A Positive Drug Test? What Should We Do Now?

When this Army facility conducted random drug tests, it apparently never had a positive result. When one showed up, there was some confusion and, eventually, the employee was fired. The MSPB upheld the removal but the Federal Circuit sent the case back to the Board noting that “all relevant email related to (this) case is beyond question.”

The Federal Circuit has given a reprieve to a nursing assistant removed by the Army’s Fort Leonard Wood Army Hospital in Missouri for failing a random drug test. The court has ordered the Merit Systems Protection Board to go back to the drawing board. (Baird v. Department of the Army, C.A.F.C. No. 2007-3046, 2/26/08) The facts are taken from the court’s decision.

Baird’s position was designated for random drug testing under the Army’s Drug-Free Federal Workforce Program. She was given notice as to just what this entailed, including the warning that failing a random test could lead to her separation. When she failed a random drug test this apparently was a first for this Army facility, which had no stated policy on penalty for the eventuality. (Opinion pp. 1-3)

While the agency figured out how to handle the situation, emails were exchanged among different levels of personnel officials, Baird’s supervisors, hospital managers, and MEDCOM, the hospital’s headquarters command. Eventually the hospital commander decided that Baird’s removal should be initiated. (pp. 3-5)

Baird appealed to the Merit Systems Protection Board. Her attorney filed discovery requests seeking, among other things, copies of the emails relating to the decision to remove Baird. Following two motions to compel discovery, the agency produced some of the emails just four days before the Board hearing. At the hearing Baird asked for and was given additional emails. Because they contained names of other officials involved in the pre-termination email exchange, the hearing was delayed while Baird’s counsel had the opportunity to interview these new potential witnesses. The arm wrestling over emails continued into the actual hearing itself when Baird’s counsel made yet another motion to produce certain emails. Army counsel refused to produce and objected. The Administrative Judge sustained the agency’s objection and the hearing was held. The AJ sustained Baird’s removal. (pp. 5-6)

Baird bypassed review by the full Board and when the AJ’s decision became final Baird took her case to the Federal Circuit. (p. 7)

Baird did not dispute the fact that she failed the random drug test. Instead she argued that the officials who proposed and decided her removal were basically “puppets” of the hospital manager. She also argued that the manager had in effect imposed a “zero tolerance” policy for drug test failures after the fact by insisting that Baird be removed. And she argued that the Board erred by not compelling the agency to produce all the relevant emails. (p. 8)

The court majority (the case was decided in a 2 to 1 decision) is obviously troubled by the lack of full disclosure of all emails pertinent to the decision to fire Baird. The majority calls the agency’s brief on this issue “lame,” and further states, “The need for full discovery of all relevant email related to Baird’s case is beyond question.” (pp. 8-9)

In the majority’s view the AJ should have rejected the agency’s objection to producing further emails since the evidence was central to Baird’s theory of her case: “We express no view as to whether Baird’s theory has any merit; we only hold that she is entitled to” the discovery from the agency. (p. 11)

Therefore the court orders the case back to the Board and orders it “to enforce full compliance with Baird’s discovery request….” and, if the newly produced evidence warrants, to give Baird a new hearing. (pp. 12-13)

It is interesting to note that the dissenting judge concluded that the Board was well within its discretion to cut off the discovery: “Every trial or hearing requires a deciding official to draw lines and make evidentiary judgments. Otherwise every case could stretch on indefinitely.” (p. 14)

Since the majority of the court did not agree, this case certainly will be stretching on.

About the Author

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.