ALJDEC decisions subject to certification as final

07A-2007001-AJFD · Apache Junction Fire District · 2007-12-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 30, 2007 APPEARANCES: Tim O’Brien on his own behalf; Donna M. Aversa, Esq. for the Apache Junction Fire District ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ ISSUE 1. The issue before this Tribunal is whether the determination made by Apache Junction Fire District (“AJFD”) to terminate Tim O’Brien’s (“Appellant”) employment was taken without reasonable cause or was done arbitrarily. FINDINGS OF FACT 1. Appellant is a firefighter/paramedic, who has been employed by the AJFD for 18 years. He is also certified as an emergency medical technician. 2. During the latter part of 2006, Appellant was suspended for three days without pay based on improper conduct that occurred in October 2006. After serving the three day suspension and attending counseling, Appellant grieved the disciplinary action. Appellant was placed on administrative leave pending an investigation. Appellant was placed first on sick leave and then on family leave without pay. A psychologist recommended that Appellant be off of work for 60-90 days.[1] In April 2007 Appellant sought to return to active duty. 3. On August 1, 2007, Appellant was required to be seen by a psychologist before undergoing a return-to-duty examination. The psychologist cleared Appellant for duty and Appellant was contacted on August 31, 2007 by AJFD to undergo a return-to-duty exam on September 1, 2007. Appellant was unable to appear on short notice for the test and arranged with AJFD to reschedule the exam for September 5, 2007. On that date, Appellant underwent a physical test and drug testing. 4. Banner Occupational Health (“Banner”) is the occupational health care provider contracted with AJFD. Banner contracts with Sonora Quest Labs to perform the actual lab testing. Sonora Quest Labs contracts with Total Compliance Network (“TCN”) to have a MRO review the lab results and report the findings to AJFD. 5. The evidence of record established that agency relationships exist between TCN and Sonora Quest Labs and Banner, Banner and AJFD. Consequently, an agency relationship exists between TCN and AJFD. 6. Appellant testified that on September 17, 2007 he was contacted by a person who identified himself as being associated with Sonora Quest Labs, the laboratory that conducted the drug test for Appellant. Appellant testified that he was informed that he had tested positive for Benzodiazepine. According to Appellant, the individual he spoke with asked if he refuted or contested the positive lab result and Appellant declined to contest the result at that time. Appellant represented that the individual who contacted him concerning the drug test result never identified himself as the medical review officer (“MRO”) or informed him that this was the only opportunity to explain or contest the lab results. 7. Barbara Hernandez-Chamberlain (“Ms. Chamberlain”), AJFD’s personnel officer, contacted the MRO’s staff on September 17 2007, and inquired as to whether proper protocol was followed regarding contacting Appellant about the positive drug test result. Ms. Chamberlain testified that she was assured that the MRO’s office followed the proper protocol and procedure, and informed Appellant at the time when he was contacted, the MRO explained to Appellant, he had an opportunity to refute the results of the drug test and provide an explanation for the positive result. 8. Appellant testified, that on September 18, 2007, he arranged to have a note faxed to AJFD from Kimberly Leight (“Ms. Leight”), who prescribed several drugs to him, including Klonopin. The Note (Exhibit 9) indicates that Klonopin may result in a positive drug test result for Benzodiazepine. 9. Ms. Chamberlain testified that she received Ms. Leight’s note and provided it to the pre-disciplinary review committee (“Committee”), along with Appellant’s personnel file. 10. On September 25, 2007, AJFD convened the Committee that consisted of the Deputy Fire Chief and three Battalion Chiefs of AJFD to review Appellant’s conduct and the alleged violations of AJFD policy. The Committee recommended Appellant be terminated. 11. On September 25, 2007, the AJFD issued a notice of intent to terminate appellant employment, due to the fact that the positive results of the lab test established a second violation of the substance abuse polices of AJFD. Appellant appealed the decision to terminate his employment to AJFD Chief John Flynn (“Chief Flynn”). 12. On September 28, 2007, Ms. Chamberlain spoke to Dr. Seth Portnoy (“Dr. Portnoy”), the MRO employed by TCN, about the positive drug test result and the communication he had with Appellant. According to Ms. Chamberlain, Dr. Portnoy informed her that he identified himself as the MRO and advised Appellant that he had an opportunity during the conversation to refute the positive drug test and provide an explanation. Appellant did neither. 13. The September 5, 2007 drug test was the second positive substance abuse test for Appellant. In 2004, Appellant tested positive for marijuana and underwent a substance abuse program involving counseling. In 2004, as a result of the substance abuse violation, Appellant entered into a Last Chance Agreement with AJFD (Exhibit 15). The Last Chance Agreement provides, in pertinent part, that Appellant understood and agreed that “any future violations of any aspect of the Substance Abuse Policy, or any failure to complete the terms of any recommended treatment program, will result in the immediate termination of … employment with the AJFD.” 14. In 2006, Appellant entered into a Last Chance Agreement with AJFD (Exhibit 16). The Last Chance agreement provides: The employee understands that this agreement is his last chance to remain employed at the Apache Junction Fire District. Failure to make improvement or recurrence of inappropriate behavior or conduct within the specified time period described within the disciplinary action will result in immediate termination. The employee understands that the Apache Junction Fire District is an employment at-will employer. The employee agrees to comply with all organizational policies, practices and procedures and understands that this agreement in no way prevents the employer from taking disciplinary action, including termination, for violations.” (Emphasis in original).

15. AFJD’s witnesses testified that Appellant had been through the substance abuse testing process before and knew the procedures. AJFD contended that, as Appellant received AJFD personnel policy manual provisions and substance abuse policies several times over the years, he should have been familiar with the substance abuse policies and process. The evidence presented by AJFD was general in nature and there was no specific evidence that showed Appellant knew that he was to explain the reason for Benzodiazepine in his system at the time he was contacted and informed of the positive drug test. In fact, Appellant testified he was not made aware of that requirement. Appellant’s testimony, and the fact that the substance abuse policy does not provide for the specific details that AJFD asserts Appellant was aware of, is more persuasive and convincing than the general nature of evidence presented by AJFD. 16. Appellant acknowledged that he did not list Klonopin when he identified the medications he was taking prior to the September 5, 2007 drug test. Appellant testified that he received a prescription for Klonopin in June 2007 on a take as needed basis. Appellant did not recall the last time he had taken Klonopin prior to the drug test. When Appellant listed the medications he was taking, he only considered those medications that he took on a daily basis. He did not take Klonopin on a daily basis. Appellant testified that it was a mistake and he should have listed Klonopin but contended that he provided an explanation, by virtue of the prescription, as to why Benzodiazepine was in his system. 17. There was no evidence presented that established how long Benzodiazepine remains in the human body and thus cause a positive result in a drug test. 18. The duties of the MRO are set forth in the contract between TCN and AJFD. There was no credible evidence presented that showed that Appellant was aware of the MRO’s responsibilities and the procedures to be followed. 19. On the morning of October 9, 2007, the Appellant met with Chief Flynn and Deputy Chief Dan Campbell for an appeal of the decision to terminate him. The morning of that meeting, Appellant contacted Dr. Portnoy and provided information to him regarding his prescription for Klonopin. As a result of that discussion, Dr. Portnoy issued another document regarding the September 5, 2007 drug test indicating a negative result (Exhibit 14). That document was provided to Chief Flynn the morning of Appellant’s appeal. 20. Chief Flynn testified that during the appeal process he considered Dr. Portnoy’s second drug test result document and the note from Ms. Leight. He explained that the note from Ms. Leight indicated that the Klonopin may result in a positive result. According to Chief Flynn, the note did not rule out that other drugs exist that could have caused the positive drug test result. 21. Chief Flynn testified that he considers the time frame to refute a positive drug test to mean that an employee has five business days from the date of learning of the test result in which to present additional information to refute the drug test. Chief Flynn also considered the information provided by Dr. Portnoy was not presented timely. This concerned him because Appellant indicated that he wanted to return to work as soon as possible, yet Appellant did not provide the additional information within five business days after receiving the results of the drug test. 22. Chief Flynn also considered that Appellant had an opportunity to disclose all medications he was taking prior to the substance abuse test and he did not disclose that he had a prescription for and had taken Klonopin. According to Chief Flynn, the Appellant had been through AJFD drug testing before and had tested positive so he was aware of the procedures regarding the substance abuse policies of the AJFD. 23. Although the additional information was considered untimely by Chief Flynn, he considered the additional information with the prior disciplinary history of Appellant, the Last Chance Agreements, and the circumstances that led to the appeal. However, Chief Flynn could not conclusively state that he was not persuaded by the timeliness factor and in, fact, testified that the timeliness factor was intertwined with all of the other factors he considered as set forth in his letter of termination to Appellant dated October 11, 2007 (Exhibit 15). Chief Flynn ultimately found that Appellant should be terminated from employment with AJFD and issued a letter of termination on October 11, 2007. CONCLUSIONS OF LAW Pertinent Provisions of AJFD Personnel Manual 1. The parties agree that this matter is governed by the personnel manual policy provisions of AJFD (Exhibit 1).

127.10. Right to Explain Test Results

Any test subject who tests positive on a confirmatory test on any drug and alcohol test required by the AJFD may: A. Submit additional information to the AJFD to try to explain the confirmed positive test result; and B. Request in writing that a confirmatory retest of the original sample, at his or her own expense, provided that the AJFD must receive the request within five (5) working days (Monday through Friday) after the test subject has been informed of the confirmed positive test result.

127.11 Consequences of Confirmed Positive Test Results

* * * B. Employees. * * * 2. Second Time Positive Test Result Any employee who tests positive on a confirmatory test on any drug and alcohol test required by the AJFD for the second time and who does not timely and successfully refute the test results by explanation or retesting will be subject to termination.

118.05 Appeal Hearing Procedure

* * *

2. Order, Burden and Manner of Proof

* * *

c. . . . The employee is directed to show that the employment action taken was not reasonable.

* * * d. . . .The administration is directed to show that the employment action taken was reasonable.

* * *

h. The burden of proof shall be by a preponderance of evidence.

* * * 4. Findings of the ALJ * * * a. If the ALJ determines that the appealed action was arbitrary or taken without reasonable cause, the action shall be revoked or modified. Otherwise the action shall be affirmed.

Legal Argument and Analysis 2. Appellant maintained that he provided adequate information to the AJFD, by virtue of Ms. Leight’s note explaining why there was a positive drug test result for Benzodiazepine and, through the second test result document issued by Dr. Portnoy showing a negative result, contended that he successfully and timely refuted the positive drug test result. 3. In contrast to Appellant’s position, AJFD contended that Appellant did not successfully refute the positive drug test in a timely manner based on all of the underlying factors considered by Chief Flynn. 4. Appellant asserts that the five business day time frame of 127.10(B) only applies to an employee who has additional information and requests a second drug test. Appellant asserts that 127.10(B) does not apply to his case and that there is no provision within the AJFD personnel manual that provides a time frame for the submission of additional information. In contrast, AJFD contends that 127.10 should be read to require that an employee successfully refute or present additional information within five business days of being informed of the drug test result. AJFD asserts that even if the personnel manual provisions do not specifically provide for use of that time period, it is reasonable for AJFD to use five business days for what should be considered timely within the meaning of 127.11(B)(2). 5. The Administrative Law Judge concludes that by virtue of the language contained in 127.10, by having the word “and” as the connector between subsections A and B, the five business days time frame only applies when an employee has additional information to present and requests a second drug test. The terms contained in 127.10 do not apply to a situation such as Appellant’s where he does not require nor has he requested a second drug test because he does not contest that the test showed a positive result for Benzodiazepine, but rather he has an explanation for the presence of the drug. Consequently, the issue that must be determined is what time frame for providing additional information should be considered timely within the meaning of 127.11(B)(2). The weight of the evidence of record established that Appellant presented a copy of the note by Ms. Leight to AJFD for the Committee to consider and presented the note and a second drug test result issued by Dr. Portnoy showing a negative drug result test to Chief Flynn prior to the appeal before Chief Flynn. Appellant asserted that by such action, he successfully refuted the positive drug test result in a timely manner. Appellant asserted that he was not aware that he had five business days to supply additional information to AJFD, or that he had to explain the positive drug test result when he was contacted about it on September 17, 2007. 7. The AJFD asserted that Appellant had the opportunity to identify the medications he was prescribed prior to undergoing the September 5, 2007 drug test and that he also had the opportunity to refute the positive drug test when contacted on September 17, 2007 about the positive drug test result. 8. The Administrative Law Judge concludes that the weight of the credible evidence of record established that Appellant was not made aware that he had to explain the positive drug test result during the communication he had with a person associated with Sonora Quest Labs on September 17, 2007. 9. The weight of the credible evidence of record did not establish that Appellant was made aware that he had five days from the date of notification of the positive drug test result to provide additional documentation to AJFD. 10. The Administrative Law Judge concludes that presentment of additional information with respect to the September 5, 2007 drug test to be considered timely under the circumstances means presentment of additional information to AJFD in advance of the appeal so that such information could be considered. Appellant accomplished that and provided Ms. Leight’s note and Dr. Portnoy’s second drug test result showing “negative” that were presented to Chief Flynn prior to the appeal being heard by Chief Flynn. Consequently, the determination made by AJFD that the additional information was untimely is incorrect, not reasonable, and reversed. 11. Regardless of whether Appellant knew of the procedures or process, the second test showed a negative result, which was submitted timely. The Administrative Law Judge finds based on agency relationship between AJFD and TCN, the AJFD is bound by the last determination made by the MRO, which in this case, was that the positive test result was changed to be a negative test result. Therefore, without a second positive drug test result which violated the substance abuse policy of AJFD, there is no second test result that would be cause for termination under 127.11 and would not support a violation of AJFD rules under the above-mentioned Last Chance Agreements. 12. The weight of the credible evidence of record does not establish that the decision to terminate Appellant was taken with reasonable cause, and must be reversed. 13. Appellant proved by a preponderance of the evidence that there was no reasonable basis for the AJFD to terminate his employment with AJFD. . . . . . .

ORDER The decision to terminate Appellant is reversed. Done this day, December 19, 2007.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Apache Junction Fire District Barbara Hernandez-Chamberlain 565 N. Idaho Rd. Apache Junction, AZ 85219

Tim O’Brien 1775 N. Prospector Apache Junction, AZ 85219

By ___________________________

----------------------- [1] Appellant testified that the psychologist’s recommendation was for Appellant to be off work for 60 days. AJFD presented a witness who testified that the psychologist recommended Appellant be off work from 60- days. For purposes of this hearing, that discrepancy is not relevant.

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