09-005184 Emerald Coast Utilities Authority vs. Terrance D. Peace Status: Closed Recommended Order on Thursday, May 27, 2010.

Summary: The evidence demonstrated that Petitioner's positive drug test for marijuana was valid. A positive result violated ECUA employee policies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES )

AUTHORITY, )

)

Petitioner, )

)

vs. ) Case No. 09-5184

)

TERRANCE D. PEACE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to that certain contract between the Division of

Administrative Hearings and Emerald Coast Utilities Authority, a

fact-finding hearing for the purpose of taking testimony and

receiving exhibits was conducted in this case on March 31, 2010,

in Pensacola, Florida, before Diane Cleavinger, Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John E. Griffin, Esquire

Carson & Adkins

2930 Wellington Circle, North

Suite 201

Tallahassee, Florida 32309

For Respondent: Terrance D. Peace, pro se

5748 Juergen Way

Milton, Florida 32570

STATEMENT OF THE ISSUE

The issue in this case is whether the termination of

Respondent was in accordance with the personnel policy and

procedures established by Emerald Coast Utility Authority.

PRELIMINARY STATEMENT

By certified letter dated September 3, 2009, Respondent

Terrance D. Peace (Respondent), was notified that Petitioner

Emerald Coast Utility Authority (ECUA or Petitioner), intended

to terminate him for violations of ECUA’s drug policy based on

positive results from the Respondent’s drug test. ECUA’s action

was based on ECUA Human Relations Policy Manual, Section F-4(29)

for use of or being under the influence of any controlled

substance and Section F-4(33) for violation of ECUA Rules or

Policies or State and Federal Law by violating the drug and

alcohol abuse policy contained in Section G of the Policy

Manual. The letter also advised Respondent of his right to a

predetermination/liberty interest hearing.

On September 8, 2009, a predetermination/liberty interest

hearing was held at ECUA’s Human Resources and Administrative

Services Department. Petitioner participated in the hearing.

After the hearing, by certified letter dated September 9,

2009, Respondent was terminated for violations of the above

referenced sections of the ECUA Policy Manual. The letter

further advised Respondent of his right to appeal Petitioner’s

employment action and request a fact-finding hearing before an

Administrative Law Judge with the Division of Administrative

Hearings.

By letter dated September 15, 2009, Respondent timely filed

a request for hearing. The case was forwarded to the Division

of Administrative Hearings.

As indicated earlier, the hearing was held on March 31,

2010, and was electronically recorded. At the hearing,

Petitioner presented the testimony of John Heller, ECUA field

operations specialist; Pat Smith, an employee of Lab

Corporation; Ernest Dawson, ECUA Director of Regional Services;

Carol Law, Ph.D., president of Drug Free Workplaces; and Cynthia

Sutherland, ECUA Human Resources Manager. Petitioner also

introduced 14 exhibits into evidence. Respondent testified in

his own behalf and introduced 3 exhibits into evidence.

FINDINGS OF FACT

1. ECUA was created in 1981 pursuant to Chapter 81-376,

Laws of Florida. By law, it provides utility services

throughout Escambia County, Florida.

2. On September 25, 2006, Respondent was employed by

Petitioner as a lead service worker. At the time, Respondent

was given a copy of the employee handbook and the Drug Free Work

Place Program notice. Receipt of both documents was

acknowledged by Respondent. Until the time of the incident

described in this order, Respondent was considered an excellent

employee with high potential for advancement.

3. The handbook is a summary of Petitioner’s human

resource policies. Specific human resource policies are

contained in Petitioner’s Human Resource Policy Manual. The

Human Resource Policy Manual states, in relevant part, as

follows:

* * *

Section F-4 Disciplinary Offenses

(29) Use of or Being Under the Influence of

any Controlled Substance as Defined in

Section 893.03, Florida Statutes or Federal

regulation, Not Pursuant to Lawful

Prescription While on Duty; or Possession,

Sale,

‘Illegal drug’ means any controlled

substance as defined in Section 893.03,

Florida Statutes or Federal regulation,

which is not possessed, sold, distributed,

or dispensed in accordance with law.

* * *

(33) Violation of ECUA Rules or Policies or

State or Federal Law.

The failure to abide by ECUA rules,

policies, directives or state or federal

statutes . . . .

Chapter G Drug and Alcohol Abuse Policy

It is a condition of employment with the

Escambia County Utilities Authority for an

employee to refrain from reporting to work

or working with the presence of drugs and

alcohol in his or her body.

If an employee tests positive for alcohol or

drugs, his or her employment may be

terminated . . .

Section G-2 Definitions

B. ‘Drug abuse’ means the use of any

controlled substance as defined in Section

893.03, Florida Statutes, as amended from

time to time, not pursuant to lawful

prescription. The term ‘drug abuse’ also

includes the commission of any act

prohibited by Chapter 893.03, Florida

Statutes, as amended from time to time. The

use of illegal drugs, or being under the

influence of illegal drugs on the job, by

ECUA employees is strictly prohibited.

Section G-5 Rehabilitative/Corrective Action

B. Any employee found to have possessed,

used or been under the influence of illegal

drugs or alcohol while on duty shall be

subject to disciplinary action, up to and

including dismissal . . . .

E. Any employee who tests positive for

alcohol or who tests positive for illegal

drugs on a confirmation test shall be

subject to disciplinary action, up to and

including dismissal . . . .

4. On August 14, 2009, Respondent was driving an ECUA

vehicle while performing his job duties for Petitioner.

Respondent did not see a low-hanging tree branch and struck the

branch with the vehicle, causing minor damage to the vehicle.

Respondent contacted his supervisor to report the accident.

5. Respondent’s supervisor met Respondent at the accident

site. He did not observe any behavior by Respondent that would

indicate he was under the influence of any substance. However,

because a vehicle accident had occurred, Respondent was required

by ECUA policy to undergo a urine test for drugs and alcohol.

6. That day, Respondent reported to LabCorp, ECUA’s

occupational testing services company. LabCorp is a licensed

facility under state and federal law to obtain urine samples for

drug-testing purposes.

7. Respondent was seen by a LabCorp technician who was

well-qualified to obtain and process urine samples. The

technician checked Respondent’s identification and had him empty

his pockets prior to the test. The technician gave Respondent a

sample cup, with a temperature strip on it. The temperature

strip helps ensure that the liquid in the cup is close to body

temperature indicating the liquid is urine and has not been

adulterated.

8. Respondent took both cups in the bathroom and urinated

in them. Respondent returned the sample to the technician. In

the presence of Respondent, the technician checked the

temperature of the sample, which was normal. The technician

then split the sample into to two test tubes, sealed each tube,

labeled them and had Respondent initial each tube. The

technician recorded her activity in processing the sample on a

custody and control form which Respondent then signed,

acknowledging the sample-taking process. Again in the presence

of Respondent, both the custody and control form and the two

samples were placed in a sample bag which was sealed with an

evidence sticker and placed in a locked specimen box for

transport to a licensed testing facility in North Carolina.

There was no evidence that appropriate procedures were not

followed by LabCorp in processing Respondent’s urine sample.

9. Respondent’s sample arrived at LabCorp’s testing

facility at Triangle Park in North Carolina on August 17, 2009.

Sample A was used for initial testing and Sample B was frozen to

preserve it for later testing if required. The sample was

tracked through the test process by number and the name of

Respondent is not known to the technician performing the tests.

10. The first test performed on Respondent’s sample A was

an immunoassay test. The sample was initially tested with a

cut-off level of 15 nanograms per milliliter. The cut-off level

is used to limit the possibility of a positive result due to

secondhand exposure. Respondent’s sample tested positive for

Cannabis. Since the sample was positive, it was sent for gas

chromatography/mass spectrometry (GCMS) confirmation testing.

GCMS tests for the presence of THC, the exact metabolite of

marijuana. Respondent’s sample produced a positive result for

THC. The results were reported to ECUA’s medical review officer

and to ECUA.

11. Upon learning of the positive test results, Respondent

requested that the second sample be tested by another lab. The

sample was sent to another LabCorp testing facility in Houston,

Texas. Unfortunately, the second sample tested positive for

marijuana. Respondent had no explanation for the positive test

results and testified that he had not used marijuana for some 15

years. However, no credible evidence was produced at hearing

that demonstrated the samples were adulterated, mixed up or

improperly tested. Given these facts, Petitioner has

established that Respondent tested positive for marijuana and

that such results violate its drug policy.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. See Administrative Law Judge Services Contract

effective March 3, 2006; § 120.65(7), Fla. Stat. (2009).

13. As indicated, the ECUA Human Resource Policy Manual

contains provisions which prohibit an employee from using

controlled substances. Petitioner had notice of and knows about

these policies.

14. Finally, because Respondent violated the above-

referenced policies of ECUA and violated state law regarding the

use of controlled substances, Respondent’s act violated Section

F-4(33) of the ECUA Human Resources Policy Manual.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

Recommended that the Executive Director of the Emerald

Coast Utility Authority find that Respondent violated its Human

Resource Policies F-4 (29) and (33) and impose such discipline

on Respondent as determined appropriate.

DONE AND ENTERED this 27th day of May, 2010, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of May, 2010.

COPIES FURNISHED :

John E. Griffin, Esquire

Carson & Adkins

2930 Wellington Circle, North, Suite 201

Tallahassee, Florida 32309

Terrance D. Peace

5748 Juergen Way

Milton, Florida 32570

Richard C. Anderson, SPHR

Director of Human Resources

& Administrative Services

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

Steve Sorrell, Executive Director

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.