Random Drug Test Leads to Removal

A Navy firefighter who was fired for failing a random drug test has failed to convince the MSPB or a federal court to overturn his removal.

A Navy firefighter, removed for failing a random drug test, could not convince the Merit Systems Protection Board to reverse his firing, and has now lost his bid to convince the appeals court. (Peterson v. Department of the Navy, C.A.F.C. No. 2007-3273 (nonprecedential), 3/7/08)

Peterson’s position was designated for random testing under the agency’s Drug-Free Workplace Program. He signed a document acknowledging this as well as the fact that the penalty for a first-time offense ranged from reprimand to removal. When he tested positive, he admitted that he had gone to a party, had too much to drink and smoked marijuana. It was his first offense. (Opinion, pp. 1-2)

The agency removed Peterson. The final decision letter spelled out how each of the Douglas factors was weighed and concluded that removal was the appropriate penalty. It pointed out that a firefighter’s duties include providing emergency medical assistance as well as fighting fires and “that these duties require good judgment and a high level of public trust.” (p. 3)

On appeal, the Merit Systems Protection Board sustained the agency’s removal of Peterson. He took his case to the appeals court, but has fared no better there. The court now rules that removal “although harsh…is not grossly disproportionate to an offense of drug use by an emergency responder in the Naval Station’s Department of Public Safety.” (p. 3)

The court points out that its review of an agency’s determination of penalty is “extremely limited….[and] left to the sound discretion of the agency.” (p. 2)

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.