DEP V



Dep’t of Environmental Protection v. Anonymous

OATH Index No. 977/05 (June 3, 2005), rev’d, Comm’r Dec. (July 27, 2005), appended

The Department failed to present credible evidence that drug test was properly administered. Testing error led to respondent’s inability to provide a sufficient urine sample. Thus, charges should be dismissed. Commissioner finds laborer refused federally mandated drug test and imposed a 60-day suspension without pay.

_________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Petitioner

- against -

ANONYMOUS[1]

Respondent

_________________________________________________

REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge

The Department of Environmental Protection brought this proceeding pursuant to section 75 of the Civil Service Law. The charges allege that respondent, a construction laborer, refused to submit a urine sample during a random drug test on June 29, 2004. Respondent insists that he was unable to provide a sufficient urine sample because the specimen collector failed to follow proper procedures.

A hearing was conducted before me on April 6, 2005. Petitioner relied upon documentary evidence and testimony from the specimen collector, a medical review officer, a testing company official, and a Department supervisor. Respondent testified on his own behalf and supported his defense with testimony from a supervisor, two co-workers, and a physician. For the reasons set forth below, I conclude that the charges were not sustained and recommend that they be dismissed.

ANALYSIS

Respondent’s job responsibilities include driving dump trucks and other large vehicles. He holds a commercial driver’s license and is subject to Department and federal regulations that require random drug testing. On June 29, 2004, he was randomly selected for drug testing and he reported to a Department office at 30 Pike Street in Manhattan.

With regard to the events at 30 Pike Street, petitioner relied primarily upon the testimony of Luke Foye. In June 2004, Mr. Foye was a specimen collector for Drug Test, Incorporated, of Woodside. In less than two years as a specimen collector, he had administered approximately one thousand drug tests (Tr. 54-55, 82). He could not recall the details of this particular test, but his review of a custody and control form reminded him that there had been “a situation” (Tr. 83; Pet. Ex. 8). Ten days after this disputed test, Mr. Foye quit working as a specimen collector and became a bus driver (Tr. 81).

On June 29, 2004, after arriving at 30 Pike Street, Mr. Foye handed the list of randomly selected employees to a Department supervisor. Mr. Foye put his paperwork on an office desk. Adjacent to the office, there was a small, private bathroom with one toilet and a sink. A full-length door separated the office and the bathroom (Tr. 56; Pet. Ex. 7). Mr. Foye secured the bathroom by turning off the water, taping the faucets, and disconnecting the toilet’s flushing mechanism. As each selected employee arrived at the site, Mr. Foye checked identification (Tr. 57-58, 63).

Because 30 Pike Street had a single private bathroom without stalls, Mr. Foye would not enter the bathroom while an employee urinated (Tr. 65). Such direct observation was only permitted if there were suspicious circumstances that suggested tampering had taken place. For example, samples are promptly checked for temperature. If there was an abnormal reading, Mr. Foye requested another sample and directly observed the employee produce the urine. Absent such unusual circumstances, the employee was entitled to privacy. Mr. Foye insisted that there were no directly observed tests at 30 Pike Street on June 29, 2004 (Tr. 82).

However, Mr. Foye claimed that the bathroom sink had a leaky faucet. To insure against adulteration of samples, he left the door slightly open when each employee went into the bathroom. Mr. Foye stood at a desk a few feet away from the door and listened attentively as each employee produced a sample (Tr. 64-66).

At the hearing, Mr. Foye minimized the width that the door was opened. He claimed that the door was only open wide enough for him to hear. He could not see the sink and he “never” touched the door (Tr. 65, 81). The door was “mostly closed” and at “the very most” it was only open “a crack,” a “slight crack,” or “slightly ajar” (Tr. 66, 75-76, 81: Pet. Ex. 7).

Mr. Foye gave conflicting testimony as to whether an employee could close the door. At first he claimed that if an employee asked, or merely looked back, he would close the door because men were always kidding around in the office (Tr. 64, 76). However, he later claimed that, because of the leaky sink, he was uncomfortable closing the door. If an employee asked to close the door, Mr. Foye would explain that he needed to keep it slightly open to enable him to listen (Tr. 77, 81).

The specimen cups were marked with a line indicating 45 milliliters, the amount needed for a valid sample. If there was difficulty obtaining a sufficient sample, Mr. Foye would “generally” encourage the employee to drink at least 40 ounces of liquid (Tr. 73). He recalled, “a lot of the times, when I was at [30 Pike Street], they would mill about, perhaps go outside, smoke cigarettes, you know get coffee, tea, water, whatever” (Tr. 70). Mr. Foye claimed that the Department allowed employees to run out and get something to drink if necessary (Tr. 73). If it were up to him, he would not allow employees to leave (Tr. 74).

According to Mr. Foye, respondent initially tried to produce a sample (Tr. 65). His test began at 3:08 p.m., but he was unable to produce a sample by 6:08 p.m. (Tr. 68; Pet. Ex. 8). Mr. Foye claimed that he tried to help respondent by suggesting that he should get his own drug test (Tr. 69).

After giving respondent one last chance, Mr. Foye noted on the custody and control form, “Donor unable to void in three hours. Collection abandoned” (Pet. Ex. 8, Tr. 82). He also notified respondent’s supervisor, John Walden, about the abandoned test (Tr. 58; Pet. Ex. 8).

Petitioner did not call Mr. Walden as a witness. Instead, George Hinz, the deputy chief of operations for the Department’s repair division, described respondent’s duties and the importance of drug testing. Mr. Hinz did not testify about June 29, 2004.

Construction laborer Keith Pommels failed to appear as scheduled for the hearing, but petitioner introduced his oral statement that, when he was tested at 30 Pike Street on June 29, 2004, the bathroom door was one-quarter opened and the specimen collector was outside the door (Tr. 111). There was no indication that Mr. Pommels was present when respondent was tested.

William Kerekes, president of Energetics Corporation, a company that administers the Department’s drug testing, confirmed that, absent suspicious circumstances, direct observation of employees as they produced urine samples was not permitted (Tr. 33). Specimen collectors must stay outside of single-stall bathrooms (Tr. 38). Mr. Kerekes had no personal knowledge of the testing that took place on June 29, 2004. He noted that, according to his records, respondent had been tested four other times from 2003 to 2004, and on each occasion the results were negative (Tr. 37, 40).

Dr. Randy Barnett, a medical review officer employed by University Services of Philadelphia, testified that his firm received the custody and control form, prepared by Mr. Foye, indicating that respondent’s test was abandoned after three hours. This was deemed a “shy bladder” situation (Tr. 13). Under such circumstances, employees are sent to an authorized doctor to determine whether there is a legitimate medical or psychological reason for the failure to produce a urine sample (Tr. 14).

Here, Dr. Brian Mignola, a physician selected by the Department and pre-approved by University Services, examined respondent on July 7, 2004 (Tr. 15, 29). Dr. Mignola did not testify. However, petitioner introduced his two-page report indicating that respondent was healthy and had no previous urinary difficulty (Pet. Ex. 4; Tr. 19). Dr. Mignola found “no medical reason for [respondent’s] inability to yield a urine sample” (Pet. Ex 4). The report indicated that respondent was “alert and oriented” but there was no evidence that any psychological tests were performed (Pet. Ex. 4).

On August 1, 2004, Dr. Mignola sent his report to Dr. Barnett. However, Dr. Mignola had not spoken with Dr. Barnett and had not received detailed instructions regarding the examination. Dr. Barnett sent those instructions to Dr. Mignola on August 14 (Tr. 23-24). In response, Dr. Mignola re-sent his original report on August 20 and stated that he adhered to his original findings (Tr. 26).

On August 24, 2004, based upon review of reports from the specimen collector and Dr. Mignola, Dr. Barnett concluded that respondent’s failure to provide a sufficient sample constituted a refusal to take a drug test (Tr. 15-16). Dr. Barnett “did not give any credence” to a report provided by respondent’s doctor because he was not on a list of physicians that had been approved by University Services (Tr. 20). Moreover, Dr. Barnett emphasized, “unsupported” assertions of situational anxiety are not an acceptable reason for failure to submit a urine sample (Tr. 14, 21). Dr. Barnett also testified that an erroneous direct observation was not, by itself, a ground for canceling a test (Tr. 20).

Respondent testified that for five years he has been a construction laborer repairing water mains, hydrants, and sewers (Tr. 99-100, 110). Prior to June 29, 2004, he had been randomly tested for drugs five times (Tr. 100). During those other tests, respondent was given a cup at 30 Pike Street and sent to the bathroom. He would close the door, produce a sample, and return it to the specimen collector (Tr. 101).

On June 29, 2004, respondent was notified shortly before 3:00 p.m. that he was to be drug tested. At 3:08 Mr. Foye, whom he had never met before, handed him a cup. Respondent went into the bathroom. But this test was different. Mr. Foye followed respondent into the bathroom. The bathroom door was open and Mr. Foye stayed right behind respondent (Tr. 101). Despite his best efforts, respondent could not produce a sample. Mr. Foye did not give any further instruction, so respondent went to a nearby water fountain and drank some water (Tr. 102). He tried again, but could not produce a sample. Respondent continued to drink water from the fountain and told Mr. Foye that he was trying, but unable, to produce a sample (Tr. 102).

Eventually, Mr. Foye told respondent that his three hours were up (Tr. 102). He escorted respondent to a supervisor’s office and, in the presence of supervisor John Walden, told him that he would be terminated because he did not produce a sufficient sample (Tr. 102). Mr. Foye provided no further instructions and told respondent that his “best bet” would be to call the union (Tr. 102).

Respondent later visited his own doctor. With much difficulty, after drinking plenty of liquids, respondent was able to produce a sample in his doctor’s presence (Tr. 104). Respondent had no prior difficulty with urination and he was not receiving treatment for this condition (Tr. 104-05). After he was authorized to return to work, respondent was tested four more times in 2004. On each of those occasions he was able to produce a sample when he was allowed to enter the bathroom and close the door (Tr. 103-04). Never before or since has a specimen collector monitored a drug test by standing over respondent as he tried to produce a urine sample (Tr. 106).

Dr. Charles Hinz testified that he examined respondent on July 13, 2004. Respondent had a problem urinating while under observation. It took him three tries and two and one-half hours to provide a sample while Dr. Hinz watched (Tr. 50). Respondent’s urine sample tested negative for controlled substances, including marijuana and cocaine (Tr. 50-51).

In Dr. Hinz’s opinion, respondent’s problem was more psychological than physical (Tr. 49-50). According to Dr. Hinz, respondent’s psychological condition, difficulty urinating while under observation, was not a problem that ordinarily required treatment (Tr. 50).

Arthur Trotman is a district supervisor with nearly 26 years of experience with the Department. His responsibilities include supervising laborers and supervisors throughout the city (Tr. 84). On June 29, 2004, Mr. Trotman was at 30 Pike Street from about 2:00 p.m. to midnight. The bathroom was located next to his desk (Tr. 85). He was in the office when Mr. Foye administered a test to respondent (Tr. 86). Mr. Trotman asserted that, during respondent’s test, Mr. Foye was partially in the bathroom (Tr. 86). About one-third of Mr. Foye’s body was inside the bathroom as he stood in the doorway during the test (Tr. 88). From his vantage point at his desk, Mr. Trotman could see respondent in the bathroom (Tr. 90). Although Mr. Trotman worked at that location all day, he occasionally left the office and did not watch respondent’s entire test (Tr. 89).

Construction laborer Damien Daniel testified that, when he was tested on June 29, 2004, the door was open and the specimen collector was inside the bathroom (Tr. 94). Neron Banks, a construction laborer and friend of respondent, testified that when he was tested on June 29, 2004, the specimen collector stood halfway inside the bathroom (Tr. 95, 98).

Petitioner bears the burden of proving misconduct by a preponderance of the credible evidence. Civ. Serv. Law § 75(2) (Lexis 2005); Dep’t of Environmental Protection v. Ambrosino, OATH Index No. 741/04, at 2 (Apr. 13, 2004). Among the factors to be considered in assessing a witness’s credibility are: demeanor; consistency; supporting or corroborating evidence; and the degree to which testimony comports with common sense. See Dep't of Correction v. Hansley, OATH Index No. 575/88, at 24 (Aug. 29, 1989), aff'd, 169 A. D. 2d 545, 564 N. Y. S. 2d 398 (1st Dep't 1991).

Here, petitioner failed to meet its burden for two reasons. First, petitioner’s star witness was unworthy of belief. Second, fundamental errors in the testing procedure prevented respondent from furnishing a sufficient urine sample.

Mr. Foye was petitioner’s lone witness to the disputed collection procedure. Thus, his testimony was crucial. Because he lacked a detailed recollection of this test, one of nearly a thousand that he had administered, it was understandable that he relied upon his custody and control report. But he did much more. He went out of his way to make remarkable and unreliable claims.

To begin with, Mr. Foye gave inherently contradictory testimony. For example, he initially testified that he would have closed the door at the employee’s request. Indeed, he would have closed the door if the employee merely looked back. However, Mr. Foye later changed his story and claimed that he would have kept the door open and explained to the employee why there was a need to do so. Similarly, Mr. Foye insisted that he followed necessary rules, but also claimed that respondent could have left the premises to get refreshments. In fact, if respondent had done that, federal regulations would have required cancellation of the test. 49 CFR § 40.193(b)(3).

On the key question of where he was situated during the testing, Mr. Foye insisted that he stood at a desk a few feet away from the door. He did not merely deny standing in the doorway; he repeatedly claimed that the door was barely open. If credited, his sworn testimony that the door was slightly ajar or only open a “crack” meant he could not have been in the doorway. On the other hand, if Mr. Foye stood in the doorway of the tiny bathroom, he would have been right next to anyone who was trying to urinate.

Respondent and two co-workers insisted that Mr. Foye stood in the doorway or the bathroom when they were each tested. Their testimony was clear and unequivocal. Standing alone, it raised serious doubts about Mr. Foye’s credibility. Hearsay from another worker, that the door was three-quarters closed when he was tested, did not restore my confidence in Mr. Foye.

The most persuasive evidence came from Mr. Trotman. He is a supervisor and long-time employee whom the Department entrusts with substantial responsibility. From an optimal vantage point, at his desk, he saw Mr. Foye standing in the bathroom doorway, partially in the bathroom, during respondent’s test. There was no reason to doubt Mr. Trotman’s persuasive testimony. His credibility was enhanced by his candid concession that he did not watch the entire test.[2]

Another reason to doubt Mr. Foye was the complete lack of corroboration. Mr. Walden, a supervisor, was in a position to confirm Mr. Foye’s claim that he was accommodating and helpful. Also, Mr. Walden could have supported Mr. Foye’s undocumented claim about the leaky sink. Yet petitioner failed to call Mr. Walden as a witness.

Based upon the inherent contradictions in Mr. Foye’s uncorroborated testimony and the credible evidence presented by respondent, I do not believe Mr. Foye’s claim that he stood away from the bathroom door. In light of my doubts about his testimony on this key issue, I have difficulty crediting his other claims, including his insistence that, as required by the federal regulations, he encouraged respondent to drink 40 ounces of liquid over a three-hour period. 49 CFR § 40.193(b)(2) (if employee has difficulty providing a sufficient sample, the collector must “urge the employee to drink up to 40 ounces of fluid”). Hence, I cannot rely upon Mr. Foye’s testimony to find that respondent committed misconduct. For that reason, alone, the charges should be dismissed.

The evidence also showed that testing was flawed. Federal regulations mandate that, when urine is collected at a bathroom where there is only one toilet, “no one but the employee may be present in the room.” 49 CFR § 40.41(e)(1); see also 49 CFR § 40.63(d)(1) (except for monitored or directly observed collections, neither the specimen collector nor anyone else may go into the bathroom with the employee).

This error cannot be lightly excused. "There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all.” Skinner v. Railway Executives’ Assoc., 489 U.S. 602, 617, 109 S.Ct. 1402, 1413 (1989) (citation omitted). Despite a reduced expectation of privacy, employees who are subject to random drug testing retain some privacy interests. Thus, a urine test is a search that must comply with the state and federal constitutions. Skinner, 489 U.S. at 617, 109 S.Ct. at 1413 (“collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable”); Seelig v. Koehler, 76 N.Y.2d 87, 556 N.Y.S.2d 832 (1990); Dep’t of Correction v. Pettiford, OATH Index No. 236/05, at 9 (Feb. 25, 2005).

In Seelig, the Court upheld the random testing of correction officers only after it emphasized, “the challenged testing procedures guard the privacy and dignity of the subjects as carefully as possible.” 76 N.Y.2d at 91, 556 N.Y.S.2d at 833. The failure to follow drug-testing procedures undermines constitutional prohibitions against unreasonable searches. See Southern California Gas Co. v. Utility Workers Union of America, Local 132, 265 F.3d 787, 793-94 (9th Cir. 2001) (upholding the invalidation of a drug test where medical review officer was not a licensed doctor, even though results were later reviewed and confirmed by a properly licensed doctor). This tribunal has also held that agency actions should be invalidated if prejudice results from violation of a procedure designed to protect an employee’s rights. Dep’t of Correction v. Gavin, OATH Index No. 312/86, at 25 (May 20, 1987); see Pettiford, OATH Index No. 236/05, at 9.

Here, there was a nexus between the violation of a regulation designed to protect privacy and the testing result. Respondent credibly testified that never before, or since, was he required to urinate while under direct observation. Indeed, it was obvious that respondent was extraordinarily nervous when he testified. Thus, I had no difficulty believing that he was nervous under Mr. Foye’s watchful eye.

More importantly, respondent’s testimony was supported by testimony of Dr. Hinz. According to Dr. Hinz, respondent had a psychological condition that made it difficult for him to urinate while under observation. This finding was based upon Dr. Hinz’s attempt to recreate the testing conditions used by Mr. Foye. Dr. Hinz’s medical testimony distinguishes respondent’s case from others where an employee’s claim of an inability to urinate was unsupported by competent medical testimony. See Transit Auth. v. Hand, OATH Index No. 1707/99, at 13 (May 14, 1999), aff’d, NYC Civ. Serv. Comm’n Item No. CD 01-1-A (Feb. 12, 2001) (totality of circumstances demonstrated “overwhelming probability of an intentional refusal” where there was reasonable suspicion of alcohol or drug use and uncooperative employee offered no medical evidence); Dep’t of Sanitation v. Buccellato, OATH Index No. 1835/04 (Jan. 26, 2005) (employee offered “no credible medical reason why he could not submit urine”).

Although the Department presented competing medical evidence, it was not particularly persuasive. See Finn v. Cassidy, 165 N.Y. 584, 59 N.E. 311 (1901) (trier of fact is not required to accept the opinion or theory of any given expert, but may weigh competing testimony and draw reasonable inferences); see also Human Resources Admin. v. MacGordon, OATH Index No. 111/86 (Apr. 28, 1986). Dr. Mignola, the Department-approved physician who examined respondent, did not testify. Instead, petitioner elected to rely upon Dr. Mignola’s terse, two-page report that there was no “physical reason” why respondent could not urinate within three hours. The report does not expressly address the question of whether there was a psychological reason for respondent’s inability to urinate under observation, even though the federal regulations recognize that “a medically documented pre-existing psychological disorder,” other than unsupported claims of “situational anxiety” may excuse a failure to provide a urine sample. 49 CFR § 40.193(e). Nor does the report indicate what efforts, if any, Dr. Mignola made to rule out the existence of a psychological disorder. Indeed, the report was so hastily generated that Dr. Mignola initially issued it before Dr. Barnett sent him detailed instructions required by federal regulations. 49 CFR § 40.193(c)(1).

Dr. Barnett dismissed respondent’s defense as an unsupported claim of “situational anxiety.” Yet he never examined respondent. Nor did he speak to either Dr. Hinz or Dr. Mignola. Under these circumstances, Dr. Hinz’s testimony, based upon direct observation of respondent, was entitled to greater weight. His testimony properly evaluated the cumulative impact of the improper testing procedure and respondent’s psychological condition.

In sum, petitioner failed to prove that respondent committed misconduct. Petitioner’s star witness was not credible, the testing was improperly performed, and respondent’s right to privacy was violated. Moreover, there was a direct nexus between the flawed testing and respondent’s inability to provide a sufficient sample. Accordingly, the charges should be dismissed.

FINDINGS AND CONCLUSIONS

1. Petitioner’s main witness was not credible.

2. Petitioner failed to prove that the drug test was properly conducted.

3. Respondent’s inability to produce a sufficient urine sample was directly attributable to errors in the testing process.

THEREFORE:

I find that petitioner has failed to sustain the charges.

Kevin F. Casey

Administrative Law Judge

June 3, 2005

SUBMITTED TO:

EMILY LLOYD

Commissioner

APPEARANCES:

LORETTA TOWNSEND, ESQ.

Attorney for Petitioner

KENNEDY, SCHWARTZ & CURE, P.C.

Attorneys for Respondent

BY: STUART LICHTEN, ESQ.

Department of Environmental Protection’s Decision, July 27, 2005

______________________________________________________

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Petitioner

- against -

ANONYMOUS

Respondent

ODC Case #0081/04D

______________________________________________________

EMILY LLOYD, Commissioner

I have been made aware of the circumstances that gave rise to the disciplinary proceedings brought against you. Administrative Law Judge Kevin Casey having heard all the evidence found you not guilty of the charges against you and recommended dismissal of these charges. After due deliberation, I have reached a determination.

Upon review of the testimony and exhibits presented at the Formal Hearing held at the Office of Administrative Trials and Hearings (OATH) on April 6, 2005, I make the following findings of fact and conclusions of law.

I conclude that you violated federal law and the DEP Code of Discipline when you failed to produce a urine sample for a federally mandated drug test.

The evidence for this decision is overwhelming.

Federal Law, 49 U.S.C. 31306, directs the United States Department of Transportation (DOT) to prescribe regulations mandating employers to conduct pre-employment, reasonable suspicion, random and post-accident testing for controlled substances of drivers of commercial vehicles. Pursuant to these regulations, 49 C.F.R. Part 382, 40 C.F.R. Part 40, the Department of Environmental Protection (DEP) maintains a drug-testing program for those employees, including construction laborers, who use a CDL (commercial driver's license), see testimony of Deputy Chief of Repairs George Hinz (T. 42). As part of this program DEP has hired a third-party administrator, Energetix Corporation, pursuant to 40 C.F.R. §§ 40.3, 40.345, to perform administrative tasks concerning operation of its drug and alcohol-testing program. See testimony of William Kerekes (Tr. 30-31). During the period at issue here, DEP, through Energetix contracted with Drug Test, Inc. (also known as Woodside Workplace Testing) to provide the trained collector to conduct workplace testing for drugs and alcohol (Tr. 32). Energetix also arranged for the analysis of urine specimens through a certified laboratory in Pennsylvania, Quest Diagnostics of Norristown, and for the services of a certified Medical Review Officer (MRO) through University Services, of Philadelphia (Tr. 33). As explained by Mr. Kerekes, Energetics generates a random selection of names (Tr. 31) and this list of names is then used by the outside contracting company to identify individuals who will be the subject of random testing at specific work sites (Tr. 32).

When an individual selected for random testing is unable to produce a sample this is called a shy bladder situation and a medical examination must be conducted to ascertain if there is a medical reason for the inability to produce a specimen (Tr. 34). Under applicable federal regulations, 49 C.F.R. § 193 (e), "...a medical condition includes an ascertainable physiological condition (e.g., a urinary system dysfunction or medically documented pre-existing psychological disorder, but does not include unsupported assertions of "situational anxiety" or dehydration." The failure to provide a sufficient amount of urine when directed with no adequate medical explanation is a refusal to take a DOT drug test. 49 C.F.R. § 40.191 (a)(5). The MRO is not allowed to cancel a finding based on the unauthorized use of direct observation or monitoring for a collection, 49 C.F.R. § 40.209 (b)(6), and no administrative or legal proceedings may cancel the findings of the MRO under these circumstances. 49 C.F.R. §§ 40.149(c), 40.209(a). The unauthorized use of direct observation or monitoring for a collection is considered a de minimus violation under the federal regulations. 49 C.F.R. §40.209(a). The refusal to submit to a required alcohol or controlled substances test is a violation of 49 C.F.R. § 382.211.

On June 29, 2004, Luke Foye, an employee of Drug Test, Inc. and a certified collector, went to 30 Pike Street, a DEP facility in Manhattan, to collect urine specimens for testing pursuant to DEP's drug testing program (Tr. 62). One of the individuals he tested was you, the respondent (Tr. 63). Although given three hours to produce a specimen pursuant to DOT regulations, respondent failed to do so (Tr. 66). Respondent was sent to a physician, Brian Mignola, who found no medical reason for his failure to produce a sample (Tr. 15). Pursuant to the applicable federal regulations the MRO, Dr. Randy Barnett, found that respondent had refused a DOT drug test (Tr. 15-16).

There is no doubt based on the testimony and exhibits produced at the hearing on April 6, 2005, and the relevant sections of federal law, 49 U.S.C. § 31306, as implemented by DOT regulations, 49 C.F.R. Part 382, 49 C.F.R. Part 40, that respondent is guilty of refusing a federally mandated drug test and hence guilty of Charge I and II of the accusatory instrument. See Altamore v. Barrios-Paoli, 90 N.Y.2d 378; 683 N.E.2d 740; 660 N.Y.S.2d 834 (1997) (There is a presumption of regularity and honest motivation which attaches to official acts.)

Having found respondent guilty of the charges I will now consider whether any of the evidence adduced at the hearing mitigates this finding. Dep't of Corrections v. Potter, OATH Index No. 969/96 (April 29, 1996). The employee bears the burden of showing that mitigation is warranted. Dep't of Transportation v. Doe, OATH Index No 2035/04 (Nov. 26, 2004).

The respondent's principal defense is that he was unable to produce a urine specimen because Luke Foye, the specimen collector, improperly observed respondent while he was attempting to produce a sample. ALJ Casey accepted this defense and found that the actions of Mr. Foye had caused respondent to be unable to produce a sample. For the reasons set out below I find this argument unconvincing.

As to the credibility of the witnesses I find no reason to doubt the credibility of Luke Foye. I find he had no motive to lie. I reach this conclusion after an exhaustive reading of the record. Mr. Foye testified that he was certified as a collector under the applicable federal regulations (Tr. 54). He also demonstrated detailed knowledge of the regulations regarding specimen collection rules and procedures (Tr. 53-70). His testimony showed that he knew that the federal regulations require that an employee producing a specimen in a single bathroom be entitled to be in the facility by themselves (Tr. 59). Given that Mr. Foye was certified at his job and knew the applicable rules the respondent has failed to show any motive for him to violate these regulations and be untruthful in his testimony.

There are further reasons to find Mr. Foye's testimony persuasive. Mr. Foye no longer works for Drug Test, Inc. (Tr. 53). He testified that he now works as a bus driver for the MTA, a job he considers an improvement over his employment as a collector for Drug Test, Inc. Thus, he had no employment related reason to be less than candid in his testimony. While a motive need not be part of a disciplinary finding, it can be a significant element in a determination of credibility. Fire Department v. Egan, OATH Index No. 819/97 (August 15, 1997). Furthermore, at several points in his testimony Mr. Foye acknowledged facts that do not reflect well on him. He admitted that he allowed some of the construction laborers to leave the location while awaiting re-testing, a practice not condoned by the regulations (Tr. 73). He also admitted that he had collected thousands of urine specimens and had no specific memory of respondent's test (Tr.82-83). Yet he steadfastly denied that he would have observed respondent and stood in the bathroom with him (Tr. 65). In fact, he testified on cross-examination that he didn't know there was any alleged problem with the test until early in 2005 (Tr. 79).

I find that Mr. Foye's testimony, far from lacking credibility, is consistent with common sense. See Dep't of Correction v. Hansley, OATH Index No. 575/88 (Aug. 29, 1989) affd, 169 A.D. 2d 545, 564 N.Y.S.2d 398 (1st Dep't 1991). (Among the factors to be considered in assessing a witness's credibility is the degree to which testimony comports with common sense.) It makes sense that Mr. Foye having done thousands of tests would not remember a specific urine test, particularly if he had followed the regulations, as he claims. It is simply incredible that a trained collector who had worked for nearly two years at his job would brazenly violate federal regulations in such an embarrassing manner, particularly where, as here, they could have caused him to wait around for three hours while respondent attempted to give a sample.

I find it particularly unlikely that he would have repeatedly violated the regulations in this way on this one particular day, as claimed by respondent and his witnesses, (Tr. 86, 93, 95, 101). Such repeated and egregious disregard for the federal regulations would have resulted in Mr. Foye's dismissal from his employment before he could have completed the nearly two year tenure at his job that he describes (Tr. 53). Respondent and his witnesses indicate that this was the only time that they had had this experience during the specimen collection procedure (Tr. 82), however, Mr. Foye testified that he was the collector most frequently sent to Pike Street and gave a thorough description of the facility (Tr. 56-57). Mr. Foye's entire account of the way he conducts a collection and his description of the site and the problems connected with collecting at this site are so detailed as to have the imprimatur of truth. His description of the way he listened for problems from outside the door during the testing procedure makes much more sense than the alternative of actually being in the room with the individual that I find it more likely to be true. This account also accords with the procedures set forth in the federal regulations, 49 C.F.R. Part 40. The fact that Mr. Foye has completed thousands of tests with only several tests cancelled because of paperwork mistakes (Tr. 55) and had no reason to interfere with the test in the way described by respondent compels me to find his testimony as to the events of June 29, 2004, credible in its entirety.

Thus, I reverse ALJ Casey's finding that the testimony of Luke Foye was not credible. See Department of Correction v. Claxton, OATH Index No. 839/95 (June 5, 1995); In the Matter of New York City Department of Environmental Protection v. New York City Civil Service Commission et al. 78 N.Y.2d 318, 574 N.Y.S.2d 664 (Ct. of Appeals, 1991) (finding of an ALJ on credibility may be reversed.)

Furthermore, I find that it goes against the purpose of the DOT regulations and legislative intent to allow a finding of refusal under the act to be annulled except under very compelling conditions which are not present here. See, S. Rep. No. 54, 102nd Cong., 1st Sess. 2 (1991). It is also troubling to me that ALJ Casey, Report and Recommendation, p. 8, determined that Mr. Foye's testimony was completely uncorroborated. This is untrue. The testimony of Keith Pommells (Tr. 111) substantiates much of Mr. Foye's account. Rather, it seems that the judge chose to ignore this evidence while crediting similar evidence from respondent's witnesses. Report and Recommendation, p. 6. The ALJ's reference to Mr. Foye as, "petitioner's star witness" (Report and Recommendation, p.7) shows an inexplicable hostility toward Mr. Foye that also leads me to discount his evaluation as to credibility.

Instead, I find respondent had the greater incentive to be untruthful in his testimony. I also find that the following aspects of his testimony to be unconvincing and indicative of fabrication. His allegation that the collector told him that he would be terminated because he was unable to produce a sample (Tr. 102) does not accord with Mr. Foye's testimony (Tr.69). I find it inconsistent with the collector's role and responsibility as expressed in the testimony of Mr. Foye. Neither Mr. Foye nor respondent knew each other and Mr. Foye gave no indication of any animosity toward respondent to make such a comment understandable.

Respondent's testimony that all the other collectors always set up their equipment and waited for respondent to finish producing a sample in a room entirely isolated from the site of the bathroom designated for urine collection I find in conflict with the federal regulations. 49 C.F.R. §40.43. Mr. Foye's description of how he set up for a test I find more in accord with the regulations and with common practice in the field. Thus I find respondent's testimony on this point overstated and exaggerated.

I also find no reason to believe the testimony of respondent's witnesses. The fact that according to respondent no one had ever heard of this happening before (Tr. 106) but on the one day that respondent failed to produce a sample two of his co-workers and a long-time supervisor all either had this same experience or observed it, I find unconvincing. It is very telling that in his testimony respondent concedes that he asked his co-workers and supervisors if they had ever heard of this happening before or had it happen to them and they said no (Tr. 106). Despite the fact that none of these co-workers and supervisors had ever heard of such a thing before three of them came in to testify that they happened to have experience on the same day as respondent.

I also have determined that had respondent really been the victim of this the very unusual collecting practice he describes, he or someone on his behalf would have complained to the proper authorities regarding this experience, a protest that respondent concedes was not, to his knowledge, ever made (Tr. 109).

Respondent's medical condition offers no reason for mitigation. Respondent is not receiving treatment for any psychological or medical condition related to difficulty urinating "on command" (Tr. 105). He was able to produce a sample after being observed by his own physician after two and a half hours (Tr. 50) well within the cut-off time of three hours under the federal regulations, 49 C.F.R. 40.193 (b)(4). He also has never had difficulty urinating before (Petitioner's exhibit 4) and has had no difficulty in any previous or subsequent drug test (Tr. 104). Contrary to the finding of ALJ Casey that Dr. Mignola's report was not persuasive compared to that of respondent's physician, Dr. Hinz, Report and Recommendation, P. 10, all of Dr. Mignola's finding were supported by the testimony of Dr. Hinz and respondent (Tr.49-50, 105), i.e. that respondent had no physical reason for failing to produce a specimen and had had no previous difficulty with urinating.

I have carefully reviewed the legal precedent cited by ALJ Casey in his report and recommendation and find it inapplicable to the facts of this case. In Selig v. Koehler, 160 A.D.2d 550; 554 N.Y.S.2d 201 (1st Dept. 1990), the first department found that corrections officers could be observed while providing urine specimens due to the status of the Department of Corrections as a paramilitary organization. This has no relevance to the facts of this case. Southern California Gas Company v. Utility Workers Union of America, 265 F.3d 787 (9th Circuit, 2001), appealed an arbitrators decision that found that the gas company could not terminate two employees for failing a drug test where the MRO was not a licensed physician. These facts also have no correspondence to the facts of the present case. I have reviewed his other arguments and analysis and in light of the findings above I find his arguments and analysis unpersuasive.

I found it troubling that ALJ Casey, Report and Recommendation p. 8, improperly made a negative inference against the agency based on a missing witness. A negative inference based on a missing witness is only appropriate where there has been an application by the opposing party and a foundation laid that this witness has knowledge about a material issue, that he would naturally be expected to give testimony favorable to the party who failed to call him, and that the witness is available to that party. People v. Gonzalez, 68 N.Y.2d 424; 502 N.E.2d 583; 509 N.Y.S.2d 796 (1986). None of these elements were present here.

Based on the foregoing, I find by a preponderance of the credible evidence that you committed the acts charged in Specification 1 of Charge I and Specification 1 of Charge II.

Because you have worked for the Agency for seven years with no history of misconduct and your supervisors have a good opinion of your work I have decided that termination is not an appropriate penalty. Instead it is my decision that you shall serve a suspension of 60 days without pay with credit for any time you have already served.

EMILY LLOYD, Commissioner, Department of Environmental Protection

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[1] Pursuant to title 49, section 40.323(2)(b) of the Code of Federal Regulations, submitted in evidence as Petitioner’s Exhibit 1, respondent’s name has been withheld from publication. See Dep’t of Transportation v. Doe, OATH Index No. 2035/04 (Nov. 26, 2004).

[2] Counsel for petitioner noted that, as he left the hearing room, Mr. Trotman made a friendly gesture to respondent (Tr. 92). Little, if any, probative value can be attached to this non-evidence. Notably, Mr. Trotman also exchanged pleasantries with petitioner’s counsel. Moreover, it would be an extraordinary leap to infer, based upon a warm greeting, that Mr. Trotman had lied under oath on respondent’s behalf.

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