04-004267 Miami-Dade County School Board vs. Alan T. Polite Status: Closed Recommended Order on Wednesday, April 27, 2005.

Summary: Two failed tests for alcohol, in addition to the Respondent`s deficient work history, support the termination of his employment with the school district.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD )

)

Petitioner, )

)

vs. ) Case No. 04 - 4267

)

ALAN T. POLITE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case

on Januar y 25, 2005, in Miami, Florida, before J. D. Parrish,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Pamela Young - Chance, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Alan T. Polite

827 Northwest 118 th Street

Miami, Florida 33168

STATEMENT OF THE ISSUE

Whether the Respondent, Ala n T. Polite (Respondent),

committed the violations alleged and should be disciplined as

set forth in the Notice of Specific Charges filed on December

21, 2004.

PRELIMINARY STATEMENT

On November 17, 2004, the School Board of Miami - Dade

County, Florida (Pe titioner or School District) took action to

suspend and initiate dismissal proceedings against the

Respondent. The Respondent timely challenged that proposed

action and sought an administrative hearing in connection with

the allegations raised against him . The case was forwarded to

the Division of Administrative Hearings for formal proceedings

on November 22, 2004.

An Order Requiring Notice of Specific Charges was filed

on December 2, 2004. Subsequently, the Petitioner filed the

Notice of Specific Charg es that itemized the factual basis for

the proposed discipline. More specifically, the Petitioner

charged the Respondent violated the School District’s “Drug -

Free Workplace Policy.” Essentially, the Petitioner has a

policy that requires employees to subm it to drug testing when

a supervisor determines that the employee is behaving in an

unusual manner. The policy outlines the pertinent steps to

require drug testing, and an employee is required to submit a

sample as directed by management. The refusal to submit a

sample results in the presumption of a positive result.

In this case, the Petitioner alleged that the Respondent

refused to acknowledge the drug - testing forms, refused to sign

the forms, and refused to submit to the testing. Two failed

tests resu lt in termination of employment. For the

Respondent, the Petitioner alleged a second failed test

occurred on or about June 8, 2004. When the Respondent’s work

history and failed results were then reviewed, the Petitioner

elected to recommend disciplinary action against the

Respondent. The instant case proceeded.

At the hearing, the Petitioner presented testimony from

Dr. Henry Crawford, principal at Miami Park Elementary School;

Jacqueline Brooks, a school social worker (Miami Park

Elementary is one of her assigned schools); Arturo Abin,

executive director of the employee assistance program for the

Miami - Dade County Public Schools; and Barbara Moss, district

director for the Miami - Dade County Public Schools, Office of

Professional Standards. The Petitio ner requested official

recognition of the items identified as Petitioner’s Exhibits 1

through 5. That request was granted.

The Petitioner’s Exhibits 6 through 24 were received in

evidence. The exhibits were received over the Respondent’s

objection that he did not agree to a lot of the “things in

there.” Respondent did not dispute the authenticity of the

documents, he merely did not agree about what they stated.

The Respondent presented testimony from Charles Kevin

Mitchell, an associate minister at Friendship Missionary

Baptist Church; and recalled Ms. Moss who had previously

testified. The Respondent did not offer any documents in

evidence. The letter read into the record by the associate

minister (presumably from the pastor at the church) was not

offered into evidence. The Petitioner did not oppose the

reading of the letter.

The transcript of the proceeding was filed with the

Division of Administrative Hearings on February 22, 2005. The

parties were granted 10 days within which to file proposed

recommended orders. The Petitioner timely filed a Proposed

Recommended Order that has been fully considered in the

preparation of this Recommended Order. The Respondent did not

file a proposal.

FINDINGS OF FACT

1. At all times material to the allegatio ns of this

case, the Petitioner was the state entity charged with the

responsibility of operating and supervising the public schools

within the Miami - Dade County, Florida School District. Such

responsibility includes the personnel matters such as the one

at hand.

2. At all times material to the allegations of this

case, the Respondent was employed by the School District as a

custodian assigned to work at Miami Park Elementary School.

3. On or about December 11, 2003, the Respondent

attended a staff meeti ng conducted at Miami Park Elementary

School. At that time the Petitioner’s “Drug - Free Workplace

Policy” was distributed and reviewed. The Respondent does not

deny attending the meeting and does not dispute the existence

of the Petitioner’s policy regard ing drugs and alcohol in the

workplace.

4. On February 20, 2003, after the Respondent’s

supervisor observed him behaving in an unusual manner, the

Respondent was asked to submit to a drug and alcohol test.

The Respondent was uncharacteristically disrupti ve, loud, and

confrontational. When asked to take a drug/alcohol test, the

Respondent refused unless the supervisor also agreed to submit

himself for testing.

5. The Respondent was called to the office and provided

with the pertinent forms for drug/alcoh ol testing. The

Respondent refused to acknowledge the forms, refused to sign

the forms, and refused to submit himself to the testing.

6. After the refusal was deemed a positive result, the

Respondent was prohibited from returning to work until he

complie d with the return - to - duty requirements of the “Drug -

Free Workplace Policy.” The procedures and directives

followed the School District policy.

7. On February 28, 2003, a conference - for - the - record

(CFR) was conducted to address the refusal to take the

dru g/alcohol test. At that time the Respondent was given a

referral to the Employee Assistance Program (EAP) and was

informed that his progress and participation with the EAP

would be monitored by the Petitioner’s Office of Professional

Standards (OPS).

8. The OPS is responsible for tracking employees so that

the Petitioner can be assured that the “Drug - Free Workplace

Policy” is being followed.

9. On or about March 19, 2003, the Respondent entered

the EAP.

10. On April 10, 2003, the Respondent agreed t o subject

to unannounced testing for drug/alcohol use. For 60 months

following his return to duty, the Respondent agreed to submit

to testing on a random basis. It was anticipated that there

would be no fewer than six screenings within the first 12

month s.

11. Based upon the foregoing, the Respondent was granted

permission to return to work and did so on or about April 11,

2003.

12. On June 8, 2004, the Respondent was selected for a

random, unannounced follow - up test. The Respondent presented

for testi ng at the prescribed location (an approved

laboratory). The alcohol test administered to Respondent

produced a positive result. The Respondent does not dispute

the result of the test. The Respondent did not dispute that a

consumption of alcohol caused t he result.

13. On June 22, 2004, another CFR was conducted in the

OPS to review the test result with Respondent. At that time,

based upon a complete review of the Respondent’s work record,

the OPS recommended disciplinary action be taken against the

Resp ondent for a second violation of the “Drug - Free Workplace

Policy.”

14. There is no allegation that the Respondent consumed

alcohol while on the job at Miami Park Elementary School on

June 8, 2004. There is no allegation that on June 8, 2004,

the Responde nt exhibited any outward sign that he was

performing his duties under the influence of alcohol.

15. The Respondent attends church at the Friendship

Missionary Baptist Church. The Respondent makes meaningful

contributions to the church and is perceived as a sober role

model among the congregants.

16. If the Respondent demonstrates he can remain sober

for a period of five years, and show appropriate work history

for that time frame, he may be eligible to be rehired by the

Petitioner.

CONCLUSIONS OF LAW

17 . The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. §§ 120.569, 120.57(1), and 1012.22(1),

Fla. Stat. (2004).

18. The Petitioner bears the burden of proof in this

matter to esta blish by a preponderance of the evidence the

allegations against the Respondent. It has met that burden.

19. In this case, the evidence supports the conclusion

that the Respondent refused to submit for drug and alcohol

testing on or about February 20, 20 03, that resulted in a

positive result by presumption and then failed (by test

result) a second testing on or about June 8, 2004. With two

failed results, the OPS was required to recommend disciplinary

action. The “Drug - Free Workplace Policy” provides th at

persons who violate the standards “who refuse or cannot be

assisted by rehabilitation” shall be dismissed.

20. In this case the Respondent cannot be dismissed

absent “just cause.” The UTD union contract (that pertains to

this Respondent) specifies ter mination for "just cause." It

does not define that term. It is concluded that the failure

to comply with the School Board’s policy is just cause for

termination. Further, it is concluded that pursuant to the

union contract for this employee, termination is appropriate

under the circumstances of this case.

21. The OPS made the recommendation to terminate the

Respondent’s employment with the School District based on the

entirety of the Respondent’s job performance. Thus, the

Petitioner fairly considered the principles of progressive

discipline appropriate to this case (also a consideration set

forth by union contract). The two failed test results were

only a part of that decision. In fact, the Respondent’s

employment record established past disciplinary actions that

support the conclusion that this Respondent had long - standing

issues. Specifically, the Respondent was warned no fewer than

5 times, both verbally and with written reprimands, regarding

his failures to follow School District rules. On one o ccasion

Respondent received a 30 - workday suspension.

22. It is concluded that the Respondent violated the

Petitioner’s “Drug - Free Workplace Policy” and was

insubordinate in refusing to take the test when directed to do

so on February 20, 2003. According ly, when considered along

with the positive test result from the test conducted on June

8, 2004, the Petitioner has established just cause for the

termination of this employee.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Respondent be terminated

from his employment with the School District. The suspension

without pay must be sustained.

DONE AND ENTERED this 27th day of April, 2005, in

Tallahassee, Leon County, Florida.

S

______________________ _____________

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of April, 2005.

COPIES FURNISHED:

Dr. Rudolph F. Crew, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132 - 1394

Daniel J. Woodring , General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Pamela Young - Chance, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

Alan T. Poli te

827 Northwest 118 Street

Miami, Florida 33168

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be f iled with the

agency that will issue the Final Order in this case.