DONALD SKINNER,
Grievant,
v. Docket No. 00-DOH-211
WEST VIRGINIA DIVISION
OF HIGHWAYS,
Respondent.
DECISION
Donald Skinner (Grievant) initiated this grievance on February 2, 2000, challenging
a five-day suspension without pay he received from his employer, the West Virginia
Division of Highways (DOH). He requests removal of all record of the suspension from
his files and reimbursement of lost wages as a result of the suspension. The grievance
was denied at level one by Grievant's immediate supervisor on February 8, 2000. After a
level two conference held on February 16, 2000, the grievance was denied at that level on
February 24, 2000. A level three hearing was held on April 13, 2000, followed by a written
decision, denying the grievance, dated June 16, 2000. Grievant appealed to level four on
June 20, 2000. After a level four hearing was scheduled, the parties agreed to submit this
grievance for a decision based upon the record developed below, supplemented by
proposed findings of fact and conclusions of law. Grievant was represented by counsel,
Jonathan Fittro, and Respondent was represented by counsel, Nedra Koval. This matter
became mature for consideration on October 13, 2000, the deadline for submission of the
parties' final written proposals.
The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Grievant is employed by DOH as a Transportation Worker II in the District
Four Bridge Section.
2. Grievant's position requires him to hold a commercial driver's license (CDL).
Therefore, pursuant to United States Department of Transportation (USDOT) and DOH
regulations and policies, he is subject to random drug and breath alcohol testing as a
condition of his employment.
3. DOH contracts with a private corporation, Emergency Medical Service, Inc.,
(EMSI), to conduct random drug and alcohol testing on DOH employees.
4. On January 24, 2000, EMSI conducted random drug and alcohol testing at
Grievant's job site, and Grievant was selected for testing.
5. Drug testing requires production of a urine specimen by the subject.
6. Each urine collection cup is equipped with a temperature gauge, which
registers between 90 and 100 degrees Fahrenheit. USDOT and DOH regulations require
that the urine sample register within this temperature range to be considered a valid result.
7. Regulations also require that each urine sample's temperature must be
observed and recorded within four minutes of urination.
8. EMSI technician John Tappan administered Grievant's urine test on January
24, 2000. He entered the restroom with Grievant and instructed him to wash his hands.
After Grievant did so, Mr. Tappan gave him the urine collection cup, instructed him on the
amount of urine that would be needed, and told Grievant to let him know when he was
finished. Mr. Tappan then left the restroom.
9. Mr. Tappan did not inform Grievant that the sample's temperature had to bemeasured within four minutes of urination.
10. Because the weather was cold on January 24, 2000, Grievant was wearing
several layers of clothing. After he produced the urine sample, he set it on the back of the
toilet, and took several minutes to dress himself and wash his hands. He then called for
Mr. Tappan.
11. When Mr. Tappan returned to the restroom to collect Grievant's urine sample,
he found that the cup's gauge had not registered a temperature, indicating that the sample
was too cold to register on the 90-100 degree scale.
12. Upon discovering that the temperature did not register, Mr. Tappan, who was
wearing latex gloves, placed Grievant's collection cup against his cheek, in order to
determine if it was warm or cold.
13. Because the temperature of Grievant's sample could not be measured,
Grievant was informed by Mr. Tappan that he would have to produce a second urine
sample. Grievant agreed to do so.
14. Later the same day, Grievant and Mr. Tappan returned to the restroom so
that Grievant could again produce a urine sample for testing.
15. Either just before the first or second test,
(See footnote 1)
Grievant placed the urine collection
cup between his legs while he washed his hands. Because the collection cup is not to be
out of the tester's sight during pre-test procedures, Mr. Tappan reached between
Grievant's legs to remove the cup. When he did this, he did not explain to Grievant whyhe was doing so.
16. Grievant was disturbed by Mr. Tappan's conduct in placing his urine sample
against his cheek and his touching Grievant between the legs. After these events
occurred, Grievant felt uncomfortable with Mr. Tappan.
17. When a second urine sample has to be taken because of an invalid first test,
both state and federal regulations require that the production of the second sample be
observed by the tester.
18. Once Grievant was prepared to produce his second urine sample, Mr.
Tappan informed Grievant that he would have to actually watch Grievant produce the
sample.
19. Because of his discomfort with Mr. Tappan's prior conduct, Grievant refused
to submit a second urine sample, because he did not wish to reveal himself to Mr.
Tappan.
20. Grievant was suspended for five days, without pay, for refusing to submit to
the mandatory witnessed collection during the second test. This suspension was in effect
from January 25, 2000, through January 31, 2000.
Discussion
The burden of proof in disciplinary matters rests with the employer, and the
employer must meet that burden by proving the charges against an employee by a
preponderance of the evidence.
W. Va. Code § 29-6A-6;
Ramey v. W. Va. Dept. of Health,
Docket No. H-88-005 (Dec. 6, 1988). "The preponderance standard generally requires
proof that a reasonable person would accept as sufficient that a contested fact is more
likely true than not."
Leichliter v. W. Va. Dept. of Health and Human Resources, DocketNo. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the
employer has not met its burden.
Id.
Respondent contends that Grievant's suspension was accomplished in accordance
with DOH policy regarding drug and alcohol testing. DOH is required by the USDOT, as
an employer having CDL holders, to implement drug and alcohol testing programs. The
pertinent portions of the DOH Drug and Alcohol Testing Policy provide as follows:
. . . The employee's privacy will be maintained and allow for individual
privacy unless there is reason to believe that a particular individual may alter
or substitute the specimen to be provided.
For purposes of this policy, the following circumstances are the
exclusive grounds constituting a reason to believe that an individual may
alter or substitute the specimen, mandating a witnessed collection:
*
The employee has presented a urine specimen that falls
outside the normal temperature range (32-35 degree
Centigrade or 90-100 degree Fahrenheit).
*
The employee declines to provide a measurement of oral body
temperature.
*
Oral body temperature varies by more than 1 degree
Centigrade/1.8 degree Fahrenheit from the temperature of the
specimen.
*
The last urine specimen provided by the employee (i.e. on a
previous occasion) was determined by the laboratory to have
a specific gravity of less than 1.003 and a creatinine
concentration below .2g/L.
*
The collection site person observes conduct clearly and
unequivocally indicating an attempt to substitute or adulterate
the sample (e.g., substitute urine in plain view, blue dye in
specimen presented, etc.).
*
The employee has previously been determined to have used
a controlled substance without medical authorization and the
particular test was being conducted under this policy providing
for follow up testing upon or after return to service.
* * * *
Collectors will be trained in the procedures established by the federal
regulations and will conduct all testing in accordance with those standards.
L III, Respondent's Exhibit 2. DOH's policy further provides that refusal to participate in
testing or to cooperate with instructions from technicians may result in dismissal.
Respondent contends that, because Grievant's sample did not register within the required
temperature range--one of the reasons listed in the policy for suspicion--it was appropriate
to then require him to submit to a witnessed collection. When he did not cooperate, he
was disciplined, as required by the policy.
Grievant has made several arguments in this case challenging the procedures used
in the testing, Mr. Tappan's conduct, and the propriety of DOH's policy. As DOH's policy
states, it is required to comport with USDOT regulations. DOH's policy contains virtually
identical language to federal regulations with regard to urine specimen collection, with two
exceptions. USDOT's regulations regarding the circumstances constituting reason to
believe an employee may alter or substitute a specimen read, in part, as follows:
(i) The employee has presented a urine specimen that falls outside
the normal temperature range (32deg.-38deg. C/90 deg.-100 deg. F), and
(A) The employee declines to provide a measurement
of body temperature (taken by a means other than use of a
rectal thermometer), . . . or
(B) Body temperature varies by more than 1 deg. C/1.8
deg. F from the temperature of the specimen[.]
49 C.F.R. § 40.25(e)(2) (Emphasis added). In addition, the federal regulations provide that
the temperature of the specimen must be measured immediately after the specimen is
collected and [t]he time from urination to temperature measure is critical and in no case
shall exceed 4 minutes. 49 C.F.R. § 40.25(f)(12). Finally, the authorizing legislation for
USDOT's regulations states that [a] state or local government may not prescribe or
continue in effect a law, regulation, standard, or order that is inconsistent with regulations
prescribed under this section. 49 U.S.C. § 31306(g) (1998). Upon consideration of the evidence submitted, a preponderance of the evidence
leads to the conclusion that the temperature of Grievant's sample was not tested within
four minutes, as mandated by federal regulation. Grievant testified that, although he did
not check the time exactly--not knowing about the four-minute requirement--he was certain
it took him more than four minutes to dress and clean up before he called for Mr. Tappan
to return to the restroom. He stated that he was wearing several layers of clothing, and
that it took some time to tuck everything in and redress himself. He then went to the sink,
placed the cup where he had been instructed, washed his hands, dried them, and checked
himself to make sure everything was all right. It is quite conceivable that these events
took more than four minutes, especially since Grievant did not know there was a time
issue, and he probably took his time in performing these activities. Respondent introduced
no evidence to rebut Grievant's statements nor to prove that the sample was, in fact,
checked within four minutes.
Not only did DOH violate the requirement that the sample be tested within four
minutes, it also failed to follow the federal regulation's requirement that the subject's body
temperature be measured, or that the subject decline to have his temperature taken. DOH
witnesses testified that, because the temperature of Grievant's sample was obviously too
cold to register on the temperature gauge, there was no need to take Grievant's body
temperature, because his body temperature could not have been that cool. Nevertheless,
the federal regulation is specific in its requirement that the sample fail to register within the
proper range
and that the subject's temperature be taken or a refusal be given. By having
a more stringent requirement--that a second test is mandated only if the temperature does
not register within range--DOH's policy is clearly inconsistent with the federal regulations,and, therefore, invalid. As stated in USDOT's regulations, the individual's privacy is to be
protected unless there is a valid reason to suspect him of misconduct, and DOH has failed
to prove that the required conditions existed in this instance.
Much of the evidence in this case focused upon Grievant's discomfort with Mr.
Tappan's actions and those actions themselves. However, because it is been established
that DOH violated the federally-mandated regulations in at least two respects with regard
to Grievant's initial sample, it is not relevant whether or not Grievant's refusal of the
witnessed collection was justified. Grievant should not have been required to submit to a
second test in the first place, because the first test was not conducted in compliance with
the federal requirements. Accordingly, it was improper for him to be disciplined for refusing
to submit to a second, witnessed urine collection.
(See footnote 2)
Consistent with the foregoing, the conclusions of law are pertinent to the decision
reached.
Conclusions of Law
1. The burden of proof in disciplinary matters rests with the employer, and the
employer must meet that burden by proving the charges against an employee by a
preponderance of the evidence.
W. Va. Code § 29-6A-6;
Ramey v. W. Va. Dept. of Health,
Docket No. H-88-005 (Dec. 6, 1988).
2. As an employer of individuals who must hold commercial driver's licenses,
DOH must perform random drug and alcohol testing in accordance with federal regulations.
See 49 U.S.C. § 31306(g) (1998).
3. A urine sample collected for the purpose of random drug testing must have
its temperature measured within four minutes of production, and it must register between
90 and 100 degrees Fahrenheit. 49 C.F.R. § 40.25(f)(12).
4. Respondent failed to prove by a preponderance of the evidence that the
temperature of the urine sample produced by Grievant on January 24, 2000, was
measured within four minutes of production.
5. In order to require an employee to submit to a second, witnessed urine
collection, the following must occur:
The employee has presented a urine specimen that falls outside the
normal temperature range (32deg.-38deg. C/90 deg.-100 deg. F), and
(A) The employee declines to provide a measurement
of body temperature (taken by a means other than use of a
rectal thermometer), . . . or
(B) Body temperature varies by more than 1 deg. C/1.8
deg. F from the temperature of the specimen[.]
49 C.F.R. § 40.25(e)(2).
6. Respondent failed to prove by a preponderance of the evidence that the
conditions set forth in 49 C.F.R. § 40.25(e)(2) existed, so it was improper to require
Grievant to submit to a second urine test.
Accordingly, this grievance is GRANTED. Respondent is directed to expunge all
records of any mention of Grievant's five-day suspension, and is ordered to repay Grievant
all lost pay and benefits which resulted from said suspension.
Any party or the West Virginia Division of Personnel may appeal this decision to theCircuit Court of Kanawha County or to the circuit court of the county in which the grievance
occurred, and such appeal must be filed within thirty (30) days of receipt of this Decision.
W. Va. Code § 29-6A-7 (1998). Neither the West Virginia Education and State Employees
Grievance Board nor any of its administrative law judges is a party to such appeal and
should not be so named. However, the appealing party is required by W. Va. Code § 29A-
5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing
party must also provide the Board with the civil action number so that the record can be
prepared and properly transmitted to the appropriate circuit court.
Date: October 25, 2000 ___________________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1