“Substantial Evidence” Upholds Removal for Positive Results on Random Drug Test

A federal employee who was fired as a result of a positive drug test stays fired upo9n appeal despite the employee paying for a subsequent polygraph and drug tests.

A supervisory criminal investigator with the Bureau of Immigration and Customs Enforcement was unable to convince the appeals court to overturn his firing that resulted from his testing positive for cocaine on a random drug test. (Meza v. Department of Homeland Security, C.A.F.C. No. 2007-3150 (nonprecedential), 4/23/08)

When Meza’s test came back positive, he sought legal advice to fight the inevitable removal action. Meza pulled out all the stops to prove that the random drug test was wrong. He voluntarily and at his own expense took urine and hair follicle drug tests, subjected himself to a polygraph, and paid to have a sample of the positive urine tested for DNA in an effort to prove that the sample was not his. The DNA results were inconclusive, the subsequent drug tests came back negative, and the polygraph results indicated he was not lying when he answered “no” to whether he had ever used cocaine.

Nevertheless, the Merit Systems Protection Board concluded that the agency had proved its case and sustained Meza’s removal. The Administrative Judge, while noting the subsequent negative hair and urine tests, and the polygraph results, centered his decision on the initial random urine test that was positive for cocaine. The subsequent negative tests were deemed irrelevant to the question whether the initial random test was positive since that test can only show cocaine use within the previous 2 to 3 days. (Opinion pp. 6-7)

The appeals court has sustained the MSPB and upheld Meza’s removal, stating that Meza “is unable to point to any flaw in the collection and testing procedure that led to his positive result…” The court therefore concludes that the initial drug test results add up to “substantial evidence of drug use.” (p. 8)

The court points out that Meza’s subsequent negative drug tests “were collected too long after the positive sample to be probative of the same time period…” Further, while Meza’s efforts to get DNA testing showed he believed in his innocence, those test results were “inconclusive” and therefore of no help. In short, Meza’s removal is affirmed. (p. 8)

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.