Fire Dep't V. Kirk

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Fire Dep't v. Kirk

OATH Index No. 441/06 (Apr. 26, 2006)

Firefighter tested positive for presence of cocaine. ALJ rejected arguments that Department's random drug testing policy is unconstitutional or that firefighter could not be disciplined because the drug use was caused by a disability, alcoholism. Termination recommended based on Department's zero tolerance policy as to drug use.

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NEW YORK CITY OFFICE OF

1

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

FIRE DEPARTMENT

Petitioner

-against-

MICHAEL KIRK

Respondent

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REPORT AND RECOMMENDATION

DONNA R. MERRIS, Administrative Law Judge

This disciplinary proceeding was referred by petitioner, the Fire Department ("Department"), pursuant to section 15-113 of the Administrative Code. The Department alleges that respondent, Firefighter Michael Kirk, by having tested positive for the presence of cocaine on April 28, 2005, engaged in misconduct which constituted conduct unbecoming to his position and violated the firefighter's oath of office in violation of 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) (ALJ Ex. 1).[1]

A hearing was commenced before me on November 14, 2005 and continued to December 5, 2005. At the close of the proceeding on December 5, 2005, it was determined necessary to have closing statements presented in writing. The record in this proceeding was left open, therefore, until January 6, 2006 for the submission of the parties' closing briefs.

For the reasons set forth below, I find that the charges have been sustained and recommend that respondent's employment as a firefighter be terminated.

ANALYSIS

It is undisputed that the Department conducted drug testing at Ladder Company 131 on April 28, 2005 and that respondent participated in that test. He provided a urine sample, the testing of which resulted in a positive finding for the presence of cocaine metabolite. Respondent stipulated that the chain of custody procedures to which the Department adheres were followed in the instant case. There is no dispute that respondent's sample tested positive for benzoylecgonine, a cocaine metabolite, at a level of 13,814 nanograms per milliliter. The cutoff level used by the testing laboratory for making a positive finding of the presence of cocaine in the sample is 150 nanograms per milliliter (Tr. 4-5; Pet. Ex. 1).

Respondent argues that he should not be subject to discipline in this case for several reasons. First, he contends that the Department's random drug testing program, both on its face and as applied, is unconstitutional. Second, respondent argues that the ingestion of cocaine was the result of his alcoholism, a recognized disability which, as a matter of law, precludes disciplinary action. Petitioner refutes these arguments, citing to prior findings that the Department's random drug testing program provides adequate constitutional safeguards and that respondent has not shown a connection between respondent's alcoholism and the knowing ingestion of a controlled substance.

A review of the relevant legal precedent as applied to the instant facts leads to the conclusion that respondent may be disciplined for the use of cocaine.

In two recent cases before this tribunal, the constitutional challenge to the Department's random drug testing program was rejected. 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). Those cases are here re-affirmed.

Respondent argues that random testing should apply only to law enforcement personnel such as police officers and correction officers, or, to those employees whose jobs involve "a catastrophically greater risk to public safety," such as air traffic controllers or nuclear plant operators (Resp's post-hearing brief at 3). In O'Neill, Judge Salzman found that the Department's use of a random drug test policy is valid given the Department's substantial need to protect the

public safety. O'Neill, at 6. The Department All Units Circular ("AUC") 202, Addendum 1, states at sections 1.2 and 1.3:

The mission of the FDNY is to protect the lives and property of the citizens of New York City. The efficient performance of this mission demands the highest level of mental and physical fitness, stamina and alertness . . .[T]he Department has an obvious and unquestionable interest in assuring that its members are physically and mentally able to perform their duties. Drugs alter and impair these abilities, increasing the dangers of accidents and injuries to a member, fellow firefighters and fire officers, and the public.

AUC 202, Addendum 1, §§ 1.2, 1.3 (eff. Aug. 1, 2004). Moreover, in Nocera v. New York City Fire Commissioner, 921 F. Supp. 192 (S.D.N.Y. 1996), the court found that New York City has a compelling interest in keeping its firefighters drug-free: '"The City has a compelling interest in having its firefighters free from drugs. Firefighters must be prepared to react and make decisions quickly in order to insure public safety.'" 921 F. Supp. at 200 (citation omitted). Thus, there are demonstrated substantial public safety concerns which justify the random testing of New York City firefighters.

Further, there was ample evidence before me that the testing was random. The Department uses software that randomly selects five of the City's 385 firehouses for testing (Buccellato Tr. 12, 16). The program, Random Ware, meets federal Department of Transportation standards (Tr. 12), which have been held constitutional, and which have served as the model for other drug testing programs that have been held to be constitutional. O'Neill, OATH Index No. 1973/05, at 5 (citing Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S. Ct. 1402 (1989) (random drug testing of railroad employees); Shipman v. Dep't of Transportation, 58 Fed. Appx. 481, 2003 U.S. App. Lexis 2354 (Fed. Cir. 2003); UAW, Local 1600 v. Winters, 385 F.3d 1003 (6th Cir. 2004), cert. denied, ____ U.S. ____, 125 S.Ct. 1972, 2005 U.S. Lexis 3759 (2005); Gonzalez v. Metropolitan Transportation Auth., 73 Fed. Appx. 986, 989, 2003 U.S. App. Lexis 17774 (9th Cir. 2003), cert. denied, 541 U.S. 974, 124 S.Ct. 1886 (2004) (random drug testing of municipal mass transit workers). The Department's objective in selecting the software program that generates the list of firehouses to be tested was to eliminate, as much as possible, human error in the selection process. The individual running the program has no discretion as to the five firehouses selected. The only input during the selection process is

the date that the test will be administered and the number of units or firehouses to be selected. Thus, each time that the program is run, a list of five units is produced. When the software makes a selection, a unique sequential number appears on the printout. For example, if the program is run on a given day and the number is 251 and it is run the following day, the number should be 252. Should a printout not show the next number in sequence, the system monitors would be alerted that the program was run either without authorization or that a certain selection had been eliminated (Tr. 12-13).

The program is audited six times during the course of a year. The auditors check the list of units to ensure that it is all inclusive. In other words, the audit determines that no units have been eliminated from the program. The auditors also review the Department's most recent fire uniformed personnel list and ensure that every person on the list is assigned to one of the units entered in the system (Tr. 13).

As to the particular selection of respondent's unit to be tested on April 28, 2005 (Pet. Ex. 2), two persons, one from the Management Analysis and Planning Unit ("MAP") and a witness from the Compliance Unit, signed and dated the printout according to Department protocol. The selection was made on April 25, 2005. The first page of the document indicates that the testing date was to be April 28, 2005, the selection was made at 11:24:14 and the generation identification number was 386. The second page lists the five units selected in numerical order with Ladder Company 131 listed as number one (Pet. Ex. 2).

Once the printout is received by the two persons, it is placed in an envelope, sealed and signed by those individuals. The envelope is given to the Deputy Commissioner for Legal Affairs or her designee, in this case, her designee Alexandra Fisher (Tr. 13-17). Ms. Fisher then signs the envelope indicating that it was sealed when she received it. Ms. Fisher then determines whether the day or night shift will be tested and records that choice on the envelope. The envelope is then given, sealed, to the supervisor of the drug testing unit who also signs the envelope. When the testing supervisor opens the envelope, he is the only person who knows the unit and the shift that will be tested. Until that time, no individual is privy to both of those facts. Accordingly, the person running the computer program and the witness know the units that were selected; the Deputy Commissioner for Legal Affairs or her designee knows the shift that is

selected; and, it is not until the supervisor of the drug testing unit opens the envelope that a person knows what unit will be tested on a given day and on what shift (Tr. 17-19; Pet. Ex. 2).

Respondent contests the day or night shift designation by the Deputy Commissioner for Legal Affairs or, as in the instant case, her designee, Ms. Fisher, as too discretionary and argues that it defeats the random nature of the process. Specifically, respondent contends that, because the director of the Department's testing unit, Eugene Samojedny, informed Ms. Fisher that the crew who conducts the tests would be available on the night shift for the week of April 28, 2005, the discretion for determining whether the day shift or night shift would be tested was defeated. Mr. Samojedny testified that the reason for the scheduling of the testing crew for night shift or day shift duty in any particular week is that he does not have 24-hour crew coverage. Mr. Samojedny attempts to schedule the crew, within any given month, an equal amount of day shifts and an equal amount of night shifts (Tr. 50). Ms. Fisher was informed on Monday of the week of April 28 when Mr. Samojedny provided her with the sealed envelopes that the crew was scheduled to conduct random testing on night shifts during that week. It is Mr. Samojedny's testimony that, if the Deputy Commissioner or her designee selects a particular day or night shift for the random testing, he would adjust the crew's schedule to accommodate that selection (Tr. 45).

Respondent argues that, if the computer could indicate whether the company selected on a particular date was to be tested during the day or night shift, the selection would be more random in character. Mr. Buccellato testified that it is possible to have the computer program designate day or night; however, the Department rejected the addition of that element to the computerized selection process. The Department determined that, in building in as many safeguards as possible, if the person running the computer program and the witness knew both facts, the unit to be tested and the shift on which they would be tested, there was a greater risk that members of the Department could have advance knowledge of the testing date and time. By having the Random Ware system pick only units, as opposed to individuals, by having the legal department determine the day or night shift testing

time, and by having only Mr. Samojedny know all of the information one day in advance, the likelihood of advance notice of the testing to uniformed members is dramatically lessened (Tr. 35-36).

As noted in the prior cases before this tribunal, i.e., O'Neill and O'Sullivan, the legal officer's selection of the day or night shift is a limited exercise of discretion. Fire Dep't v. O'Nell, OATH Index No. 1973/05, at 10; Fire Dep't of Sullivan, OATH Index No. 1914/05, at 11. It is clear from the testimony here and in those cases, that the legal officer has no knowledge of which fire company has been selected for testing. The purpose of the random selection process is to prevent individual supervisors from using the drug testing process to target specific individuals. The program the Department has in place is designed to take away the personalization in the selection process by minimizing the number of people involved and by selecting the broader category of companies as opposed to individuals. The Department exercises no discretion in the selection of the companies or firehouses to be tested, because it is the computer that makes the selection.

Finally, respondent has made no showing of bad faith or improper motive that would indicate that respondent was singled out for testing by this process. The evidence before me leads only to the conclusion that respondent's selection was anonymous through the Department's random selection of firehouses to be tested on April 28, 2005. As Judge Salzman noted in O'Neill, "Randomness and anonymity are related factors to be considered in any review of the constitutional sufficiency of a random drug test procedure, and the curtailment of agency discretion is of paramount importance in that review." Fire Dep't v. O'Neill, OATH Index No. 1973/05, at 11. Accordingly, where, as here, the exercise of discretion by the legal officer is so limited as to have afforded her no means of singling out respondent, except by deliberate tampering, which was not shown, the random selection process exercised by the Department passes constitutional muster. Fire Dep't v. O'Sullivan, OATH Index No. 1914/05 (Sept. 20, 2005).

Respondent's second argument is that his ingestion of cocaine on April 27, 2005 was the result of his alcoholism, a recognized disability.

It is respondent's testimony that he is an alcoholic and that the alcohol he ingested on April 27, 2005 impaired his judgment to such an extent that he was unable to refuse a friend's offer of cocaine (Tr 77). For some twenty years, respondent drank at neighborhood bars, mainly after sports events, ingesting 12 to 18 beers per occasion, two or three times per week (Tr. 69, 71). On the day of and immediately after the September 11, 2001 attacks on the WorldTrade

Center, respondent was deployed in 24-hour shifts to the disaster site to fight fires and to participate in rescue and recovery efforts. He attended over 50 funerals of co-firefighters. During that time, after returning to the firehouse from his shifts, he began going directly to a nearby bar. If respondent went home from the shift, he would wait until his children went to bed, then go to a bar and consume 12 to 18 beers (Tr. 73-75). Respondent's wife, Donna Kirk, testified that, after September 11, 2001, respondent began drinking heavily and often. Mrs. Kirk testified also that, one month after September 11, 2001, she found a vial of cocaine in respondent's pocket (Tr. 55-56). It is respondent's testimony that on the occasion in 2001, he was too drunk to realize or to remember having cocaine. However, he knew someone at the bar from whom he obtained the cocaine (Tr. 75).

On April 27, 2005, respondent was at a bar at 2:00 a.m. or 3:00 a.m. and was drunk. While in the bathroom, a friend offered him cocaine. Respondent first refused the offer, but eventually took the cocaine. Respondent initially refused because he knew that he had to work the next day. The friend put some cocaine to his nose, and respondent sniffed it (Tr. 77-78, 87). Respondent maintained that he is not cocaine dependent, and that he has never used cocaine other than on the two occasions noted in the testimony here (Tr. 86-87).

Respondent's Alcoholics Anonymous sponsor, Lieutenant Gerald Coffin, testified that it is common for a person with an alcohol abuse problem to abuse drugs as well, because while under the influence of alcohol, one tends to make poor decisions (Tr. 64).

It is well settled that alcoholism is considered to be a disability for purposes of the New York State Human Rights Law. If an employee establishes that (1) he suffers from alcoholism, and (2) the alcoholism caused him to commit the misconduct for which the employer seeks to impose discipline, he has stated a prima facie case of employment discrimination. McEniry v. Landi, 84 N.Y.2d 554, 558-9, 620 N.Y.S.2d 328,330 (1994) (citing Exec. L. §§ 296(1), 292(21)(a); Mental Hygiene L. §§ 1.03(3), 1.03(13)); Myszczenko v. City of Poughkeepsie, 239 A.D.2d 584, 657 N.Y.S.2d 455 (2d Dep't 1997). The defense has generally been successfully interposed where the employee is charged with time-and-leave violations, or with being intoxicated on the job, and in most cases where the defense has been successfully raised, evidence of a respondent's alcoholism, and the fact that the alcoholism caused the misconduct, has been uncontroverted. See, e.g., McEniry v. Landi, 84 N.Y.2d at 559, 620 N.Y.S.2d at 330

(employee testified that absenteeism was caused by alcoholism; employer neither challenged truthfulness nor offered any evidence to the contrary).

However, the defense fails if the employee cannot show a causal relationship between his alcoholism and the misconduct. Murolo v. Safir, 246 A.D.2d 653, 668 N.Y.S.2d 229 (2d Dep't), lv. to app. den., 91 N.Y.2d 813, 674 N.Y.S.2d 278 (1998) (firefighter's alcoholism impaired his judgment, but did not cause him to call in false alarm and steal funds from stationhouse).

Here, it is uncontroverted that respondent is an alcoholic. Respondent, following the random drug test results, entered an in-patient treatment rehabilitation program in Pennsylvania on May 9, 2005 from which he was discharged on June 8, 2005. Since June 9, 2005, respondent has reported daily to the Department's day treatment program (Snell: Tr. 103-05; Resp. Ex. B). The Department records indicate, although there is no medical evidence, that respondent's need for in-patient treatment was directly related to his experience at the WorldTradeCenter site (Resp. Ex. B, May 10, 2005 memorandum to Lisa Ho at the Red Cross). The evidence before me does not indicate that respondent's cocaine use was directly related to his alcoholism.

In Murolo, it was shown that a firefighter's alcoholism impaired his judgment, but it did not cause him to call in a false alarm and steal funds from his stationhouse:

petitioner's misconduct consisted of criminal acts which were admittedly motivated by his anger that nothing had been done about a theft from his locker. While the Administrative Law Judge found that the petitioner's alcoholism impaired his judgment, there is no direct, causal connection between his status as an alcoholic and his deliberate and calculated act of calling in a false alarm in order to commit a theft at his own firehouse.

262 A.D.2d at 654-655, 668 N.Y.S.2d at 230. Here, as in Murolo, the defense fails both on the facts and as a matter of law. Respondent's alcoholism did not cause him to commit a separate, prohibited act, the cocaine consumption. By his own admission, respondent initially refused the substance because he was rational enough to realize that he had to work the next day. This fact leads to the conclusion that respondent made a subsequent, deliberate decision to inhale the cocaine independent of his use of alcohol. As a legal matter, it is not clear that the holding in McEniry that the employee's alcoholism caused him to fail to come to work, would apply to misconduct that is not attendance related and that is clearly at odds with this respondent's