96-004365 Alachua County School Board vs. Isaiah Smith, Jr. Status: Closed Recommended Order on Monday, September 15, 1997.

Summary: Petitioner terminated for testing positive for cocaine and for violating his rehabilitation contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALACHUA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 96-4365

)

ISAIAH SMITH, JR., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on June 30, 1997, in Gainesville, Florida, before the Division of

Administrative Hearings, by its designated Administrative Law

Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Thomas L. Wittmer, Esquire

Alachua County School Board

620 East University Avenue

Gainesville, Florida 32601

For Respondent: Francisco M. Negron, Jr., Esquire

Florida Education Association/United

118 North Monroe Street

Tallahassee, Florida 32399-1700

STATEMENT OF THE ISSUE

The issue is whether Respondent's employment with Petitioner

as a school bus driver should be terminated because he violated

his rehabilitation contract and Petitioner's drug-free workplace

policy and guidelines by testing positive for cocaine.

PRELIMINARY STATEMENT

By letter dated June 19, 1996, the assistant superintendent

of schools for Petitioner Alachua County School Board informed

Respondent Isaiah Smith, Jr., of the superintendent's intent to

recommend that Petitioner terminate Respondent's employment as a

school bus driver. Respondent requested a formal hearing by

letter dated June 24, 1996. Petitioner referred this case to the

Division of Administrative Hearings on September 16, 1996.

After receiving responses to the Initial Order, the

undersigned issued a Notice of Hearing dated October 23, 1996.

Said notice scheduled the case for hearing on February 26, 1997.

However, the parties filed an Agreed Motion for Continuance on

February 18, 1997. The undersigned subsequently entered an order

rescheduling the case for hearing on June 30, 1997.

Before the hearing, Respondent filed two motions in limine.

On June 25, 1997, Respondent filed a Motion in Limine to

Exclude/Limit Expert Testimony of Bruce Goldberger, Ph.D. On

June 26, 1997, Respondent filed a Motion in Limine to Exclude

Similar Fact Evidence.

At the final hearing, the un dersigned denied Respondent's

motion to exclude Dr. Goldberger's expert testimony. The

undersigned specifically ruled that Dr. Goldberger could not

offer a legal opinion but that he could testify concerning the

accepted standards in the industry for collecting urine to be

used in a drug screen test. That ruling is hereby confirmed.

After hearing oral argument on Respondent's motion to

exclude similar fact evidence at the hearing, the undersigned

reserved ruling on the admissibility of testimony and documents

related to drug tests that Respondent took prior to June 10,

1996. This motion is hereby denied. Pursuant to Sections

440.102(5)(k) and 440.102(5)(n), Florida Statutes, Petitioner may

not discharge, discipline, or discriminate against any employee

for a first-time positive drug test, if the employee voluntarily

seeks treatment. The evidence in question here is relevant and

admissible because it relates directly to the charge that

Respondent violated his rehabilitation contract with Petitioner.

The evidence was not offered, and has not been considered, to

show any kind of bad character or propensity on the part of the

Respondent contrary to Section 90.404, Florida Statutes. Its

probative value by far outweighs any prejudicial effect on

Respondent in accordance with Section 90.403, Florida Statutes.

During the hearing, Petitioner presented the testimony of

five witnesses: (a) Synester P. Jones, Petitioner's assistant

superintendent for Human Resources; (b) William E. Beaty, Ph.D.,

clinical psychologist; (c) Carl Fogleman, phlebotomist at

Doctors' Laboratory, Inc., in Gainesville, Florida; (d) Bruce A.

Goldberger, Ph.D., Assistant Professor of Toxicology at the

University of Florida, expert in forensic toxicology; and (e)

Debra Martin, Petitioner's transportation employee. Petitioner

also presented the deposition testimony of five out-of-state

witnesses: (a) Robert H. Miller, M.D., medical review officer

from Brunswick, Georgia; (b) Martin Provaznik, Ph.D., Director of

Toxicology at Doctors' Laboratory, Inc., in Valdosta, Georgia;

(c) Anil Chokshi, certifying scientist at Doctors' Laboratory,

Inc., in Valdosta, Georgia; (d) Pat Richburg, accessioner at

Doctors' Laboratory, Inc., in Valdosta, Georgia; and (e)

Elizabeth Verbeke, former phlebotomist for Doctors' Laboratory,

Inc., in Gainesville, Florida, now living in Strongsville, Ohio.

Petitioner offered twelve exhibits which were accepted in

evidence.

Respondent testified on his own behalf and presented the

testimony of Albert Losch, Jr., President of the Alachua County

Education Association and expert in chemistry. Respondent also

introduced the deposition testimony of Patrick S. Ng, Ph.D.,

Director of Forensic Sciences and Toxicology at Wuesthoff

Hospital, Rockledge, Florida. Respondent offered four exhibits

which were accepted in evidence.

The court reporter filed a transcript of the hearing on

July 21, 1997. Respondent filed a proposed recommended order on

August 11, 1997. Petitioner filed its proposed recommended order

on August 14, 1997.

FINDINGS OF FACT

1. Petitioner is a Florida public school district.

2. Respondent was employed by Petitioner as a school bus

driver for about ten years and three months prior to his

suspension without pay in the summer of 1996. The position of

school bus driver is a safety-sensitive position.

3. In June of 1989, Petitioner adopted a drug-free

workplace policy. Petitioner directed its superintendent to

develop guidelines to implement the policy. In December of 1991,

Petitioner adopted Drug-Free Workplace Guidelines, GBCBA-G, which

state as follows in pertinent part:

The purpose of these guidelines is to comply

with the Drug-Free Workplace Act of 1988, 34

CFR Part 85, Subpart F, which requires

grantees to certify that they will maintain a

drug-free workplace.

* * *

4. Pre-employment Drug Abuse Screening

examinations shall be required to prevent

hiring individuals who use drugs or

individuals whose use of drugs indicates a

potential for impaired or unsafe job

performance or for high risk positions such

as bus drivers.

5. Employees in job classification which

require an annual physical will be required

to submit to a drug screening as part of the

annual physical.

6. As a condition of continued employment,

current employees shall submit to drug

screening when reasonable suspicion exists to

believe that an employee is using a substance

that is impairing the employee and/or his job

performance . . . .

* * *

8. All testing shall be conducted by a

laboratory certified by the State of Florida

as a Medical and Urine Drug Testing Forensic

Laboratory which complies with the Scientific

and Technical Guidelines for Federal Drug

Testing Programs and the Standards for

Certification of Laboratories engaged in Drug

Abuse and Mental Health Administration of the

U. S. Department of Health and Human

Services . . . .

9. The procedures established by the

laboratory shall be followed in administering

drug tests to employees.

* * *

12. Employees who return to work after

completion of a rehabilitation program shall

be subject to follow-up drug testing with

twenty-four hour notification . . . .

13. Random testing of employees shall not be

conducted.

4. Respondent signed a notice to all applicants and

employees on April 15, 1992, advising him in advance that the

drug-free workplace policy would become effective on June 15,

1992. This notice stated as follows:

1. All pre-employment applicants will be

drug-tested prior to being hired.

2. All employees who require fitness-of-duty

examination will be drug-tested at least once

annually.

3. An employee will be drug-tested when

reasonable suspicion of substance abuse

exists.

4. An employee will be drug-tested following

any work-related accident or mishap involving

actual or potential injury or property

damage.

5. An employee will be drug-tested during

any probationary period following a drug-

related suspension or approved drug treatment

program.

Petitioner acknowledged that he received a copy of the drug-free

workplace policy and understood the consequences of violating the

drug-free workplace guidelines by signing the notice. The notice

clearly states that failure to comply with the guidelines could

result in termination of employment and forfeiture of eligibility

for workers' compensation medical and indemnity benefits.

5. The guidelines for the drug-free workplace policy are a

part of Petitioner's Collective Bargaining Agreement with the

instructional and non-instructional bargaining units of the

Alachua County Education Association (ACEA). The ACEA ratified

the policy and guidelines in January of 1993. The Petitioner's

drug-free workplace policy and guidelines have been continuously

in effect since that time.

6. Article XI, Section 1(B) of the 1995-1996 Collective

Bargaining Agreement between Petitioner and the ACEA requires

Petitioner to provide school bus drivers with an annual physical

as required by the rules of the State Board of Education.

7. Appendix F of the 1995-1996 Collective Bargaining

Agreement sets forth the drug-free workplace guidelines. It

states as follows in pertinent part:

The purpose of these guidelines is to comply

with the Drug-free Workplace Act of 1988,

34 CFR Part 85, Subpart F, which requires

grantees to certify that they will maintain a

drug-free workplace.

* * *

4. Pre-employment Drug Abuse Screening

examinations shall be required to prevent

hiring individuals who use drugs or

individuals whose use of drugs indicates a

potential for impaired or unsafe job

performance or for high risk positions such

as bus drivers.

* * *

5. Employees in job classifications which

require an annual physical will be required

to submit to a drug screening as part of the

annual physical.

* * *

6. As a condition of continued employment,

current employees shall submit to drug

screening when reasonable suspicion exists to

believe that an employee is using a substance

that is impairing the employee and/or his job

performance . . . .

* * *

7. When a reasonable suspicion exists, the

Director of Employee Relations shall be

contacted. The employee, if a member of a

bargaining unit, shall be afforded the

opportunity to have ACEA representation. The

employee will be provided an opportunity to

explain his/her condition. The employee will

be provided with information regarding

available drug counseling, rehabilitation,

assistance programs, and leave options. A

rehabilitation contract including drug

testing may be agreed upon. Failure to

participate in a treatment program following

a positive drug screening will result in

disciplinary action, up to and including

termination. Due process will be followed.

8. All testing shall be conducted by a

laboratory certified by the State of Florida

as a Medical and Urine Drug Testing Forensic

Laboratory which complies with the Scientific

and Technical Guidelines for Federal Drug

Testing Programs and the Standards for

Certification of Laboratories engaged in Drug

Abuse and Mental Health Administration of the

U. S. Department of Health and Human

Services. The laboratory shall be chosen

jointly by ACEA and SBAC if the employee is a

member of the bargaining unit.

9. The procedures established by the

laboratory shall be followed in administering

drug tests to employees.

11. Employees who seek voluntary assistance

for substance abuse may not be disciplined

for seeking assistance. Employees shall be

subject to all employer rules, regulations,

and job performance standards with the

understanding that an employee enrolled in a

rehabilitation program is receiving treatment

for an illness.

12. Employees who return to work after

completion of a rehabilitation program shall

be subject to follow-up drug testing with

twenty-four (24) hour notification. Any

employee who refuses the drug test or

subsequently tests positive may be

disciplined up to and including termination.

13. Random testing of employees shall not be

conducted except as required by state or

federal law . . . .

8. On December 13, 1994, Respondent signed the following

statement:

I have received, read, and understand the

training materials on drug and alcohol

testing under the U. S. Department of

Transportation regulations.

9. In January of 1995, Petitioner began complying with an

additional drug testing program pursuant to a federal statute

entitled Omnibus Transportation Employee Testing Act (OTETA).

Petitioner did not formally adopt a written policy or develop

written guidelines to implement the new drug-testing program.

Petitioner's Collective Bargaining Agreement with the ACEA does

not refer to OTETA or the federal regulations implementing it.

10. Mandatory procedures governing drug testing in

transportation workplaces under U. S. Department of

Transportation regulations require that drug tests be performed

using split samples. A "split specimen collection" consists of

one urination followed by the splitting of that specimen into two

bottles. If the primary specimen tests positive, the employee

may request that the split specimen be sent to a different

laboratory for testing.

11. The majority of drug testing performed in this country

is single specimen collection. Drug testing pursuant to state

law and rules and the regulations of the U. S. Department of

Health and Human Services does not require employers to utilize

split samples in the collection process. A split specimen

generally is used only for purposes of testing pursuant to the

regulations of the U. S. Department of Transportation.

12. The U. S. Department of Transportation requires

Petitioner to provide the following testing in transportation

workplaces: (a) pre-employment testing; (b) post-accident

testing; (c) random testing; (d) reasonable suspicion testing;

(e) return-to-duty testing; and (f) follow-up testing.

13. OTETA does not require a routine fitness-for-duty drug

test as part of an annual medical examination. State law does

require such a test.

14. OTETA requires random testing and post-accident

testing. State law does not require these tests. Petitioner's

guidelines as adopted in 1991 specifically prohibit random drug

testing of employees. However, Petitioner's guidelines, as

incorporated into the Collective Bargaining Agreement, state that

"[r]andom testing of employees shall not be conducted except as

required by state or federal law."

15. In June of 1995, Respondent received a routine fitness-

for-duty drug test as part of his annual physical examination.

The test yielded a positive result for cannabinoids and cocaine

metabolites. Respondent did not contest the results of the test.

16. On June 22, 1995, Petitioner's Director of Employee

Relations had a conference with Respondent. During the

conference, Respondent signed a medical records release and a

rehabilitation contract. The rehabilitation contract stated as

follows:

. . . positive results indicating alcohol

and/or illegal mind-altering substances,

following the initiation of this contract, is

prima facie evidence of violation of this

contract. I understand that failure to

comply with the terms of this contract may

result in termination of my employment with

the School Board of Alachua County, Florida.

Respondent subsequently took leave to attend to his

rehabilitation.

17. By letter dated August 21, 1995, Petitioner's

rehabilitation counselor at the Corner Drug Store reported that

Respondent's drug tests from July 5th through August 16th were

negative for illegal drugs. The counselor also informed

Petitioner that Respondent had attended weekly intervention group

meetings as required under the rehabilitation contract. The

counselor did not recommend further treatment.

18. A su bstance abuse professional, other than one who

provided treatment, had to assess Respondent in order for him to

return to work. In August of 1995, a clinical psychologist from

The Education Center evaluated Respondent. The psychologist

recommended that Respondent return to work subject to five years

participation in the "random drug screening program that is in

addition to the standard screening program."

19. Respondent returned to his duties on or about

August 26, 1995. His follow-up drug tests performed on

October 25, 1995, January 17, 1996, and March 4, 1996, were

reported as negative.

20. On the morning of June 10, 1996, Petitioner informed

Respondent that he was scheduled that day to take his regular

annual physical examination, including a drug test. Respondent

went to a medical facility in the northwest part of Gainesville

for the physical exam during that morning. He went to Doctors'

Laboratory, Inc., in the southwest part of Gainesville after work

for his drug test.

21. The foll owing are routine procedures when a person goes

to Doctors' Laboratory, Inc., in Gainesville for a urine drug

test:

(a) The front desk checks the donor's

photographic identification, such as a

driver's license.

(b) The collector takes the photo ID and the

donor into a separate room to sign in. The

collector asks the donor to remove any hat,

if he or she is wearing one, and to empty his

or her pockets onto the counter.

(c) The collector watches the donor wash and

dry his or her hands. The donor selects a

testing kit, which is individually packaged

in a plastic bag, from a box. The kit

contains a urinalysis bottle. The collector

opens the bag, breaks the seal on the

specimen bottle, and gives it to the donor.

(d) The collector shows the donor how much

urine is required on the bottle. The

collector takes the donor to the bathroom.

The donor is informed that the toilet water

contains bluing. The donor is instructed not

to flush the toilet. After the collector

leaves the bathroom, he or she cuts off the

water to the sink using a lever outside the

door.

(e) The donor stays in the restroom no

longer than two and a half or three minutes.

The donor comes out of the bathroom and hands

the specimen bottle to the collector who is

waiting outside. The collector checks the

amount of urine in the bottle to be sure the

quantity is at least 40 ML. The collector

measures the temperature by means of a gauge

on the outside of the bottle to be sure that

the temperature is between 90 and 100 degrees

Fahrenheit. The collector notes this

information on the chain-of-custody form.

The bottle's cap is screwed on tightly. The

collector also checks the appearance of the

urine for any unusual color.

(f) The collector asks the donor to place

his or her initials in the following three

places: on the bag; on the chain-of-custody

form peel-off label; and on the security

seal. The security seal is placed over the

top of the bottle. The collector dates and

also initials the peel-off label. The

collector then removes the label from the

form and applies it to the bottle.

(g) The collector completes and signs

part II of the multi-part chain-of-custody

form. The collector separates copies one

through three from copies four through seven.

The collector hands the donor copies four

through seven so that he or she can fill out

part III with the donor's name, address and

two telephone numbers. The donor signs the

form certifying that he or she provided the

specimen to the collector, that the bottle

was sealed with a tamper-proof seal in the

donor's presence, and that the information on

the form and on the bottle label is correct.

The collector completes part IV of the multi-

part forms, copies one through three,

initiating the chain-of-custody

documentation.

(h) The specimen bottle is then placed

inside the plastic bag, which is sealed.

Copies one through three of the multi-part

form, which do not contain the name of the

donor, are placed in a pouch on the side of

the bag. Copies four through seven of the

multi-part form are not sent with the

specimen. Instead, one copy is retained at

the collection site. Another copy is sent to

the employer. The third copy is given to the

donor.

(i) The bagged specimen bottle is kept in a

box in a locked refrigerator with other

packaged specimens prior to shipment by

courier to the testing laboratory.

(j) The collector gives the donor a written

checklist showing the steps to be taken in

the urine collection process. The donor is

asked to read the list and check to make sure

that the procedures were followed. The donor

signs this form indicating that the collector

followed all appropriate steps in the

collection process.

(k) Once a collector begins the collection

process, he or she completes the process

alone. No other collector at the site may

perform any of the required steps or

safeguards.

22. In this case, Respondent signed the following statement

in part III of the multi-part chain-of-custody form:

I certify that I provided my specimen(s) to

the collector, that the specimen bottle was

sealed with a tamper-proof seal in my

presence, and that the information provided

on this form and on the label attached to the

specimen bottle is correct.

23. The collector gave Respondent a copy of the donor's

checklist to read and verify that the collection procedures were

followed. Respondent signed the donor's checklist.

24. Elizabeth Verbeke was the person at Doctors'

Laboratory, Inc., in Gainesville, Florida, who collected

Respondent's urine specimen on June 10, 1996. She usually

collected 50 to 60 urine specimens per week for drug testing.

She has no independent recollection of collecting Respondent's

specimen. However, there is no reason to believe that she failed

to follow the laboratory's routine procedures in this case.

25. Ms. Verbeke entered the word "none" at question five of

part II on the chain-of-custody form, indicating the collection

of Respondent's specimen was entirely routine. She noted no

irregularities of any kind.

26. The chain-of-custody identifica tion number for

Respondent's urine specimen was 026A13381. In part II of the

chain-of-custody form, Ms. Verbeke indicated that she checked

Respondent's picture identification, collected the urine

specimen, and read the specimen's temperature within four minutes

of collection. The specimen's temperature of 94 degrees

Fahrenheit was within the proper range. The volume of the

specimen was at least 40 milliliters.

27. Later in the day on June 10, 1996, a courier picked up

Respondent's urine specimen and transported it to Doctors'

Laboratory, Inc., in Valdosta, Georgia. The laboratory performs

forensic drug testing, as well as other kinds of tests. It

processes about 8,000 specimens a month.

28. The accessioner at the laboratory receives the

specimens from the courier. Next, the accessioner examines the

packaging and the sample bottles for any possible compromise of

the security seals. Then, the accessioner compares each specimen

bottle with the custody documents to ensure that they are

accompanied by the correct paperwork.

29. The accessioner places the urine specimens in batches

with approximately 40 in each group. The accessioner pours a

small portion of each specimen (an "aliquot"), one at a time,

into a collection cup for analysis.

30. The original specimen bottle with the remaining portion

of the specimen is placed into temporary refrigerated storage

until the initial test is deemed negative or positive. If the

test is positive, the accessioner retrieves the original specimen

bottle from temporary storage and pours a second aliquot for

confirmation testing. The original specimen bottle, with the

remaining portion of the specimen, is then placed in long-term

frozen storage. Once testing is completed, the aliquots are

discarded.

31. Urine drug testing consists first of a rapid and

relatively inexpensive procedure which is known as an immunoassay

test. A positive result is confirmed by a more sophisticated and

expensive technique called gas chromatography/mass spectrometry

(GC/MS). The second test, if properly performed, is one hundred

percent accurate.

32. The function of the initial test (immunoassay), is

strictly to weed out the negatives. Perhaps 90 percent of all

the samples that the laboratory processes are negatives. The

initial test also identifies which drug group or groups should be

the focus of the extraction procedure because there is no

universal extraction procedure for all drugs. The second test

(GC/MS), makes an unequivocal identification of a molecule based

on its molecular structure.

33. If the confirmation test is positive, the laboratory

reports the results to the medical review officer (MRO) as

positive for the particular drug group.

34. On June 10, 1996, the laboratory's accessioner received

Respondent's specimen from a courier. The specimen's chain-of-

custody identification number was 026A13381. The accessioner

assigned the specimen a unique lab accession number, number

01298048. Subsequently, Respondent's specimen was tested in the

laboratory in the usual manner.

35. The initial test on Respondent's specimen used the

total cocaine metabolite screening method. When this method is

used, any compound similar to cocaine in the specimen will give a

positive result. The initial test on Respondent's specimen was

reported as "8H," which means that it was a presumptive positive.

For the immunoassay test, any compound similar to cocaine in an

amount equal to or in excess of 300 nanograms per milliliter

(ng/ml) is positive.

36. In the confirmation test, Responden t's specimen tested

positive for benzoylecgonine, a cocaine metabolite. After a

person consumes cocaine, benzoylecgonine is present in that

person's urine specimen. Respondent's specimen contained

303 ng/ml of benzoylecgonine. For the GC/MS test, any amount of

benzoylecgonine equal to or in excess of 150 ng/ml is positive.

37. Respondent's urine sample had an abnormally low level

of creatinine. Creatinine is a waste product produced by every

human being. Respondent's sample had a creatinine level of

17 milligrams per deciliter (mg/dl). Any creatinine level below

20 mg/dl may indicate dilution. When the creatinine level is

low, it is possible that the donor consumed a large amount of

fluid at least two to three hours before donating the sample in

an attempt to dilute the specimen. It is also possible that

water was added to the sample. The laboratory checked the

specific gravity of Respondent's sample to determine whether the

sample was adulterated.

38. Respondent's specimen passed the specific gravity test.

It had a specific gravity of 1.004. Anything over 1.003 is

within normal range for specific gravity.

39. The greater weight of the evidence indicates that

Respondent's sample was not diluted outside of his body because

the specific gravity of the specimen was normal and because the

specimen's temperature was 94 degrees within four minutes of

collection.

40. Doctors' Laboratory, Inc., inserted blind quality

controls in the initial testing runs to determine whether the

test analysis was valid.

41. Doctors' Laboratory, Inc., receives proficiency test

inspections by the U. S. Department of Health and Human Services

and the State of Florida. At all times relevant to this

proceeding, Doctors' Laboratory, Inc., in Valdosta, Georgia, was

certified by the National Institute of Drug Abuse, the State of

Florida, and the College of American Pathologists to perform the

kind of test at issue here.

42. A scientist employed at Doctor's Laboratory, Inc.,

certified that the final result of the testing performed on

Respondent's specimen was accurate. The greater weight of the

evidence indicates that the tests of Respondent's urine specimen

were performed in conformity with all applicable testing

guidelines.

43. On June 11, 1996, Doctors' Laboratory, Inc., in

Valdosta, Georgia, reported Respondent's test results to the MRO

in Brunswick, Georgia, as being positive for benzoylecgonine.

Dr. Robert H. Miller was the MRO who received the Respondent's

drug test report. Dr. Miller is certified as an MRO through the

American Association of Medical Review Officers. He works for

MRO Services, Inc.

44. The function of the MRO is to ascertain whether there

is any medical reason for a given test result. If the individual

has a legitimate prescription for a medication that showed up on

a drug screen and there is no safety concern over the individual

having a significant blood level of that particular substance at

work, then the report to the employer is negative.

45. In this case, the MRO reviewed the chain-of-custody

form. He did not find any irregularity in the chain-of-custody

for the Respondent's specimen. The MRO's office telephoned

Petitioner on June 12, 1996, and requested that Petitioner have

Respondent contact the MRO. Respondent returned the MRO's call

that same day. During their conversation, the MRO informed

Respondent about his drug test report. The MRO asked Respondent

whether there might be any medical reason for the positive test

result. Respondent informed the MRO that he had taken a

prescription for a toothache. Respondent did not furnish the MRO

with the name of a specific drug to account for the positive test

result.

46. Benzoylecgonine is the metabolite measured to identify

cocaine. Cocaine is rarely used in ear, nose, and throat medical

procedures, such as bronchoscopy. It is not available by

prescription. The MRO properly determined that there was no

medical reason for Respondent's positive drug test result.

47. The MRO explained to Respondent that a re-test of his

specimen was available. The MRO gave Respondent a toll-free

telephone number to call if he wanted a re-test performed.

48. By letter dated June 12, 1996, the MRO informed

Petitioner that Respondent's drug test was positive for cocaine.

49. By correspondence dated June 13, 1996, the MRO provided

Respondent with directions for obtaining a re-test of his

specimen. Respondent did not request a re-test.

50. MRO Services, Inc. receives about 1000 reports of drug

tests from Doctors' Laboratory, Inc., each month. In the past

three years, MRO Services, Inc., has not documented any cases

where a re-test of a specimen created a discrepancy with initial

test results produced by Doctors' Laboratory, Inc.

51. Petitioner's Director of Employee Relations conducted a

pre-termination conference with Respondent on June 18, 1996. The

purpose of this meeting was to give Respondent an opportunity to

present mitigating circumstances. In the conference, Respondent

indicated his belief that a co-worker, Debra Martin, put cocaine

in his drinking water without his knowledge. The Director of

Employee Relations talked to individuals that Respondent thought

might have witnessed his activities and the activities of Debra

Martin on June 10, 1996.

52. During the time in question, Respondent and Ms. Martin

were washing and waxing buses. Respondent and Ms. Martin often

would get drinking water for each other. Ice was available in

coolers located in a building near the gas pumps and washrack.

Water was available from a spigot next to the place where

Respondent and Ms. Martin were washing the buses. Ms. Martin

specifically denied that she ever put cocaine or any other

illegal drug in Respondent's drinking water.

53. Ms. Martin also tested positive for a controlled

substance on June 10, 1996. She subsequently signed a

rehabilitation contract with Petitioner. After completing her

rehabilitation treatment, Ms. Martin returned to work as a school

bus driver for Petitioner. Persuasive evidence indicates that

Ms. Martin did not put cocaine in Respondent's drinking water

without his knowledge at any time prior to his June 10, 1996,

drug test.

54. By letter dated June 19, 1996, Respondent was informed

that the Superintendent intended to recommend that Petitioner

terminate Respondent's employment.

CONCLUSIONS OF LAW

55. The Division of Administrative Hearings has

jurisdiction over this subject matter and the parties to this

action pursuant to Section 120.57(1), Florida Statutes.

56. Petitioner has the responsibility to provide for the

safety of its students. Section 230.23(6), Florida Statutes. In

order to accomplish this mission, Petitioner must ensure the safe

operation of all school buses. Section 230.23(8), Florida

Statutes.

57. Petitioner has authority to suspend or dismiss its

employees for proper cause or legitimate reasons. Sections

230.23(5)(f) and 447.209, Florida Statutes. Petitioner's

Superintendent is required to make recommendations to Petitioner

concerning the suspension or dismissal of school employees.

Section 230.33(7)(e), Florida Statutes.

58. A member of Petitioner's transportation department is

an "educational support employee" as defined in Section

231.3605(1), Florida Statutes. Section 231.3605(2), Florida

Statutes (1995), states as follows:

(2)(a) Each educational support employee

shall be employed on probationary status for

a period to be determined through the

appropriate collective bargaining agreement

or by school rule in cases where a collective

bargaining agreement does not exist.

(b) Upon successful completion of the

probationary period by the employee, the

employee's status shall continue from year to

year unless the superintendent terminates the

employee for reasons stated in the collective

bargaining agreement, or in school board rule

in cases where a collective bargaining

agreement does not exist, or reduces the

number of employees on a district wide basis

for financial reasons.

(c) In the event a superintendent seeks

termination of an employee, the school board

may suspend the employee with or without pay.

The employee shall receive written notice and

shall have the opportunity to formally appeal

the termination. The appeals process shall

be determined by the appropriate collective

bargaining process or by school board rule in

the event there is no collective bargaining

agreement.

59. Petitioner has the burden of proving by a preponderance

of the evidence that the disciplinary action it proposes is

justified. Dileo v. School Board of Dade County , 569 So. 2d 883,

884 (Fla. 3rd DCA 1990).

60. Petitioner's first drug-free workplace policy and

guidelines became effective on June 15, 1992. The ACEA ratified

these guidelines in January of-1993. They are incorporated into

the Collective Bargaining Agreement between Petitioner and the

ACEA of which Respondent is a member.

61. The express purpose of the guidelines was to comply

with the federal Drug-free Workplace Act of 1988. 34 CFR Part

85, Subpart F, requires federal grantees to certify that they

will maintain a drug-free workplace.

62. On April 15, 1992, Respondent received notice that, if

he violated Petitioner's drug-free workplace policy and

guidelines, he could be terminated and that he would forfeit his

eligibility for workers' compensation medical and indemnity

benefits. He also received a copy of the guidelines which

provide that an employee who tests positive after participating

in a rehabilitation program could be terminated.

63. Employers who implement a drug-free workplace program

pursuant to Sections 440.101 and 440.102, Florida Statutes,

receive reduced rates on their workers' compensation insurance.

Section 627.0915, Florida Statutes. Employees who violate a

drug-free workplace program established under Sections 440.101

and 440.102, Florida Statutes, forfeit their eligibility for

workers' compensation medical and indemnity benefits. Section

440.101(2), Florida Statutes.

64. In order to qualify as an established drug-free

workplace program pursuant to Sections 440.101 and 440.102,

Florida Statutes, employers are required to conduct the following

tests:

(a) Job applicant testing.

(b) Reasonable suspicion testing.

(c) Routine fitness-for-duty testing .

(d) Follow-up testing.

Section 440.102(4)(a), Florida Statutes.

65. Section 440.102(4)(a)3, Florida Statutes, states as

follows:

3. Routine fitness-for-duty drug testing.

An employer must require an employee to

submit to a drug test if the test is

conducted as part of a routinely scheduled

employee fitness-for-duty medical examination

that is part of the employer's established

policy or that is scheduled routinely for all

members of an employment classification or

group.

66. The procedures for collecting specimens and testing for

drugs are set forth in Section 440.102(5), Florida Statutes.

Rule 38F-9.015, Florida Administrative Code, requires employers

to use the standards set forth in Chapter 59A-24, Florida

Administrative Code, for all drug testing pursuant to

Chapter 440, Florida Statutes. The statutes and rules applicable

to drug testing under Chapter 440, Florida Statutes, do not

require employers to use split samples in the collection process.

They do not require random testing or post-accident testing.

67. Section 440.102(5)(k), Florida Statutes, states as

follows:

(k) An employer may not discharge,

discipline, refuse to hire, discriminate

against, or request or require rehabilitation

of an employee or job applicant on the sole

basis of a positive test result that has not

been verified by a confirmation test and by a

medical review officer.

68. Section 440.102(5)(n), Florida Statutes, provides as

follows:

(n) An employer shall not discharge,

discipline, or discriminate against an

employee solely upon the employee's

voluntarily seeking treatment, while under

the employ of the employer, for a drug-

related problem if the employee has not

previously tested positive for drug-related

problems, or entered a drug rehabilitation

program. Unless otherwise provided by a

collective bargaining agreement, an employer

may select the employee assistance program or

drug rehabilitation program if the employer

pays the cost of the employee's participation

in the program.

69. Section 112.0455, Florida Statutes, provides for a

drug-free workplace program in which employers may voluntarily

participate. Such employers do not have a legal duty to conduct

workplace drug testing. Section 112. 0455(4), Florida Statutes.

However, all drug testing must be performed in accordance with

standards and procedures set forth in Section 112.0455(8),

Florida Statutes, and Chapter 59A-24, Florida Administrative

Code. Section 112.0455(4), Florida Statutes. Those standards

permit employers to conduct the following types of tests:

(a) Job applicant testing.

(b) Reasonable suspicion testing.

(c) Routine fitness-for-duty testing .

(d) Follow-up testing.

Section 112.0455(7), Florida Statutes. The standards and

procedures set forth in Section 112.0455(8), Florida Statutes,

and Chapter 59A-24, Florida Administrative Code, do not require

employers to use split samples in the collection process. They

do not require random testing or post-accident testing.

70. In January of 1995, Petitioner implemented a second

drug-free workplace program for transportation employees in

compliance with the federal Omnibus Transportation Employee

Testing Act (OTETA). Respondent signed a notice that he had

received, read, and understood the training materials on drug and

alcohol testing under U. S. Department of Transportation

regulations prior to the implementation of the program.

71. Petitioner does not have a written policy or guidelines

relating to a drug-free workplace for transportation employees.

The Collective Bargaining Agreement between Petitioner and the

ACEA does not refer to OTETA or the regulations implementing it.

72. Section 234.091, Florida Statutes, and Chapter 6A-3,

Florida Administrative Code, require school bus drivers to have

the physical qualifications, medical examinations, and controlled

substance testing set forth in 49 C.F.R. Parts 382 and 391.

These regulations require grantees of funds administered by an

agency of the U. S. Department of Transportation to conduct the

following transportation workplace drug tests:

(a) Pre-employment testing.

(b) Post accident testing.

(c) Reasonable suspicion testing.

(d) Random testing.

(e) Return-to-duty testing.

(f) Follow up testing.

49 C.F.R. Sections 382.301 through 382.311. A routine fitness-

for-duty drug test is not required under the U. S. Department of

Transportation regulations.

73. Pursuant to 49 C.F.R. Parts 382 and 391, an employer

must follow the procedures set forth in 49 C.F.R. Part 40,

Subparts A and B, when testing transportation employees for

drugs. 49 C.F.R. Section 40.25(f)(10)I(B) mandates that drug

tests of transportation employees must be conducted using a split

specimen in the collection process.

74. In the instant case, Respondent's drug test on June 10,

1995, was a routine fitness-for-duty test that was a part of his

annual physical examination. It was not conducted pursuant to

the OTETA regulations.

75. The drug-free workplace programs established pursuant

to 34 C.F.R. Part 85, Subpart F, and Chapters 112 and 440,

Florida Statutes, are distinct from the OTETA testing

requirements. OTETA and the regulations implementing it are not

applicable here. Therefore, Petitioner was not required to

utilize a split sample in collecting a specimen for Respondent's

drug test.

76. Drug tests performed under Chapters 112 and 440,

Florida Statutes, must conform with the requirements of

Chapter 59A-24, Florida Administrative Code. That rule chapter

sets forth drug testing standards and procedures using criteria

established by the following:

(a) U. S. Department of Health and Human

Services Mandatory Guidelines for Federal

Workplace Drug Testing Programs as contained

in Volume 59, Number 110, of the Federal

Register published June 9, 1994.

(b) National Laboratory Certification

Program Guidance Document for Laboratories

and Inspectors as published by the Substance

Abuse and Mental Health Services

Administration Center for Substance Abuse

Prevention, August 29, 1994.

Rules 59A-24.002 and 59A-24.003(7), Florida Administrative Code.

77. Rule 59A-24.005(3)(c)22, Florida Administrative Code,

does not prohibit the utilization of a split specimen in the

collection process. That rule states as follows:

22. This rule chapter does not prohibit the

use of split samples provided that such

samples are collected in accordance with the

provisions of the Mandatory Guidelines for

Federal Workplace Drug Testing Programs as

defined in section 59A-24.003(7), F.A.C.

Rule 59A-24.005(3)(c)22, Florida Administrative Code. However,

the rule does not require a split sample in order for a drug test

to be valid and reliable.

78. Employers must conduct drug tests in substantial

compliance with the statutory and rule requirements for urine

drug testing. Florida Department of Highway Safety and Motor

Vehicles v. Farley , 633 So. 2d 69 (Fla. 5th DCA 1994).

79. The greater weight of the evidence indicates that the

urine testing procedures used for Respondent's June 10, 1996,

drug test substantially complied with the requirements of Chapter

59A-24, Florida Administrative Code. These procedures included,

but were not limited to, the following summarized parts of

Chapter 59A-24, Florida Administrative Code:

(a) Each laboratory shall provide collection

sites and training for collectors, who are

responsible for implementing collection and

chain-of-custody procedures. Rule 59A-

24.005(1), Florida Administrative Code.

(b) The chain-of-custody form shall provide

a unique identifier which shall not be used

to identify any other Florida Drug Free

Workplace specimen. Rule 59A-24.005(2)(c),

Florida administrative Code.

(c) Handling and transportation of a

specimen from one authorized individual or

place to another shall always be accomplished

through the chain-of-custody form and

procedures. Rule 59A-24.005(2)(g), Florida

Administrative Code.

(d) Once the specimen arrives at the

laboratory, an internal chain-of-custody form

shall be used by the laboratory. Rule 59A-

24.005(2)(h), Florida Administrative Code.

(e) After the laboratory results are

finalized, the original chain-of-custody form

shall be executed, specifying the test

results. The second copy of the form shall

be sent to the MRO. Rule 59A-24.005(2)(i),

Florida Administrative Code.

(f) Bluing agents shall be placed in the

toilet tanks at the collection site. Rule

59A-24.005(3)(c)1.a, Florida Administrative

Code.

(g) The collector shall request the donor to

present photo identification. Rule 59A-

24.005(3)(c)2, Florida Administrative Code.

(h) The donor shall remove any unnecessary

outer garments such as a hat and empty all

clothing pockets. Rule 59A-24.005(3)(c)5,

Florida Administrative Code.

(i) The donor shall wash and dry his hands

prior to urination. After washing his hands,

the donor shall not have access to any water

or other materials which could be used to

adulterate the specimen. Rule 59A-

24.005(3)(c)6, Florida Administrative Code.

(j) The donor shall provide a specimen that

contains at least 30 ml of urine. Rule 59A-

24.005(3)(c)8.a, Florida Administrative Code.

(k) Within four minutes of collection, the

collector shall measure and record the

temperature of the urine specimen on the

chain-of-custody form. Rule 59A-

24.005(3)(c)10, Florida Administrative Code.

(l) If the temperature of the specimen is

outside the range of 90-100 degrees

Fahrenheit, the donor may have altered or

substituted the specimen. In that case,

another specimen shall be collected under

direct observation of an observer of the same

gender as the donor. Reasons for the

observation and the identity of the observer

shall be noted on the chain-of-custody form.

Rule 59A-2.005(3)(c)11, Florida

Administrative Code.

(m) After collection of the specimen, the

collector shall examine the specimen to

determine its color and look for any signs of

contaminants. Any unusual findings shall be

noted on the chain-of-custody form.

(n) The donor, the collector, and the

observer, if one is used, shall keep the

specimen in view at all times prior to its

being sealed and labeled. Rule 59A-

24.005(3)(c)14, Florida Administrative Code.

(o) The collector shall place an

identification label on the bottle containing

the donor's specimen number, which matches

the specimen number on the chain-of-custody

form and the date. The donor and the

collector shall initial the identification

label to certify that it is the donor's

specimen. Rules 59A-24.005(3)(c)15 and 59A-

24.005(3)(c)16, Florida Administrative Code.

(p) The collector shall enter all required

information on the chain-of-custody form.

Rule 59A-24.005(3)(c)17, Florida

Administrative Code.

(q) The collector shall request the donor to

sign a statement on the chain-of-custody form

certifying that the specimen identified as

having been collected from him or her is in

fact that specimen he or she provided. Rule

59A-24.005(3)(c)18, Florida Administrative

Code.

(r) The collector shall arrange to send the

collected specimens by express shipment,

courier, or U. S. Mail to the drug testing

laboratory. Prior to shipping, the collector

shall ensure that the specimen container is

sealed with forensic tamper-proof tape; that

the tape contains the initials of the donor

and the date the specimen was sealed in the

specimen container; and that the completed

chain-of-custody form and specimen container

are enclosed and sealed in a tamper-proof

sealable plastic bag before packaging for

shipment to the drug testing laboratory.

Rule 59A-24.005(3)(c)21, Florida

Administrative Code.

(s) Laboratories shall use internal chain-

of-custody procedures to maintain control and

accountability of specimens from receipt

through completion of testing, reporting of

results, during storage, and continuing until

final disposition of specimens. Rule 59A-

24.006(4)(a)2. Florida Administrative Code.

(t) Upon receipt of specimens, laboratory

personnel shall inspect each package for

evidence of possible damage or tampering and

compare information listed on specimen

bottles within each package to the

information on the accompanying chain-of-

custody forms. Rule 59A-24.006(4)(b),

Florida Administrative Code.

(u) The initial screen for all drugs except

alcohol shall be an immunoassay; for cocaine

(benzoylecgonine), levels on initially

screened specimens equal to or exceeding 300

ng/ml shall be considered to be presumptively

positive and submitted for confirmation

testing. Rule 59A-24.006(4)(e), Florida

Administrative Code.

(v) Specimens identified as presumptively

positive on the initial test shall be

confirmed using gas chromatography/mass

spectrometry (GC/MS); confirmation shall be

done by quantitative analysis; for cocaine

(benzoylecgonine), levels on confirmation

specimens which are equal to or exceed 150

ng/ml shall be reported as positive. Rule

59A-24.006(4)(f), Florida Administrative

Code.

(w) The laboratory shall report test results

to the medical review officer (MRO) indicated

on the chain-of-custody form; before any test

result is reported by the laboratory, the

results of initial tests, confirmation tests

and quality control data shall be reviewed by

the certifying scientist and the test

certified as an accurate report. Rule 59A-

24.006(4)(g)1, Florida Administrative Code.

(x) During a 180 day-period after

notification of a positive test result, the

employee who provided the specimen may have a

portion of the specimen re-tested at the

employee's expense. Rule 59A-24.006(4)(h)2,

Florida Administrative Code.

(y) Persons serving as MROs shall be

licensed medical or osteopathic physicians;

the MRO shall have knowledge of substance

disorders, laboratory testing procedures,

chain-of-custody procedures, collection

procedures, and have the appropriate medical

training to interpret and evaluate an

individual's drug test result together with

the individual's medical history or any other

biomedical information. Rules 59A-

24.008(1)(a) and 59A-24.008(1)(b), Florida

Administrative Code.

(z) The MRO shall evaluate the drug test

result to verify it by checking the chain-of-

custody form that the specimen was collected,

transported, and analyzed under proper

procedures, and to determine if any

alternative medical explanations caused a

positive test result. Rule 59A-24.008(2),

Florida Administrative Code.

(aa) The MRO shall contact the donor within

three working days of receipt of the test

results from the laboratory; prior to

providing an employee with the opportunity to

discuss a test result, the MRO shall confirm

the identity of the employee. Rules 59A-

24.008(7) and 59A-24.008(8), Florida

Administrative Code.

(ab) After the MRO reviews the chain-of-

custody form and, in the case of a positive

test result, has contacted the donor who

tested positive, the MRO shall send a letter

to the employer revealing the final verified

test result. Rule 59A-24.008(10)(c), Florida

Administrative Code.

80. If properly and correctly conducted, immunoassay and

GC/MS testing procedures are highly reliable and accurate to

identify the presence of drugs. Skinner v. Railway Labor

Executive Association , 489 U. S. 602, 109 S. Ct. 1402, 1409 n.3

(1989). In this case, Respondent's drug test was conducted in

conformity with the normal and routine practices of Doctors'

Laboratory, Inc., and with the requirements of state law and

rules. The positive test result was a valid and correct analysis

of the Respondent's urine collected on June 10, 1996.

81. Petitioner has met its burden of showing by a

preponderance of the evidence that Respondent should be

terminated for testing positive for cocaine in violation of

Petitioner's drug-free workplace policy and for violating his

rehabilitation contract with Petitioner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is,

RECOMMENDED:

That Petitioner enter a Final Order, terminating the

employment of Respondent.

DONE AND ENTERED this 15th day of September , 1997, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative La w Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of September , 1997.

COPIES FURNISHED:

Thomas L. Wittmer, Esquire

Alachua County School Board

620 East University Avenue

Gainesville, Florida 32601

Francisco M. Negron, Jr., Esquire

Florida Education Association/United

118 North Monroe Street

Tallahassee, Florida 32399-1700

Robert W. Hughes, Superintendent

Alachua County School Board

620 East University Avenue

Gainesville, Florida 32601-5498

Michael H. Olenick, Esquire

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

Frank T. Brogan, Commissioner

Department of Education

The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.