion exists, the Director of Employee Relations shall be contacted. The employee, if a member of a bargaining unit, shall be afforded the opportunity to have ACEA representation. The employee will be provided an opportunity to explain his/her condition. The employee will be provided with information regarding available drug counseling, rehabilitation, assistance programs, and leave options. A rehabilitation contract including drug testing may be agreed upon. Failure to participate in a treatment program following a positive drug screening will result in disciplinary action, up to and including termination. Due process will be followed. All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services. The laboratory shall be chosen jointly by ACEA and SBAC if the employee is a member of the bargaining unit. The procedures established by the laboratory shall be followed in administering drug tests to employees. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking assistance. Employees shall be subject to all employer rules, regulations, and job performance standards with the understanding that an employee enrolled in a rehabilitation program is receiving treatment for an illness. Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four (24) hour notification. Any employee who refuses the drug test or subsequently tests positive may be disciplined up to and including termination. Random testing of employees shall not be conducted except as required by state or federal law . . . . On December 13, 1994, Respondent signed the following statement: I have received, read, and understand the training materials on drug and alcohol testing under the U. S. Department of Transportation regulations. In January of 1995, Petitioner began complying with an additional drug testing program pursuant to a federal statute entitled Omnibus Transportation Employee Testing Act (OTETA). Petitioner did not formally adopt a written policy or develop written guidelines to implement the new drug-testing program. Petitioner's Collective Bargaining Agreement with the ACEA does not refer to OTETA or the federal regulations implementing it. Mandatory procedures governing drug testing in transportation workplaces under U. S. Department of Transportation regulations require that drug tests be performed using split samples. A "split specimen collection" consists of one urination followed by the splitting of that specimen into two bottles. If the primary specimen tests positive, the employee may request that the split specimen be sent to a different laboratory for testing. The majority of drug testing performed in this country is single specimen collection. Drug testing pursuant to state law and rules and the regulations of the U. S. Department of Health and Human Services does not require employers to utilize split samples in the collection process. A split specimen generally is used only for purposes of testing pursuant to the regulations of the U. S. Department of Transportation. The U. S. Department of Transportation requires Petitioner to provide the following testing in transportation workplaces: (a) pre-employment testing; (b) post-accident testing; (c) random testing; (d) reasonable suspicion testing; return-to-duty testing; and (f) follow-up testing. OTETA does not require a routine fitness-for-duty drug test as part of an annual medical examination. State law does require such a test. OTETA requires random testing and post-accident testing. State law does not require these tests. Petitioner's guidelines as adopted in 1991 specifically prohibit random drug testing of employees. However, Petitioner's guidelines, as incorporated into the Collective Bargaining Agreement, state that "[r]andom testing of employees shall not be conducted except as required by state or federal law." In June of 1995, Respondent received a routine fitness- for-duty drug test as part of his annual physical examination. The test yielded a positive result for cannabinoids and cocaine metabolites. Respondent did not contest the results of the test. On June 22, 1995, Petitioner's Director of Employee Relations had a conference with Respondent. During the conference, Respondent signed a medical records release and a rehabilitation contract. The rehabilitation contract stated as follows: . . . positive results indicating alcohol and/or illegal mind-altering substances, following the initiation of this contract, is prima facie evidence of violation of this contract. I understand that failure to comply with the terms of this contract may result in termination of my employment with the School Board of Alachua County, Florida. Respondent subsequently took leave to attend to his rehabilitation. By letter dated August 21, 1995, Petitioner's rehabilitation counselor at the Corner Drug Store reported that Respondent's drug tests from July 5th through August 16th were negative for illegal drugs. The counselor also informed Petitioner that Respondent had attended weekly intervention group meetings as required under the rehabilitation contract. The counselor did not recommend further treatment. A substance abuse professional, other than one who provided treatment, had to assess Respondent in order for him to return to work. In August of 1995, a clinical psychologist from The Education Center evaluated Respondent. The psychologist recommended that Respondent return to work subject to five years participation in the "random drug screening program that is in addition to the standard screening program." Respondent returned to his duties on or about August 26, 1995. His follow-up drug tests performed on October 25, 1995, January 17, 1996, and March 4, 1996, were reported as negative. On the morning of June 10, 1996, Petitioner informed Respondent that he was scheduled that day to take his regular annual physical examination, including a drug test. Respondent went to a medical facility in the northwest part of Gainesville for the physical exam during that morning. He went to Doctors' Laboratory, Inc., in the southwest part of Gainesville after work for his drug test. The following are routine procedures when a person goes to Doctors' Laboratory, Inc., in Gainesville for a urine drug test: The front desk checks the donor's photographic identification, such as a driver's license. The collector takes the photo ID and the donor into a separate room to sign in. The collector asks the donor to remove any hat, if he or she is wearing one, and to empty his or her pockets onto the counter. The collector watches the donor wash and dry his or her hands. The donor selects a testing kit, which is individually packaged in a plastic bag, from a box. The kit contains a urinalysis bottle. The collector opens the bag, breaks the seal on the specimen bottle, and gives it to the donor. The collector shows the donor how much urine is required on the bottle. The collector takes the donor to the bathroom. The donor is informed that the toilet water contains bluing. The donor is instructed not to flush the toilet. After the collector leaves the bathroom, he or she cuts off the water to the sink using a lever outside the door. The donor stays in the restroom no longer than two and a half or three minutes. The donor comes out of the bathroom and hands the specimen bottle to the collector who is waiting outside. The collector checks the amount of urine in the bottle to be sure the quantity is at least 40 ML. The collector measures the temperature by means of a gauge on the outside of the bottle to be sure that the temperature is between 90 and 100 degrees Fahrenheit. The collector notes this information on the chain-of-custody form. The bottle's cap is screwed on tightly. The collector also checks the appearance of the urine for any unusual color. The collector asks the donor to place his or her initials in the following three places: on the bag; on the chain-of-custody form peel-off label; and on the security seal. The security seal is placed over the top of the bottle. The collector dates and also initials the peel-off label. The collector then removes the label from the form and applies it to the bottle. The collector completes and signs part II of the multi-part chain-of-custody form. The collector separates copies one through three from copies four through seven. The collector hands the donor copies four through seven so that he or she can fill out part III with the donor's name, address and two telephone numbers. The donor signs the form certifying that he or she provided the specimen to the collector, that the bottle was sealed with a tamper-proof seal in the donor's presence, and that the information on the form and on the bottle label is correct. The collector completes part IV of the multi- part forms, copies one through three, initiating the chain-of-custody documentation. The specimen bottle is then placed inside the plastic bag, which is sealed. Copies one through three of the multi-part form, which do not contain the name of the donor, are placed in a pouch on the side of the bag. Copies four through seven of the multi-part form are not sent with the specimen. Instead, one copy is retained at the collection site. Another copy is sent to the employer. The third copy is given to the donor. The bagged specimen bottle is kept in a box in a locked refrigerator with other packaged specimens prior to shipment by courier to the testing laboratory. The collector gives the donor a written checklist showing the steps to be taken in the urine collection process. The donor is asked to read the list and check to make sure that the procedures were followed. The donor signs this form indicating that the collector followed all appropriate steps in the collection process. Once a collector begins the collection process, he or she completes the process alone. No other collector at the site may perform any of the required steps or safeguards. In this case, Respondent signed the following statement in part III of the multi-part chain-of-custody form: I certify that I provided my specimen(s) to the collector, that the specimen bottle was sealed with a tamper-proof seal in my presence, and that the information provided on this form and on the label attached to the specimen bottle is correct. The collector gave Respondent a copy of the donor's checklist to read and verify that the collection procedures were followed. Respondent signed the donor's checklist. Elizabeth Verbeke was the person at Doctors' Laboratory, Inc., in Gainesville, Florida, who collected Respondent's urine specimen on June 10, 1996. She usually collected 50 to 60 urine specimens per week for drug testing. She has no independent recollection of collecting Respondent's specimen. However, there is no reason to believe that she failed to follow the laboratory's routine procedures in this case. Ms. Verbeke entered the word "none" at question five of part II on the chain-of-custody form, indicating the collection of Respondent's specimen was entirely routine. She noted no irregularities of any kind. The chain-of-custody identification number for Respondent's urine specimen was 026A13381. In part II of the chain-of-custody form, Ms. Verbeke indicated that she checked Respondent's picture identification, collected the urine specimen, and read the specimen's temperature within four minutes of collection. The specimen's temperature of 94 degrees Fahrenheit was within the proper range. The volume of the specimen was at least 40 milliliters. Later in the day on June 10, 1996, a courier picked up Respondent's urine specimen and transported it to Doctors' Laboratory, Inc., in Valdosta, Georgia. The laboratory performs forensic drug testing, as well as other kinds of tests. It processes about 8,000 specimens a month. The accessioner at the laboratory receives the specimens from the courier. Next, the accessioner examines the packaging and the sample bottles for any possible compromise of the security seals. Then, the accessioner compares each specimen bottle with the custody documents to ensure that they are accompanied by the correct paperwork. The accessioner places the urine specimens in batches with approximately 40 in each group. The accessioner pours a small portion of each specimen (an "aliquot"), one at a time, into a collection cup for analysis. The original specimen bottle with the remaining portion of the specimen is placed into temporary refrigerated storage until the initial test is deemed negative or positive. If the test is positive, the accessioner retrieves the original specimen bottle from temporary storage and pours a second aliquot for confirmation testing. The original specimen bottle, with the remaining portion of the specimen, is then placed in long-term frozen storage. Once testing is completed, the aliquots are discarded. Urine drug testing consists first of a rapid and relatively inexpensive procedure which is known as an immunoassay test. A positive result is confirmed by a more sophisticated and expensive technique called gas chromatography/mass spectrometry (GC/MS). The second test, if properly performed, is one hundred percent accurate. The function of the initial test (immunoassay), is strictly to weed out the negatives. Perhaps 90 percent of all the samples that the laboratory processes are negatives. The initial test also identifies which drug group or groups should be the focus of the extraction procedure because there is no universal extraction procedure for all drugs. The second test (GC/MS), makes an unequivocal identification of a molecule based on its molecular structure. If the confirmation test is positive, the laboratory reports the results to the medical review officer (MRO) as positive for the particular drug group. On June 10, 1996, the laboratory's accessioner received Respondent's specimen from a courier. The specimen's chain-of- custody identification number was 026A13381. The accessioner assigned the specimen a unique lab accession number, number 01298048. Subsequently, Respondent's specimen was tested in the laboratory in the usual manner. The initial test on Respondent's specimen used the total cocaine metabolite screening method. When this method is used, any compound similar to cocaine in the specimen will give a positive result. The initial test on Respondent's specimen was reported as "8H," which means that it was a presumptive positive. For the immunoassay test, any compound similar to cocaine in an amount equal to or in excess of 300 nanograms per milliliter (ng/ml) is positive. In the confirmation test, Respondent's specimen tested positive for benzoylecgonine, a cocaine metabolite. After a person consumes cocaine, benzoylecgonine is present in that person's urine specimen. Respondent's specimen contained 303 ng/ml of benzoylecgonine. For the GC/MS test, any amount of benzoylecgonine equal to or in excess of 150 ng/ml is positive. Respondent's urine sample had an abnormally low level of creatinine. Creatinine is a waste product produced by every human being. Respondent's sample had a creatinine level of 17 milligrams per deciliter (mg/dl). Any creatinine level below 20 mg/dl may indicate dilution. When the creatinine level is low, it is possible that the donor consumed a large amount of fluid at least two to three hours before donating the sample in an attempt to dilute the specimen. It is also possible that water was added to the sample. The laboratory checked the specific gravity of Respondent's sample to determine whether the sample was adulterated. Respondent's specimen passed the specific gravity test. It had a specific gravity of 1.004. Anything over 1.003 is within normal range for specific gravity. The greater weight of the evidence indicates that Respondent's sample was not diluted outside of his body because the specific gravity of the specimen was normal and because the specimen's temperature was 94 degrees within four minutes of collection. Doctors' Laboratory, Inc., inserted blind quality controls in the initial testing runs to determine whether the test analysis was valid. Doctors' Laboratory, Inc., receives proficiency test inspections by the U. S. Department of Health and Human Services and the State of Florida. At all times relevant to this proceeding, Doctors' Laboratory, Inc., in Valdosta, Georgia, was certified by the National Institute of Drug Abuse, the State of Florida, and the College of American Pathologists to perform the kind of test at issue here. A scientist employed at Doctor's Laboratory, Inc., certified that the final result of the testing performed on Respondent's specimen was accurate. The greater weight of the evidence indicates that the tests of Respondent's urine specimen were performed in conformity with all applicable testing guidelines. On June 11, 1996, Doctors' Laboratory, Inc., in Valdosta, Georgia, reported Respondent's test results to the MRO in Brunswick, Georgia, as being positive for benzoylecgonine. Dr. Robert H. Miller was the MRO who received the Respondent's drug test report. Dr. Miller is certified as an MRO through the American Association of Medical Review Officers. He works for MRO Services, Inc. The function of the MRO is to ascertain whether there is any medical reason for a given test result. If the individual has a legitimate prescription for a medication that showed up on a drug screen and there is no safety concern over the individual having a significant blood level of that particular substance at work, then the report to the employer is negative. In this case, the MRO reviewed the chain-of-custody form. He did not find any irregularity in the chain-of-custody for the Respondent's specimen. The MRO's office telephoned Petitioner on June 12, 1996, and requested that Petitioner have Respondent contact the MRO. Respondent returned the MRO's call that same day. During their conversation, the MRO informed Respondent about his drug test report. The MRO asked Respondent whether there might be any medical reason for the positive test result. Respondent informed the MRO that he had taken a prescription for a toothache. Respondent did not furnish the MRO with the name of a specific drug to account for the positive test result. Benzoylecgonine is the metabolite measured to identify cocaine. Cocaine is rarely used in ear, nose, and throat medical procedures, such as bronchoscopy. It is not available by prescription. The MRO properly determined that there was no medical reason for Respondent's positive drug test result. The MRO explained to Respondent that a re-test of his specimen was available. The MRO gave Respondent a toll-free telephone number to call if he wanted a re-test performed. By letter dated June 12, 1996, the MRO informed Petitioner that Respondent's drug test was positive for cocaine. By correspondence dated June 13, 1996, the MRO provided Respondent with directions for obtaining a re-test of his specimen. Respondent did not request a re-test. MRO Services, Inc. receives about 1000 reports of drug tests from Doctors' Laboratory, Inc., each month. In the past three years, MRO Services, Inc., has not documented any cases where a re-test of a specimen created a discrepancy with initial test results produced by Doctors' Laboratory, Inc. Petitioner's Director of Employee Relations conducted a pre-termination conference with Respondent on June 18, 1996. The purpose of this meeting was to give Respondent an opportunity to present mitigating circumstances. In the conference, Respondent indicated his belief that a co-worker, Debra Martin, put cocaine in his drinking water without his knowledge. The Director of Employee Relations talked to individuals that Respondent thought might have witnessed his activities and the activities of Debra Martin on June 10, 1996. During the time in question, Respondent and Ms. Martin were washing and waxing buses. Respondent and Ms. Martin often would get drinking water for each other. Ice was available in coolers located in a building near the gas pumps and washrack. Water was available from a spigot next to the place where Respondent and Ms. Martin were washing the buses. Ms. Martin specifically denied that she ever put cocaine or any other illegal drug in Respondent's drinking water. Ms. Martin also tested positive for a controlled substance on June 10, 1996. She subsequently signed a rehabilitation contract with Petitioner. After completing her rehabilitation treatment, Ms. Martin returned to work as a school bus driver for Petitioner. Persuasive evidence indicates that Ms. Martin did not put cocaine in Respondent's drinking water without his knowledge at any time prior to his June 10, 1996, drug test. By letter dated June 19, 1996, Respondent was informed that the Superintendent intended to recommend that Petitioner terminate Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner enter a Final Order, terminating the employment of Respondent. DONE AND ENTERED this 15th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1997. COPIES FURNISHED: Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, Florida 32601 Francisco M. Negron, Jr., Esquire Florida Education Association/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601-5498 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
