12-003258TTS Charlotte County School Board vs. Sandra Tuell Status: Closed Recommended Order on Monday, February 25, 2013.

Summary: School Board established just cause to discipline teacher where facts showed that an impaired teacher refused to submit to request for drug and alcohol testing, thus acting in gross insubordination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLOTTE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3258TTS

)

SANDRA TUELL , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on December 4,

2012 , in Port Charlotte, before Thomas P. Crapps, a designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Thomas Gonzalez, Esquire

Natha n Paulich, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

Suite 1600

201 N. Franklin Street

Tampa, Florida 33602

For Respondent: Mark H erdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 , North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Petitioner established just cause to termin ate

Respondent's employment as a teacher.

PRELIMINARY STATEMENT

On August 7, 2012, Respondent, Sandra Tuell (Ms. Tuell) ,

requested an administrative hearing challenging the Charlotte

County School Board's (School Board) termination of her

employment. On S eptember 12, 2012, the School Board informed

Ms. Tuell that her name had been submitted for termination at its

September 11, 2012 , meeting, and that her termination was

retroactively effective as of August 14, 2012. On September 26,

2012, Ms. Tuell's requ est for an administrative hearing was

forwarded to DOAH.

The undersigned held the final hearing on December 4, 2012.

The School Board presented the following witnesses: Robert

Mallon (Mr. Mallon) ; Kimberly Thomas - Brooks (Ms. Brooks) ; Steven

Cummings (Mr. Cummings) ; Larry Langston (Deputy Langston), Glenn

Blondun (Mr. Blondun) ; Chuck Breiner (Mr. Breiner) ; and Barbara

Melanson (Ms. Melanson). The School Board introduced into

evidence Exhibits 1 through 11. Ms. Tuell testified in her own

behalf and presen ted the testimony of Michael Tuell (Mr. Tuell),

her husband. Ms. Tuell did not offer any exhibits into evidence.

A one - volume transcript of the final hearing was filed with

DOAH on December 14, 2012. The parties requested an extension of

time to file p roposed recommended orders, which was granted. The

parties filed the proposals on January 11, 2013.

FINDINGS OF FACT

1. The School Board is responsible for the operation,

control , and supervision of public schools located in Charlotte

County, Florida. Art. IX, § 4(b), Fla. Const. and § 1001 . 32,

Fla. Stat. (2012). 1 /

2. Ms. Tuell has been employed as a teacher for the

Charlotte County School District since 1985. During the 2011 -

2012 school year, Ms. Tuell taught English at the Academy, a

school within the School Board's district.

3. The events at issue here occurred on May 9, 2012.

During that school day, after returning from lunch, Ms. Tuell was

obviously impaired. Her impairment was recognized by fellow

teachers, a student, the school resource off icer , and school

administrators. Ms. Tuell was observed acting strangely, such as

inappropriately singing, clapping, slurred speech, and being loud

and boisterous.

4. When confronted by school administrators about her

behavior and their suspicions that s he might be under the

influence of some substance, Ms. Tuell became extremely

belligerent, combative , and profane. Ms. Tuell threatened to

leave the school campus, but was prevented by school officials

and Deputy Langston. Ms. Tuell's misbehavior continu ed to

escalate after school administrators directed her to submit for

urinalysis.

5. School administrators explained to Ms. Tuell that the

School District's policy recognized that if an employee failed to

submit for drug and alcohol testing, when direct ed by school

officials with reasonable suspicion of an impaired employee, the

employee could be disciplined, including termination. Ms. Tuell,

however, repeatedly refused to submit for the drug and alcohol

testing. When provided the telephone number in o rder to call her

union representative, Ms. Tuell, again in a profane manner, told

school officials that she did not need to call him. Moreover,

Ms. Tuell refused to sign a written acknowledgement of the School

Board Policy and her refusal to be tested. H owever, she did

continue to verbally abuse school personnel in a profane manner,

and adamantly stated that she was not impaired.

6. At the hearing, Ms. Tuell was asked why she did not

submit to the urinalysis test , and she replied:

I was in such - - I d id not know what to do.

I had no representation. I had been

inundated and bombarded with six or seven

people who were falsely accusing me of

things, and I didn't feel like there was a

reason for me to.

7. After refusing to submit to the urinalysis, sch ool

personnel informed Ms. Tuell that she was being placed on

administrative leave with pay pending a pre - determination

hearing. She was then asked to provide her classroom keys and

school identification. Because her school keys were mixed

together with her personal keys, Ms. Tuell had difficulty

separating the keys. Ms. Tuell , then , threw her keys at the face

of one of the school personnel , hitting him , and t old him to

remove the keys, again in a profane manner.

8. All of the school personnel, who knew Ms. Tuell, noted

that her behavior was not typical of her. Ultimately, one of

Ms. Tuell's co - workers drove Ms. Tuell home because she was too

impaired to drive.

9. Not surprisingly, Ms. Tuell has a very vague

recollection concerning these certain eve nts, but she has

expressed regret.

10. During the 2011 - 2012 school year, Ms. Tuell suffered

from multiple foot injuries. In August 2011, she had a broken

right ankle that required her to wear a walking cast for six to

eight weeks. In January 2012, Ms. Tuell developed a stress

fracture in her left foot that then resulted in her wearing a

walking cast again for six to eight weeks. As a result of these

injuries, Ms. Tuell was prescribed h ydrocodone each time for pain

associated with those injuries. She was to take the medication

as needed for pain. According to Ms. Tuell , her two h ydrocodone

prescriptions were respectively for 250 milligrams and 750

milligrams.

11. On May 8, 2012, Ms. Tuell had a hydrocortisone

injection in her foot for a neuroma. Ms. Tuell described that

she had a large bruise on her foot that made it extremely painful

to walk.

12. On May 9, 2012, Ms. Tuell went to work in the morning.

She met with Ms. Thomas - Brooks, a fellow English teacher, without

any inciden t . Following her usu al routine, Ms. Tuell went home

for lunch to let her dogs out of the house. According to

Ms. Tuell, the total amount of time that it took her to leave the

campus and return to school was usually 30 minutes. While at

home on May 9, 2012, Ms. Tuell testif ied that she took two

h ydrocodone pills that had been left over from her injuries in

August 2011 and January 2012. Further, Ms. Tuell indicated that

she was not concerned about returning to the school after taking

the medication because she had done so in the past without any

adverse reaction.

13. After returning to the school campus, Ms. Tuell

exhibited the bizarre and combative behavior that characterized

the events of the day.

14. At the pre - determination hearing, Ms. Tuell did not

come forward wit h the information concerning her self - medicating

with the prescription, and denied that she had either an alcohol

or drug problem. Consequently, she was not eligible for an

Employee Assistance Program to address any alcohol or drug

problem.

15. Ms. Tuell was visibly impaired on May 9, 2012 , due to

her self - medicating and taking h ydrocodone during her lunch break

period at home. The evidence was contradictory concerning

whether or not Ms. Tuell smelled of alcohol. The undersigned

finds the testimony of D eputy Langston and Mr. Blondun , that they

did not smell alcohol on Ms. Tuell , credible. Both witnesses

come from law enforcement background and have familiarity with

individuals who are under the influence of alcohol. Further,

both witnesses were in clos e proximity to Ms. Tuell and had ample

opportunity to observe her. Therefore, the undersigned finds

that the more believable evidence is that Ms. Tuell was not

impaired as a result of alcohol usage, but rather from her over

medicating with the h ydrocodone .

16. School Board Policy 3124 creates a "drug - free

workplace." Sch ool B oard of Charlotte C oun ty Admin istrative

Proc edure section 3124, Drug Free Workplace .

17. In order to eliminate substance abuse from the

workplace, the School Board adopted a drug t esting policy, School

Board Policy 3162.01 , Drug Testing (hereinafter School Board

Policy 3162.01 or Policy"). School Board Policy 3162.01 sets out

"procedures for the detection and deterrence of alcohol and drug

use." School Board Policy 3162.01 warns : " A ll persons covered

by this policy should be aware that violations of these

procedures may result in discipline up to and including

termination, or not being hired."

18. In the subsection titled "Employees," School Board

Policy 3162.01 provides that "[i ]t is the Board's policy that

employees shall not be under the influence of or in the

possession of alcohol or drugs, . . . at work locations, or while

on duty." Further, the School Board Policy addresses several key

issues concerning this case. First, u nder a subsection titled

"Prescribed Medications" the Policy provides the following:

The use of prescribed medications is not a

violation of this policy; however, any use of

prescribed medications that could foreseeably

interfere with the safe and effectiv e

performance of duties or operation of

equipment must be brought to the attention of

the employee's immediate supervisor. Failure

to notify the employee's supervisor could

result in disciplinary action, up to and

including termination.

19. School Board Policy 3162.01 also specifically addresses

an instance where an employee refuses to submit to drug and

alcohol testing. The Policy provides the following:

C. Refusal to be Tested

Refusal to submit immediately to an alcohol

or drug analysis when request ed by

appropriate administrative or law enforcement

personnel or refusal to submit to a search of

person properties if requested by law

enforcement personnel may constitute

insubordination and may be grounds for

discipline up to and including termination.

20. School Board Policy 3162.01 sets out the e mployee's

r esponsibilities under its drug testing policy. In pertinent

part, the Policy provides the following:

An employee must:

A. Not report to work or be subject to duty

while his/her ability to perform job duties

is impaired due to on or off duty alcohol or

drug use;

B. Not possess or use alcohol or impairing

drugs (illegal drugs and prescription drugs

without a prescription) during working hours

or while subject to duty, on breaks, during

meal period s, or any anytime while on Board

property;

* * *

D. Submit immediately to an alcohol or drug

test when requested by an appropriate Board

representative;

E. Notify his/her supervisor, before

beginning work, when taking any medications

or drugs, prescriptions or non - prescription,

which may interfere with the safe and

effective performance of duties or operation

of Board equipment.

* * *

21. School Board Policy 3162.01 then sets out that school

administrators are responsible for impleme nting the drug testing

policy, and provides a definition of "reasonable suspicion" for

conducting a drug test. 2 / Further, the School Board Policy lists

the following examples of "reasonable suspicion" to include, in

pertinent part, slurred speech, verbal altercation, and unusual

behavior. Id. Finally, the School Board Policy directs th at a

representative from the School District's Human Resources

department shall inform an employee that it has been determined

that testing is appropriate, and will ask the employee to sign a

consent form. "The employee will also be informed that refusal

to sign or to be tested is considered the same as a positive

test." School B oar d Policy 3162.01(D)(2), Admin istrative

Resp onsibilities and Proc edures .

CONCLUSIONS OF LAW

22. DOAH has jurisdiction over the parties and subject

matter of this proceeding. § § 120.57(1) and 120.569, Fla. Stat.

23. The School Board has the burden of proof to show by a

preponderance of the evidence that just cause exists. See

McNeill v. Pin ellas C n ty . Sch . Bd. , 678 So. 2d 476 (Fla. 2d DCA

1996).

24. Section 1012.33(1)(a), Florida Statutes, provides, in

relevant part, that:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Educati on: immorality,

misconduct in office, incompetency, . . .

gross insubordination, willful neglect of

duty, or being convicted or found guilty of,

or entering a plea of guilty to, regardless

of adjudication of guilt, any crime involving

moral turpitude.

2 5. Florida Administrative Code Rule 6A - 5.056 provides that

"[j]ust cause means cause that is legally sufficient[,]" and

provides definitions for the charges set out in section 1012.33.

Importantly , for this case, rule 6A - 5.056 defines "gross

insubordinat ion" as "the intentional refusal to obey a direct

order, reasonable in nature, and given by and with proper

authority; misfeasance, or malfeasance as to involve failure in

the performance of the required duties."

26. Applying the rules of law to the facts here, the

undersigned finds that the School Board met its burden of showing

"just cause." The facts clearly established that Ms. Tuell was

impaired when she returned back to school from lunch.

Consequently, "reasonable suspicion" existed for school

admi nistrators to direct that Ms. Tuell submit to drug and

alcohol testing. Further, the facts show that despite the

administrators' repeated attempts seeking Ms. Tuell to submit to

testing, she refused in an often angry and profane manner. The

evidence also showed the school administrators warned Ms. Tuell

under the School Board Policy , her refusal to submit to test ing

was considered the same as testing positive. Moreover,

Ms. Tuell's own testimony shows that she made a conscious

decision not to undergo te sting because she thought she did not

need to be tested. Ms. Tuell's refusal to submit to drug and

alcohol testing after being directed by school administrators was

gross subordination. See Orange C n ty . Sch . Bd . v. O'Neill , Case

No. 05 - 4551, 2006 Fla. Di v. Admin. Hear. LEXIS 260 (Fla. DOAH

June 16, 2006)(finding a teacher guilty of gross insubordination

where the facts show reasonable suspicion that the teacher was

impaired existed and the teacher repeatedly refused to comply

with a school administrator's request that the teacher undergo a

drug and alcohol test pursuant to a school board policy).

27. Ms. Tuell also violated School Board Policy 3162.01 by

failing to inform her supervisors that she had taken a

prescription medication during the lunch perio d, when she

returned to work.

28. The School Board established "just cause" to terminate

Ms. Tuell under these facts. The School Board's policy

concerning drug testing, however, does not automatically call for

termination with a positive result, but app ears to contemplate

"discipline up to and including termination[.]" The facts here

show several mitigating circumstances that the School Board

should consider in determining the appropriate discipline.

First, the evidence was undisputed by all of the wit nesses that

Ms. Tuell's behavior was not normal for her and that the events

of May 9, 2012 , are an isolated incident. In fact, in the 27

years that Ms. Tuell has worked for the School District, she has

a minimal prior disciplinary record. It appears that in 2005,

Ms. Tuell received a written reprimand for showing an

inappropriate movie to her students, but other than that incident

she has not been a disciplin ary problem. Second, Ms. Tuell took

the h ydrocodone medication, which she had been prescribed fo r

prior foot injuries, to address a painful foot injury.

Obviously, Ms. Tuell did not act appropriately by returning to

school after taking the two h ydrocodone pills, and some

discipline is warranted. Even though the School Board has proven

just cause, i t is appropriate to offer Ms. Tuell an opportunity

to enter an Employee Assistance Program and probation for two

years as a condition of her employment with random drug testing,

based on her long service with minimal disciplinary problems.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a final order

that just cause to discipline Ms. Tuell exists; and that Ms.

Tuell be placed on a two - year probationary period requiring that

she s uccessfully participate in and complete a substance abuse

program, such as an Employee Assistance Program, and submit to

random drug testing during her probationary period.

DONE AND ENTERED this 25th day of February , 2013 , in

Tallahassee, Leon County, Fl orida.

S

THOMAS P. CRAPPS

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 25th day of February , 2013 .

ENDNOTE S

1/ References to Florida Statutes shall be the 2011 version

unless otherwise indicated.

2/ "'Reasonable suspicion' is a belief based on obj ective facts

sufficient to lead a reasonably prudent administrator to suspect

that an employee is under the influence of drugs or alcohol so

that the employee's ability to perform the functions of the job

is impaired or so that the employee's ability to pe rform his/her

job safely is reduced." Sch ool B oar d Policy 3162.01 (B)(1) ,

Admin istrative Resp onsibilities .

COPIES FURNISHED:

Thomas Martin Gonzalez, Esquire

Thompson, Sizemore and Gonzalez, P.A.

Suite 1600

201 North Franklin Street

Tampa, Florida 3360 2

Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

Nathan J. Paulich, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

Suite 1600

201 North Franklin Street

Tampa, Florida 33602

Dr. Douglas Whittaker, Superintendent

Charlotte County School Board

1445 Education Way

Port Charlotte, F lorida 33948 - 1052

Dr. Tony Bennett, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, F lorida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written excepti ons 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.