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Dep’t of Transportation v. Anonymous

OATH Index No. 835/08 (Dec. 18, 2007)

In a default hearing, evidence found sufficient to support finding that highway repairerwas AWOL and tested positive for cocaine. Due to previous positive drug test and other disciplinary penalties, termination recommended.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF TRANSPORTATION

Petitioner

- against -

ANONYMOUS

Respondent

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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 cocaine and was absent without leave on a number of occasions.

The case was scheduled to be heard before me on November 26, 2007. On that date, petitioner appeared, but respondent failed to appear. I determined that respondent had been properly served with the charges and the notice of hearing and was therefore in default. An inquest was then held during which petitioner presented respondent’s time records and the testimony of a toxicologist and other witnesses concerning collection from respondent of a urine specimen, which was later found to contain cocaine.

For the reasons provided below, I find that petitioner's proof established that respondent tested positive for cocaine and was AWOL for some 53 days. I recommend that he be terminated.

ANALYSIS

The charges here allege that,in 2007, respondent[1]was absent without leave on approximately 53 days and was late on three occasions. They further allege that,on June 4, 2007, respondent submitted a urine sample which tested positive for cocaine.

The AWOL and lateness charges were proven by respondent’s time cards and other leave forms (Pet. Ex. 14). These records established that respondent was AWOL on 23 occasions from August 3, 2007, through October 15, 2007, and that he was late three times. Respondent’s supervisor, Richard Valles, also testified that respondent had been continuously AWOL from October 15, 2007, to the date of the hearing, a total of six weeks or approximately 30 days. Director Paul Schwartz stated that respondent’s absence caused delay to the Department projects (Tr. 12). Respondent’s absences and latenesses violated Department code of conduct paragraphs 33, 34, 35, and 36, and charges II, III, IV, and V of the amended charges must be sustained.

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 subject to random drug testing and, if they test positive on a first test, must be removed from service until they agree to treatment (Tr. 22-24;seePet. Ex. 1 at VII (3)). On January 28, 1998, following a refusal to take a drug test, respondent agreed to a 15-day suspension and drug counseling (Pet. Ex. 4). This refusal was treated the same as a positive drug test for purposes of enforcing the Department drug policy, as provided under the drug testing directive. See Pet. Ex. 1 at IV (C).

A consulting company named Clarity Testing Services administers the Department’s drug testing program. Johanna DeNiet, the director of the Department testing program, indicated that, on June 4, 2007, Clarity staff notified her that respondent was on the random list of employees to be tested. Respondent was therefore ordered to report for testing later that day (Tr. 28).

On June 4, 2007, respondent’s urine specimen was collected by a Clarity employee named Jamie Campoverde. Mr. Campoverde 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 named Quest Diagnostics to be analyzed (Tr. 34-38).

The lab package from Quest (Pet. Ex. 11) shows that respondent’s sample was received by the lab on June 6, 2007. After an initial EMIT test of the sample came up positive for cocaine, a second GCMS test was conducted on another sample. This test indicated that respondent’s urine contained cocaine at a concentration of 43,142 nanograms per milliliter. The cutoff for a positive cocaine result is 150 nanograms per milliliter. 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. 41-43).

Dr. Stanley Platman, a toxicologist for Clarity, testified that he also reviewed the lab package and then repeatedly attempted to telephone respondent after receiving the test results on June 14, 2007. Most of his calls were not answered. On at least one occasion he left a voice message, asking respondent to call him back. He also verified respondent’s telephone number with the Department and also sought its assistance in contacting respondent and asking him to call Dr. Platman. After three days and many unsuccessful telephone calls to respondent’s residence, Dr. Platman reported to the Department that the test results were reliable and that he had been unable to communicate with respondent (Tr. 47-48).

Respondent’s positive drug reading clearly violated the Department drug policy, as alleged in charge I. 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 established that respondent ingested cocaine, an illegal drug, and hence violated the Department prohibition against drug use, see Department Code of Conduct para. 46, as well as the prohibition against engaging in conduct prejudicial to the good order and discipline of the Department. See Department Code of Conduct para. 2. Charge I must therefore be sustained.

In sum, based upon the uncontroverted proof, I find that all five of the charges should be sustained.

FINDINGS AND CONCLUSIONS

1.Charge I should be sustained in that on June 4, 2007, respondent provided a urine sample which tested positive for cocaine in violation of the Department Controlled Substance and Alcohol Abuse Policy and the Department code of conduct paragraphs 2 and 46.

2.Charges II and V should be sustained in that, from August 3, 2007, through October 15, 2007, respondent was absent without leave on 23 occasions and failed to notify his immediate supervisor of these unplanned absences in violation of Department code of conduct paragraphs 33 and 36.

3.Charge III should be sustained in that, from August 3, 2007, through October 15, 2007, respondent was late three times in violation of Department code of conduct paragraph 34.

RECOMMENDATION

Respondent was appointed to the Department in 1990 and has been disciplined several times. As noted above, he was placed on probation and suspended for 15 days in 1998 after he refused to take a drug test. He was suspended for two days and placed on probation again in 1999 for assaulting a co-worker. He was suspended for three days in 2000 for failing to report an arrest. In 2006, he forfeited two weeks’ pay and was placed on probation yet again for being AWOL. This poor work record warrants a severe penalty here.

There are multiple reasons to conclude that respondent should be terminated for his most recent positive drug test for cocaine. 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 cocaine is a threat to the public and any driver who uses cocaine must be prohibited from driving. Respondent is on notice of the Department drug policy, which expressly warns that a second positive drug test will result in termination. He has received the benefit of undergoing drug counseling and rehabilitation after his previous drug test refusal.Yet, as indicated by the extremely high cocaine level found in the June 4 test, he is ingesting cocaine in direct contravention of the Department prohibitions against drug use. Other Department employees have been terminated forsuch drug violations. See 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). Finally, respondent’s failure to appear at the hearing is a further indication of his irresponsibility and lack of regard for his work obligations.

Accordingly, based upon his persistent misconduct, I recommend that the only appropriate penalty here is that respondentbeterminated from his position as a highway repairer.

John B. Spooner

Administrative Law Judge

December 18, 2007

SUBMITTED TO:

JANETTE SADIK-KHAN

Commissioner

APPEARANCES:

TONYA MORGAN, ESQ.

ERICA CARAWAY, ESQ.

Attorneys for Petitioner

No Appearance by Respondent

[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 (June 3, 2005), rev’d, Comm’r Dec. (July 27, 2005); Dep’t of Transportation v. Doe, OATH Index No. 2035/04 (Nov. 26, 2004).