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:


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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:
             
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:
             
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
      Mr. Tappan believed that this occurred before the second test, but Grievant testified that it occurred during the first test. However, exactly when it occurred does not change the outcome of this Decision.
Footnote: 2
      Due to the outcome of this Decision, it is not necessary to address Grievant's arguments regarding the Fourth Amendment and due process.