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Fire Dep't v. Schroeder
OATH Index No. 1261/07 (Sept. 28, 2007), modified on penalty, Comm’r Decision (Nov. 19, 2008), appended
Firefighter was randomly selected for drug testing. Despite initial discrepancy in laboratory results, evidence established that respondent tested positive for illegal drug use. Evidence also established that respondent suffers from post-traumatic stress disorder and a permanent lung disability. Because of those mitigating circumstances, termination of respondent’s employment and benefits would be unduly harsh. Penalty other than termination recommended.
Commissioner did not accept ALJ’s penalty recommendation. For reasons stated in his decision, the Commissioner terminated the firefighter.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
FIRE DEPARTMENT
Petitioner
-against-
JOHN SHROEDER
Respondent
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REPORT AND RECOMMENDATION
KEVIN F. CASEY, Administrative Law Judge
The Fire Department (Department) brought this disciplinary proceeding under section 15-113 of the Administrative Code, against firefighter John Schroeder. The charges allege that respondent tested positive for cocaine use in violation of his oath of office, the Department All Units Circular 202 (Feb. 1, 1996) (AUC 202), and sections 25.1.6, 25.1.3, and 25.1.1 of the Rules and Regulations for the Uniformed Force (Jan. 1, 1997).
At a hearing on July 13, 16, and 27, 2007, petitioner relied upon documentary evidence and testimony from three witnesses: two members of the testing unit and a forensic toxicologist. Respondent presented documentary evidence, testified in his own behalf, and offered testimony from two other witnesses: a clinical psychologist and a Department physician who specializes in pulmonary medicine.
For the reasons below, I find that the charges have been sustained and recommend a penalty other than termination.
ANALYSIS
Petitioner proved that the Department conducted random drug testing at Engine Company 7 on October 24, 2004. Respondent was at that location and he submitted a urine sample that tested positive for the presence of cocaine metabolite.
Respondent challenged the validity of test results because a confirmatory laboratory that re-tested his sample initially found a much higher level of cocaine metabolite than the laboratory that first analyzed the sample. The results of a third test, by the confirmatory laboratory, were consistent with the findings of the first laboratory. Respondent argued that the third test was unauthorized and all the results were unreliable. That claim lacked merit.
Eugene Samojedny, supervisor of the drug testing unit, described the random selection process (Tr. 80-83; Pet. Ex. 6). This tribunal has repeatedly upheld that procedure and respondent offered no evidence to undermine the randomness of the selection process. See Fire Dep’t v. O’Sullivan, OATH Index No. 1914/05 (Sept. 29, 2005); Fire Dep’t v. O’Neill, OATH Index No. 1973/05 (Sept. 20, 2005).
Samojedny and Dexter Washington, a former member of the testing unit, also discussed the procedures for obtaining and securing urine samples (Samojedny: Tr. 90-94; Washington; Tr. 29-34; Pet. Ex. 4). Acknowledging that Washington was present for the sample collection on October 24, respondent recalled that another member of the testing unit measured the temperature of the sample and sealed it (Tr. 317). However, respondent did not dispute that the sample was sealed in his presence and that he signed the sealed containers (Tr. 33-35, 49-52). Moreover, respondent signed a chain of custody form certifying that he provided the sample to the collector, the specimen bottle was sealed in his presence, and the information provided on the label was correct (Pet. Ex. 4). This evidence was sufficient to show that there was a reliable chain of custody.
Respondent’s sample was sent for analysis to Bendiner and Schlesinger, Inc. (Pet. Ex. 4). Dr. William Closson, director of toxicology at that laboratory, described the procedures used to test respondent’s sample and summarized the results (Tr. 209-13; Pet. Ex. 8). Initial immunoassay screening was positive for cocaine metabolite (Tr. 215-16). More precise testing, using gas chromatography, mass spectrometry (GCMS) also detected the presence of cocaine metabolite (Tr. 217-18). The metabolite level, 480 nanograms per milliliter, exceeded the cutoff level of 150 nanograms and indicated that cocaine was ingested three or four days prior to the random drug test (Tr. 219, 221).
After Dr. Closson submitted his findings to the Department, respondent exercised his right to request a re-test at his expense. The Department’s medical review officer asked Dr. Closson to send respondent’s sample to another laboratory, Northeast Toxicology Laboratory (NTL), now known as Saratoga Laboratories (Tr. 222, 261). NTL confirmed the presence of cocaine metabolite in respondent’s sample, but reported a level of 9819 nanograms, twenty times the level found by Dr. Closson’s laboratory (Tr. 224, 259, 266).
At the Department’s request, Closson called NTL’s director to discuss the discrepancy (Tr. 224, 262). NTL, which still had respondent’s sample, conducted a third test and found that the level of cocaine metabolite was 519 nanograms (Pet. Ex. 11). Dr. Closson reviewed NTL’s findings and concluded that the quantitative levels of the third test, which were consistent with the analysis conducted by his laboratory, were accurate (Tr. 236, 271; Pet. Exs. 10, 11). Though Dr. Closson formed no opinion regarding the cause of the initial discrepancy, NTL’s director reported that the erroneous higher result “was most likely due to an incomplete mixing of the specimen” prior to testing (Pet. Ex. 11).
Respondent argued that the third test was, in effect, an unauthorized re-test (Tr. 277; Pet. Ex. 10). Thus, respondent maintained, the third test was impermissible and should not be considered. Moreover, respondent asserted, the testing discrepancies were so significant that all of the test results were unreliable (Tr. 240).
Despite the differences concerning the levels of metabolite, every test of respondent’s sample was positive for the presence of cocaine (Tr. 240). Furthermore, Dr. Closson, an expert in forensic pathology, offered unrebutted testimony that NTL’s third test was consistent with New York State Department of Health guidelines and “good forensic practice” (Tr. 207, 225, 274). Indeed, Dr. Closson noted, NTL was required to take whatever steps it deemed necessary to ensure the accuracy of its results (Tr. 231; Pet. Ex. 9). Dr. Closson added that, if he had been director of the confirmatory laboratory that possessed the sample, he “certainly” would have re-analyzed the sample to make sure that his result was accurate (Tr. 225). He was unaware of any regulation prohibiting a laboratory from re-testing samples without a donor’s consent (Tr. 235). On the contrary, Dr. Closson maintained, a laboratory could conduct multiple tests of a sample for quality control purposes (Tr. 235).
There was no evidence, expert or otherwise, to support the claim that the third test was improper. Respondent authorized confirmatory testing by signing a form entitled “request for drug and/or alcohol re-test” (Pet. Ex. 10). The form did not limit NTL to a particular testing method or only one test. It authorized NTL to conduct reliable testing. Petitioner showed that the third test was good forensic practice and consistent with regulatory guidelines. Thus, the test results were admissible. See Dep’t of Correction v. Hall, OATH Index No. 198/95, at 7 (Sept. 20, 1994) (despite “serious” error in paperwork, evidence proved that employee used drugs); Dep’t of Correction v. Hines, OATH Index No. 537/94, at 7 (Oct. 4, 1994) (no prejudice from discrepancy in confirmatory GCMS test where the analysis confirmed the presence of cocaine metabolite); Dep’t of Correction v. Torres, OATH Index No. 611/88, at 17 (June 15, 1989) (evidence supported positive drug test, despite disparity between first and second GCMS tests).
Petitioner’s evidence proved that, more likely than not, respondent used cocaine. Respondent’s general denial of any cocaine use was inconsistent with the test results and unconvincing (Tr. 371). Accordingly, the charges are sustained.
FINDINGS AND CONCLUSIONS
1. Following a random drug test, respondent tested positive for drug use.
2. Respondent used cocaine in violation of All Units Circular 202 and sections 25.1.6, 25.1.3, and 25.1.1 of the Rules and Regulations for the Uniformed Force.
RECOMMENDATION
Upon making these findings, I requested and received respondent's personnel history. Respondent has been a firefighter for 17 years. He has no prior disciplinary record and he has received two citations for meritorious acts. The Department now seeks termination of his employment and benefits.
Firefighting is a safety-sensitive position, which requires a high level of mental and physical fitness. An impaired firefighter poses a danger to the public and colleagues. Thus, the Department has a long-standing “zero tolerance” policy for illegal drug use. See, e.g., Fire Dep’t v. Benson, OATH Index No. 1638/06 (Sept. 5, 2006); Fire Dep’t v. Milano, OATH Index No. 2029/05 (July 3, 2006); Fire Dep’t v. Kelly, OATH Index No. 804/06 (June 9, 2006), modified on penalty, Comm’r Dec. (Jan. 2, 2007); Fire Dep’t v. Kirk, OATH Index No. 441/06 (Apr. 26, 2006). In petitioner’s view, a positive test requires termination of employment and benefits, “no matter how harsh it may seem” (Tr. 402).
Without minimizing the Department’s legitimate concern for safety, termination of respondent’s employment and benefits does not seem appropriate. Other agencies that have zero tolerance for drug use by employees in safety-sensitive positions have also been required to give consideration to mitigating circumstances. See, e.g., Dep't of Correction v. Schick, OATH Index No. 1380/95 (June 28, 1995), modified on penalty, NYC Civ. Serv. Comm'n Item No. CD 96-38 (Mar. 29, 1996) (despite agency’s zero tolerance policy, penalty other than termination imposed in light of mitigating factors, such as employee’s chronic depression, long tenure, and spotless record); Puig v. McGuire, 121 A.D.2d 853, 501 N.Y.S.2d 49 (1st Dep’t 1986) (vacating termination of undercover officer who refused to submit to a drug test where “root cause” of the officer’s problem arose from on-the-job activities). Basic respect for the dignity of each employee requires consideration of appropriate mitigation.
Termination of respondent’s employment and benefits would be unduly harsh. As one captain wrote, consideration should be given to respondent’s service to the Department and his traumatic experiences (Tr. 387; Resp. Ex. E).[1] It is unrefuted that, as a direct result of his on-the-job activities, respondent has been diagnosed with post-traumatic stress disorder (PTSD) and a chronic lung disability. He has literally sacrificed his mental and physical well-being for his job and the City of New York.
Respondent was among the first to act following both attacks on the World Trade Center. Following the 1993 bombing at that location, respondent helped extinguish the blaze from the explosion and he assisted in the rescue of a colleague who had fallen into a huge hole in the sub-basement (Tr. 302-03).
On September 11, 2001, respondent was assigned to the firehouse directly across the street from the World Trade Center. Moments after the first jet crashed into the North Tower, respondent and his colleagues drove past falling debris and fleeing crowds to enter the building. As they entered the lobby, bodies fell around them, a fireball came out of the elevator, people screamed for their lives, and respondent saw at least one person on fire. Respondent went up a stairwell to the 23rd floor, where he stopped to aid a stricken firefighter (Tr. 306-07).
As the South Tower fell, respondent evacuated the North Tower. He was briefly trapped because of a collapsed stairwell (Tr. 307). He found his way back to the lobby, where there were numerous explosions, and escaped from the North Tower moments before it collapsed (Tr. 306-08). Among those who perished were five colleagues from respondent’s firehouse who had accompanied him to the scene that morning (Tr. 312).
In the days and weeks that followed respondent spent most of his time at “the pile” searching through debris and recovering body parts (Tr. 309-313). He was eventually provided with a hand-held GPS device and assigned the grim task of tracking the precise locations where victims were found (Tr. 309, 311, 334).
In October 2001, after recovering a friend’s remains, respondent was temporarily placed on light duty and assigned to the counseling unit (Tr. 311, 340). Respondent, who was diagnosed with PTSD, admitted that he drank heavily (Tr. 382). He received extensive, individualized counseling from Lisa Zurndorfer, a clinical social worker employed by the Department (Tr. 310). Neither side called Zurndorfer as a witness.
Because respondent’s firehouse was buried in debris, he was deployed to another firehouse in lower Manhattan. In March 2002 he began actively participating in group sessions with other firefighters and Dr. Robyn Landow, a private clinical psychologist who was working with the Department. Respondent participated in those sessions for more than a year. According to Dr. Landow, it was not uncommon for those who suffer from PTSD to self-medicate with alcohol and illegal drugs (Tr. 131-32).
After receiving the results of his October 2004 drug test, respondent contacted Dr. Landow and received individual psychotherapy sessions. He was also referred to a psychiatrist who prescribed Prozac (Tr. 138). According to Dr. Landow, respondent’s prognosis was “fair” to “good,” but PTSD symptoms, including nightmares and flashbacks, could be triggered by sights, sounds, smells, or the weather (Tr. 138). The Department questioned Dr. Landow’s impartiality, but did not dispute that respondent suffers from PTSD for which he made repeated long-term efforts to seek counseling (Tr. 401).
In addition to the unrebutted evidence regarding his mental health, respondent also presented undisputed evidence that he suffers from a lung disability. Dr. Michael Weiden, a board certified specialist in internal and pulmonary medicine, has been a medical officer in the Department since 1992 and he has studied the effects of exposure to the World Trade Center collapse (Tr. 280-81). According to Dr. Weiden, the towers collapsed with such force that concrete vaporized to its basic chemical components, with a pH level equivalent to Drano. Exposure to that dust caused chemical burns to mucus membranes.
After annual screening indicated that respondent had abnormally low lung function, Dr. Weiden examined respondent in December 2004 (Tr. 282). Tests confirmed that respondent had a “significant obstructive ventilatory defect” – lung injury (Tr. 282). In Dr. Weiden’s opinion, this condition was a direct consequence of respondent’s exposure to debris on September 11th (Tr. 283). According to Dr. Weiden, respondent has permanent chronic recurrent inflammation of the sinuses, esophagus, and the lungs, causing shortness of breath and limiting his ability to exercise. Dr. Weiden prescribed steroids and other anti-inflammatory medications to help respondent maintain lung function (Tr. 284, 288). However, respondent’s condition can be irritated by humidity, cold weather, smoke, or exhaust fumes from a bus (Tr. 288). Further exposure to dust, noxious fumes, or toxins may be life-threatening (Resp. Ex. C).