17-001541TTS Charlotte County School Board vs. Lori Lorenz Status: Closed Recommended Order on Friday, July 14, 2017.

Summary: There was no reasonable suspicion to drug test Respondent, and, therefore, Petitioner lacked just cause to terminate Respondent's annual contract during the term of the contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLOTTE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 1541TTS

LORI LORENZ,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearin g in this cause was held

in Port Charlotte, Florida, on May 25, 2017 , before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Thomas Martin Gonzalez, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

Suite 1600

201 North Franklin Street

Tampa, Florida 33602

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether there was just cause to terminate RespondentÓs

annual employment contract during the term of the contract.

PRELIMI NARY STATEMENT

On or about February 22, 2017 , Petitioner Charlotte County

School Board (Petitioner /School Board ), through Assistant

Superintendent Chuck Breiner , served on Respondent Lori Lorenz

(Respondent) a letter recommending RespondentÓs termination f rom

employment. Respondent timely filed a request for administrative

hearing, and this matter was referred to the Division of

Administrative Hearings for a disputed - fact hearing. The

disputed - fact hearing was held on May 25, 2017 .

During the hearing, Pe titioner offered the testimony of

David Carter, Lisa Pellegrino, Amy Haggarty, Louis Long III, and

Chuck Breiner. Respondent testifie d on her own behalf and called

no other witnesses. Petitioner Ós Exhibits 1 through 16 and 20

through 25 were admitted int o evidence . There were no exhibits

received into evidence on behalf of Respondent.

A Transcript of the disputed - fact hearing was filed with the

Division of Administrative Hearings on June 8, 2017. Petitioner

filed its Proposed Recommended Order on June 19, 2017.

Respondent requested and received an extension, and filed her

Proposed Recommended Order on June 23, 2017.

FINDING S OF FACT

1. Petitioner is the duly authorized entity responsible for

the operation, control, and supervision of all public school s

(grades kindergarten through 12) in Charlotte County, Florida,

and for otherwise provi ding public education to school - aged

children in the county. Art. IX, § (4)b, Fla. Const. ;

§ 1001.32 , Fla. Stat. (2016).

2. During all times relevant hereto, Petit ioner employed

Respondent as a classroom teacher working pursuant to an annual

contract.

3. Between the years 1986 through 2000, Respondent worked

as an educator for the School District of Hillsborough County,

Florida.

4. During the late 1990s, Respond ent 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.

5. Around 1998, RespondentÓs 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.

6. 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

RespondentÓs arrest and as a result thereof suspended

RespondentÓs teaching certifica te for two months, imposed a

two - year probationary period, and required Respondent to submit

to substance abuse treatment.

7. Respondent left the teaching profession in 1998 and did

not return to the profession until 2014, when she became employed

by Pe titioner. 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.

8. Respondent has suffered from migraine headaches for

several years and would of ten 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 principa l to speak with her regarding the issue.

9. 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.

10. Respondent a nd 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. RespondentÓs calls were not answered by

Ms. Pellegrino because at the time, Ms. Pellegrino did not have

her phone in her possession.

11. At 9:01 a.m., on January 3, 2017, Respondent sent a

text message to Ms. Deb Capo, who is the schoolÓs secretary. The

text message states: Ð W oke up with a headache . . . will be in

ASAP.Ñ At 10:36 a.m., Ms. Capo responded to the text message

asking : ÐA re you here yet. Lou needs to see you.Ñ Re spondent

replied and stated , ÐN ot yet . . . IÓll be there by noon. All

ok?Ñ Ms. Capo then replied , ÐY es. See you then.Ñ

12. At approximately 10:5 0 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 c alled her because I wanted to see

what was going on. I figured I had three

missed calls; maybe there was an emergency.

And w hen I spoke with her, she informed me

that she had a really bad migraine, she

didnÓt think she was going to be able to make

it, or she was trying to get pain pills

because she couldnÓt 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, an d I said no. [ 1/ ]

13. 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 , Ðdid Lori

[Respondent] come in yet?Ñ One of the teachers in the lunch

gro up was Amy Haggarty, who is the chairperson of the schoolÓs

math department and was aware of RespondentÓs history of

addiction to pain medication.

14. Ms. Pellegrino, in response to the question about

RespondentÓs whereabouts, mentioned to Ms. Haggarty t hat she had

just gotten off the phone with Respondent and that it was a weird

conversation because Respondent said, according to

Ms. Pellegrino, Ðthat she has a bad migraine headache and she

canÓt fill her pain medication , Ñ and asked her [Ms. Pellegrino]

Ðif she had any pain medication.Ñ Ms. Haggarty, because she knew

of RespondentÓs history with addiction to pain medication, became

alarmed by Ms. PellegrinoÓs statement and she immediately

arranged to meet with the school principal, Mr. Long, to discuss

w hat she had been told about Respondent.

15. 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 questionin g by Mr. Long, Ms. Pellegrino

confirmed that she had spoken with Respondent that morning and

that Respondent asked her for pain medication.

16. Mr. Long then contacted the school boardÓs office of

human resources to report what he had been told by

Ms. P ellegrino. 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 Ðpossibly place

Ms. Lorenz on administrative leave.Ñ

17. Dave Carter is a Ðhuman res ources investigatorÑ 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 Ðpersonnel investigations ba sed on allegations of

misconduct or violations of school district policies, rules, or

the Department of Education code of ethics.Ñ

18. During his testimony, Mr. Carter explained that when

Mr. Breiner, or others as appropriate, believes that reasonable

s uspicion exists to subject an employee to drug testing, he

[Mr. Carter] will go to the employeeÓs worksite, perform Ðan on -

scene concurrence evaluationÑ of the employee, and, if necessary,

transport the employee to the drug testing facility.

19. Mr. Car ter testified that an on - scene concurrence

evaluation consists of him Ðinterview[ing] the principal,

call[ing] the employee down, [and] mak[ing] a physical

observation of [the employee].Ñ Mr. Carter testified that upon

completion of the concurrence evalua tion, 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.

20. Respondent arrived at the school aroun d 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 Ðsecond hourÑ of the day,

which is her planning period. A reasonable inference fr om the

evidence is t hat 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

RespondentÓs Ðperformance, appearance, or behaviorÑ in

prepar ation 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/

21. At about 8:00 a.m. on the mornin g 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 m atter. When Mr. Carter checked in at the school, he

met with Mr. Long who informed him of th e allegations concerning

RespondentÓs solicitation of pain medication from

Ms. Pellegrino. Mr. Carter immediately contacted Mr. Breiner and

informed him of the allegations against Respondent.

22. Mr. Breiner, when he spoke with Mr. Carter, was not

awar e of RespondentÓs history of drug addiction and ,

consequently, this was not a factor that he considered when

o rdering that Respondent be drug - tested. Mr. Breiner, based on

the information that Respondent allegedly solicited pain

medication from Ms. Pelleg rino, 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 authori zed facility for reasonable

suspicion drug testing.

23. 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 RespondentÓs

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. Carte r interviewed Ms. Pellegrino.

24. Mr. Carter, after receiving direction from Mr. Breiner,

and with the assistance of Debbie Anderson, who works as a

personnel analyst in RespondentÓs department of human resources,

met with Respondent and explained that s he was required to submit

to drug testing pursuant to the school boardÓs drug - free

workplace policy.

A . Reasonable Suspicion Indicators

25. Petitioner uses a form titled ÐReasonable Suspicion

Indicators ChecklistÑ (checklist) , when evaluating employees for

suspicion of violating PetitionerÓs 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

reasona ble suspicion determination. After

careful observations of the employeeÓs

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 Alc ohol - 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

a ttention

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, poo r 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

26. 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

Respo ndent.

27. There is, however, an ÐindicatorÑ 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 ÐColleague disclosed that employee

solicited Òpain medicationÓ (controlled substance) during a

teacher work day.Ñ By comparison, the form completed by

Ms. Anderson notes a different indicator which states ÐEmployee

discloses that he or she has consumed alcohol, used or ingested a

controlled substance during or immediately prior to duty.Ñ

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. PellegrinoÓs statement about

Respondent allegedly soliciting Ms. Pellegrino for pain

medication.

28. Mr. Carter and Ms. Anderson each completed their

respective checklist on January 11, 2017, which c oincidentally,

was the same date that RespondentÓs 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.

29. Mr. Cart er 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 solici ted pain medication from her on

January 3, 2017. Ms. Anderson did not testify at the final

hearing.

30. Mr. Breiner, who made the ultimate decision to subject

Respondent to reasonable suspicion drug testing on January 4,

2017, testified that two factor s drove his determination : the

first being Ms. PellegrinoÓs statement , and the second being

RespondentÓs history of absenteeism from work during the 2016 -

2017 school year. 4/ On cross - examination , however, Mr. Breiner

admitted that in RespondentÓs notice of termination he made no

reference to absenteeism being a factor in his decision to

subject Respondent to reasonable suspicion drug testing.

B . Morphine and Imitrex

31. Respondent admits that on January 3, 2017, she took

morphine in order to get relie f 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.

32. Respondent testified that she typically takes morphine

about once or twice a year Ðwhen the Imitrex [is not] workingÑ

and that the effects of the morphine last Ð[a]nywhere from four

to six ho urs, sometimes eight, but nothing after that.Ñ

Petitioner did not rebut RespondentÓs 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.

33 . According to medical records from Peace River Medical

Center, Respondent was discharged from the hospital on August 23,

2007, following treatment for: 1. Ð[c]hest pain, myocardial

infarction protocol; 2. [p]leuritic pneumonia; [and]

3. [m]igraine.Ñ A t the time of release from the hospital,

Respondent was Ðdischarged home with Morphine 60 mg p.r.n.Ñ

According to RespondentÓs unrefuted testimony, the morphine pill

that she took on January 3, 2017, was part of the batch of pills

that she received when d ischarged from the hospital in 2007.

34. Petitioner, when first interviewed by Respondent on

January 13, 2017, denied soliciting pain medication from

Ms. Pellegrino.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over t he parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (201 6 ).

36. Petitioner seeks to terminate Respondent's employment.

Petitioner bears the burden of proving by a preponderance of the

evidence that just cause exists f or Respondent's termination.

McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d

DCA 1996); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla.

3d DCA 1990).

37. PetitionerÓs policy 3124 is the drug - free workplace

policy and it provides i n part that Ð[t]he School Board believes

that quality education is only possible in a drug free

environment [and] [i]t will seek, therefore, to establish and

maintain an educational setting which is not tainted by the use

or evidence of use of any controll ed substance.Ñ

38. PetitionerÓs policy 3162.01 (Drug Testing), provides in

part as follows:

In accordance with Policy 3124 Î Drug - Free

Workplace, it is the intent of the School

Board to eliminate substance abuse and its

effects in the workplace. While t he Board

has no intention of intruding into the

private lives of its employees or future

employees, involvement with drugs and alcohol

off the job can take its toll on the safety

and job performance of employees and

studentsÓ safety. The BoardÓs concern i s

that employees are in a condition to perform

their duties safely and efficiently, in the

interest of students, fellow workers, and the

public as well as themselves. The presence

of drugs and alcohol on the job and the

influence of these substances on th e employee

during working hours are inconsistent with

this objective.

39. PetitionerÓs administrative procedure 3162.01 sets

forth the following administrative responsibilities and

procedures with respect to reasonable suspicion drug testing of

employee s:

A. Administrative personnel are responsible

for reasonable enforcement of this procedure;

B. Administrative personnel who have a

reasonable suspicion that an employee is

intoxicated or under the influence of drugs

or alcohol while on the job shall do cument in

writing the facts constitution [sic]

reasonable suspicion and place the employee

in a secured and supervised location;

1. ÐReasonable suspicionÑ is a belief based

on objective facts sufficient to lead a

reasonably prudent administrator to suspe ct

that an employee is under the influence of

drugs or alcohol so that the employeeÓs

ability to perform the functions of the job

is impaired or so that the employeeÓs ability

to perform his/her job safely is reduced;

2. Reasonable suspicion includes, bu t is not

limited to, the following examples;

a. Slurred speech;

b. Alcohol odor on breath;

c. Unsteady walking and movement;

d. An accident involving Board property or

employees;

e. Physical Altercation;

f. Verbal altercation;

g. Unusual behavior;

h . Possession of alcohol or drugs;

i. Information obtained from a reliable

person with personal knowledge.

C. Any administrator who has reasonable

suspicion that an employee is intoxicated or

under the influence of drugs or alcohol shall

contact Human R esources immediately;

D. Once the situation has been reported to

Human Resources, HR will contact the site

administrator and will proceed according to

the following procedures;

1. An HR designee will come to the worksite

with the appropriate paperwork and meet with

the administrator and other witnesses. [ 5/ ]

40. The evidence establishes, and Petitioner readily

concedes, that the decision to subject Respondent to a drug test

was based on Ms. PellegrinoÓs statement and Mr. BreinerÓs

awareness that Respo ndent was one of several employees with

multiple absences during the school year.

41 . The evidence also establishes that prior to subjecting

Respondent to drug testing, Petitioner failed to take into

consideration that Respondent had timely submitted h er grades

prior to the January 3, 2017, 2:00 p.m. deadline.

4 2 . The evidence also establishes that prior to subjecting

Respondent to drug testing, Petitioner failed to take into

consideration that Respondent informed Mr. LongÓs secretary that

she Ðwoke up with a headacheÑ and that Respondent then took

appropriate steps to keep Mr. LongÓs office appr ised of her work

status.

43 . The evidence also establishes that prior to subjecting

Respondent to drug testing, Mr. Long, on January 4, 2017, took no

steps to observe RespondentÓs Ðperformance, appearance, or

behavior,Ñ and allowed Respondent to meet with students and teach

her class despite knowing of Ms. PellegrinoÓs allegations and

RespondentÓs history of addiction to pain medication.

44 . The evidence a lso establishes that prior to subjecting

Respondent to drug testing on January 4, 2017, Mr. Carter did not

interview Ms. Pellegrino when it was evident that she was the

only person, other than Respondent, Ðwith personal knowledgeÑ of

what Respondent allege dly said during the conversation in

question.

45 . The evidence also establishes that prior to subjecting

Respondent to drug testing on January 4, 2017, Petitioner failed

to take into consideration that Respondent was at work on

January 4, 2017, between 6:15 a.m. and 8:10 a.m. and that there

were no complaints from anyone about her Ðperformance,

appearance, or behavior,Ñ and that she taught her students

without incident.

46 . The evidence also establishes that prior to subjecting

Respondent to drug testi ng on January 4, 2017, Petitioner failed

to take into consideration that not one of the 34 categories of

Ðobjective factsÑ set forth on the indicators checklist was

observed by either Mr. Carter or Ms. Anderson.

47 . The complete absence of objective fact s suggesting

impairment, when combined with RespondentÓs objectively

reasonable behavior and the unexplained failure by the

investigative team to timely interview Ms. Pellegrino so as to

test the reliability of her statement, demonstrate that on

January 4, 2017, a reasonably prudent administrator would not

have concluded that reasonable suspicion existed to subject

Respondent to drug testing.

48 . Ms. Haggarty testified that the information that she

received from Ms. Pellegrino Ðraised a red flagÑ that cau sed her

to report Ms. PellegrinoÓs statement to Mr. Long. Mr. Long

certainly acted reasonably by reporting the information that he

received from Ms. Haggarty to human resources. However, on

January 3, 2017, when information about Ms. PellegrinoÓs

allegat ion reached human resources and beyond, it should have

been determined, based on the information available at that time,

that there was insufficient information to warrant drug testing

Respondent and that, consistent with board policy, her

Ðperformance, ap pearance, or behaviorÑ should have been subjected

to careful observation.

49 . Petitioner interviewed Respondent on January 13, 2017,

which was two days after Petitioner received notice that

Respondent tested positive for opiates (morphine). It was dur ing

this interview that Respondent was asked Ðto explain or account

for the results from the drug test being positive for opiates.Ñ

It was only because of this interview that Petitioner gleaned

information from Respondent that resulted in allegations two and

four of RespondentÓs letter of termination. 6/

50 . Petitioner should not reap any benefit from its failure

to comply with its policies and procedures that ultimately

resulted in Respondent being subjected to an unwarranted drug

test. Accordingly, be cause Petitioner lacked reasonable

suspicion to subject Respondent to drug testing, and given that

the other grounds for termination are inextricably intertwined

with the facts and circumstances surrounding the improper drug

test, it is determined that Pet itioner has failed to meet its

burden of proof with respect to each allegation contained in the

letter of termination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Charlotte County School Board

e nter a final order finding that there was no just cause to

terminate RespondentÓs employment during the term of her

2016 - 2017 annual contract with the School B oard.

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 wit h the Clerk of the

Division of Administrative Hearings

this 14th day of July , 2017 .

ENDNOTE S

1/ On January 5, 2017, Ms. Pellegrino was interviewed by

Petitioner regarding her conversation with Respondent on

January 3, 2017. According to the transcrip t of the interview,

Ms. Pellegrino stated, in part, as follows:

Uh, she called to tell me that she wasnÓt at

school yet because she had a really bad

migraine. Her medication wasnÓt working.

Um, she was trying to find something to help

her. She asked m e if I had any pain pills.

I told her I didnÓt. Um, she said she wasnÓt

going to be able to get hers for another

couple of days. And I actually asked her why

she didnÓt just, you know, do her grades from

home and log into Focus, and she said that if

she could see straight, she would , but she

couldnÓt. So, um, I said, okay. Well, I

hope you feel better. And that was pretty

much the end of the conversation.

Ms. PellegrinoÓs statement of January 5, 2017, gives the

impression that RespondentÓs Im i trex w as not working and that

Respondent was looking for pain pills because she would not be

able to get pain pills until a few days later. Ms. PellegrinoÓs

testimony at the final hearing however, suggests that Respondent

was looking for pain pills because she was unable to get her

prescription fil l ed for Im i trex. There was no explanation

offered as to why Ms. PellegrinoÓs testimony at the time of

hearing differed from her previous statement of January 5, 2017.

2/ PetitionerÓs administrative procedure 3162.01 directs that

Ð[e]mployees reasonably believed to be under the influence of

alcohol or drugs shall be prevented from engaging in further work

and shall be detained for a reasonable time until s/he can be

safely transported from the work - site.Ñ That Mr. Lo ng as an

experienced administrator, and knowing of Ms. PellegrinoÓs

allegation and RespondentÓs history of addiction, had no concerns

about allowing Respondent to teach her class on the morning of

January 4, 2017, weighs considerably against there being

re asonable suspicion to subject Respondent to drug testing.

3/ On January 11, 2017, Petitioner received the results from

RespondentÓs drug test which indicated that Respondent tested

positive for opiates (morphine).

4/ Mr. Long was aware o f RespondentÓs multiple absences during

the 2016 - 2017 school year because he had to sign her leave forms.

Mr. Long testified , however, that he was not particularly

concerned about RespondentÓs absences and never had any

discussions with her regarding the same.

5/ As n oted, Mr. Carter did not meet with Ms. Pellegrino prior to

RespondentÓs drug test, and other than Respondent, Ms. Pellegrino

is the only witness with personal knowledge of what was said

during the telephone conversation at issue.

6/ The letter of termin ation that Petitioner provided to

Respondent reads in part as follows:

This letter of termination follows a pre -

determination hearing on February 09, 2017, at

8:00 a.m. in the Human Resources conference

room. . . . The purpose of the meeting was to

deter mine the validity or rejection of

allegations that you had been at work under

(District - policy - prohibited) the influence of

controlled substances.

After careful deliberation of the facts

surrounding your case, I determined that you:

(1) reported to work on January 4, 2017,

under the influence of the controlled

substance morphine; you allege that the pill

was unused and in your possession from an

unspecified prescription you received Ðtwo,

three . . . maybe four years ago.Ñ

(2) could not produce a valid prescription

for morphine from a licensed physician;

previously you stated to your principal that

you were prescribed oxycodone; clearly this

statement proved untrue;

(3) placed repeated phone calls to a teacher -

colleague on January 3, 2017; after reachi ng

her, you made clear that you needed medication

stronger (ÐI need something stronger. I take

something stronger.Ñ) than across - the - counter

medications for a migraine headache; from that

phone callÓs content (in which you asked your

colleague if she had any Òpain pillsÓ), your

colleague was left with the distinct

impression that you were soliciting her for

pain medication. (I note here that your

colleagueÓs husband had recently undergone

surgery.) Your colleague reported the content

of and concerns abou t that call to her

department head (who, in turn, reported the

concerns to her principal) at Port Charlotte

High School (PCHS).

(4) Contrary to Charlotte County Public

Schools (CCPS) - Board policy, you failed to

alert your principal to the fact that you we re

taking a prescribed medication (Sumatripan

and/or an opiate while working at PCHS.

COPIES FURNISHED:

Thomas Martin Gonzalez, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

Suite 1600

201 North Franklin Street

Tampa, Florida 33602

(eServed)

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

(eServed)

Steve Dionisio, Superintendent

Charlotte County School Board

1445 Education Way

Port Charlotte, F lorida 33948 - 1052

Matthew M ears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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.