It Wasn’t Me, It Was the Brownies!

CBP removed an employee for a positive drug test, but he claimed he must have unwittingly eaten a laced brownie beforehand.

In Hansen v Department of Homeland Security (CAFC No. 2017-2584, 12/28/18), the appeals court sustained the removal of a Customs IT employee who failed a random drug test. He tested positive for marijuana. Hansen did not argue the test results, but he insisted he had not “knowingly” used the drug and was stunned when the test came out positive. He insisted that someone had laced brownies that he ate at a cookout a few days before.

Unmoved, the agency—as a law enforcement agency known to treat these kinds of offenses seriously—removed Mr. Hansen. In his defense, Hansen submitted an affidavit to the deciding official from his close friend who had not actually hosted the cookout but said he was the person who invited Hansen to the party.  This affidavit claimed that an unnamed attendee, unbeknownst to Hansen and his friend, had brought the brownies as a joke. Neither Hansen nor the affiant named the person who had hosted the cookout or who had brought the brownies nor did they identify others at the party who could corroborate all of this. The deciding official weighed this defense but was not persuaded. She pointed out that Hansen did not provide evidence from the host of the cookout, the person who supposedly brought the brownies, or anyone else at the party who could attest to people getting high at the party because of these brownies.

Hansen took his appeal to the Merit Systems Protection Board (MSPB) where he gave further details of the cookout. It was in Minnesota in April and temps were in the 30s. He repeated his claim that he ate two brownies and felt no effects at the time. He later felt tired, had an upset stomach, and called in sick the next day. He thought the malaise was from the bratwurst he ate at the party. He still did not provide any other witnesses to support his version.

The MSPB concluded that the government had met its burden in that it showed that Hansen had tested positive for drugs, his position was indeed subject to random drug testing, discipline was warranted, and removal was reasonable. While the Board stated that Hansen had the burden of proving the ingestion of the drug was “inadvertent,” but Hansen had not born his burden. It was his job to prove his defense, and not the agency’s job to disprove it. In trying to make his case, Hansen submitted “third-hand hearsay….[not] statements from the hosts, other attendees…or the individuals who brought the brownies.” He did not present evidence showing that he had in fact eaten the brownies. Hence the Board found against Mr. Hansen and upheld his removal. (p.5)

Mr. Hansen did not fare any better when he took his appeal to federal court. He tried to argue that the Board erred in putting the burden on him to prove he inadvertently ate laced brownies but instead should have required the government to prove that he had intent to ingest drugs. The court disagreed, stating “The government had no need to prove intent to establish that Mr. Hansen committed misconduct warranting removal. [His] undisputedly positive test result sufficed to prove the charge of ‘positive test for illegal drug use—marijuana.’” (p. 6) The decision goes on to state that there was no “arbitrariness, abuse, or other error in the Board’s conclusion that Mr. Hansen failed to persuasively rebut the government’s showing of nexus or its choice of penalty.” (p. 9)

In short, the court has sustained Hansen’s removal.

Reading between the lines, it seems clear that neither the agency nor MSPB was buying Mr. Hansen’s explanation without more. Surely if he could have had other people sign affidavits about experiencing strange reactions to these mystery brownies, he would have done that since his job and career were on the line here. Without doing more this likely came across as “the dog ate my homework” explanation.

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.