Dep't of Transportation v Sibilla



Dep’t of Transportation v. Anonymous

OATH Index No. 1754/07 (Aug. 23, 2007)

Evidence found sufficient to support finding that highway repairer tested positive for marijuana. Due to previous positive drug test, termination recommended.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF TRANSPORTATION

Petitioner

- against -

ANONYMOUS

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This is a disciplinary proceeding referred by the petitioner, the Department of Transportation, pursuant to section 75 of the New York State Civil Service Law. Petitioner alleges that respondent, a highway repairer, tested positive for marijuana.

At the hearing held before me on June 26 and July 10, 2007, petitioner presented the testimony of a toxicologist and five other witnesses concerning the March 22, 2007 collection from respondent of a urine specimen, which later tested positive for marijuana. Respondent testified on his own behalf, challenging the legality of the test on both constitutional and regulatory grounds.

For the reasons provided below, I find that petitioner’s proof established that respondent tested positive for marijuana and recommend that he be terminated.

ANALYSIS

The charges here allege that on March 22, 2007, respondent submitted a urine sample which tested positive for marijuana. Respondent did not dispute petitioner’s evidence demonstrating that on March 22, 2007, he was ordered to take a drug test, that he submitted a urine sample, and that toxicology tests showed this sample contained marijuana.[1]

Patricia Breglio, director of employee relations, described the Department’s drug testing policy, which is mandated by federal regulations dealing with employees in safety-sensitive positions. Highway repairers such as respondent are required to drive Department vehicles and are subject to random drug testing. If they test positive on a first test, they must be removed from service until they agree to treatment. See Pet. Ex. 7 at VII (3). A consulting company named Clarity Testing Services administers the Department’s drug testing program (Tr. 11-13). Once an employee is cleared by a substance abuse professional (“SAP”) to return to work, federal regulations require that follow-up tests be conducted for a minimum of one year and a maximum of five years, dependent upon determinations by the SAP (Tr. 13-14).

The March 2007 drug test was the result of a prior positive drug test. It was undisputed that, on January 20, 2006, respondent submitted a urine sample pursuant to a random drug test which tested positive for cocaine and marijuana. As required by the Department drug policy and federal regulations (see Pet. Ex. 1), respondent was immediately suspended and required to undergo treatment before returning to work. He also signed a stipulation (Pet. Ex. 4) on February 1, 2006, agreeing to comply with all treatment recommendations from his SAP and to submit to follow-up drug testing. He was treated first at the union personal services unit. After returning to work on March 25, 2006, he continued his treatment with the City employee assistance program (see Breglio: Tr. 31-32).

Dr. Jeffrey Altholz, president of Clarity, testified that his company utilizes collection and testing procedures which comply with federal guidelines and provide for a scientifically valid random selection of employees to be tested (Tr. 75-76). Johanna DeNiet, the director of the Department testing program, indicated that, on March 22, 2007, respondent was scheduled for a follow-up test based upon his past 2006 positive drug test. Respondent was therefore ordered to report for testing later that day (Tr. 43-44).

On March 22, 2007, respondent’s urine specimen was collected by a Clarity employee named Lorenzo Escamilla. Mr. Escamilla testified that, in collecting respondent’s specimen, he followed standard testing procedures which he had been trained and certified to follow. He instructed the employee to provide urine in a cup, confirmed that the urine provided was of sufficient quantity and at an acceptable temperature, sealed the specimen into two vials or splits, had the employee sign a chain-of-custody form (Pet. Ex. 6), and then sent the samples to a lab to be analyzed (Tr. 57-63). Michael Pelote, a Department coordinator, stated that, although another employee named Donald Bowles provided a urine specimen just before respondent did, no one other than respondent and Mr. Escamillo were in the immediate testing area when respondent provided his specimen (Tr. 16-17).

The lab package from Quest Diagnostics (Pet. Ex. 12) shows that respondent’s sample was received by the lab on March 24, 2007. After an initial EMIT test of the sample came up positive for marijuana, a second GCMS test was conducted on another sample. This test indicated that respondent’s urine contained marijuana metabolite at a concentration of 58 nanograms per milliliter. The cutoff for a positive marijuana result is 15 nanograms per milliliter (Tr. 107). Dr. Michael Lehrer, a toxicologist retained by Quest, testified that, after reviewing the data from the test results, he certified that the results should be reported back to the Department (Tr. 106).

Dr. Stanley Platman, a toxicologist for Clarity, testified that he also reviewed the lab package and then telephoned respondent on March 26, 2007. He first asked respondent what medications he was taking. Respondent replied that he was taking vicadin, alleve, moxicillin, tricor, and three other medications for gout. Dr. Platman then informed respondent about the positive drug test result and that this result would not have been caused by any of respondent’s medications. Respondent told the doctor he wanted another drug test, but Dr. Platman told him he lacked authority to arrange a new drug test. Dr. Platman gave respondent a telephone number at Clarity which he could call if he wanted a retest of the urine specimen already tested by Quest. Respondent stated that he could not afford to pay for the specimen to be tested by a different lab (Tr. 98-100).

Respondent testified that he was “shocked” when Dr. Platman notified him that he had tested positive for marijuana. He denied using any marijuana since his return to work in March 2006 and contended that his specimen must have been swapped with the specimen of another employee. Respondent stated that co-worker Bowles was present in the toxicology trailer at the time respondent’s urine specimen was taken (Tr. 137), inviting the conclusion that it was Mr. Bowles’s specimen and not his which produced the positive marijuana result. Mr. Bowles confirmed only that he and respondent traveled to the testing center together. Mr. Bowles provided his urine specimen first and he waited while respondent provided his (Tr. 128). Notably Mr. Bowles provided no testimony to indicate that his specimen was not properly labeled or that he had used marijuana prior to being tested.

Respondent’s attack upon the chain of custody proof and his suggestion that the drug specimen was not his lacks merit. The chain-of-custody documentation and the testimony of Mr. Escamilla and Mr. Pelote established that respondent’s urine specimen was properly sealed, labeled, and delivered to the testing laboratory. Neither respondent nor Mr. Bowles provided any testimony to show that appropriate testing procedures were not followed. I therefore find that specimen which tested positive for marijuana was, indeed, that of respondent.

Respondent’s principal defense to the drug charge was that the Department lacked legal authorization for the follow-up test conducted on March 22, 2007. In opposition, petitioner contended that its legal authority to conduct follow-up tests upon respondent was derived from two sources: (1) the relevant federal and Departmental regulations and (2) the February 1, 2006 stipulation signed by respondent.

The Department drug policy provides for follow-up testing in the following language:

Each covered employee who returns to duty after a required evaluation (see part VII (4)) made by the SAP is subject to unannounced follow-up drug and/or alcohol testing. The designated SAP will determine the frequency and duration of follow-up testing. The covered employee will be required to take a minimum of six follow-up drug and/or alcohol tests with verified negative results during the first 12 months. After that period of time, the designated SAP will recommend the frequency and duration of follow-up drug and/or alcohol testing, provided that the follow-up testing period ends 60 months after the employee returns to duty. This testing shall be in addition to any random drug or alcohol testing.

Pet. Ex. 1 at p. 8. There was no dispute that this language mirrored the federal regulations, 40 CFR 40.307 (d), and required that employers of workers who drive be subject to follow-up drug testing for at least one year following the employee’s return to duty. It follows that the follow-up drug test of March 22, 2007, which occurred within one year of respondent’s return to duty on March 25, 2006, was fully authorized by federal law.

With regard to the 2006 stipulation, the critical language regarding respondent’s consent to follow-up testing is contained in paragraph 7:

7. Upon return to duty, the Employee will consent to periodic evaluation by the New York City EAP or the Citywide CDL EAU, and will comply with any treatment plans or adjustments to follow-up recommendations, during any ongoing course of treatment and counseling and for one (1) year after its conclusion (the evaluation period), and will consent to periodic drug and alcohol testing during the evaluation period, said testing to be performed in addition to that which is required under Federal regulations.

Pet. Ex. 4. This language is evidently a verbatim reiteration of language from the collective bargaining agreement.

Counsel for respondent argued that the intended meaning of this provision was to require that the employee be initially evaluated by either a City or a union employee assistance counselor and to define this initial evaluation as the “evaluation period.” According to respondent’s interpretation, after this initial evaluation period, the employee agreed only to cooperate with any recommended treatment for one year, but did not consent to any further drug testing, other than the random or reasonable suspicion testing which other employees were subject to.

Although the syntax of the stipulation paragraph is confusing, I find that the more logical interpretation of the provision is that it was intended to define the “evaluation period” as beginning with the employee’s return to duty, continuing through treatment and counseling, and ending one year after the treatment and counseling are completed. As explained above, the federal regulations require that safety sensitive employees such as respondent undergo drug testing for at least one year following their return to duty after a positive drug test. The stipulation states that it is intended to require drug testing “in addition to that which is required under Federal regulations.” Adopting respondent’s interpretation would, in fact, require follow-up testing only during an initial evaluation, which, as in this case, might last no longer than ten to twelve weeks. Respondent’s interpretation would thus be inconsistent with the federal regulations and ignore the language indicating that the stipulation provided for testing beyond that required by the federal regulations. See Rosner v. Metropolitan Property & Liability Insurance Co., 96 N.Y.2d 475, 479, 729 N.Y.S.2d 658, 660 (2001)("Meaning and effect should be given to all language of a statute …. Words are not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning"); Leader v. Maroney, 97 N.Y.2d 95, 104, 736 N.Y.S.2d 291, 297 (2001)(same).

Furthermore, the interpretation proffered by respondent’s counsel does not fully explain the use of the parenthetized words “evaluation period.” The most plausible interpretation of this parenthetical is that “evaluation period” was defined as a period which begins with the employee’s return to duty, continues through any treatment recommended by the SAP, and ends one year after the completion of the treatment. This would be fully consistent with the intent that the stipulation language that the testing was “in addition to that which is required by federal regulations,” as well as with the complete language of the provision.

Applying this interpretation to respondent’s case, there can be little question that the March 22 drug test was legal under the stipulation as well as under the federal regulations. By virtue of the February 2006 stipulation, he agreed to be subject to follow-up testing for at least one year after his treatment was completed in June 2006, or until June 2007. The follow-up drug testing conducted on March 22, 2007, was thus fully authorized by the stipulation.

Respondent’s positive drug reading violated the Department drug policy, as alleged in charge I, specifications 1, 6, and 7. This policy, which respondent acknowledged receiving (Pet. Ex. 2), provides that highway repairers, as well as several other categories of employees, may, after a first positive drug test, retain their jobs by agreeing to substance abuse counseling. Upon a second positive drug test, these employees may be terminated. The positive drug test also established that respondent ingested marijuana, an illegal drug, and hence violated the Department prohibition against engaging in conduct prejudicial to the good order and discipline of the Department, as charged in charges I, II, and III. See Department Code of Conduct paras. 1 and 2.

In charge I, petitioner also alleges that respondent’s positive drug test was a violation of another provision of the employee code of conduct. The Department code of conduct rule cited provides that employees may not

[u]nlawfully manufacture, distribute, dispense, possess, or use a controlled substance in the workplace; consume, be impaired, or be intoxicated by alcohol or by any controlled substance, including but not limited to a narcotic, hallucinatory or other drug or substance, while on duty or representing the Department or the City in any capacity, or on DOT or other City property, or driving a DOT or other City vehicle.

Department Code of Conduct para. 46. No proof was offered at the hearing that respondent violated this rule. While it appears that the drug test took place at a time when respondent was on duty, no evidence was offered that he possessed, used, or was impaired by marijuana at that time. This portion of the charge cannot be sustained and must be dismissed. See Dep’t of Transportation v. Anonymous, OATH Index No. 1997/07, at 4 (July 2, 2007).

Based upon the uncontroverted proof, I find that respondent tested positive for marijuana in violation of the Department’s drug policy prohibiting employees from using illegal substances. Charges I, II, and III should be sustained, except that that portion of charge I alleging a violation of paragraph 46 of the code of conduct is dismissed as unproven.

FINDINGS AND CONCLUSIONS

1. Charges I, II, and III should be sustained in that on March 22, 2007, respondent provided a urine sample which tested positive for marijuana metabolite in violation of the Department Controlled Substance and Alcohol Abuse Policy and Department Code of Conduct paragraphs 1 and 2.

2. The portion of charge I alleging a violation of paragraph 46 of the code of conduct should be dismissed in that petitioner failed to prove by a preponderance that respondent possessed, used or was impaired by a controlled substance in the workplace.

RECOMMENDATION

Upon making the above findings, I requested and received information regarding respondent’s personnel history. He was appointed to the Department in 1990 and, as noted above, was suspended in 2006 after testing positive for marijuana and cocaine. While respondent’s 18 years of service provide some grounds for mitigation, his prior drug violation demands a more severe penalty.

Petitioner has requested respondent’s termination, as mandated by the Department drug policy. I agree that termination is warranted under the facts of this case. Respondent works in a safety sensitive job where he is required to drive vehicles and to possess a driver’s license. A City driver impaired by illegal drugs is a threat to the public. Respondent was on notice of the Department drug policy, which expressly warns that a second positive drug test will result in termination. Following his previous positive drug test, he received a chance to undergo drug counseling and rehabilitation and he evidently continues to use marijuana. Other Department employees have been terminated for such persistent drug violations. See Dep’t of Transportation v. Anonymous, OATH Index No. 1997/07 (July 2, 2007); Dep’t of Transportation v. Doe, OATH Index No. 2035/04 (Nov. 26, 2004), aff'd, NYC Civ. Serv. Comm'n Item No. CD06-64-SA (July 10, 2006).

Accordingly, based upon his repeated use of illegal drugs, I recommend that respondent be terminated from his position as a highway repairer.

John B. Spooner

Administrative Law Judge

August 23, 2007

SUBMITTED TO:

JANETTE SADIK-KHAN

Commissioner

APPEARANCES:

ERICA CARAWAY, ESQ.

Attorney for Petitioner

KARASYK & MOSCHELLA, LLP

Attorneys for Respondent

BY: PETER BRILL, ESQ.

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[1] Pursuant to title 49, section 40.323(2)(b) of the Code of Federal Regulations, respondent’s name has been withheld from publication. See Dep’t of Environmental Protection v. Anonymous, OATH Index No. 977/05, at 1 n.1 (June 3, 2005), rev’d, Comm’r Dec. (July 27, 2005); Dep’t of Transportation v. Doe, OATH Index No. 2035/04, at 1 n.1 (Nov. 26, 2004), aff’d, NYC Civ. Serv. Comm’n Item No. CD06-64-SA (July 10, 2006).

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