14-000592 Escambia County School Board vs. Terry Green Status: Closed Recommended Order on Friday, May 2, 2014.

Summary: School bus driver suspended without pay following first-time positive drug test did not prove entitlement to sick leave during suspension.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 0592

TERRY GREEN,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge David M. Malo ney presided at the

final hearing in this case pursuant to a contract between the

Escambia County School District ( Ð School Board Ñ or Ð ECSD Ñ ) and

the Division of Administrative Hearings ( Ð DOAH Ñ ). The hearing

was conducted on April 1, 2014, by video telecon ference at sites

located in Tallahassee and Pensacola, Florida.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

F or Respondent: Terry Green , pro se

412 North 60th Avenue

Pensacola, Florida 32506

STATEMENT OF THE ISSUE

Whether the School Board should permit Respondent to take

sick leave for the period commencing December 18, 2013, through

the time it takes for evaluation by a Substance Abuse

Professional and any necessary rehabilitation or until

Respondent Ó s sick leave is exhausted, whichever occurs first .

PRELIMINARY STATEMENT

On February 10, 2014, DOAH received a letter from Josep h L.

Hammons, Esquire, announcing that he was Ð the attorney

representing the Escambia County School Board with regard to a

request for formal hearing. Ñ Enclosed with the letter were three

documents. One of the three was described by Mr. Hammons Ó letter

a s Ð the Board Ó s approval of . . . [a] recommendation for

enrollment in a return - to - work program . Ñ The other two documents

were the recommendation, itself, and a copy of a petition and

request for hearing by Ms. Terry Green.

The petition, submitted by Ms. G reen Ó s attorney, stated that

while employed by ECSD as a school bus driver, Ms. Green had been

placed on leave with pay on December 5, 2013 , pending a

Ð reasonable suspicion drug test . Ñ It further alleged that

following the receipt of the test results, ECS D and Ms. Green

entered a Return to Work Agreement which provided that she would

submit to evaluation by a Substance Abuse Professional (SAP) and

any necessary rehabilitation.

The petition claimed that Ms. Green is entitled to use sick

leave Ð while she is evaluated and receiving rehabilitation for

substance abuse, which is a sickness . Ñ Petition for Hearing ,

at 2 ( emphasis supplied ) . In the Ð Relief Ñ section of the

p etition, it requested that she be permitted Ð to take sick leave

for the period December 18, 2013, until she has completed the

evaluation and rehabilitation for substance abuse, or until that

sick leave is exhausted, whichever occurs first. Ñ Id. at 3. 1/

At the final hearing, the ECS D presented the testimony of

two witnesses: Rob Doss, ECS D Ó s Dir ector of Transpor t ation; and

Kevin Windham, ECS D Ó s Director of Risk Management. It offered

into evidence five exhibits: Pet itione rÓs Ex hibit A, a Return to

Work Agreement (First Time Positive Drug/Alcohol Screen) signed

on December 6, 2013, by three part ies: Ms. Green, an

Administrator for the School Board and a Union/Legal

Representative; Pet itione rÓs Ex hibit C, a nine - page composite

exhibit, the first page of which is a letter dated December 5,

2013, on letterhead of The School District of Escambia Cou nty

dated December 5, 2013, signed by Malcolm Thomas that places

Ms. Green on Ðsuspension with pay effective, Wednesday,

December 4, 2013 pending further action . . .Ñ; Pet itione rÓs

Ex hibit D, a nine - page document entitled, ÐMaster Contract

between the Sch ool District of Escambia County, Florida and the

Union of Escambia Education Staff Professionals, FEA, NEA, AFT,Ñ

and that is primarily an excerpt from the contract - ÐArticle IX,

Employee DisciplineÑ; Pet itione rÓs Ex hibit F, a report by a

company named ÐF IRSTLABÑ entitled ÐResult Report, Final

Verification, Positive, OpiatesÑ dated December 4, 2013; and

Pet itione rÓs Ex hibit H, a ÐReasonable Suspicion Drug/Alcohol

Testing Checklist for SupervisorsÑ that is a two - page document.

Ms. Green offered the testimon y of four witnesses: Danny

Authement, her supervisor at work; Henrietta Moye, her mother;

Angela Green, her daughter; and Ms. Green, presenting her own

testimony in the form of a narrative. Ms. Green offered two

exhibits. Both were deemed irrelevant to the issue of whether

substance abuse is a sickness and whether Ms. Green is entitled

to sick leave pending evaluation and rehabilitation for substance

abuse. But the two exhibits were accepted into the record for

purposes of background in light of the bac kground information

provided by the School Board in the presentation of its case - in -

chief.

The one - volume Transcript of the final hearing was filed

with DOAH on April 17, 2014. A Proposed Recommended Order was

timely filed by ECSD on April 25, 2014. It h as been reviewed and

considered prior to the issuance of this Recommended Order.

Ms. Green did not file a p roposed r ecommended o rder.

FINDING S OF FACT

A . Ms. Terry Green

1. Ms. Green has been employed by ECSD for at least five

years. ( See Hr Ó g Tr . 102, where the testimony indicates she was

hired in 2008). At the time of the final hearing, Ms. Green was

on leave without pay from her position as a school bus driver,

her employment status with ECSD since December 18, 2013.

2. As the driver of an ECSD s chool bus entrusted with the

safety of the children she transports on school days, Ms. Green

is required to meet certain criteria by the Department of

Transportation. For example, she must have an annual medical

examination. Ms. Green must also inform EC SD and the State of

Florida of any pharmaceutical substances medically prescribed for

her that she takes on a daily basis.

3. Among the pharmaceutical substances on a list in her

patient profile with A&E Pharmacy in Pensacola is Ð Hydrocod/Apap

Tab10 - 325MG . Ñ Ms. Green referred to the substance at hearing by

its proprietary name: Ð Lortab . Ñ Ms. Green does not take Lortab

on a daily basis. She listed it as one of the pharmaceutical

substances that are prescribed for her when she was hired by ECSD

because s he takes Lortab occasionally.

B . Lortab

4. Lortab is the proprietary name for a tablet prescribed

for pain management. Its active ingredients are Ð acetaminophen Ñ

(commonly known as Tylenol) and Ð hydrocodone . Ñ

5. Ms. Green offered an exhibit ( Ex. R - 2, attached to the

T ranscript of the final hearing) , which shows relationships

between hydrocodone and codeine and morphine. It cannot be

determined on the state of this record whether Lortab metabolizes

in the human body into codeine and morphine , but the e xhibit

offered by Ms. Green raises that possibility.

C . Ms. Green Ó s Illness

6. Ms. Green was ill for a period of about three weeks that

commenced around November 18, 2013 , and stretched into the early

part of the week of December 9, 2013. Her recovery f rom the

illness lasted until at least the end of January 2014. For much

of the time after November 25, 2013, during her illness and

recovery, Ms. Green was bed - ridden. The severity of her illness

was unusual. As Angela Green, her daughter, testified, Ð m y mom

has never been like that. Ñ Hr Ó g Tr. 83.

7. Running a fever as high as 103 degrees, Ms. Green showed

up for work and drove her school bus from Monday, November 18

through Friday, November 22, 2013. Her illness continued through

the weekend of Satur day, November 23, 2013.

8. On Sunday, November 24, 2013, Ms. Green Ó s mother tried

to convince her to go to an e mergency r oom ( Ð ER Ñ ) . She had seen

Ms. Green in the morning and observed, Ð she was a pretty sick

gal. Ñ Hr Ó g Tr. 75. The record is silent as t o whether Ms. Green

went to the ER , but it seems likely that she did not.

D . November 25, 2013

9. Sometime during the early morning hours of Monday,

November 25, 2013, a school day, prior to reporting for work,

Ms. Green took a Lortab.

10. Ms. Green wen t to work despite her illness and despite

having taken the Lortab. Her determination to report to work and

perform her duties is a characteristic ingrained in her from

early childhood. As her mother testified, she required Ms. Green

to attend school as a child unless she was Ð pretty much . . . on

[her] death bed. Ñ See Hr Ó g T r. 77.

11. While Ms. Green was driving the school bus that

morning, a school bus assistant (another ECSD employee assigned

to the bus) became concerned about Ms. Green Ó s condition. The

concern was reported to the ECSD Ó s Office of the Director of

Transportation. A replacement driver was sent to the bus , and

Ms. Green returned to the office.

12. A form to be used to help determine reasonable

suspicion for drug/alcohol testing, enti tled Ð Reasonable

Suspicion Drug/Alcohol Testing Checklist for Supervisors Ñ was

filled out by observers to determine whether Ms. Green should be

subjected to drug or alcohol testing. See Pet Ó r Ó s Ex. H.

13. The form shows Ms. Green was observed at 9:05 a.m . in

the office. Her speech was slurred , and the checklist indicates

that she was mumbling. She stumbled, appeared dazed , and had

unkempt hair or clothing. Four boxes were checked on the form

under the section called Ð Today Ó s Job Performance Ñ : Ð Mistake s

due to p oor j udgment , Ñ Ð Low productivity/Taking longer to

complete tasks , Ñ Ð Complaints from other s about

behavior/attitude/driving , Ñ and Ð Late to work . Ñ Under

Ð Interpersonal Behavior , Ñ two boxes were checked: Ð Overly

sensitive to real/imagined criticis m , Ñ and Ð Major change in

personality . Ñ Typed onto the form with regard to the source

reporting any drug/alcohol use was: Ð Bus assistant reported

initially then corroborated in the office with two route managers

who see her frequently. Ñ The observations led to the conclusion,

Ð The combination of factors indicates she is under the

influence. Ñ The Ð Test Requested Ñ section of the form had a box

checked for Ð Drug and Alcohol . Ñ The form was signed by two

observing supervisor/officials and dated November 25, 2013 . T he

route managers , who observed Ms. Green , reported to the Director

of Transportation that there was a reasonable suspicion that

Ms. Green was under the influence of drugs or alcohol. 2/

E . The Reasonable Suspicion Drug/Alcohol Test

14. Ms. Green submitted to the drug/alcohol test the same

day. The test results are reported on a Ð Federal Drug Testing

Custody and Control Form. Ñ See Pet Ó r Ó s Ex. F, at 6. Dated

November 25, 2013, it shows ECSD as the Ð employer , Ñ Dr. Natalie

Hartenbaum of FirstLab as the medical review officer ( Ð MRO Ñ ), and

Ms. Green as the donor. Ms. Green signed a certification on the

form that she submitted an unadulterated urine specimen to the

laboratory Ó s collector and that the information affixed on the

specimen bottle was corr ect.

15. The report shows the specimen was verified as positive

for two opiates: codeine and morphine.

F . The Timeline

16. The third page in Pet itione r Ó s Exhibit F is a

Ð TIMELINE Ñ under Ð DONOR NAME: TERRY GREEN Ñ (the Ð Timeline Ñ ).

Compiled by FirstLab with regard to the specimen Ms. Green

submitted for analysis, the Timeline commences on November 25,

2013 , and concludes with entries the following December 5 , 2013 .

17. The Timeline shows that the specimen collected on

November 25, 2013, was received at the laboratory on November 26,

2013, for drug/alcohol analysis.

18. According to the Timeline, the laboratory transmitted

the result to FirstLab on December 3, 2013: Ð MORE TH E N [sic] ONE

SUBSTANCE FOUND . Ñ Pet Ó r Ó s Ex. F, at 6 .

19. The Timeline shows in volvement of the MRO , beginning on

December 4, 2013. According to the Timeline, the MRO, after

being sent the documents for review, called the Donor

(Ms. Green). After an interview, the Timeline entry shows: Ð MRO

GAVE DONOR 24 HOURS TO FAX RX. Ñ The ent ry for December 4, 2013,

concludes : Ð MRO DETERMINATION MADE POSITIVE FOR CODEINE AND

MORPHINE. ANOTHER SUBSTANCE PENDING. Ñ Pet Ó r Ó s Ex. F , at 3 ,

TIMELINE (emphasis supplied).

20. The Timeline shows two entries for December 5, 2013.

The first December 5 entry states: Ð MRO ASSISTANT REPORTED TO

PATSY FLOWERS POSITIVE FOR CODEINE, MORPHINE AND PENDING FOR

ANOTHER SUBSTANCE. MRO REC Ó D AND VERIFIED RX PROFILE FOR THE

OTHER SUBSTANCE. Ñ Id. (emphasis supplied). The second

December 5 entry and final Timelin e entry states: Ð MRO ASSISTANT

REPORTED TO PATSY FLOWERS VOICE MAIL, NO CHANGE IN RESULT. OTHER

SUBSTANCE NEGATIVE . Ñ Id. (emphasis supplied).

21. It may be inferred from the timing of the report of the

positive for codeine and morphine (prior to a dete rmination on

the Ð other substance Ñ ), the reference to the receipt and

verification of the RX p rofile Ð for the other substance , Ñ and the

conclusion in a separate entry that the Ð other substance Ñ was

negative, that the MRO examined the RX profile only for th e other

substance. It may also be inferred, therefore, that the MRO did

not investigate whether the codeine and morphine positives in the

specimen could have been due to the ingestion and metaboliz ing of

Lortab or, as it is referred to on the RX p rofile, Ð HYDROCOD/APAP

TAB. Ñ See Ex . R - 1, attached to the T ranscript of the final

hearing.

G . The Return to Work Agreement

22. The next day, December 6, 2013, Ms. Green interrupted a

stay at a hospital for the illness she had had since mid - November

in order to meet outside the hospital with an ECSD Administrator

and her Union Representative. The meeting led to the execution

of a Return to Work Agreement signed by Ms. Green, the ECSD

Administrator , and Ms. Green Ó s Union Representative.

23. The title of the ag reement contains the following:

Ð FIRST TIME POSITIVE DRUG/ALCOHOL SCREEN . Ñ See Pet Ó r Ó s Ex. A.

The body of the agreement contains the following:

I, Terry Green, in exchange for my continued

employment with the School District of

Escambia County, Florida, and consistent with

the provisions of Article XI.3 - Discipline

Involving Drug or Alcohol Abuse or

Dependency, Section B, hereby acknowledge

that I have received a Ð First Time Ñ positive

drug/alcohol test result . . . . I am

required to undergo a Substanc e Abuse

Professional (SAP) evaluation and participate

in the SAP recommended drug/alcohol abuse

program at my expense with a goal of

returning to full employment upon my

successful completion of the prescribed

rehabilitation regimen.

Id. It is apparent t hat prior to November 25, 2013, Ms. Green

had not had a record of any drug or alcohol offenses while in the

employ of ESCD.

24. The Return to Work Agreement acknowledges Ms. Green Ó s

understanding that she Ð had the benefit of competent legal

counsel and/o r Association representation [as shown by the

signature on the agreement of a Union/Legal

Representative] . . . . Ñ Pet Ó r Ó s Ex. A. It also acknowledges

Ms. Green Ó s entry into the agreement Ð voluntarily and without

duress or coercion of any kind and with f ull understanding of

[her] rights and any waiver thereof. Ñ Id. Nonetheless, at

hearing Ms. Green claimed that she signed the Return to Work

Agreement in reliance on her Union Representative Ó s advice

without fully understanding the agreement Ó s implication s. It was

not until she met with an attorney provided to her by the Union

who told her that she Ð had signed away [her] rights , Ñ Hr Ó g

T r. 91, that she fully realized its significance. Signing it was

an act she would not have committed, she asserted at hea ring,

even if it meant losing her job, had she thought it affected her

right to challenge the positive drug/alcohol test.

H . ECSD Action

25. On December 5, 2013, ECSD notified Ms. Green that she

had been placed on leave with pay.

26. Section IX.6(b)(6) of the Master Contract between the

School District of Escambia County, Florida and the Union of

Escambia Education Staff Professionals, FEA, NEA, AFT (the

Ð Master Contract Ñ ) 3/ states as follows:

Upon receipt of a positive test result in a

first offense dr ug or alcohol screening, the

employee may be administratively reassigned

to her/his home pending appropriate due

process procedures. The employee shall be

recommended for suspension without pay until

she/he completes a District and Union

approved Substanc e Abuse Professional (SAP)

evaluation and the drug/alcohol dependence or

abuse rehabilitation program at the

employees Ó expense as recommended by the SAP.

(The employee may utilize the District Health

Care Program to the extent specified for the

rehabilit ation program in the DHCP.)

Pet Ó r Ó s Ex. D , at 8 (page 35 of the Master Contract) .

27. Consistent with the section of the Master Contract

quoted above, the s uperintendent of the ECSD recommended that

Ms. Green be placed on suspension without pay until com pletion of

an evaluation by the SAP and any rehabilitation program

recommended by the SAP.

28. On December 17, 2013, the School Board approved the

s uperintendent Ó s recommendation , and Ms. Green was suspended

without pay beginning December 18, 2013.

29. M s. Green Ó s subsequent request to use sick leave

beginning December 18, 2013, was denied by ECSD.

I . Ms. Green Ó s Petition

30. On January 14, 2014, Ms. Green, through counsel

provided by the Union, submitted a Petition for Hearing to the

ECSD. The petiti on requests that Ms. Green be allowed to use

sick leave after December 18, 2013, the date the School Board

placed her on leave without pay.

31. The Petition asserts that there are no disputed issues

of material fact. Facts cited in the petition include

Ms. Green Ó s employment as a school bus driver with ECSD, her

initial placement on leave with pay while a Ð reasonable

suspicion Ñ drug test was conducted, her entry into the Return to

Work Agreement, and the School Board Ó s subsequent placement of

Ms. Green o n leave without pay effective December 18, 2013.

32. The Petition does not definitively admit that Ms. Green

is a substance abuser. Rather, it asserts that she Ð is unable to

perform her duties as a bus driver while she is evaluated and

receiving rehabili tation for substance abuse, which is a

sickness. Ñ Petition for Hearing , at 2, ¶ 9. The Petition,

therefore, depends on the evaluation of the SAP and a

determination that Ms. Green is in need of rehabilitation for

substance abuse. If Ms. Green were evalu ated by the SAP and

determined not to be in need of rehabilitation for substance

abuse, there would be no basis for the p etition or the relief it

seeks.

J . Ms. Green Ó s Need for Rehabilitation for Substance Abuse

33. At the hearing, Ms. Green Ó s mother, He nrietta Moye, was

asked the following question by Ms. Green: Ð Have you ever

witnessed me being, in the last two years or almost two years

being here, under the influence of any type of drug to impair or

any type of alcoholic beverage to impair me? Ñ Ms. M oye answered,

Ð No. Ñ Hr Ó g Tr. 76.

34. Ms. Moye , moreover, is not aware of any time in her

life that Ms. Green has abused any type of medication or consumed

alcohol to the point of intoxication.

35. At the hearing, employees of ECSD did not contend that

M s. Green needs rehabilitation for substance abuse. Nor has ECSD

expressed its position based on Ms. Green Ó s relationship to

substance abuse. Rather, it bases its position solely on

procedures dictated by a single, first - time, drug report positive

for opi ates and the Return to Work Agreement.

36. The record is silent as to the outcome of an evaluation

by the SAP or whether such an evaluation has ever been conducted.

K . Sick Leave

37. Whether Ms. Green is in need of rehabilitation for

substance abuse or is a person free of substance abuse, no

evidence was produced at hearing that substance abuse is a

sickness that would entitle her to sick leave.

38. Likewise, no statute, rule, regulation , or any

applicable law was produced by Ms. Green that would entitl e her

to sick leave for substance abuse while she was placed on leave

without pay pending an evaluation by the SAP.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has authority

under its contract with ECSD to conduct this proceeding and is sue

a Recommended Order. See § 120.65(6), Fla. Stat.

40. Ms. Green has the burden of proving that she is

entitled to sick leave after her suspension without pay by the

School Board effective December 18, 2013.

41. The School Board followed the procedure s prescribed by

the Master Contract between ECSD and the Union of Escambia

Education Staff Professionals.

42. Ms. Green did not present evidence that substance abuse

in general or abuse of opiates, in particular, is a sickness.

43. Ms. Green did not cite to any law, rule, regulation, or

provision in the Master Contract that would require ECSD to allow

an employee to use sick leave for substance abuse after the

employee entered a Return to Work Agreement and was suspended

without pay for a first - time, posi tive, drug test.

44. No conclusion is reached as to whether Ms. Green

suffers from substance abuse.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Escambia County School Board continue to

deny Ms. Green Ó s r equest to use sick leave during her suspension

without pay that the School Board imposed effective December 18,

2013, and enter a final order that denies the relief sought in

Ms. Green Ó s petition.

DONE AND ENTERED this 2nd day of May , 2014 , in Tallahassee ,

Leon County, Florida.

S

DAVID M. MALONEY

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 May , 2014 .

ENDNOTE S

1/ The petition also requested that her status as on Ð leave with

pay Ñ be re - instated for the period December 5 through 18, 2013,

and that she be paid her sa lary for that period. At the hearing ,

the parties agreed that Ms. Green was paid her salary through

December 18, 2013. Her employment status and back - pay prior to

December 18, 2013, therefore, are not at issue.

2/ While contesting that she had abused a n illegal substance,

Ms. Green, nonetheless admitted several times during the hearing

that she was not fit to drive her school bus on November 25,

2013, and that the Director of Transportation acted appropriately

in relieving her of her duties that morning . See Hr Ó g T r. 13,

18, and 19.

3/ The copy of the Master Contract admitted into evidence is

dated July 1, 2009 to June 30, 2012. There was testimony,

however, that the contract had been Ð extended or continued. Ñ See

Hr Ó g Tr. 36.

COPIES FURNISHED:

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Malcolm Thomas, Superintendent

Escambia County School District

75 North Pace Boulevard

Pensacola, Florid a 32505

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola, Florida 32 501 - 3125

Terry Green

412 North 60th Avenue

Pensacola, Florida 32506

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 Recommend ed Order should be filed with the agency that

will issue the Final Order in this case.