Opinion

Roscoe Tinkle v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Oct 17, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

finding that an agency’s violation of its chain of custody procedures by leaving a specimen unattended did not harm or prejudice the employee because there was no evidence that any other person had access to the specimen during the short time it was left unattended

How later courts described this case

finding that an agency’s violation of its chain of custody procedures by leaving a specimen unattended did not harm or prejudice the employee because there was no evidence that any other person had access to the specimen during the short time it was left unattended
declining to address a harmful procedural error claim not raised before the administrative judge in a case concerning a removal for a positive drug test

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROSCOE P. TINKLE, DOCKET NUMBER

Appellant, DA-0752-14-0377-I-2

DEPARTMENT OF AGRICULTURE, DATE: October 17, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joyce E. Kitchens, Esquire, Atlanta, Georgia, for the appellant.

Julie Rook Gold and Kevin L. Owen, Esquire, Silver Spring, Maryland, for

the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

sustained his removal. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains errone ous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s d ue

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 The following facts, as further detailed in the initial decision, are not

disputed. The appellant held the position of Supervisory Guide at Blanchard

Springs Caverns. Tinkle v. Department of Agriculture, MSPB Docket

No. DA-0752-14-0377-I-1, Initial Appeal File (IAF), Tab 8 at 14; Tinkle v.

Department of Agriculture, MSPB Docket No. DA-0752-14-0377-I-2, Appeal

File, Tab 6, Initial Decision (ID) at 2. 2 Among other things, the position included

safety-sensitive duties, such as driving a passenger bus and responding to injuries

incurred by visitors to the caves. ID at 2. In January 2013, he was arrested on

marijuana charges. Id. The agency subsequently approved his inclusion in its

“safe harbor” program, which allows an employee to avoid discipline if he admits

the drug use, completes counseling, and refrains from further drug use. Id.

However, in November 2013, the appellant underwent a urinalysis that tested

positive for marijuana. ID at 2-3. As a result, the agency charged him with a

positive drug test and proposed his removal. ID at 3. The deciding official

sustained the action, effective April 2014, and this appeal followed. Id.

The administrative judge dismissed the initial appeal without prejudice for automatic

refiling at a later date to accommodate scheduling conflicts, resulting in the two docket

numbers associated with this one matter. IAF, Tab 49, Initial Decision.

¶3 After holding the requested hearing, the administrative judge affirmed the

appellant’s removal. ID at 1. She found that the agency met its burden

concerning proof of the charge, nexus, and penalty. ID at 3 -10, 18-20. She

further found that the appellant failed to prove his allegations of a due process

violation or disability discrimination. ID at 11-15. Finally, the administrative

judge concluded that the appellant failed to timely raise his harmful procedural

error claim and, even if he had, the claim failed. ID at 15-18.

¶4 The appellant has filed a petition for review, reasserting arguments

concerning chain of custody for his drug test as well as harmful procedural error.

Tinkle v. Department of Agriculture, MSPB Docket No. DA-0752-14-0377-I-2,

Petition for Review (PFR) File, Tab 1 at 8-23. The agency has filed a response,

and the appellant has replied. PFR File, Tabs 5-6.

¶5 When an agency relies on a positive drug test to take an adverse action

against an employee, the agency must prove by preponderant evidence that the

test was valid. Holton v. Department of the Navy, 123 M.S.P.R. 688, ¶ 11 (2016),

aff’d, 884 F.3d 1142 (Fed. Cir. 2018). To meet its burden, the agency must

establish that the urine sample that tested positive was the appellant’s by showing

that the chain of custody of the sample was maintained and verifiable. Id. Any

alleged violation of the agency’s drug-testing procedures is reviewed under the

harmful error standard. Id. Under this standard, reversal is only warranted if the

appellant proves that the procedural error was likely to have caused the agency to

reach a conclusion different from the one it would have reached in the absence or

cure of the error. Id.

¶6 The appellant acknowledges a 20-year history of marijuana use up to and

including his January 2013 arrest. PFR File, Tab 1 at 5-6. He also acknowledges

that he previously had figured out a way to pass prior drug testing required by the

agency, despite his marijuana use. Id. at 6. However, he denies using marijuana

during the period leading up to his November 2013 drug test and disputes the

test’s validity due to purported irregularities in the chain of custody. Id.

at 6, 8-13.

¶7 The appellant asserts that he provided the urine sample at approximately

2:15 p.m., yet the agency’s documentation suggests it was both collected and

transferred to Quest Diagnostics Courier at 11:20 p.m. and the agency failed to

account for the intervening hours. Id. at 9-11; Hearing Transcript (HT) at 202-04

(testimony of the appellant); IAF, Tab 27 at 24. He also asserts that while the

agency’s documentation indicates that his urine sample left the collection facility

at 11:20 p.m. and arrived at the Quest Diagnostics Laboratory at 2:00 a.m., that

span of time is insufficient to drive the distance between those locations and the

agency failed to prove its method of transport. PFR File, Tab 1 at 11 -12; IAF,

Tab 27 at 24, 28. Next, he notes that the chain of custody log contains a

signature from the receiving official at the Quest Diagnostics Laboratory, but

does not contain a signature from the courier to that individual. PFR File, Tab 1

at 12-13; IAF, Tab 27 at 24-25. In addition, he acknowledges that the chain of

custody documentation indicates that his urine sample arrived at the Quest

Diagnostics Laboratory with the sealing label intact, but nevertheless suggests

that the agency’s evidence is deficient because there are no clear pictures

showing the same. PFR File, Tab 1 at 13; IAF, Tab 27 at 24, 86-93. Finally, the

appellant generally alleges that the agency failed to prove that the specimen

tested was, in fact, the specimen he provided. PFR File, Tab 1 at 8 -9.

¶8 We considered comparable allegations of irregularities in Forte v.

Department of the Navy, 123 M.S.P.R. 124 (2016). In that case, the employee

disputed his positive drug test on a number of bases, inc luding allegations that the

individual who collected his specimen forgot to have him initial the

corresponding vials and called him back to do so after he already had left the

room. Id., ¶ 12. We concluded that the administrative judge should have

considered that claim under the harmful error standard. Id., ¶ 18. We further

found that, standing alone, the alleged collection error did not require reversal of

the employee’s suspension because he had not shown that the agency likely would

have reached a conclusion different from the one it reached in the absence of that

error. Id., ¶ 19. 3 For the same reason, the appellant’s arguments concerning

chain of custody fail in the instant appeal.

¶9 Although the appellant has identified ways in which the chain of c ustody

for his specimen could have been more clearly and elaborately documented, we

agree with the administrative judge’s conclusion that the agency met its burden of

proving the positive drug test charge by preponderant evidence. ID at 3 -5; see

5 C.F.R. § 1201.4(q) (defining preponderant evidence as that “degree of relevant

evidence that a reasonable person, considering the record as a whole, would

accept as sufficient to find that a contested fact is more likely to be true than

untrue”). The agency presented extensive evidence showing, inter alia, that the

appellant initialed his specimen in a sealed vial containing identifying numbers,

qualified professionals analyzed the specimen marked with those initials and

identifying numbers, and the specimen tested positive for marijuana use. E.g.,

IAF, Tab 27 at 18-115. We further agree with the administrative judge’s

conclusion that even if the matters identified by the appellant amount to

irregularities in the drug testing procedures, there is no indication that the agency

would have likely reached a different conclusion in the absence of those

In Forte, the Board ultimately found that the agency failed to prove its charge of

illegal drug use because, inter alia, the appellant consistently denied the drug use, he

produced a negative hair follicle test covering the same period as the agency’s positive

urine test, and the agency refused to provide the appellant with some of the urine

sample for a DNA test to verify that, despite collection irregularities, it was the

appellant’s. Forte, 123 M.S.P.R. 124, ¶¶ 21-25. Here, the appellant also denied the

alleged drug use and produced a negative hair follicle test. IAF, Tab 9 at 28-29.

However, the administrative judge was not persuaded by these and other defenses, in

part because the appellant declined the opportunity to retest his urine sample and his

hair follicle test was conducted 3 months after his positive urine test. ID at 6-9; IAF,

Tab 9 at 28-29, Tab 27 at 17; HT at 212-13 (testimony of the appellant). The

appellant’s petition for review does not contain any arguments concerning these

matters, and we find no reason to disturb the administrative judge’s well-reasoned

findings.

purported irregularities. ID at 5-6; see also Frank v. Department of

Transportation, 35 F.3d 1554, 1557-58 (Fed. Cir. 1994) (finding that an agency’s

violation of its chain of custody procedures by leaving a specimen unattended did

not harm or prejudice the employee because there was no evidence that any other

person had access to the specimen during the short time it was left unattended);

Forte, 123 M.S.P.R. 124, ¶ 19.

¶10 The appellant’s harmful procedural error arguments are similarly

unavailing. PFR File, Tab 1 at 13-23. The administrative judge found the claim

both untimely and without merit. ID at 15-18. We find that it is not necessary to

address the merits of this affirmative defense because the argument was untimely,

without good cause shown.

¶11 The Board’s regulations provide that “[a]n appellant may raise a claim or

defense not included in the appeal at any time before the end of the conference(s)

held to define the issues in the case. An appellant may not raise a new claim or

defense after that time, except for good cause shown.” 5 C.F.R. § 1201.24(b).

Accordingly, the administrative judge twice instructed the appellant to identify

any and all defenses in his prehearing submissions, but the appellant’s response

included a general assertion of harmful procedural error without identifying wha t

that error might be. Compare IAF, Tabs 13, 23, with IAF, Tab 28 at 4.

Following the agency’s motion to strike this unexplained harmful procedural error

claim, the appellant asserted that he intended to preserve the argument in the

event that hearing testimony provided a factual basis for that affirmative defense.

IAF, Tab 39 at 5-6, Tab 40 at 8. Thereafter, the administrative judge issued an

order summarizing a prehearing conference and defining the issues. IAF, Tab 44.

The order did not identify harmful procedural error as a remaining claim. Id.

Although the appellant objected, he indicated that he did not yet have any facts to

support harmful procedural error. IAF, Tab 45 at 4-5.

¶12 The appellant first identified specific allegations of a harmful procedural

error in closing arguments to his hearing. HT at 249 -54 (the appellant’s closing

argument). He alleged that the agency violated 49 C.F.R. § 382.121(b)(3) by

prematurely ordering his return to safety-sensitive duties and requiring that he

undergo the drug test underlying his removal, without proper certification by his

drug counselor. 4 Id. at 251-52 (the appellant’s closing argument). Through his

representative, the appellant defended the untimeliness of this argument by

asserting that he only learned of the nature and factual underpinnings of the

alleged harmful procedural error after obtaining testimony from his drug

counselor and the Drug Free Workplace Program Manager at the hearing. Id.

at 251 (the appellant’s closing argument); PFR File, Tab 1 at 20-22. However,

both were the appellant’s own witnesses. IAF, Tab 28 at 5, Tab 44 at 2.

Moreover, as the appellant essentially concedes in his reply brief, sufficien t

information existed in the written record to timely identify this alleged harmful

procedural error, even though the appellant failed to do so. PFR File, Tab 6

at 10. Among other things, the written record included documentation predating

the agency’s decision on the removal action, where both the appellant and his

counselor asserted that he had not yet finished treatment when he was ordere d to

undergo the drug testing. IAF, Tab 9 at 16, Tab 10 at 7-8. Accordingly, we agree

Section 382.121(b)(3) requires that “[a] qualified voluntary self -identification

program . . . must permit the employee to return to safety sensitive duties only upon

successful completion of an educational or treatment program, as determined by a drug

and alcohol abuse evaluation expert, i.e., employee assistance professional, substance

abuse professional, or qualified drug and alcohol counselor.” 49 C.F.R.

§ 382.121(b)(3). According to the appellant and his drug counselor, he had not yet

completed his treatment program because that program consisted of 12 weekly sessions

with a psychologist followed by 12 monthly sessions with the drug co unselor and he

had undergone only the former, not the latter. E.g., PFR File, Tab 1 at 14-15. The

agency disagrees, arguing that his completion of the 12 weekly psychotherapy sessions

satisfied his treatment program, the 12 monthly counseling sessions to follow amounted

to aftercare that did not implicate section 382.121(b)(3), and the appellant’s drug

counselor was disingenuous in suggesting otherwise. PFR File, Tab 5 at 12 -13

(referencing IAF, Tab 10 at 34-35, 37). The administrative judge found that this

defense failed, even if it were timely, because there was no persuasive evidence that the

aftercare was a barrier to the appellant’s return to safety-sensitive duties and the drug

testing. ID at 16-18.

with the administrative judge’s conclusion that the information needed to develop

this defense was within the appellant’s control prior to the end of the conferences

held to define the issues and he failed to provide good cause for delaying that

development until the hearing itself. ID at 16; see Franco v. U.S. Postal Service,

27 M.S.P.R. 322, 325 (1985) (recognizing that an administrative judge has wide

discretion to control the proceedings); see also Nugent v. U.S. Postal Service,

59 M.S.P.R. 444, 447-48 (1993) (finding that an administrative judge properly

disallowed a claimed affirmative defense of alcoholism where the appellant failed

to raise it until after the status conference defining the issues); Roof v.

Department of the Air Force, 53 M.S.P.R. 653, 658 (1992) (finding that an

administrative judge properly disallowed a disparate treatment affirmative

defense asserted during the hearing because it was not previously raise d in either

the prehearing submissions or prehearing conference). We will not addr ess this

untimely claim further. See Hansen v. Department of Homeland Security,

911 F.3d 1362, 1369-70 (Fed. Cir. 2018) (declining to address a harmful

procedural error claim not raised before the administrative judge in a case

concerning a removal for a positive drug test).

¶13 Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so , you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Fed eral Circuit or any court

of appeals of competent jurisdiction. 6 The court of appeals must receive your

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for ju dicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the