A medical technician whose duties included responsibility for the drug testing process was fired by the Navy for failing to provide a random drug test sample when ordered to do so. In a recent decision, the federal appeals court has upheld his firing. (Pollock v. Department of the Navy, C.A.F.C. No. 2009-3246 (nonprecedential), 3/16/10)
According to the court’s opinion, Pollock had held his "Testing Designated Position" (TDP) with the Naval Hospital Twentynine Palms in California for more than five years when he got the random drug test notice. He was given two hours to provide a urine sample. Apparently he stood in line for a while but left the hospital without telling anyone and without getting permission. He did not complete the drug test as ordered. When he showed back up at work four days later, the facts unfolded slowly.
The following "script" is derived from the facts the court lays out in its decision:
Navy: So, Pollock, why didn’t you show up for your drug test and where have you been for four days?
P: Well, while I was standing in line waiting to fill the cup, I found out that my father had had a heart attack. I didn’t stop to think, I just ran out of there to rush to his side. And, when I got to Arizona, I wasn’t sure which city dad was in so I had to drive to a different location. Unfortunately by then my dad had died.
Navy: That’s rough, Pollock. Please accept our condolences. Of course, we will give you retroactive annual leave, but to support the leave, you will have to provide us some evidence of your father’s death within two weeks. If you don’t, we will discipline you up to and including removal.
P: (two weeks later when telling Navy that he was not able to come up with the required documentation): My sister has moved my dad’s body to Idaho—I’m not sure where. And she won’t tell me. I appreciate your offer to help me find the documentation, but I’m not really sure what my dad’s name is and cannot provide any identifying information. Uh, did I mention that I’ve been estranged from my father since I was three years old?
Navy: Well, let us contact your sister for you and we will try to get the documentation.
P: (At this point Pollock’s union rep advised Pollock "not to say anything.")
Navy: OK, Pollock, we have issued a notice of proposed removal for failing to get a required drug test since you did not give us the required documentation, but you have a right to respond. If you can come up with any information at all, we will consider it. We are, after all, reasonable people.
P (In his response to the notice): Did I mention that before I ran out of the drug testing line that I spoke to a Chief who was there and got permission from him to leave?
Navy: No, you didn’t mention that. Unfortunately for you, the Chief you referenced has testified that you did not mention your father’s situation and that he did not give you permission to leave that day.
P: Well, how about this. Here is a hand-written note from my sister. It reads: "James Pollock is my brother and he was in my presence on July 24, 2008 for a family matter." Oh, and I remembered my father’s name. It is Frank Pollock and I last saw him about 2 years ago, not when I was three years old as I earlier stated. My bad.
Navy: Well, thanks for the note from your sister. Unfortunately it doesn’t say anything about your father dying or a memorial service. And having your dad’s name is helpful. Unfortunately, we have searched high and low and cannot find anything about a Frank Pollock dying. Sorry, Pollock, but our final decision is to order up your removal.
P: Well, that is just wrong. So I appeal to the Merit Systems Protection Board. And may I point out to the MSPB judge that when I heard my father had died, I drove to Tucson. That’s where I found out he was actually living in Phoenix with my sister. I attended a memorial service there. My sister would not give me the evidence I needed to support my leave request with the Navy because she is "anti-government" and she refuses to give over any personal information that he can convey to his government employer. So, here is another letter from my sister that explains her refusal to help. She says she is "sorry" and asks that I "understand that it is against [her] personal and religious beliefs to do so. This is America and we have the right to privacy. This information is none of the government’s business."
MSPB judge: Sorry, Pollock, but your evidence lacks credibility and we are sustaining your removal.
P: Well, that is just wrong. So I hereby appeal to the full MSPB because I know they will give me the justice that the Navy and their judge have denied me. By the way, here is new evidence. Here is a signed statement from a friend of mine who says that she and her husband were with me at the memorial service for my dad. That ought to prove once and for all that I had good reason to run out on my drug test without approval.
Full MSPB: Sorry, Pollock, but this new evidence is dated long before your hearing before our judge and you failed to provide it at that hearing. Therefore there is no basis for us to overrule the judge’s decision. You shall remain fired.
P: Well, that is just wrong. So I hereby appeal to the Federal Circuit Court of Appeals where I know I will receive the justice I have been denied by the Navy and the MSPB. Now, look, the agency was required by my union agreement to put me into an alternative job and refer me for drug addiction treatment if I fail to provide a urine sample. They didn’t do that, so I win.
Federal Circuit: Sorry, this argument was not supported with any evidence, so you lose that one.
P: Well, how about this one? The MSPB judge would not allow one of my witnesses who would have testified that he saw me speak with the Chief on the day of my random drug test.
FC: That won’t fly either. All this testimony would do is prove that you spoke to someone who did not have authority to excuse you from the drug test nor to approve you taking leave. It proves nothing and the administrative judge was well within his discretion to deny this testimony.
P: Well, what about the fact that I cooperated with the Navy and I offered to take a drug test when I got back from burying my dad?
FC: Again, not persuasive, Pollock. The judge rejected your explanation for not providing the required documentation as "unreliable." And your offer to take another drug test is not big deal and doesn’t prove anything. Your offer was "insignificant because an offer to take a drug test four days later is no substitute for failure to take a random test."
The bottom line: Pollock stays fired and gets to stay home with his active imagination.
Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.