21-000303 Marion County School Board vs. Desiree Seaton Status: Closed Recommended Order on Friday, May 28, 2021.

Summary: The laboratory test result on which the allegations were based was unsubstantiated and uncorroborated hearsay.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

T HE S CHOOL B OARD OF M ARION

C OUNTY ,

Petitioner ,

Case No. 21 - 0303

vs.

D ESIREE S EATON ,

Respondent .

/

R ECOMMENDED O R DER

Pursuant to notice, a final hearing was conducted on April 20, 2021, via

Zoom before Garnett W. Chisenhall, a duly designated Administrative Law

Judge of the Division of Administrative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petitioner: Mark E. Levitt, Esq uire

Allen, Norton & Blue, P.A.

Suite 100

1477 W est Fairbanks Avenue

Winter Park, Florida 32789

For Respondent: Desiree M. Seaton, pro se

5 Hemlock Loop Lane

Ocala, Florida 34472

S TATEMENT OF T HE I SSUE S

Whether Resp ondent (ÑDesiree SeatonÒ) violated Petitioner, the School

Board of Marion CountyÔs (Ñthe School BoardÒ) , 1 drug - free workplace policy;

1 The School BoardÔs official name is ÑThe School Board of Marion County.Ò £ 1001.40, Fla.

Stat. (2020 )(providing that Ñ[t]he governing body of each school district shall be a district

school board. Each district school board is constituted a body corporate by the name of ÓThe

School Board of County, Florida.ÔÒ). The case style has been amended accordi ngly.

and, if so, whether her employment with the School Board should be

terminated.

P RELIMINARY S TATEMENT

On December 2, 2020 , the Superintendent of Schools for Marion County

(Ñthe SuperintendentÒ) issued an Administrative Complaint alleging that

Ms. Seaton took a random drug test on October 27, 2020, and that the urine

sample she provided tested positive for opioids. The Super intendent

characterized Ms. SeatonÔs positive test result as Ñserious misconductÒ and

notified Ms. Seaton that the Superintendent intended to recommend that the

School Board terminate her employment.

The School Board issued a letter to Ms. Seaton on Dece mber 2, 2020,

notifying her that the SuperintendentÔs recommendation would be considered

by the School Board during a January 12, 2021, meeting. However, if

Ms. Seaton wished to appeal the SuperintendentÔs recommendation, the

School BoardÔs letter instruc ted her to submit a letter setting forth her

response to the SuperintendentÔs allegations.

Ms. Seaton issued a letter on December 11, 2020, setting forth the

following response:

1. I hold the title of School Bus Driver, however I

have not performed in t hat capacity since October

2, 2020 while injured on your school bus. I have

been ordered by your doctors at Concerta [to] light

duty and I have performed to the best of my ability.

I even had a supervisor tell me if I ever needed a

job with her office or t he county, she would give me

a recommendation. I also received several accolades

from employees and other management staff. I can

provide the names if necessary.

2. I did take a random test ordered by DOT.

3. I provided a urine sample and questioned the

DOT why I was being selected since I am on light

duty. His response [was] because I am signed in on

Marion County[Ós] clock. This also confused me

[because] I am on workmanÔs compensation and

signing in. I just did as I was told.

4. This is the only thin g that I cannot answer

because I did not use Percocet and I have

Hydrocodone which I have a prescription to use.

I am also allergic to that drug and all my medical

records all the way back to the 1990s will show as

such. I wanted to ask your doctor [i f] poppy seeds

[could] alter that test. I can provide evidence that I

was eating them that week, even the morning of

the testing. I wish that we could concur on the type

of opiate, either way I am not going to tell you, I did

not take one at night.

5. In regards to notifying my supervisor, this was

not a safety concern and the Nurse Practitioner at

Concentra was advised. She advised me to try the

ibuprofen and one Tylenol instead. Of course that

did not work. Since I was under doctorÔs care, I saw

no need to advise my supervisor, plus the pill was

only taken at night to go to sleep. I have never used

that pill on school property nor during working

hours. The staff there do not care about the

employee. The fall I sustained should have been

sent for further t esting earlier. I had to go through

therapy for a month before they would order [an]

MRI. So far [I have a] dislocated shoulder with

possible rotator cuff [damage and] that is why at

night, the pain is terrible. I since got a second and

third opinion. I am seeing a pain management

doctor. I am scheduled for my next MRI on

12/23/2020.

6. I never used drugs or alcohol, nor brought [any]

on school property.

7. I have never misused my prescription drugs and

that would be up to a doctor to substantiate. I ca n

provide you with [the name of] every doctor I have

seen in the last four years. They will all tell you

that I use pain medicines as a last resort and I am

an amazing patient. I do the required therapy, I do

all my appointments and follow directions.

8. In regards to OTETA [ 2 ] , I completely understand

their position on safety sensitive position[s]. If I

was driving a bus, the first person that would know

that I could not drive because I was in pain and

had to take medication, would be my direct reports.

I consider my life and the life of my students, which

are my heart, my first priority. I can provide you

with a drug test on August 3 and on October 2, the

day of the accident. You will see that I was not

under any influence.

I would not be going through t his situation right

now, if not [for] being hurt on your job, by not

having doctors who care about their patients, or

should I say the medical insurance companies that

they blame because itÔs just protocol. No one cares

that I have cried myself to sleep be cause of the

pain, or I had to work two jobs and do classes which

was hard to concentrate through the pain. I am left

handed and I cannot even brush my hair [or] hold a

cup. I can provide their information as well.

The undersigned convened the final hea ring on April 15, 2021. The School

Board presented the testimony of Brent Carson, and PetitionerÔs Exhibits 1

through 10 were accepted into evidence without objection. Ms. Seaton

testified on her o w n behalf and RespondentÔs Exhibits 1 through 5 and 7

throu gh 9 were accepted into evidence. 3 The undersigned noted , but

overruled, relevancy objections to RespondentÔs Exhibits 2, 4, and 5 through

7. With regard to RespondentÔs Exhibit 6, the undersigned reserved ruling on

the admissibility of a portion of a news article. After taking the matter under

2 OTETA is the acronym for Omnibus Transportation Employee Testing Act.

advisement, the undersigned concludes that the news article is

uncorroborated hearsay and must be excluded from evidence. The

undersigned granted an objection and excluded RespondentÔs Exhibit 11 from

evidence.

The one - volume final hearing Transcript was filed on April 18, 2021.

Both parties filed timely Proposed Recommended Orders that were

considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

Based on the oral and documentary evidence adduce d at the final hearing,

the entire record of this proceeding, and matters subject to official

recognition, the following Findings of Fact are made:

1. The School Board maintains an alcohol and drug - free workplace.

Section 6.33 of the School BoardÔs Human Resources Manual provides that:

It is further the intent of the School Board of

Marion County to comply with the Omnibus

Transportation Employee Testing Act (OTETA),

regulations of the Federal Highway Administration

(FHWA) contained in 49 CFR Parts 40 an d 382, et

al , Section 2345.091, Florida Statutes, the

provisions of the Drug - Free Workplace Act, and

other applicable state and federal safety programs.

This policy shall also affirm the BoardÔs position

that an employee in a safety sensitive position may

be considered impaired at any measurable level by

the use of alcohol and/or controlled substances.

Pursuant to OTETA and its implementing

regulations, drug and alcohol testing is mandated

for all safety sensitive identified employees who

function in a safe ty sensitive position.

2. Section 6.33 further specifies that prohibited substances include

Ñmarijuana, amphetamines, opiates, phencyclidine (PCP), and cocaine.Ò In

3 Ms. SeatonÔs exhibits were misnumbered in that there was no RespondentÔs Exhibit 10.

addition, Ñ[i]llegal use includes the use or possession of any illegal drug, and

the mis use of legally prescribed or obtained prescription drugs.Ò Also, Ñwhen

the use of a controlled substance is pursuant to the instructions of a

physician, the employee shall immediately notify his/her supervisor.Ò

3. Section 6.33 states that random drug te sting Ñmay take place at any

time, with or without proximity to driving,Ò and that there will be random

drug testing for Ñall identified safety sensitive positions.Ò A Ñsafety sensitive

positionÒ is defined as Ñ[a]ny function for which a commercial driver Ôs license

is mandated and in which a driver operates a vehicle designed to carry

sixteen (16) or more passengers, a vehicle which weighs 26,000 1 pounds, or

a vehicle which carries a placard indicating hazardous cargo.Ò Furthermore,

drug testing shall b e conducted by Ñindependent, certified laboratories

utilizing recognized techniques.Ò

4. While the School Board maintains a drug and alcohol - free workplace, it

encourages employees with chemical dependency to seek treatment:

The School Board of Marion Co unty recognizes that

chemical dependency is an illness that can be

successfully treated. It is the policy of The School

Board of Marion County to seek rehabilitation of

employees with a self - admitted or medically

determined drug problem. The School Board o f

Marion County will make every effort to assist

those self - admitted and/or referred employees while

being treated. Employees who are unwilling to

participate in rehabilitation may be subject to

appropriate action, pursuant to School Board

policy , applicab le Florida Statutes, State Board of

Education rules, and applicable provisions of

collective bargaining agreements.

Substance Abuse Program Ï At any time prior to

notification of a required test, an employee is

encouraged to contact the Employee Assistanc e

program. Such employees may be required to

submit to testing as a part of a treatment program.

5. The laboratory that conducts drug - testing for the School Board

randomly selects individuals who will be tested during the upcoming quarter.

The School Bo ard then schedules those individuals for testing throughout the

quarter so that a large number of drivers are not unavailable for work at the

same time. During the next quarter, a different set of individuals are

selected.

6. Brent Carson is the School Bo ardÔs Director of Professional Practices.

He becomes involved in employee disciplinary cases that rise above the level

of a reprimand. Mr. Carson testified that the School Board has no ability to

test employees other than the individuals the laboratory sel ects for testing:

Q: To protect the integrity of the random testing, do

you have the ability to vary from that random list

provided by the outside lab?

A: We have to test who they say Ï who they identify

as the random employees.

Q: So if you decided to pick and choose Ï if they

pick someone and you said, no, IÔm not going to

bother with that person today, do you believe that

could affect the randomness, if you will, if thatÔs the

right word, of the test procedure, that it could affect

the testing procedu re and call into question if you

start picking and choosing whoÔs not giving tests to

people on the list?

A: Yes, that would definitely, I think, impugn the

efficacy of having random tests.

7. If an employee has a positive drug test for a prescription medication,

then the School BoardÔs Medical Review Officer (ÑMROÒ) gives that employee

three days to produce a valid prescription for that medication. If the

employee produces a valid prescription, then the positive test is deemed to be

a negative test. In addition, an employee can have a urine sample retested at

his or her own expense. If there is no retest and no valid prescription is

produced, then the School Board puts the employee on paid administrative

leave pending the outcome of disciplinary proceed ings.

8. With regard to the consequences of a positive test, the Manual states

that Ñ[c]overed employees testing positive at any level for alcohol or

controlled substances are in violation of district policy and will be

immediately removed from their s afety sensitive positions. A violation of

federal, state, or District requirements shall be grounds for dismissal.Ò

9. Mr. Carson testified that there is no progressive discipline for safety -

sensitive positions. The first time an employee tests positive f or an illegal

substance or one for which that employee does not have a prescription, that

employee is recommended for termination. Mr. Carson testified that the

Superintendent has always recommended termination for violations of the

School BoardÔs drug - fre e workplace policy: ÑWhether itÔs random, whether itÔs

reasonable suspicion or whether itÔs a drug test base d off of injury, we have

always recommended the termination of the employee.Ò

Ms. Seaton Tests Positive for Opioids

10. Ms. Seaton began wor king for the School Board as a bus driver in

December of 2017. On February 5, 2018, Ms. Seaton signed a document

acknowledging that bus drivers must Ñ[s]ubmit to random, post accident and

reasonable suspicion drug testing. Ò [ 4 ]

11. Ms. Seaton has undergon e surgeries in the past and testified that she

has been prescribed hydrocodone Ñfor years on and off depending on the

4 Prior to the positive drug test at issue in the instant case, Ms. Seaton had no disciplinary

issues and had no other positive drug tests.

surgery.Ò 5 Ms. Seaton claims to be allergic to oxycodone, and it has been her

habit to take hydrocodone only when she has excruciating pai n. 6

12. Ms. Seaton suffered a work - related injury on October 2, 2020, and

described it as follows:

I always help out where I can. So we have spare

buses that we need to move from one compound to

the other, and on this particular day I was taking

one of th e spare buses back over to another

compound. As I was getting off the bus, I always

grab with my right hand to the bar and my left

hand on the dashboard. My hand slipped off the

5 Ms. Seaton had a double knee replacement surgery in August of 2019 and was prescribed

hydrocodone. RespondentÔs Exhibit 7 is a photograph of a pill bottle indicating that

Ms. Seaton had been prescribed 60 hydrocodone pills . However, no date is visible from the

photograph.

6 RespondentÔs Exhibit 8 is a letter from a physician stating that Ms. Seaton has treated with

him since December 21, 2018. The letter notes that Ms. Seaton is allergic to codeine and

P remarin. There is no mention of Ms. Seaton being allergic to oxycodone. Also, h ydrocodone

was not among the medications this particular physician has prescribed for Ms. Seaton.

dashboard and I went forward. And from there I

suffered a rotator cuff tear and some other, like,

bone spurs. [ 7 ]

13. After the accident, Ms. Seaton took a drug test on October 2, 2020, and

the test returned negative results for opiates, marijuana, cocaine,

amphetamines, propoxyphene, PCP, barbiturates, and benzodiazepines.

14. M edical documentation from an October 5, 2020, evaluation by a

workersÔ compensation physician indicates Ms. Seaton had a contusion of the

left elbow and shoulder, a left shoulder strain, a left elbow strain, and a neck

strain. An MRI on January 5, 2021, r evealed a posterior labrum tear along

with a possible anterior dislocation of her left shoulder.

15. Since her accident, Ms. Seaton had been driving her motherÔs car

because it is an automatic, and Ms. Seaton has a stick shift. Ms. Seaton flew

out - of - tow n to visit her son in Baltimore on October 22, 2020. Because

7 Ms. Seaton has had a difficult recovery from her injury a nd i s dissatisfied with the

treatment she received through workers Ô compensation. After receiving a second opinion from

her primary care physician, Ms. Seaton had shoulder surgery on February 26, 2021. At the

time of the final hearing, she did not know whe ther the surgery would ultimately prove to be

a success : ÑI am still in ongoing treatment. It started October 2 nd . I went through holy heck

with our Ï the way that Concentra work[s] Ï which is the people they use for workmenÔs

comp Ï they make you go throu gh physical therapy before you can actually get an MRI done,

because they say that itÔs required by the insurance company. They had given me ultrasound

Ï not an ultrasound. X - rays when I first had the injuries. And from there they said I had to

go through physical therapy, I went through that a month. And then from there I went for an

MRI which determined that they saw something, but they couldnÔt know exactly. So they,

then again, another MRI, a contrast MRI. I want to say I had that done December 23 rd

whe re they finally saw that. And we still, let me still Ï I didnÔt have my surgery until

February 26 th . So from October 2 nd to February 26 th , I did not have surgery. And I was in

constant pain. At nighttime with the rotator cuff, itÔs kind of Ï in the daytime itÔs tolerable,

but at nighttime itÔs excruciating pain, something to do with the way the muscles go. IÔm not

a doctor, but Ï I mean, it would be online. But itÔs when youÔre laying down youÔre in a lot of

pain. I had pain from my neck all the way shootin g to my arm. It would be like a shooting

pain and [ ] constant. On December 23 rd , when I actually had the MRI to determine that I

did have a rotator cuff tear, at that point I got tired of the Concentra doctors because they

werenÔt doing anything for my pa in, and I went to my primary care for a second opinion,

[and] he sent me to a pain management doctor. As of December 30 th I have been on pain

management with him, which is, like, Lyrica and hydrocodone and tramadol. So between the

two. I still have therapy like I go three times a week. And IÔm expected Ï like six more weeks.

I still canÔt Ï theyÔre not feeling that IÔm where IÔm supposed to be at this point. IÔm supposed

to be able to lift my arm a certain way, and itÔs not. So I still have another set of t herapy that

I have to go through. IÔm praying that everything goes back to normal. But I still have neck

pain and weÔre waiting to see if that clears up, I might have to go back to a neck specialist

next.Ò

M s. Seaton did not want to leave her mother without transportation, she

drove her own manual - shift car to and from an airport in Orlando, 90

minutes each way. However, using her left arm for dri ving caused her a great

deal of pain. U pon her return to Florida, Ms. Seaton took a hydrocodone

during the night of Sunday, October 25, 2020, because the pain was

preventing her from sleeping. The hydrocodone came from a prescription:

A: IÔve had hydrocod one prescribed to me for years

on and off, depending on the surgery, because I

canÔt take oxycodone, which is the one that theyÔre

saying came up on my test. The one that I took for

Ï on October 25 th , I want to say, it was a Sunday,

it was from my previous surgery that I had.

ALJ: Hold on. We need to get this straight. It looks

like your drug test was October 27 th , according to

PetitionerÔs Exhibit 1.

A: Correct.

ALJ: Are you telling me you took something prior

to Ï just prior to October 27 th ?

A: Corre ct.

ALJ: What did you take?

A: Hydrocodone.

ALJ: Did you have a prescription for hydrocodone?

A: Yes.

16. During her stay in Baltimore, Ms. Seaton ate two biscuits sprinkled

with poppy seeds. On October 26, 2021 , and on the morning of October 27,

2021 , Ms. Seaton also ate bagels sprinkled with poppy seeds.

17. Ms. Seaton was notified during the morning of October 27, 2020, that

she had been selected for drug testing that day. At that point in time, she was

on light duty due to her injury and assigned to the transportation help desk. 8

18. On approximately November 4, 2020, the testing laboratory reported

that Ms. SeatonÔs urine sample had tested positive for oxycodone and

oxymorphone. 9

19. The School Board notified Ms. Seaton on November 5, 2020, that she

had been placed on administrative leave, with pay, during the pendency of an

internal investigation.

20. Mr. Carson met with Ms. Seaton on December 2, 2020 , to inform her of

the SuperintendentÔs recommendation that she be terminated. Ms. Seaton

told Mr. Carson that she did not know how she could have tested positive for

oxycodone because she is allergic to that medication.

21. Mr. Carson and Ms. Seaton disagree about other aspects of the

meeting. Specifically, Ms. Seaton claims that she mentioned dur ing the

December 2, 2020, meeting that she took hydrocodone and had a prescription

for that medication. Mr. Carson does not recall Ms. Seaton making that

comment. 10

8 Even though Ms. Seaton was on light duty stat us, Mr. Carson testified that she was still

subject to random drug testing: ÑEmployees that are subject to random drug tests based off of

their status because theyÔre CDL holders and drivers, theyÔre expected to stay in the pool for

random drug tests if th ey are on light duty. The only time they are removed from that list is

if theyÔre in a no - work status.Ò

9 The laboratory report entered into evidence was not authenticated, either by a witness or

by self - authentication as provided in section 90.902, Flo rida Statutes (2020). Furthermore,

no witness was produced to testify that the laboratory report was a business record and thus

subject to an exception to the hearsay rule. The laboratory report is, therefore, unreliable

hearsay.

10 During questioning by P etitionerÔs counsel, Ms. Seaton claimed that she told the School

BoardÔs MRO about her hydrocodone prescription:

Q: Now, the note on the drug test that says it was positive

lists oxycodone. Correct?

A: Yes.

22. Mr. Carson and Ms. Seaton spoke again on January 8, 2021, and

Ms. Seaton stated for the first time to Mr. Carson that she had taken a long

trip during the weekend prior to the October 27, 2020, 11 drug test. She

relayed that she was experiencing a lot of pain after driving and took some

pills to alleviate the pain. According to Mr. Carson, Ms. Seaton did not

identify the pills she took, state that she had a prescription, or offer him

evidence that she had a prescription for opioids . 12

23. As described above in the Preliminary Statement, Ms. Seaton

speculated in her December 11, 2020, respons e to the SuperintendentÔs

allegations that the positive test result could have been caused by poppy

seeds she ate in the days preceding the drug test. This was the first time that

Q: Do you understand that oxycodone is a diffe rent drug than

hydrocodone?

A: Yes. After doing research, yes. Well, actually speaking with

the MRO officer, because he called it Percocet and I said, well,

thatÔs impossible because I canÔt take Percocet because IÔm

allergic to it. And so I told him, I s aid, all the Percocets, all

those things, every time I have a surgery the doctors try to

give me that and I tell them, no, I canÔt have that because I

get really sick and break out with [a] rash and vomiting, so

they donÔt prescribe that. ThatÔs why I get prescribed

hydrocodone.

Q: So youÔre saying that you told the MRO you took

hydrocodone?

A: Correct, hydro.

Q: And even after you told him that, he still reported a

positive test. Correct?

A: He said he had to go by what he has there.

11 October 27, 2 020, was a Tuesday.

12 Ms. Seaton explained during the final hearing that she did not provide the School Board

with a copy of her prescription because no one ever asked her to do so.

Mr. Carson was aware of Ms. Seaton asserting that poppy seeds could have

cau sed her positive test result. 13

24. Ms. Seaton testified that she did not tell the School Board about her

hydrocodone prescription because she was on desk duty following the

accident and did not anticipate ever driving a school bus again:

ALJ: I gue ss what IÔm struggling with is given your

accidents and the pain you were experiencing, it

seems perfectly reasonable that you would be on

some sort of opioid. I guess on the other hand, you

know, if you tested positive, I guess it seems like a

reasonable person would show the School Board a

prescription for any kind of pain med, regardless

[of] whether they tested positive, or not. I guess

thatÔs what IÔm struggling a little bit with.

* * *

So is it your testimony that Ï according to my

notes, there wer e three Ï there have been three

conversations or discussions between you and the

School Board. The first one with Mr. Carson where

he told you about the positive test. And let me just

clarify. During that first conversation, did you

mention the hydrocodone ?

A: Yes, I did. With Mr. Carson in the first

conversation.

ALJ: All right. So you disagree with his testimony

that during the first conversation you said simply, I

have no idea how that tested positive?

13 Mr. Carson testified that Ñ[m]y brief understanding of it is that you would have to consume

a great deal of poppy seeds for it to alter any type of drug test. I donÔt know what that limit

is. But thatÔs not something that weÔre able to delineate in a drug test, whether itÔs truly a

substance or if itÔs poppy seeds.Ò Mr. Car son disclosed that the basis for that aforementioned

statement came from Ñthe internet.Ò Because the School Board elicited no testimony

indicating that Mr. Carson has any independent knowledge or expertise with drug testing or

a related field, the undersig ned does not credit his assertion that someone would have to

Ñconsume a great deal of poppy seedsÒ in order to affect a drug test.

* * *

A: Yes. And I did ask him because I wante d to

remember that, I said to him, as much pain as I

was in, if I had to do it again, I would. But the

difference is I would tell my supervisor. Because I

really didnÔt Ï in the role that I was in, which was a

desk job, I was not in any safety risk for any one, I

would never get on a bus, nor was I Ï I knew I

wasnÔt getting on a bus any time soon with the

injury that I had. But I would never, ever put

anybody at risk. I wouldnÔt even get on a bus

because my CDL, I figured my CDL was going to be

taken. ThatÔs another thing - -

ALJ: Ms. Seaton, did you say, -- I may be mistaken.

I thought I heard you testify that youÔve had a

hydrocodone prescription for many years. Was that

accurate or did I mishear?

A: On different occasions for surgeries, correct.

* * *

ALJ: On the day that you injured your shoulder on

the school bus and hurt your rotator cuff, the injury

that we were talking about, at that time did you

have any hydrocodone prescription?

A: Yes.

* * *

ALJ: Were you taking hydrocodone at that time?

A: No, sir. [ 14 ]

25. During the final hearing, Ms. Seaton moved RespondentÔs Exhibit 7

into evidence, and a portion thereof was a picture of a prescription bottle for

14 Ms. Seaton then testified that her trip to Baltimore resulted in her taking hydrocodone to

alleviate pain in her left shoulder.

60 hydrocodone pills with Ms. SeatonÔs name on the bottle. Ms. Seaton

offered the following testimony in support of that Exhibit:

ALJ: So, Ms. Seaton, this picture of the prescription

bottle, can you give me some background on this?

When was this prescribed to you? When do you fill

it? Who prescribed it to you, and why?

* * *

A: The original prescription was prescribed to me in

August, and it was for my double knee replacement

by Dr. Raymond Weiand at the Orthopedic

Institute.

PetitionerÔs Counsel: August, you said, prior to the

injury, August of 2020?

A: No, Ó 19.

* * *

ALJ: I think you m ay have discussed this, but were

you taking hydrocodone consistently or without a

break from that date to the day of your accident

and beyond?

A: No, sir. I only took hydrocodone when I had

excruciating pain. This is not something that I take

on a regular , like Ï like if I have pain then I was

taking it. ThatÔs why I put Exhibit 1, it will state - -

it wasnÔt in my system.

ALJ: But is your testimony that at some point after

your accident which resulted in your injured

shoulder, is it your testimony that you are taking

hydrocodone to relieve the pain resulting from that

accident?

A: That is correct. The night when I returned from

the trip, I was in so much Ï I kept waking up out of

my sleep because the pain was so bad that I took

the pill for it to go to sleep, to go back to sleep,

because I did not want to miss work.

ALJ: Okay. Mr. Levitt, do you have any cross on

that issue regarding this exhibit?

PetitionerÔs Counsel: Let me think --- So you have

August 2019 for a knee operation, and when was

the la st time you took it for the knee operation?

Like back in 2019, or as the judge asked, were you

continuing to take it?

A: I took it around my birthday, July Ï July 28 th of

the 2020, I took some then.

PetitionerÔs Counsel: For what, for your knee?

A: Yes.

PetitionerÔs Counsel: But this was never prescribed

for your shoulder. Correct?

A: No, sir.

26. Ms. Seaton had left shoulder surgery on February 26, 2021. The post -

operative diagnosis notes she had a rotator cuff tear and superior labral

tearing.

Ultimate Findings

27. PetitionerÔs Exhibit 1 is the only record evidence supporting the School

BoardÔs allegation that Ms. Seaton Ñprovided a urine sample and it was

reported as a positive test for opioids .Ò PetitionerÔs Exhibit 1 is a report from

a labora tory indicating that the urine sample Ms. Seaton provided on

October 27, 2020, tested positive for oxycodone and oxymorphone. PetitionerÔs

Exhibit 1 is hearsay in that it is an out - of - court statement being offered to

prove the truth of the matter asserted therein, i.e., that Ms. Seaton Ôs urine

sample from October 27, 2020 , tested positive for opioids .

28. The School Board did not present a records custodian from the testing

laboratory or otherwise attempt to have PetitionerÔs Exhibit 1 accepted into

eviden ce under the business records exception to the hearsay rule.

29. There is no record evidence supplementing or corroborating that

Ms. SeatonÔs urine sample was positive for opioids, the allegation specifically

pled in the Administrative Complaint. Thus, th ere is no evidentiary support

for the School BoardÔs allegation that Ms. Seaton committed Ñmisconduct in

officeÒ or that there is Ñjust cause for discipline.Ò

C ONCLUSIONS OF L AW

30. DOAH h as jurisdiction over the subject matter and parties in this

case , pursuant to section s 120.569 , and 120.57(1), Florida Statutes. 15

31. The Board is a duly constituted school board charged with the duty to

operate, control, and supervise all free public schools within the school

district of Marion County, Florida, unde r section 1012.22 , Florida Statutes .

32. The Board seeks to terminate M s . Seaton Ôs employment and has the

burden of proving the allegations set forth in the SuperintendentÔs

Administrative Complaint by a preponderance of the evidence, as opposed to

the mor e stringent standard of clear and convincing evidence applicable to

the loss of a license or certification. C ropsey v. Sch. Bd. of Manatee C ty. , 19

So. 3d 351 (Fla. 2d DCA 2009), rev. denied , 29 So. 3d 1118 (Fla. 2010);

Cisne ros v. Sch. Bd. of Miami - Dade C ty. , 990 So. 2d 1179 (Fla. 3d DCA 2008).

33. The preponderance of the evidence standard requires proof by Ñthe

greater weight of the evidence,Ò BlackÔs Law Dictionary 1201 (7th ed. 199 9 ),

or evidence that Ñmore likely than notÒ tends to prove a certain pro position.

See Gross v. Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

34. The allegations of fact set forth in the charging document are the facts

upon which this proceeding is predicated. Once the School Board has

15 All statutory references shall be to the 2020 version of the Florida Statutes.

delineated the offense alleged to justify termination in its notice of

recommendation of termination, that is the only ground upon which

dismissal may be predicated. Trevisani v. DepÔt of Health , 908 So. 2d 1108,

1109 (Fla. 1st DCA 2005). See also Klein v. Dep't of Bus. & Prof'l Reg. , 625

So. 2d 1 237, 1238 - 39 (Fla. 2d DCA 1993); Cottrill v. DepÔt of Ins. , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996). Due process prohibits the School Board from

disciplining a teacher based on matters not specifically alleged in the notice

of recommendation of terminati on. See Pilla v. Sch. Bd. of Dade Cty. , 655 So.

2d 1312, 1314 (Fla. 3d DCA 1995); Texton v. Hancock , 359 So. 2d 895, 897 n.2

(Fla. 1st DCA 1978); see also Sternberg v. Dep't of Prof'l Reg. , 465 So. 2d

1324, 1325 (Fla. 1st DCA 1985) (Ñ For the hearing officer and the Board to

have then found Dr. Sternberg guilty of an offense with which he was not

charged was to deny him due process. Ò ).

35. The notice of recommendation of termination alleged that

RespondentÔs urine sample tested positive for opioids. Thus, t he scope of this

proceeding is properly restricted to that matter as framed by Petitioner.

M.H. v. DepÔt of Child. & Fam. Servs. , 977 So. 2d 755, 763 (Fla. 2d DCA

2008).

36. The following are the key allegations from the School BoardÔs

Administrative Comp laint that supposedly support the School BoardÔs

ultimate allegations that Ms. Seaton committed Ñmisconduct in officeÒ and

that there is Ñjust cause for disciplineÒ:

On October 27, 2020, Respondent provided a urine

sample and it was reported as a positive test for

opioids.

The use of opioids is a prohibited substance

pursuant to County School Board Policy 6.33 I(B),

unless the employee can produce a valid

prescription and provide sufficient information to

the Medical Review Officer (MRO) [ 16 ] so that the

te st result would be negative.

In this case the Respondent failed to provide a valid

prescription to the MRO or otherwise explain her

use to the MRO. The test was, therefore, reported

as a positive test of opioids. Further, Respondent

had not notified her s upervisor about the use of

opioids as a controlled substance.

37. PetitionerÔs Exhibit 1 is the only record evidence supporting the School

BoardÔs allegation that Ms. Seaton Ñprovided a urine sample and it was

reported as a positive test for opioids.Ò Pet itionerÔs Exhibit 1 is a report from

a laboratory indicating that the urine sample Ms. Seaton provided on

October 27, 2020, tested positive for oxycodone and oxymorphone. PetitionerÔs

Exhibit 1 is hearsay in that it is an out - of - court statement being offe red to

prove the truth of the matter asserted therein. See § 90.801(1)(c), Fla. Stat.

(providing that ÑhearsayÒ is Ña statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the ma tter asserted.Ò).

38. The School Board did not present a records custodian from the testing

laboratory or otherwise attempt to have PetitionerÔs Exhibit 1 accepted into

evidence under the business records exception to the hearsay rule , and it is

not subje ct to any other exception pursuant to section 90.803 .

39. A finding of fact cannot be based on hearsay unless that hearsay is

supplemented or corroborated by nonhearsay or evidence that falls under one

of the hearsay exceptions. See § 90.803(6), Fla. S tat.

40. There is no record evidence supplementing or corroborating the

allegation set forth in PetitionerÔs Exhibit 1. As a result, the undersigned is

16 MRO is an acronym for ÑMedical Review Officer.Ò The pertinent portion of Section 6.33

defines an MRO as Ña physician with knowledge of substance abuse disord ers and who has

appropriate medical training to interpret and evaluate laboratory positive drug test results

in a confidential manner, in conjunction with an individual medical history, and any other

relevant biomedical information to determine alternative medical explanations for positive

results.Ò The School Board did not present the MRO as a witness at the final hearing.

foreclosed from finding that Ms. Seaton Ñprovided a urine sample and it was

reported as a positive tes t for opioids .Ò See § 120.57(1)(c), Fla. Stat.

(2020)(mandating that Ñ[h]earsay evidence may be used for the purpose of

supplementing or explaining other evidence, but it shall not be sufficient in

itself to support a finding unless it would be admissible over objection in civil

actions.Ò).

41. With no competent, substantial evidence to support the allegation that

Ms. Seaton provided a urine sample that tested positive for opioids, any other

allegations based on a positive test result must fail.

R ECOMME NDATION

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

R ECOMMENDED that the Administrative Complaint be D ISMISSED .

D ONE A ND E NTERED this 28th day of May , 2021 , in Tallahassee, Leon

County, Florida.

S

G. W. C HISENHALL

Administrativ e Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28 t h day of May , 2021 .

C OPIES F URNISHED :

Mark E. Levitt, Esquire Matthew Mears, General Counsel

Allen, Norton & Blue, P.A. Department of Education

1477 West Fairbanks Avenue , Suite 100 Turlington Building, Suite 1244

Winter Park, Florida 32789 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Diane Gullett, Superintendent

Marion County Public Schools Desiree M. Seaton

512 S outheast 3rd Street 5 Hemlock Loop Lane

Ocala, F lorida 34471 Ocala, Florida 34472

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

t he 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.