A Bureau of Prisons correctional officer in Atlanta, fired for failing a random drug test, was unsuccessful in his defense that the Thanksgiving cookies were laced with marijuana without his knowledge. (Brown v. Department of Justice, CAFC No. 2011-3171 (nonprecedential) 1/13/12)
When Brown learned about the positive drug test results he gave the agency an affidavit with a rather creative excuse. He explained “his consumption of marijuana was unintentional.” (Opinion p. 2) Supposedly when he was at a family Thanksgiving gathering at his brother’s house, he was exposed to others who were smoking the stuff, and, to top that off, his brother’s fiancé had baked cookies that Mr. Brown did not realize had been laced with marijuana. When his drug test came back positive and he discussed the situation with his brother, supposedly Brown learned for the first time about the drug-laden cookies. (p. 2)
Unmoved, the agency fired Brown indicating that his explanation about the cookies was “not credible.” (p. 2) Given Brown’s position in law enforcement where he watched over convicted drug offenders, the agency believed his transgressions were “particularly egregious…” and declined to impose a lesser penalty. (p. 3)
Brown appealed his removal to the Merit Systems Protection Board, staking his case on the insistence that he had not knowingly consumed the marijuana but throwing in a few procedural challenges. For example, he argued it was improper for the agency to consider evidence about the levels of marijuana in his system that it derived from his drug test. (p. 3)
Sharing the agency’s view that Brown’s explanation was “less than credible,” and considering the agency’s written zero tolerance policy, the administrative judge found that removal was justified in Brown’s case.
On appeal Brown found no sympathy from the court. It brushed aside his argument that the written zero tolerance policy denied him due process because the agency left no room for anything other than removal. As for his challenge to the agency considering the levels of marijuana in his sample as a violation of his privacy, the court pointed out that Brown brought this upon himself when he brought into issue how much of the drug he had consumed and how he had consumed it. This opened the door to the agency having a need to know the numerical metabolite values shown in his test results and made it proper for the agency to consider those numbers. (p. 6)
Bottom line: the “I unwittingly ate marijuana-laced cookies at my family’s Thanksgiving celebration” defense fell on deaf ears. Mr. Brown remains an ex-federal employee.