# Appendix — Watson v. Department of Transportation

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2253%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 509 U.S. 903

## Text

92-1963 = [res

No. ‘MBFICE OF THE CLERK

IN THE SUPREME COURT
OF THE UNITED STATES

OCTOBER TERM, 1992

GERALD B. WATSON, JR.,
Petitioner,
Vv.
DEPARTMENT OF TRANSPORTATION,

Respondent.

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

Joel S. DeVore Ralph Fallon Cobb
Counsel of Record Luvaas, Cobb, Richards
Luvaas, Cobb, Richards & Fraser, P.C.

& Fraser, P.C. 777 High St., Suite 300
777 High-St., Suite 300 Eugene, OR 97401
Eugene, OR 97401 (503) 484-9292

(503) 484-9292 Of Counsel for Petitioner

Counsel for Petitioner

TABLE OF CONTENTS

Opinion of the Federal Circuit

(November 18, 1992) (Rich, J.)......... App-1
Dissenting Opinion (Newman, J.) ........ App-8
Concurring Opinion (Michel, J.) ........ App-17

Opinion of the Merit Systems Protection
ee CHEN Aa BOWE) Gk eee co eas App-22

Initial Decision (April 21, 1989)
eG SEs be ee a ee a App-43

Order Denying Rehearing Before
Federal Circuit (December 29, 1992) .... App-72

Judgment of the Federal Circuit
(Movemer 36, 1992) . 2. wt cc App-74

Department of Transportation
Order 3910.1, Comoter VI... ns App-76

First Stipulation of Facts (March 9, 1989) .. App-78

Declaration of Melissa J. Allen (excerpts)
i Se eA oa be etr App-83

Transcript of Hearing (March 9, 1989)
FRM kv Siw ks hE EROS he App-89

App-1

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

91-3558

GERALD B. WATSON, JR.,

Petitioner,

DEPARTMENT OF TRANSPORTATION,

Respondent.

DECIDED: November 18, 1992

Before RICH, NEWMAN, and MICHEL, Circuit
Judges.

RICH, Circuit Judge.

App-2
DECISION

Gerald B. Watson, Jr. (Watson) petitions for review
of the July 25, 1991 final decision of the Merit Systems
Protection Board (Board or full Board) in Docket No.
SE07S28910074, sustaining the Department of
Transportation’s (DOT’s or agency’s) removal of Watson
for refusing to submit to random drug testing in
accordance with Executive Order 12564, DOT Order
3910.1, and Federal Aviation Administration (FAA)
Order 3910.6. We affirm.

DISCUSSION

The full Board found the penalty of removal to be
warranted, and thus reversed the Administrative Judge’s
(AJ’s) mitigation of the removal to a suspension. The
Board further found that "[t]he record does not support
the administrative judge’s finding that the agency had
predetermined the penalty."

Watson’s primary argument before this court is that
the Board erred in not deferring to the AJ’s
determination that Donald Coones, the agency’s deciding
official, was not credible on the predetermination issue.
Specifically, the AJ found unconvincing Coones’
testimony that, although he felt constrained "to some
point" by the removal requirement of the agency’s drug
testing program, he still had discretion to select a lesser

App-3

penalty. Coones left the AJ "with the clear impression
that he had merely gone through the motions of decision-
making."

Absent issues of witness credibility and demeanor,
the full Board owes no special deference to fact findings
of the AJ; the Board may reject the AJ’s findings and
substitute its own. Jackson v. Veterans Admin. , 168 F.2d
1325, 1330-31 (Fed. Cir. 1985). However, "[o]n appeal
to this court, when a finding by the presiding official of
this nature [respecting credibility] has been reversed by
the board, we cannot sustain the board’s decision unless
the board has articulated a sound reason, based on the
record, for its contrary evaluation of the testimonial
evidence." Id. at 1331. We hold that in the instant case,
the Board has articulated such reasoning. The Board
correctly explained that, contrary to the negative
inference drawn by the AJ, the fact that Coones could
list only two specific circumstances under which he
would consider mitigating the removal did not mean that
he had not exercised his managerial discretion to assign
a penalty within tolerable limits of reasonableness. In
addition, the Board properly relied upon the affidavit of
agency official Melissa Allen, who stated that the
initiation of a removal action (the agency’s policy with
respect to employees in safety- or security-sensitive
positions who refuse to submit to random drug testing)
is not equivalent to mandating removal. The Board noted
Ms. Allen’s knowledge of at least two agency employees

App-4

who, after receiving notices of proposed removal for
refusal to submit to random drug testing, ultimately
received lesser penalties.

Regardless of whether the Board’s final decision
differs from the AJ’s initial decision, this court evaluates
the Board’s final decision under the substantial evidence
standard. Jackson, 768 F.2d at 1330. Here, the full
Board examined all the evidence and concluded that the
factors supporting mitigation were simply outweighed by
those supporting removal. See Baker v. Department of
Health and Human Serv., 912 F.2d 1448, 1456 (Fed.
Cir. 1990). The Board found, inter alia, that Watson’s
position as an electronics technician for the FAA
involved "serious safety responsibilities," that Watson’s
refusal to follow his supervisor’s order to submit to drug
testing in accordance with the agency’s program
adversely affected the efficiency of the service, i.e., that
there was "nexus," and that Watson lacked a good
potential for rehabilitation. Substantial evidence in the
record supports each of the Board’s findings.
Accordingly, we may not disturb the Board’s decision
sustaining Watson’s removal. 5 USC 7703(c).

App-5

The Dissent

The dissent would reverse the full Board’s decision
on the basis of Watson’s reliance upon the majority
opinion in Railway Labor Executives’ Assn v. Burnley,
839 F.2d 575 (9th Cir. 1988) (RLEA 1). According to the
dissent, RLEA J declared suspicionless drug testing by
government action to be illegal wherefore that became
the law in the Ninth Circuit, and was controlling at the
time of Watson’s refusal to be tested because all events
occurred in the Ninth Circuit. The dissent reasons that
removal from federal service should not be based upon
an employee’s refusal to comply with an unconstitutional
order. Though this issue was not briefed by either party,
we feel it necessary to respond.

We agree that as a matter of public policy,
individuals should be able to act in accordance with what
the law is at a particular time and place. However, the
State of the law of suspicionless drug testing of
government employees at the time of Watson’s refusal
was plainly unsettled, even in the Ninth Circuit. We
accordingly view the asserted reliance of Watson and his
attorney on RLEA / as unjustified and unreasonable, for
at least the following reasons. First, we find it
significant that Watson’s refusal to undergo drug testing
occurred on August 18, 1988, some two months after the
Supreme Court granted certiorari in RLEA J on June 6,
1988. Burnley v. Railway Labor Executives’ Ass n, 486

App-6

U.S. 1042 (1988) (No. 87-1555). One swallow does not
make a summer and one court’s opinion, accepted for
review by the Supreme Court, has not settled anything
even in one limited geographic area. In addition, we
disagree with the dissent’s characterization of the drug
testing procedure at issue in Watson’s case as having
"already been held unconstitutional." It should be noted
that the regulations construed in RLEA I, which
mandated post-accident drug testing for all involved
railroad employees, are not identical either in form or
applicability to the FAA regulations applied here, albeit
both programs permit testing without particularized
suspicion. See RLEA IJ, 839 F.2d at 577-78 nn.3-4 (text
of Federal Railroad Administration regulations); see also
Railway Labor Executives’ Ass’n v. Skinner, 934 F.2d
1096, 1098 (9th Cir. 1991) (noting that in reversing
RLEA I, the Supreme Court "did not address the
constitutionality of random drug testing . . ."); National
Air Traffic Controllers Ass’n v. Burnley, 700 F. Supp.
1043, 1045 (N.D. Cal. 1988) (noting that in RLEA /,
"notably, the government was regulator, rather than, as
here, employer... .")

The dissent criticizes the Board’s reliance upon
Gragg v. United States Air Force, 13 MSPR 296 (1982),
which in turn relied upon Walker v. City of Birmingham,
388 U.S. 307 (1967), because neither of these decisions
addressed an individual’s obligation to comply with
procedures already held unconstitutional. Contrary to the

ee |

App-7

dissent’s view, we believe Gragg and Walker support the
proposition that, absent circumstances where compliance
would involve clear physical danger, regulations and
laws must be obeyed, even if unconstitutional, unless
obedience would prevent a subsequent legal challenge. It
is clear that submission by Watson to drug testing would
not have mooted a later legal challenge to the testing
program. In our view, the dissent advocates a new
exception to the well-established "obey then grieve” rule
for federal employees. At the most fundamental level,
the dissent would apparently hold that rules about
compliance are different categorically where
constitutional rights are involved. This is judicial
creation of new law in which we cannot join.

App-8
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

91-3558

GERALD B. WATSON, JR.,

Petitioner,

DEPARTMENT OF TRANSPORTATION,
Respondent.
NEWMAN, Circuit Judge, dissenting.

I respectfully dissent, for when I review what
happened to Mr. Watson it is clear that the Board has
erred. An important question is presented in this case,
concerning the relationship of federal employer and
employee.

In brief: On August 18, 1988 Mr. Watson’s
supervisor at the Federal Aviation Administration’s field
office in Eugene, Oregon told him that he would be
given a random drug test that afternoon. The previous
February the Ninth Circuit Court of Appeals had held,

App-9

in Railway Labor Executives’ Ass’n vy. Burnley, 839 F.2d
575 (9th Cir. 1988) (RLEA J), that Suspicionless drug
testing by government action violates Fourth Amendment
rights. Mr. Watson lives and works in the Ninth Circuit.
Mr. Watson consulted a lawyer, who advised him that
“the test was unlawful under the Fourth Amendment and
that he could refuse to take it," quoting the findings of
the administrative judge. Mr. Watson’s lawyer then
spoke with the supervisor and informed him that random
drug testing had been held unconstitutional by the highest
federal court in the circuit, and that Mr. Watson would
not submit to the test.

The testing proceeded that day as announced, and
Mr. Watson refused to take the test. However, on the
advice of his lawyer, that same afternoon he went to a
private testing laboratory, which conducted a drug test.
He was found to be drug free, and submitted the results
to the agency. The agency does not question the accuracy
of this test, and indeed had told Mr. Watson that he was
not suspected of illicit drug use.

On August 23, 1988 Mr. Watson filed a civil action
in federal district court, challenging the constitutionality
of the random testing program. That suit was dismissed
for lack of subject matter jurisdiction, the court holding
that "the Civil Service Reform Act provides the
exclusive forum" for Mr. Watson’s challenge. Watson v.
United States, No. 88-6363-E, slip op. at 6 (D. Or.

App-10

Oct. 25, 1988). Meanwhile, on August 31, 1988, Mr.
Watson received a notice of proposed removal for failure
to comply with the random testing program. He was duly
and promptly removed.

Mr. Watson appealed to the Board. At the hearing
there was testimony before the administrative judge about
why Watson refused to submit to testing; about why
Watson decided to have a drug test, albeit privately;
about Watson’s eleven years of “fully successful"
performance; and about the deciding official’s choice of
penalty. After the hearing, but one month before the
administrative judge’s decision, the Ninth Circuit
decision in RLEA | was overruled by the Supreme Court
in Skinner v. Railway Labor Executives’ Ass'n, 489 U.S.
602 (1989) (RLEA I//), the Court holding that Fourth
Amendment rights were outweighed in that case by a
reasonable and compelling government interest in safety.
The administrative judge reduced Mr. Watson’s penalty
to a 45-day suspension, stating that he did not credit the
deciding official’s testimony that he considered penalties
other than removal, and finding that various factors,
including Mr. Watson’s reliance on Ninth Circuit law
and the advice of his attorney, weighed against removal.
The administrative judge held that the agency could
require Mr. Watson to submit to drug testing as a
condition of reinstatement.

App-11

The agency appealed to the full Board. The Board
overruled the administrative judge, and reinstated the
agency’s removal of Mr. Watson. The Board held that
Mr. Watson was required to comply with the agency’s
order regardless of its legality.

The Board also held that in any event the agency’s
testing program did not violate the Constitution, citing
Shelledy v. Dept. of Transp., No. DE0Q7528810381
(MSPB June 21, 1991) and American Federation of
Gov't Employees v. Skinner, 885 F.2d 884 (D.C. Cir.
1989) as authority. Both of these cases were decided
after the Supreme Court in RLEA // overruled the Ninth
Circuit decision in RLEA J. The Board did not mention
either of the RLEA decisions.

Neither the Board in its opinion, nor the agency’s
brief, touches the question of the correctness of requiring
Mr. Watson to comply with a governmental order that
was unconstitutional and illegal at the time. Instead, the
government relies on Gragg v. U.S. Air Force, 13
M.S.P.R. 296 (1982), appeal dismissed sub nom Gragg
v. United States, 717 F.2d 1343 (Fed. Cir. 1983) for the
proposition that Mr. Watson was required to obey a
supervisory order and, if he wished to challenge it, to do
so after he complied with it. All of the governmental

App-12

submissions in this court have avoided' the sensitive
question of requiring compliance with an illegal order
when constitutional rights are involved.

Is the official position of our government, as an
employer, that a federal employee’s obligation is to
comply with an unconstitutional order, on pain of being
fired? We have been directed to no authority for this
proposition. Gragg, a 1982 Board decision, did not
involve a constitutional ruling of a court; it involved the
agency’s demand that an employee shave his beard, such
demand being contrary to the employees’ bargaining
agreement. The decision in Gragg interprets Walker v.
City of Birmingham, 388 U.S. 307 (1967) as standing for
the proposition that “individuals do not have the

'The majority opinion states that the issue of the
propriety of removal based on a refusal to obey an
unconstitutional order was not briefed by either party.
That is inaccurate. Mr. Watson’s brief discusses his
"good faith objection to the constitutionality of random
testing" based on his reliance on RLEA / and on his
attorney’s advice based on this decision. The
government’s brief, however, is indeed silent on this
issue. Despite Watson’s clearly stated argument based on
his reliance on the law of the Ninth Circuit, the
government avoids all reference to RLEA J. Such an
omission can only have been deliberate; and indeed, the
position that Watson could not rely on the law of the
Ninth Circuit is not easily supportable.

App-13

unfettered right to disregard a law, rule or regulation
merely because substantial reason exists regarding the
constitutionality or validity of that law, rule or
regulation." Gragg, 13 M.S.P.R. at 299. Walker held
that a court-issued injunction must be respected. Indeed,
Walker provides solid support for Watson’s actions. Both
Watson and the agency were obliged to respect a duly
issued ruling of the Ninth Circuit.

The majority of this panel states that Walker supports
the proposition that even an _ unconstitutional
administrative regulation must be obeyed. I can not
agree. The Court in Walker addressed a situation where
petitioners, charged with contempt of a state court
injunction, sought collaterally to attack the constitution-
ality of the injunction as well as the city ordinance on
which it relied. These arguments were held to be
unavailable to the petitioners because they had not sought
orderly judicial review before violating the injunction.
The Walker majority stated that "[t]his case would arise
in quite a different constitutional posture if the
petitioners, before disobeying the injunction, had
challenged it in the Alabama courts." Walker, 388 U.S.
at 318.

App-14

Walker thus addressed the duty to obey a duly issued
court order, not a duty to obey a facially illegal agency
order. Further, Mr. Watson had promptly sought orderly
judicial review. Gragg’s interpretation of Walker as
requiring an employee to shave his beard before filing a
grievance is quite different from requiring an employee
to acquiesce in a then-unconstitutional search. A federal
agency does not have authority to issue an illegal order,
and severe punishment for non-compliance with an
illegal order is unwarranted. Estep v. United States, 327
U.S. 114, 126 (1946) (Murphy, J., concurring). There
is no "well-established" rule that federal employees must
yield their Constitutional rights when ordered to do so.
The "obey now grieve later" rule of Gragg may have a
place in disputes arising under a collective bargaining
agreement, but Mr. Watson’s cause arises under the
Constitution.

Even in disputes arising under a collective bargaining
agreement, the “obey now grieve later" rule has been
rejected when an employer’s order is illegal: "Apparently
the Board believes that an employee given an unlawful
order is ... obliged to ‘obey and grieve.’ We prefer the
alternative view that a citizen’s first obligation is to obey
the law, not the unlawful commands of an employer."
Garcia v. N.L.R.B., 785 F.2d 807, 812 (9th Cir. 1986).
The majority of this panel too readily finds the "obey
and grieve" rule proper under these circumstances.

App-15

The question before us is the punishment of Mr.
Watson for having relied on the Ninth Circuit decision
holding the suspicionless drug-testing program illegal.
The panel majority suggests that Mr. Watson could not
have reasonably relied on RLEA / because the drug-
testing program in RLEA I was not identical to the
program affecting Mr. Watson. Indeed, RLEA / involved
drug testing only after a "triggering event" such as a
railroad accident, whereas the program affecting Mr.
Watson required no "triggering event" at all. If a
program of suspicionless drug testing after a railroad
accident was unconstitutional, then surely a program of
suspicionless drug testing with no triggering event was
even less supportable.

Until RLEA / was overturned by the Supreme Court,
Watson was entitled to rely on it. The grant of a petition
for certiorari does not automatically vacate the prior law,
or require those subject to that law to behave as if it had
already been reversed. "Unless and until ... reversed or
modified" on appeal, even an erroneous decision is "an
affective and conclusive adjudication”, Rooker v. Fidelity
Trust Co., 263 U.S. 413, 415 (1923).

When the law is changed, even retroactively, equity
may require adjustment of the remedy when a person has
relied on the existing law. See James B. Beam Distilling
Co. v. Georgia, 111 S. Ct. 2439, 2443 (1991) (Souter,
J.). The administrative judge neither exonerated Mr.

App-16

Watson entirely, nor ratified the penalty of firing a fully
successful employee of eleven years. The Board,
however, fired Mr. Watson. It is a travesty of the rule of
law to impose this extreme punishment for refusing to
comply with an order, the constitutionality of which had
been litigated and found wanting at the time the order
was issued. It is the Constitution that is the highest law,
not an administrative order.*

*The concurring opinion states that I "advocate" that
"several million federal employees ... routinely and with
complete impunity disobey any agency order or
regulation the constitutionality of which they doubt or
which is sub judice", while engaging in "speculative" or
"metaphysical debate". (Emphasis in concurrence.) That
is a Curious interpretation of RLEA J, wherein the Ninth
Circuit had already declared suspicionless drug testing
unconstitutional. That ruling was neither speculative nor
metaphysical.

|

App-17

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

91-3558

GERALD B. WATSON, JR.,

Petitioner,

DEPARTMENT OF TRANSPORTATION,

Respondent.

MICHEL, Circuit Judge, concurring, with additional
Views.

I agree with the result and reasoning of Judge Rich’s
opinion in which I join, but add the following further
reasons why I find the dissent unpersuasive:

Although seeking to distinguish Gragg and the other
cases relied upon by the Board, the dissent cites no
authonity specifically supporting much less requiring the
new and far-reaching rule the dissent itself advocates.
That rule would allow several million federal employees,

App-18

including those like Watson in "sensitive positions,"
routinely and with complete impunity to disobey any
agency order or regulation the constitutionality of which
they doubt or which is sub judice. One can easily
imagine the spread of employee noncompliance with
agency orders that such a rule would likely spawn.
Whatever its merit as social policy for such a broad and
consequential rule to be imposed as judge-made law
rather than through legislation, only a constitutional
mandate declared by the Supreme Court should suffice.
The dissent’s failure to cite any Supreme Court decision
requiring its rule is therefore a critical deficiency.
Presumably, the dissent could not find such supporting
authority because the uniform practice requiring federal
employees, as a condition of employment, to "obey now"
and “grieve later," unless personal safety would be
jeopardized, does not in fact transgress any constitutional
right. Further, as the proponent of a new constitutional
rule that would reverse government-wide practice, the
dissent bears a heavy burden of persuasion that I think is
not met here. That courts are ill-equipped to predict and
evaluate the practical consequences of such rules is only
another reason to doubt the rule the dissent would
impose.

Nor do I believe the fundamental principle underlying
this practice is limited to alleged breaches of collective
bargaining agreements, as the dissent suggests. Indeed,
often an employee charges that the disputed order or

App-19

regulation contravenes both contractual and constitutional
nghts. Therefore, the so-called "grieve later" rule should
be understood broadly to include not only grievances per
se but also administrative and judicial challenges to an
agency-employer’s order.

Watson's refusal to take the drug use test clearly was
not based on safety considerations; nor does he even
assert that it was. Indeed, if anything, it threatened the
safety of passengers whose lives could depend on the
quality of Watson’s work. The only other broad
exception recognized by case law is where compliance
with a disputed order would preclude subsequent legal
challenge. Clearly, that was not the case here, either.

In any event, the issue the dissent would deem
dispositive was not even presented in this appeal.
Although Watson did argue below that the "obey and
grieve" rule of Gragg should be set aside, he waived that
argument on appeal. Here, Watson did not argue against
application of the rule on the issue of liability, either
generally or on the unique facts of his case, but only that
the Board should have considered as a mitigating factor
on penalty his "good faith belief that random drug testing
was unconstitutional."

App-20

Again, however, neither Watson nor the dissent has
cited any authority holding that an employee’s asserted
good faith belief in the unconstitutionality of an agency’s
order must a/ways be considered as a mitigating factor
by the agency when it selects the penalty for disobeying
that order. If we were now categorically to impose this
requirement, it should be expected that many personnel
actions based on disobedience of an order would
degenerate into an extended inquiry into the subjective
state of mind of the employee and a speculative, almost
metaphysical, debate about the constitutionality of the
order, involving premature predictions, often solely by
laymen, about future outcomes in pending or expected
constitutional test cases. This would hardly improve the
efficiency of the service or of MSPB hearings. Nor is it
clearly necessary for fairness to employees. None of
which is to say, however, there might not be a case
someday involving facts that would require that such a
belief must be considered in mitigation. But this is not
such a case.

Even assuming, arguendo, that the Board was
required to consider Watson’s asserted good faith belief
in the unconstitutionality of the FAA’s order and that
Watson’s reliance on RLEA / was justified, neither
Watson nor the dissent has shown, based either on
factually comparable cases or on the equities of this case,

App-21

that the Board abused its discretion by not mitigating his
penalty. Hence, if error at all, the Board’s failure to
weigh Watson’s belief was at most harmless error.

Finally, the dissent goes too far in saying that the
FAA order here had effectively been held
unconstitutional by the 9th Circuit decision in RLEA /.
For one thing, that case invoked only the government’s
limited powers as a regulator, not its broader powers as
an employer. Other distinctions are noted in Judge Rich’s
opinion. Therefore, despite the view of Watson’s
attorney, it was not at all clear that when it issued the
employer's order in this case it was unconstitutional, as
the regulator’s order in that case was temporarily held to
be.

In sum, constitutional challenges should not be
interposed on the spot by public employees confronted
with agency orders they question and wish to challenge.
Instead, such constitutional challenges should be brought
by employees in due course after compliance, with only
the limited exceptions established in case law.

App-22

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

GERALD B. WATSON, ) DOCKET NUMBER
: ) SE07528910074

)
Appellant,

DATE:JUL 25, 1991

DEPARTMENT OF
TRANSPORTATION,

Agency.

a i a ee ee a ad

Michael McGrady, Esquire, Eugene, Oregon, for the
appellant.

-

Paul S. Smith, Esquire, Washington, D.C., for the
agency.

BEFORE

Daniel R. Levinson, Chairman
Antonio C. Amador, Vice Chairman
Jessica L. Parks, Member

i

App-23
OPINION AND ORDER

This case is before the Board upon the agency’s
petition for review and the appellant’s cross petition for
review of the April 21, 1989 initial decision that
mitigated the appellant’s removal to a 45-day suspension.
For the reasons discussed in this Opinion and Order, the
Board GRANTS the agency’s petition for review,
DENIES the appellant’s cross petition for review, and
AFFIRMS the initial decision as MODIFIED by this
Opinion and Order, SUSTAINING the agency’s removal
action.

BACKGROUND

The appellant appealed to the Board’s Seattle
Regional Office from the agency’s action removing him,
effective December 4, 1988, from his Electronics
Technician position with the Airway Facilities Sector
Field Office in Eugene, Oregon. The agency based its
removal on the charge that the appellant refused to
submit to random drug testing. See Appeal File (IAF) at
Tabs 3(B), 3(F).

The facts surrounding the appellant’s removal are
undisputed. On August 18, 1988, the appellant’s
supervisor informed him that he had been randomly
selected for drug testing that day. See id. The test was to
be conducted in accordance with agency Orders 3910.1

App-24

and 3910.6, which were issued pursuant to Executive
Order No. 12,564, 51 Fed. Reg. 32,889 (1986), entitled
"Drug-Free Federal Workplace." The appellant
immediately consulted an attorney, who advised him that
the random drug testing was unconstitutional under the
Fourth Amendment to the United States Constitution and
that he was not required to submit to it. Acting on that
advice, the appellant refused to take the test. However,
on the same day, he went to a private clinic and
provided a urine sample, which was sent to a laboratory
for testing. The appellant tested "negative" (drug- free).

In his petition for appeal, the appellant denied the
agency’s charge on the basis that he had submitted to a
drug test within the time period specified by the agency.
He also contended that there was no nexus between the
conduct charged and the efficiency of the service and
argued that the penalty was inappropriate. Further, he
challenged the constitutionality of the random drug |
testing. Jd. at Tab 1.

The administrative judge found the agency’s charge
supported by preponderant evidence. He based his
determination on the undisputed evidence that the
appellant refused to provide a urine sample in accordance
with the agency’s drug-testing program. The
administrative judge found no merit to the appellant’s
asserted defenses for his noncompliance. In this regard,
the administrative judge noted that, under the agency’s

<<<

App-25

regulation, the appellant was not permitted to substitute
his testing preference for the agency’s established
procedure. The administrative judge therefore rejected
the appellant’s contention that he had, in fact, provided
a urine sample. He also found without merit the
appellant’s contention that he was not required to comply
with the agency’s drug-testing requirement because it
violated his rights under the Fourth Amendment. Relying
on Gragg v. United States Air Force, 13 M.S.P.R. 296,
299 (1982), appeal dismissed sub nom. Gragg v. United
States, 717 F.2d 1343 (Fed. Cir. 1983), the
administrative judge noted that, except in certain limited
circumstances where compliance with agency directives
might place employees in danger, employees were
required to obey agency directives, even if invalid, and
challenge them later. See Initial Decision at 4-5.

The administrative judge did not specifically address
the constitutionality of the agency’s random drug-testing
program, noting that in Mode v. Tennessee Valley
Authority, 20 M.S.P.R. 228, 230 (1984), and Clark v.
Department of the Navy, 20 M.S.P.R. 152, 154 (1984),
cases involving the constitutionality of an agency
regulation subjecting employees to searches, the Board
did not consider that issue. Further, the administrative
judge declined to apply equitable estoppel to the agency’s
argument that the Board should not decide the Fourth
Amendment issue. He found that the application of
equitable estoppel was not appropriate even though the

App-26

agency's attorneys had argued, in a suit the appellant
brought in a United States district court to enjoin the
agency's random drug-testing program, that the Board
would decide the constitutional issue. See Initial Decision
at 5-6.

The administrative judge next considered the
~ appellant’s contentions that no nexus existed between the
conduct charged and the efficiency of the service because
there was no reason for the agency to believe that he was
a drug user, because there was no evidence of deficiency
in his performance, and because drug testing neither
measured job impairment nor established that drug use
caused job impairment. The administrative judge found
that there was a causal connection between an
employee’s refusal to comply with regulations the agency
believed were properly promulgated and the efficiency of
the service. The administrative judge further found that
the fact that there might have been better alternatives to
the agency’s random drug-testing program did not relieve
the appellant of his duty to comply with the program’s
requirements. /d. at 6-7.

As to the appropriateness of the penalty, the
administrative judge found that the offense was serious,
particularly since the appellant occupied a "safety
critical" position and had timely notice of the drug
testing and the consequences for refusing to submit to it.
The administrative judge found, however, that mitigation

App-27

was warranted. After finding that the agency had
predetermined the appellant’s removal, he found that the
appellant’s refusal to submit to the agency’s drug testing
was reasonable, based on his own belief and his
attorney’s advice that the testing was unconstitutional.
The administrative judge noted that the Board had found
that objectively reasonable belief, even if mistaken, that
one’s constitutional rights would be violated by following
an agency order could be a mitigating factor. /d. at 12.

The administrative judge also considered the
appellant’s concern with the effect of melanin on his test
results,’ finding that, although less reasonable than his
constitutional belief, it was not unreasonable because the
theory that caused his concern had once received
“apparently respectable support,” and because false
positive results were possible. He considered the fact that
the appellant submitted to drug testing within two hours
of the time he was required to submit the urine sample
to the agency, and noted that, even though the laboratory
he selected was not on the certified list of the

' The appellant, who is black, had argued that he
was concerned with the accuracy of the drug testing
because of reports that persons with dark pigmentation of
the skin were more likely than persons with light
pigmentation to test falsely positive for cannabinoids. See
Initial Decision at 13: Appellant’s Exhibit H, IAF at Tab
13.

App-28

Department of Health and Human Services (DHHS), it
was accredited and was a subsidiary of SmithKline Bio-
Science, a laboratory that was on the DHHS list;
however, agency officials did not consider the results of
this test, which showed the appellant to be drug-free. /d.
at 13-14.

The administrative judge further determined that the
agency could have imposed discipline short of removal
and then, under its drug-testing provisions, could have
ordered the appellant to undergo follow-up testing or
submit to another test before returning to duty. The
administrative judge noted that the appellant’s refusal to
take the test was discreet and that he did not encourage
others to refuse drug testing. Finally, the administrative
judge found that the appellant’s potential for
rehabilitation was excellent under the circumstances
because of his present willingness to comply with the
agency’s random drug-testing program. Accordingly, the
administrative judge mitigated the penalty to a 45-day
suspension. /d. at 14-16.

In its petition for review, the agency challenges the
administrative judge’s finding that mitigation of the
penalty was warranted.

App-29

The appellant has responded to the petition for
review, and has filed a cross petition for review,”
contending that: (1) The Board should decide the
constitutional issue raised in this case; (2) an exception
should be made to the "obey then grieve” rule where an
employee’s fundamental rights may be irreparably
injured; and (3) no nexus exists between his refusal to
submit to drug testing and the efficiency of the service.
The agency has responded to the appellant’s cross
petition for review.

For facility of discussion, we will address the
agency's petition for review and the appellant’s cross
petition for review in reverse order.

ANALYSIS
The appellant's cross petition for review

With respect to the appellant’s Fourth Amendment
contention, see Appellant’s Brief and Cross Petition for
Review at 16, Petition for Review (PFR) File at Tab 3.
we find that the administrative judge erred in not
addressing the constitutionality of the agency’s random

*Although the appellant’s submission is captioned
"Respondent’s Brief and Cross Appeal,” we will refer to
it in this decision as "“Appellant’s Brief and Cross
Petition for Review."

sl

App-30

drug-testing program. In Malone v. Department of
Justice, 14 M.S.P.R. 403, 406 (1983), the Board held
that it had no authority to consider the constitutionality
of statutes. The instant case, however, does not involve
the constitutionality of a statute. Rather, it concerns the
reasonableness of the agency’s random drug-testing
program. The Board considered this issue in Shelledy v.
Department of Transportation, MSPB Docket No.
DE07528810381, slip. op. at 6-10 (June 21, 1991), and
found that the agency’s random drug-testing of air traffic
control specialists did not violate the constitutional
prohibition against unreasonable search and seizure. The
Board stated that, in determining whether a search is
reasonable, consideration was to be given to the benefits
gained from that search. /d. at 8. The Board found "that
the decrease of the potential catastrophic harm in lives
lost resulting from an impaired ATCS justifie[d] the
agency's program of testing air traffic control specialists,
and, therefore, compel[led] the finding that the agency’s
program of random drug testing, in these circumstances,
was reasonable.” /d. at 8-9. Moreover, we note that, in
American Federation of Government Employees v.
Skinner, 885 F.2d 884, 891-93, 898 (D.C. Cir. 1989),
cert. denied, 110 S. Ct. 1960 (1990), the court
specifically upheld the constitutionality of the agency’s
random drug-testing program.

App-31

In the instant case, we find, likewise, that the
agency's random drug-testing of electronics technicians
does not constitute an unreasonable search. The agency
stated in the notice of proposed removal that random
drug-testing was necessary because the position of
electronics technician involved "immense responsibility
for the lives and property of others” and that "[cJonstant
alertness of mind and soundness of judgment are basic to
the position.” IAF at Tab 3, Subtab F. The agency also
stated that random drug testing was necessary to
"preserve the public’s and user’s confidence” in the
aviation system. /d.

At the hearing, the agency presented the testimony of
its Airway Facility Sector Manager that electronics
technicians performed "very critical work” and that they
“maintain[ed], calibrate[d] and adjust[ed] facilities,
which, if improperly done, could result” in airplane
crashes. Hearing Transcript (Tr.) at 27. The agency also
submitted various statements relating to the high safety
requirement of the appellant’s position, including
Statements from Edward Kelly, Deputy Director of
Systems Maintenance Service at the FAA in Washington,
D.C., and Melvin Yoshikami, Manager of the Airways
Facilities Division of the FAA in Seattle, Washington.
IAF at Tab 18. Mr. Kelly explained the functions of an
electronic technician, which included “servicing of
equipment,” "corrective maintenance,” and responsibility
for "control, navigation, radar and communications

App-32

machinery that allow[ed] safe operation and positive
control of aircraft both in the sky and on the ground at
airports." Id.

Mr. Yoshikami stated that, "[iJn order to perform
their duties satisfactorily, electronics technicians must be
continuously alert and able accurately to examine and
maintain complex electronic equipment," and _ that
improper certification of equipment "could result in
unsafe conditions directly, and potentially tragically,
affecting the national airspace system." Jd. The appellant
does not deny that his position of Electronics Technician
involves serious safety responsibilities as stated by the
agency. Thus, we find that the random drug-testing of
electronics technicians by the agency is reasonable.

We find no merit to the appellant’s contention that
the "obey then grieve" rule should be suspended in this
case. See Appellant’s Brief and Cross Petition for
Review at 14. In Gragg, 13 M.S.P.R. at 299, the Board,
citing Walker v. Birmingham, 388 U.S. 307, reh. denied,
389 U.S. 894 (1967), stated that "individuals do not have
the unfettered right to disregard a law, rule or regulation
merely because substantial reason exists regarding the
constitutionality or validity of that law, rule or
regulation." It noted, though, that “in certain limited
circumstances employees may disobey an order which
would place them in a clearly dangerous situation." /d.

App-33

The circumstances of the instant case do not fall within
this exception. Therefore, we find that the appellant
improperly failed to obey the agency’s instructions.

We also find no merit to the appellant’s contention
that no nexus was shown between his misconduct and the
efficiency of the service. See Appellant’s Brief and Cross
Petition for Review at 13-14. It is well established that
refusal to follow proper instructions adversely affects the
efficiency of the service. See Blevins v. Department of
the Army, 26 M.S.P.R. 101, 104 (1985), aff'd, 790 F.2d
95 (Fed. Cir. 1986) (Table): Gragg, 13 M.S.P.R. at
301. The appellant’s refusal to comply with his
supervisor’s order to submit to drug testing in
accordance with the agency’s random drug-testing
program constituted a refusal to follow proper
instructions. Therefore, a nexus existed between the
appellant’s misconduct and the efficiency of the service.

The agency’s petition for review

The agency challenges virtually every basis on which
the administrative judge relied in finding that mitigation
of the penalty was warranted. The agency contends that
the administrative judge erred in finding that it accorded
better treatment to employees who tested positive for
drugs than to those who might have been drug free, but
who refused drug testing. It argues that it is obligated to
provide reasonable accommodation to employees

App-34

suffering from a drug-addiction handicap, but that, when
employees refuse to take the drug test, it cannot
determine whether they are entitled to reasonable
accommodation. See Agency’s Petition for Review at 10-
11, PFR File at Tab 1. We find that the administrative
judge’s comparison between drug-addicted handicapped
employees and employees who refuse drug testing is
inapposite inasmuch as different types of misconduct and
procedures are involved.

The agency also contends that the administrative
judge erred in relying on a statement by a government
attorney in the motion for injunction brought by the
appellant in the Federal district court. Agency’s Petition
for Review at 11. That attorney stated that, if the
appellant prevailed, the agency’s drug-testing program
might be jeopardized. The agency contends that the
attorney’s statement was not probative of the issues
raised in the instant case, that the attorney was not the
agency’s deciding official, and that the deciding official
had no contact with that attorney. Jd.

The administrative judge referred to the statement in
question in addressing the issue of whether the agency
had predetermined the penalty. See Initial Decision at 9.
In this regard, the administrative judge found that the
agency had predetermined the appellant’s removal based
on the evidence of record, including: (1) The attorney’s
argument before the district court that the drug-testing

App-35

program might be jeopardized if the appellant prevailed;
(2) the agency’s drug-testing order and guidelines
providing that an employee who refused to provide a
urine sample would be removed; (3) the statement of the
agency's coordinator for the drug program that removal
was the general rule for such refusal even though the
employee had a good work record and no prior
discipline; and (4) the testimony of the
proposing/deciding official that he did not prepare either
the proposal notice or the decision letter and was not
aware of the circumstances surrounding the appellant’s
refusal to submit the urine sample. See Initial Decision
at 9- 11.

The record does not support the administrative
judge’s finding that the agency had predetermined the
penalty. Melissa Allen, the agency’s Deputy Assistant
Secretary for Administration, submitted an affidavit in
regard to this issue. See Appeal File, Tab 18, Agency
Exhibit No. 14. In her affidavit, Ms. Allen averred that
the agency’s procedures required the initiation of action
to remove an employee who occupied a safety or security
sensitive position and who refused to provide a urine
sample for an agency-administered test. She noted that
Chapter X, Section III.B., of the Drug Testing Guide
Stated that the supervisor should initiate action to remove
an employee for failure to take a drug test. See id;
Agency Exhibit No. 12. The initiation of a removal
action, however, is not equivalent to mandating removal.

App-36

Ms. Allen further averred as follows:

The Department also recognizes that the ultimate
decision concerning the appropriate type of
disciplinary action that may be imposed depends
upon the circumstances of each individual case.
In fact, I am aware that in the case of at least two
DOT employees who refused to submit to a
random drug test and received notices of
proposed removals, the respective deciding
officials ultimately determined that removal was
unwarranted and lesser penalties were imposed.

Agency Exhibit No. 14.

Additionally, the deciding official testified that he had
not been directed by anyone to remove the appellant and
that he considered mitigation of the penalty. See Tr. at
24-25, 26. While he stated that he felt his discretion was
somewhat limited by the drug program’s disciplinary
provisions, he felt that he had the authority to assess the
appropriate penalty. Jd. at 25, 35. He gave two specific
examples of circumstances he felt would have warranted
a lesser penalty and stated that he would consider any
other reason offered to him. Jd. at 32-33, 37.

App-37

The administrative judge erred in concluding that the
fact that the deciding official listed only two specific
mitigating circumstances showed that he failed to
properly consider mitigation. It is not a deciding
official’s responsibility to provide a list of circumstances
that might have caused him to adopt a lesser penalty.
Rather, the deciding official is only required to consider
all of the relevant mitigating factors that actually exist in
a given case and exercise management discretion within
tolerable limits of reasonableness. See Spearman vy.
United States Postal Service, 44 M.S.P.R. 135, 141
(1990); Gleason v. Department of the Army, 38
M.S.P.R. 547, 550 (1988). In the instant appeal, the
deciding official testified that he considered mitigation
but believed that the offense was very serious, that if a
lesser penalty were imposed it would render the agency’s
drug program ineffective, and that it would send a
message to the work force that employees could avoid
taking the drug test. Tr. at 26-27, 29. Thus, we find that
the deciding official properly considered the
appropriateness of the penalty and that the administrative
judge’s conclusion that the deciding official "had merely
gone through the motions of decision-making" is
unsupported by the record. Initial Decision at 9-10.
Likewise, we find unsupported by any legal or other
authority the administrative judge’s determination that the
deciding official’s lack of personal knowledge of the case
and the fact that he did not prepare either the proposal or
the removal notices constituted mitigating factors. See

App-38

Initial Decision at 10-11. Cf Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 306 (1981) (the Board
will review an agency-imposed penalty only to determine
if the agency considered all the relevant factors and
exercised management discretion within tolerable limits
of reasonableness).

Additionally, we find that the appellant received
timely and adequate notice of the test and was clearly on
notice of the consequences of his failure to submit to the
test. See Appeal File, Tab 3(F). The appellant’s reliance
on his attorney’s advice is unpersuasive as a mitigating
factor because it is well established that an employee
must obey a proper supervisory order and challenge it
later. See Gragg, 13 M.S.P.R. at 299. The appellant’s
action of taking a drug test on his own did not constitute
compliance with his supervisor’s orders, and sanction of
such behavior would seriously undermine the agency’s
drug-testing program. In this regard, we disagree with
the administrative judge’s statement that a lesser penalty
would not affect the drug-testing program because the
appellant had been discreet. We find that this view is
unrealistic inasmuch as such a matter generally becomes
common knowledge among the workforce and would
tend to influence other employees’ behavior.

App-39

Finally, we note that the administrative judge relied
heavily on his assessment that the appellant was a good
prospect for rehabilitation, in large part because the
administrative judge determined that the appellant had
subsequently indicated his willingness to comply with the
agency’s drug-testing program. The appellant, however,
did not give an unqualified statement that he would
comply. At the hearing, the appellant was asked if he
was refusing to take the test at that time. He answered,
"No." When asked why he had changed his position, he
Stated:

I have a little better understanding about it, about
the whole program. I think that if I was going to
random urinalysis from the Government now, I
think that I would insist -- I wouldn’t request, but
I would insist -- on having a sample sent to a
laboratory of my choice, or I would escort them
with a sample of my urine to a laboratory of my
choice so that I could make sure that their system
is reliable.

Tr. at 49.

The appellant’s testimony is not an unqualified
statement of his intent to comply with future orders.
Rather, it seems to impose a significant condition and
change the agency’s program. Thus, we find
distinguishable from the instant appeal the Board's

App-40

decisions in Mode, 20 M.S.P.R. at 231, and Grissom v.
Tennessee Valley Authority, 7 M.S.P.R. 387, 388
(1981), upon which the administrative judge relied in
finding that the appellant’s “objectively reasonable, albeit
mistaken, belief" that the agency’s drug-testing program
violated his constitutional rights was a mitigating factor
to be considered in determining the reasonableness of the
penalty. See Initial Decision at 12-13. In Mode, 20
M.S.P.R. at 231, the Board found that the appellant was
unaware that he could have obeyed the agency’s order
and then taken appropriate action to determine his
constitutional nmghts but that, once he understood his
rights, he would not continue to refuse to comply with
the agency’s directive. In Grissom, there was no
indication that the appellant would continue to refuse to
comply with the agency’s orders. In the present appeal,
however, the evidence indicates that the appellant, who
now understands his rights, will continue to refuse to
fully comply with the agency’s drug-testing program.
Thus, he lacks a good potential for rehabilitation. Mode,
20 M.S.P.R. at 231.

Therefore, despite the favorable mitigating factors,

including the fact that the appellant tested negative for
drug use, and his 11 years of satisfactory service, we

App-41

find that removal was reasonable under the circumstances
of this case.’ See Douglas, 5 M.S.P.R. at 306.

ORDER

This is the Board’s final order in this appeal. See 5
C.F.R. § 1201.113(c).

NOTICE TO APPELLANT

You have the right to request the United States Court of
Appeals for the Federal Circuit to review the Board’s
final decision in your appeal if the court has jurisdiction.
See 5 U.S.C. § 7703(a)(1). You must submit your
request to the court at the following address:

*In finding the penalty of removal warranted in the
instant case, we note the agency’s contention, in its
response to the appellant’s cross-petition for review, that
the administrative judge issued inconsistent decisions as
to mitigation of the penalty in this case and in Nichols v.
Department of Transportation, MSPB Docket No.
SE07528910208 = (Initial Decision, June 28, 1989),
petition for review denied, 43 M.S.P.R. 154 (1989)
(Table). We need not consider this contention here,
however, because we have found that mitigation of the
penalty is not warranted and also because initial
decisions do not have precedential effect. See Clark v.
Department of the Navy, 12 M.S.P.R. 428, 429 (1982).

App-42

United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439

The court must receive your request for review no later
than 30 calendar days after receipt of this order by your
representative, if you have one, or receipt by you
personally, whichever receipt occurs first. See 5 U.S.C.
§ 7703(b)(1).

FOR THE BOARD: __/s/ Robert E. Taylor
Robert E. Taylor

Clerk of the Board

Washington, D.C.

App-43

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEATTLE REGIONAL OFFICE

GERALD B. WATSON, JR., 1) DOCKETNUMBER
) SE07528910074

)
Appellant, )
) DATE: April 21, 1989

v. )

DEPARTMENT OF
TRANSPORTATION,

Agency.

Michael McGrady, Esquire, Eugene, Oregon, for
the appellant.

John J. Callahan and Paul S. Smith, Esquires,
Seattle, Washington, for the agency.

BEFORE

John W. Tapp
Administrative Judge

App-44
INITIAL DECISION

INTRODUCTION

On December 22, 1988, Gerald B. Watson, Jr.,
appealed to the Merit Systems Protection Board (the
Board) from the action of the Federal Aviation
Administration (FAA) removing him, effective
December 4, 1988, from his position as an Electronics
Technician with Airway Facilities Sector Field Office in
Eugene, Oregon. The agency’s action was based on a
charge of "refusal to provide a urine specimen as a part
of a random drug test authorized by Executive Order
12564" and by two agency orders.

The Board took jurisdiction over the appeal pursuant
to 5 U.S.C. §§ 7511(a)(1)(A), 7512(1), 7513(d), and
7701(a). At appellant’s request, a hearing was held on
March 9, 1989, in Portland, Oregon.

For the reasons explained below, the agency action
is MITIGATED to a forty-five (45) day suspension.

App-45
ANALYSIS AND FINDINGS

Legal standard

To sustain an adverse action before the Board, an
agency must establish, by a preponderance of the
evidence, that there is a factual basis for the conduct
charged and that disciplinary action, based on the proven
conduct, promotes the efficiency of the service. See 5
U.S.C. §§ 7513(a) and 7701(c)(1)(B). The "efficiency
of the service" requirement includes a showing that some
disciplinary action is warranted (the "nexus"
requirement) and that the particular penalty is within the
limits of reasonableness. Thus, three distinct elements
must be proven in any adverse action. Douglas vy.
Veterans Administration, 5 M.S.P.R. 280, 302-3, 306
n.67, 307-8 (1981).

Background facts

Around noon on Thursday, August 18, 1988.
appellant was informed by his supervisor, Dean Stead,
that he had been randomly selected for drug testing that

App-46

day.' At that time, appellant had been with the FAA as
an Electronics Technician in Eugene, Oregon, for almost
eleven years.

All of his performance appraisals during that time
had been "fully satisfactory." The test was not related
to appellant’s performance. Mr. Stead had no reason to
suspect that appellant was using drugs. Selection of
appellant for testing was totally random. See stipulations
#1, 2, 12, and 14b. (Board file tab 16).

The test was being conducted pursuant to agency
Orders 3910.1 and 3910.6 (agency tab L), both relating
to maintenance of a drug-free workplace as directed by
Executive Order 12564, 51 Fed. Reg. 32889 (1986),
"Drug-Free Federal Workplace" (agency tab K). (Board
file tab 3). The agency had implemented its program in
September 1987. It provided for random testing of FAA
employees in "safety and security critical positions."

‘Accounts of the events of August 18, 1988, were
consistent with each other. See, e.g., handwritten memo
by Dean Stead (agency file tab G, under Board file tab
3); hearing testimony of appellant (transcript, pp. 46-48);
and stipulation #14 (Board file tab 16). I found no reason
to doubt appellant’s account of his separate activities.

App-47

The drug testing personnel were at lunch when Mr.
Stead talked with appellant at noon on August 18. Stead
told appellant to return at 1:30 p.m.

Appellant checked the telephone book for a lawyer
specializing in constitutional issues and reached Michael
McGrady, his present representative. Mr. McGrady
advised appellant that the test was unlawful under the
Fourth Amendment and that he could refuse to take it.
Appellant agreed and retained McGrady. He returned to
work at approximately 1:00 p.m. to have Stead call
McGrady. McGrady informed Mr. Stead of appellant’s
position.

Very shortly thereafter, at McGrady’s request,
appellant went to the White Bird Clinic in Eugene,
Oregon. At 3:30 p.m., he provided a urine sample. That
sample was sent to the International Clinical Laboratories
(ICL) in Seattle, Washington, where it was tested using
thin layer chromatography. See Declaration of Dr. Teh
Wang. (Board file tab 19). Appellant tested “negative”
(drug free) for twelve specified illegal drugs including
marijuana (cannibinoid) and cocaine. See test results,
appellant’s exhibit E. (Board file tab 13). These results
were given to the agency on August 23, 1988.
(Appellant’s testimony, Tr. 48).

App-48

Also on August 23, 1988, appellant filed for
declaratory and injunctive relief in U.S. District Court.
On August 31, 1988, the agency proposed appellant’s
removal. (Agency tab F).

On October 5, 1988, Mr. McGrady responded in
writing to the proposal on appellant’s behalf. (Agency
tab D). Therein, Mr. McGrady stated, at page 2, that if
appellant did not prevail in his constitutional challenge,
he would "submit to any future random testing required
by the agency."

By “Opinion” dated October 24, 1988, Judge Helen
J. Frye granted the government’s motion to dismiss
appellant’s Federal court challenge on the ground that the
Civil Service Reform Act (CSRA) provided the exclusive
remedy for appellant, including his constitutional claim.
(Agency tab C). By letter dated November 10, 1988, the
agency advised appellant that he was being removed
from employment. (Agency tab B). Donald G. Coones,
Manager of the Portland Airway Facility Sector, was the
proposing and deciding official. At the Board hearing,~
appellant testified that he refused the test, on the advice
of his attorney, because he felt it violated his Fourth
Amendment right to be safe from unreasonable searches.
At the time of the test, he was also concerned about the
possibility of a "false positive” due to unreliable testing
procedures. In this regard, he had been under the
impression that black people, such as himself, were more

App-49

likely to test positive for cannabinoids due to the
presence of melanin in their skin pigmentation. (Tr. 45-
46). Finally, he testified that, based on information he
had acquired since his removal, he would not now refuse
to submit to random testing. (Tr. 55-56).

Proof of conduct

There is no question that appellant refused to
provide a urine specimen as required by the agency’s
drug-testing program. In his reply to the agency’s
removal proposal and in his appeal petition (Board file
tab 1), appellant argued that, by providing a urine
sample to the White Bird Clinic within the time frame
mandated and by giving the ICL test results to the
agency, he essentially complied with the agency’s
requirement and thus there was no "refusal."

Appellant did not press this argument as the appeal
progressed and with good reason. An employee does not
have discretion to substitute his preferred approach for
the agency’s required procedure. While appellant’s
"alternative test" can and should be considered in
assessing the reasonableness of the penalty, it does not
render him innocent of the conduct charged. He did not
provide a urine sample "as a part of" a random drug test
authorized by Executive and agency orders.

App-50

Appellant’s only other defense was that he was not
obligated to comply with the agency’s requirement
because it violated his right’ under the Fourth
Amendment. Employees are required to comply with
agency orders or directives, even if they are invalid, and
challenge them later through appropriate means. See
Gragg v. United States Air Force, 13 M.S.P.R. 296, 299
(1982) (employee does not have the right to disregard an
order merely because there is substantial reason to
believe it is not proper; except in certain limited
circumstances where obedience would pose clear danger,
employee must first comply with the order and then
register his complaint or grievance), appeal dismissed
sub nom. Gragg v. United States, 717 F.2d 1343 (Fed.
Cir. 1983).

Appellant argued that the Gragg rule should not
apply where failure to obey is based on a constitutional
claim. I find no support for that argument. To the
contrary, in at least two cases, the Board has refused to
reach a constitutional claim under similar circumstances.

In Mode v. Tennessee Valley Authority, 20M.S.P.R.
228, 230 (1984), the Board refused to determine whether
a regulation subjecting employees to unannounced
searches was lawful, stating that the Gragg rule applied.
And in Clark v. Department of the Navy, 20 M.S.P.R.
152, 154 (1984) the Board refused to determine the
legality of a search, saying the appellant had no right to

App-51

resist the officers’ request "even assuming the invalidity
of their search."

Finally, appellant argued that the agency should be
estopped from arguing that the Board should not reach
the Fourth Amendment claim because agency attorneys,
including Paul Smith, one of the two agency
representatives for this appeal, argued for dismissal of
appellant’s Federal court action on the ground that the
Board would decide the issue and was, in fact, the
exclusive avenue of relief. I agree that the agency did
make that argument. See "Transcript of Telephone
Conference Proceedings before the Honorable Helen J.
Frye,” pp. 4 and 25, appellant’s exhibit D. (Board file
tab 13).

I do not, however, feel application of estoppel is
appropriate. First, there is no evidence that the agency’s
attorneys knowingly misrepresented the Board’s
jurisdiction or authority. Second, the Board’s case law
was available to appellant’s counsel (and the Court) at
the time of the U.S. District Court proceeding. And,
third, if the Court was either misled and/or erroneous in
its ruling, appellant assumedly may, and more logically
should, return to that forum for relief.

App-52

Thus, I find that appellant dia | efuse to provide a
urine specimen as charged and that his refusal was
actionable regardless of the constitutional validity of the
agency’s random drug testing program.

Nexus

Appellant argued there was no nexus in this case. In
essence, his argument was that 1) the agency had no
reason to believe he was in any way involved with illegal
drugs, 2) there was no evidence of any deficiencies in
his job performance, and 3) regardless, drug testing does
not measure job impairment nor can it establish cause
and effect.’ |

*Appellant also proffered a statement by Dr. Herbert
H. Severson to demonstrate that employers could develop
objective psychological and neuropsychological tests
which actually measure performance impairment, thus
allowing inquiry into the cause. These could be used in
lieu of drug tests which, in effect, presume a cause (drug
use) which may affect performance. See appellant’s
exhibit C. (Board file tab 13). This statement was
originally offered and accepted before I ruled that I
would not address the Fourth Amendment issue. It was
offered to establish there were other less-intrusive and
more directly performance-related means to test for
on-the-job impairment.

ee

App-53

In Mode v. Tennessee Valley Authority, 20M.S.P.R.
at 230-31, the Board rejected a finding of no nexus
where an employee refused to sign a consent to search
form. The presiding official had found that an adverse
action based on an employee’s failure to consent to
something which the agency already had the authority to
do did not promote the efficiency of the service. The
Board reversed this finding, however, Stating that:

there is a causal connection between an
employee’s refusal to comply with what the
agency believes are properly promulgated
instructions and the efficiency of the service.
Failure to follow instructions or abide by
requirements impacts on the agency’s ability to
carry Out its mission. Further, the agency
believes that smooth Operation and
administration of its security functions demands
that every employee agree to the search
provisions, and has effectively made such
agreements a condition of employment. [cite
omitted].

Likewise, in this case, the agency has promulgated
a program, pursuant to an Executive Order mandating a
drug-free workplace, which includes random testing.
This testing has become a condition of employment. The
fact that there may be better and less intrusive means to
achieve the same end does not change that fact. As long

App-54

as the random drug testing program is in place, all
employees must comply with it or be prepared to accept
the consequences of an adverse action for cause which
promotes the efficiency of the service.

Reasonableness of the penalty

In Douglas, 5 M.S.P.R. at 305-6, the Board held
that its role was not to insist on a specific, appropriate
penalty but, rather, to assure that the agency
conscientiously considered all relevant factors and
selected a penalty which was within the tolerable limits
of reasonableness.’ To assist in this review, the Board
provided a number of non-exclusive factors which would
normally be pertinent. After reviewing the relevant
factors in this case, I find that the agency abused its
discretion and that the penalty is beyond the tolerable
limits of reasonableness.

Before turning to the penalty discussion per se, I
must address two issues. The first is the nature of the
offense. In the context of hearing preparations and
settlement discussions, I characterized the offense as a
type of insubordination for purposes of assessing the
reasonableness of the penalty.

*This is essentially an “abuse of discretion standard."
See Beard v. General Services Administration, 801 F.2d
1318 (Fed. Cir. 1986).

App-55

In his Post-Trial Brief, appellant argued that his
conduct did not constitute insubordination. The agency,
in its Post-Trial Brief, argued that appellant’s conduct
was essentially a refusal to report for a fitness-for-duty
exam and relied on cases involving that charge to support
removal.

The parties’ arguments have convinced me that I
erred by analogizing the charge in this case. It was
unnecessary and inappropriate and has led the parties off
on tangents. The agency charged appellant with refusal
to provide a urine sample, not insubordination. I do not
find the agency’s analogy to fitness-for-duty exams
appropriate. Cases in that area involve a refusal to obey
an order or a directive arising from specific problems
with an individual employee’s performance or conduct.

The second issue is whether the penalty of removal
was predetermined. There was certainly a significant
amount of evidence which suggests that the agency has
made an institutional decision, both explicit and implicit,
that removal is the only possible penalty for refusal to
consent to drug testing. This determination apparently
rests on a belief that failure to remove a refusor will
destroy the entire random testing program.

For example, the agency’s Appendix I, Order
3910.1, "Drug Free Departmental Workplace," dated
June 29, 1987 (agency tab L) and the DOT "Drug

App-56

Testing Guide," dated March 31, 1988 (agency exhibit
12, Board file tab 18), essentially set up a program
whereby an employee who tests positive for illegal drugs
will be reassigned to non-safety sensitive duties, referred
for rehabilitation, and returned to work once
rehabilitation is completed with special follow-up testing
for one year. See Appendix I, Chap. III, § 4-G and
Chap. IV, §§ 1 and 5 and "Guide," Chap. X, § IV-A.
No such contingencies exist for an employee who, for
whatever reason, refuses to provide a urine sample. That
employee "will be removed from the Federal service."
See Appendix I, Chap. VI, §1-C. See also "Guide,"
Chap. X, §§ III-B and C.

In his argument to U.S. District Judge Frye, agency
attorney Richard Lepley stated:

I don’t think one is suggesting that plaintiff
[appellant] is using illegal drugs here. What is
at stake is the entire program, the entire non-
particularized suspicion program that Congress,
the President, and the agencies have worked so
long and so hard to develop. If we allow the
plaintiff to avoid random testing or to refuse to
submit to such testing, it will really grind to a
halt the entire program and the only ones we’ll

App-57

test are non-users since any drug use [sic] will
simply refuse to submit because they know they
wouldn’t be penalized. (Transcript, p. 8,
appellant’s exhibit D).

And, in her March 6, 1989, "Declaration," Melissa
J. Allen, Deputy Assistant Secretary for Administration
and national coordinator of the agency’s Drug Free
Departmental Workplace Program, reasons that, if any
employee refuses to comply with drug testing
procedures, management will be unable to ascertain the
employee’s continuing fitness for duty. Thus, she states,
in the last two pages of her declaration, that:

although I am aware that the FAA and other
operating administrations in DOT have issued
employee conduct and discipline regulations
(including tables of penalties), it is important to
point out that the Department, in issuing DOT
Order 3910.1 and the DOT Drug Testing
Guide, intended to limit agency discretion at the
proposing official level to propose disciplinary
action other than removal in the case of a
_ Tefusal to submit to a required drug test...given
- the responsibilities of those employees subject
to random drug testing and the serious nature of
such insubordination, the Department remains
firm in its belief that removal from the Federal
service is warranted as a general rule...even if

App-58

those employees previously had good work
records and no prior discipline.

The agency representatives in this appeal made the same
argument. See agency briefs. (Board file tabs 25 and 26).

Finally, Donald Coones, purportedly the proposing
and deciding official in this case, left me with the clear
impression that he had merely gone through the motions
of decision-making. In response to the agency
representative’s question whether he had "felt constrained
by the program’s requirement for removal," he
responded, "to some point" (Tr. 35-36), but still
maintained he had discretion to select a lesser penalty.
(Tr. 25). I did not find him convincing on this point.
Neither his affect, his demeanor, nor the substance of his
responses suggested that he had in fact exercised any
discretion.

He did not prepare either the proposal letter (Tr. 19)
or the decision letter. (Tr. 23). As to the latter, Coones’
testimony was as follows:

Q . . . What were the circumstances
surrounding its preparation, the background, if
you will?

A_ I really know very little about that as
personal direct knowledge because I was

App-59

waiting on Vern Harkins to provide it. He had
various problems, I think, with getting it
cleared and getting it through whoever had to
approve it.

Coones repeated the standard agency rationale for
removal, beginning as follows:

Well, a major consideration was that this was a
job performance related incident. There’s a
condition of employment within the FAA as an
Airway Facilities Technician. He certifies
facilities. He has to submit to a drug test. And
he, according to all the information that I had,
had not only willfully [sic] refused to submit,
but he -- I’m sorry. I lost my train of thought.

(Tr. 26)

See also Tr. 29, 33-34.

The only mitigating circumstances he would have
accepted were appellant admitting he was a "user" and
agreeing to go into rehabilitation, or appellant
establishing lack of notice that the test was required.
(Tr. 24, 32, 36-37). Coones was not aware of any of
the details regarding the drug test appellant took (Tr. 37-
38) and it "[p]robably would not have changed [his]
decision" even if the test was accurate and reliable.

(Tr. 41).

App-60

Thus, it is certainly questionable whether there was
any consideration of the specific facts of this case in
arriving at the penalty. See Douglas, 5 M.S.P.R. at 303
("fundamental requirement that agencies exercise
responsible judgment in each case, based on rather
specific, individual considerations, rather than acting
automatically on the basis of generalizations unrelated to
the individual situation.").

However, even if I assume, for purposes of this
decision, that Coones, or someone in the agency,
considered the relevant factors and exercised some
judgment, the penalty is still beyond the tolerable limits
of reasonableness.

It is true that appellant had adequate and timely
notice of the drug-testing requirement and_ the
consequences of refusal to comply. See agency exhibits
1 and 2, and stipulation #15. It is li+-wise true that
refusal to comply with agency requirements generally,
and a drug testing program in particular, is a serious
kind of offense, especially where, as here, appellant

App-61

occupied a "safety critical" position.* However, there
are a number of more significant mitigating factors.

First, there is little doubt that appellant’s refusal was
based largely on a belief that random testing was an
unconstitutional invasion of his rights under the Fourth
Amendment. I found credible appellant’s testimony that
he originally discussed the matter in September 1987
with a lawyer for the American Civil Liberties Union
(ACLU), Dave Fidancke, who told him that random
searches were unconstitutional. (Tr. 45-46). And, it is
uncontested that Mr. McGrady, a lawyer specializing in
constitutional issues, advised appellant that he could
refuse to be tested for this reason. Thus, appellant had
an objectively reasonable basis for his decision to refuse.

The lawyers’ advice, though ultimately wrong, was
not unreasonable.* Although employee drug testing
appears to be gaining general approval in the courts, this

“See, e.g., Stipulations #2-10; March 3, 1989,
"Declaration of Melvin Yoshikami" (agency exhibit 16):
March 7, 1989, "Declaration of Edward M. Kelly"
(agency exhibit 15); and appellant’s testimony (Tr. 50-
54).

‘It was wrong because appellant is subject to the
“obey now, contest later" rule, a rule that only lawyers
specializing in labor law or personnel work might
reasonably be expected to know.

App-62

is a fairly recent development. Such testing continues to
be viewed with skepticism in many sectors of our
society.© And not all members of the Supreme Court are
willing to sanction such testing. See, e.g., dissenting
opinions of two Justices in Skinner v. Railway Labor
Executives’ Association, 57 U.S.L.W. 4324, 4333 (U.S.
Mar. 21, 1989) (testing of railroad workers after an
accident), and of four Justices in National Treasury
Employees Union v. Von Raab, 57 U.S.L.W. 4338, 4344
(U.S. Mar. 21, 1989) (suspicionless testing of employees
seeking promotion to positions involving interdiction of
illegal drugs or requiring carrying of firearms). The
Supreme Court has not yet decided a case involving pure
random testing. The lower courts have struggled mightily
with this issue. See, e.g., Lovvorn v. City of
Chattanooga, 846 F.2d 1539 (6th Cir. 1988) (mandatory
agencywide urinalysis testing of firefighters without
reasonable suspicion violates Fourth Amendment), and
cases collected therein, at 1544-45; panel decision
vacated and rehearing en banc granted, 861 F.2d 1388
(1988).

Thus, I conclude that appellant had a genuine and
objectively reasonable, albeit mistaken, belief that he
could legitimately refuse testing on Fourth Amendment
grounds. In at least two cases, the Board has relied upon

°See, e.g., the authorities collected as appellant’s
exhibit H, under Board file tab 13.

App-63

such a belief as a significant mitigating factor in
generally similar circumstances. See Mode, 20 M.S.P.R.
at 231 (removal mitigated to 30-day suspension for
refusing to sign consent-to-search form where
employee’s belief that he was being deprived of his
constitutional rights "a matter of serious concern to
him"), and Grissom v. Tennessee Valley Authority,
7 M.S.P.R. 387, 388-89 (1981) (removal mitigated to a
15-day suspension for foreman’s refusal to allow routine
search of vehicle in parking lot where employee had "a
deep conviction that the agency was acting
unconstitutionally").

Appellant’s distrust of the accuracy and reliability of
the program was perhaps less reasonable, but still not
unreasonable. The "melanin problem," though now
discounted, once had apparently respectable support. See
Dubowski, "Drug-Use Testing: Scientific Perspectives,"
11 Nova L. Rev., 415, 516-17 (1987). (Appellant’s
exhibit H). And, as several articles submitted by
appellant (exhibit H) demonstrate, many reputable
authorities still believe that even state-of-the-art drug
testing is not foolproof. False positives are still a
possibility. And, while appellant could have been more
diligent in doing the investigation that would have
allayed his fears on this score, his skepticism that the
agency could and would objectively evaluate its own
program was understandable, especially given the New
York Times’ account of the agency’s alleged duplicity in

App-64

regard to fabricated findings from an earlier drug-testing
program. See appellant’s exhibit .G. According to
appellant, ACLU attorney Fidancke gave him a copy of
this article during their September 1987 meeting.

The agency representatives’ argument that appellant
had to be removed because, without the agency’s test, a
determination could not be made as to whether appellant
was fit for duty is specious. First, appellant had
performed in a satisfactory manner in the same position
for all eleven of his preceding years with the agency and
there was no reason to believe he was using drugs.

Second, appellant did submit to a drug test within
two hours of the time he was to provide a urine sample
for the agency. From all appearances, that test was as
accurate and reliable as the agency’s. See “Declaration
of Dr. Teh Wang," appellant’s exhibit B (Board file tab
19), and “Declaration of Verna Fowler," appellant’s
exhibit A (Board file tab 13). These documents indicate
that appellant’s private test employed all the accepted
procedures. And, while the specific laboratory which
actually performed the test (ICL) is not on the
Department of Health and Human Services’ certified list,
Dr. Wang states that it is otherwise accredited. He also
States that it is a subsidiary of SmithKline Bio-Science
which I note is on the list. See 54 Fed. Reg. 7475 »
(Feb. 21, 1989), agency exhibit 10. This alternate test
did not obviate the need for discipline, but it was strong

a

App-65

evidence that appellant was in fact drug-free and that he
was acting in good faith on his Fourth Amendment
challenge. Yet agency officials showed no interest in the
test, or its results, whatsoever.

Third, if appellant had been returned to his position
after discipline short of removal, the agency’s drug-
testing provisions provide for unannounced follow-up
testing for one year. See Appendix I, § 4-G. Assumedly,
the agency could even have required appellant to submit
to another test before his return to duty and again taken
discipline, this time more severe, if appellant did not
comply.

Under these circumstances, appellant’s refusal could
not have left the agency uncertain about his fitness for
duty and it did not deprive the agency of the means to
monitor his future fitness on a regular basis.

Nor would discipline short of removal "grind to a
halt the entire program." As the Board stated in
Grissom, 7 M.S.P.R. at 388-89, in response to a similar
agency argument: .

We doubt that the reduction of the respondent’s
penalty would have this effect since the agency
is free in each case to impose a Suspension and
would be free to impose any appropriate
penalty upon further violations.

= :, _ :

App-66

Here, not only would the agency have the previously-
mentioned authority to conduct unannounced follow-up
testing of refusors, but there is no requirement that the
agency merely suspend other refusors, unless their cases
present the same, or equally compelling, circumstances
calling for mitigation.

Along these same lines, there is no evidence that
appellant has attempted to encourage other employees to
refuse testing, nor has he done anything to publicize his
act of disobedience. To the contrary, from all
appearances, appellant has been discrete and has
confined his activities to legal forums.

Further, appellant is an excellent prospect for
rehabilitation. He did not commit his offense maliciously
or for personal gain. He did not know, at the time he
refused to comply, that he could submit to the test and
still challenge its legality. Having learned that, and
having satisfied himself of the accuracy and reliability of
the agency’s program, he has indicated his present

App-67

willingness to comply. Thus, he is an excellent candidate
for rehabilitation.’ See Mode, 20 M.S.P.R. at 231.

Thus, I find that, considering all the relevant factors
-- most notably, appellant’s eleven years of Satisfactory
service, the principled basis for his refusal, the fact that
he is drug-free, and his good potential for rehabilitation
-- removal is beyond the tolerable limits of
reasonableness. The maximum reasonable penalty is a
suspension. See Id., and Grissom, 7 M.S.P.R. 387. See
also Depte v. United States, 715 F.2d 1481, 1483 (Fed.
Cir. 1983) (Board’s presiding official reduced removal
to a 90-day suspension for a food service worker who
resisted and assaulted a VA police officer who had
probable cause and was attempting to search her for
theft). The agency did not consider all the relevant
factors and abused its discretion in imposing removal.

"Appellant did have one prior 3-day suspension for
“obscene language to a supervisor" in 1982. However,
no details of this offense were presented and the agency
did not appear to rely on it in arriving at the penalty in
this case. It is remote in time and there is no evidence to
suggest that it is part of a pattern of defiance to authority
generally.

App-68
DECISION

The agency’s action is MITIGATED to a forty-five
(45) day suspension.

ORDER

The agency is ORDERED to cancel the removal and
substitute in its place a 45 day suspension without pay.
This action must be accomplished no later than 20
calendar days after the date this initial decision becomes
final.

The agency is also ORDERED to issue a check to
appellant for the appropriate amount of back pay, with
interest, and benefits in accordance with the Office of
Personnel Management’s regulations, no later than 60
calendar days after the date this initial decision becomes
final. Appellant is ORDERED to cooperate in good faith
with the agency’s efforts to compute the amount of back
pay and benefits due and to provide all necessary
information requested by the agency to help it comply.

If there is a dispute about the amouni of back pay
due, the agency is ORDERED to issue a check to
appellant for the undisputed amount no later than 60
calendar days after the date this initial decision becomes
final. Appellant may then file a petition for enforcement
with this office to resolve the disputed amount.

a)

App-69

The agency is further ORDERED to inform
appellant in writing of all actions taken to comply with
the Board’s Order and the date on which it believes it
has fully complied. If not notified, appellant should ask
the agency about its efforts to comply.

FOR THE BOARD: /s/ John W. Tapp

John W. Tapp
Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on May 26.
1989, unless a petition for review is filed by that date or
the Board reopens the case on its own motion. This is
an important date because it is the last day on which you
can file a petition for review with the Board. The date on
which the initial decision becomes final also controls
when you can file a petition for review with the Court of
Appeals for the Federal Circuit. The paragraphs that
follow tell you how and when to file with the Board or
the federal court. These instructions are important
because if you wish to file a petition, you must file it
within the proper time period.

App-70
BOARD REVIEW

You may request Board review of this initial
decision by filing a petition for review. Your petition for
review must state your objections to the initial decision,
supported by references to applicable laws, regulations,
and the record. You must file your petition with:

The Clerk of the Board
Merit Systems Protection Board
1120 Vermont Avenue, NW., Suite 802
Washington, DC 20419

Your petition must be postmarked or hand-delivered no
later than the date this initial decision becomes final. If
you fail to provide a statement with your petition that
you have either mailed or hand-delivered a copy of your
petition to the agency, your petition will be rejected and
returned to you.

JUDICIAL REVIEW

If you are dissatisfied with the Board’s final
decision, you may file a petition with:

The United States Court of Appeals
for the Federal Circuit
717 Madison Place, NW.
Washington, DC 20439

ae eeeeeeeeemmmeanaiiiiiatt eal

App-71

You may not file your petition with the court before this
decision becomes final. To be timely, your petition must
be received by the court no later than 30 calendar days
after the date this initial decision becomes final.

ATTORNEY FEES

If no petition for review is filed, you may ask for the
payment of attorney fees by filing a motion with this
office no later than 20 calendar days after the date this
initial decision becomes final. Any such motion must be
prepared in accordance with the provisions of 5 U.S.C.
§ 7701(g), 5 C.F.R. § 1201.37(a), and applicable case
law.

ENFORCEMENT

If, after the agency has informed you that it has
fully complied with this decision, you believe that there
has not been full compliance, you may ask the Board to
enforce its decision by filing a motion with this office no
later than 30 calendar days after the date of the agency’s
notification of compliance.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for
review of this initial decision in accordance with the
Board’s regulations.

App-72

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

91-3558

GERALD B. WATSON, JR.,

Petitioner,

DEPARTMENT OF TRANSPORTATION,

Respondent.

ORDER

ORDER

A combined petition for rehearing and suggestion
for rehearing in banc having been filed by the
PETITIONER, and the petition for rehearing having
been referred to the panel that heard the appeal, and
thereafter the suggestion for rehearing in banc having
been referred to the circuit judges who are in regular

active service,

App-73
UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be, and
the same hereby is, DENIED, and it is further

ORDERED that the suggestion for rehearing in banc
be, and the same hereby is, DECLINED.

The mandate of the court will issue on January 5, 1993.
Circuit Judge NEWMAN would rehear the appeal.

Dated: December 29, 1992

FOR THE COURT,
FRANCIS X. GINDHART, CLERK

By /s/ Diane M, Frye _
' Diane M. Frye
Chief Deputy Clerk

cc: JOEL S. DEVORE
ALLEN D. BRUNS

WATSON V TRANSPORTATION, 91-3558
(MSPB - SE0752890074I-1

Note: Pursuant to Fed. Cir. R. 47.8, this order is
not citable as precedent. It is a public record.

App-74

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

91-3558
GERALD B. WATSON, JR.,

Petitioner,

DEPARTMENT OF TRANSPORTATION,

Respondent.
Judgment

ON APPEAL from the Merit Systems Protection Board
in CASE NO(S). SE0752890074I-1

This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED: AFFIRMED

DATED NOV 18 1992

ENTERED BY ORDER OF THE COURT

/s/ Francis X, Gindhart _
Francis X. Gindhart, Clerk

App-75
COSTS: Against, Petitioner.
PRINTING ----------------- $292.16
TOTAL --------------------- $292.16

ISSUED AS A MANDATE: January 6, 1993

App-76

DOT 3910.1 Page VI-1
6-29-87

CHAPTER VI
DISCIPLINARY ACTION
SECTION 1. GENERAL.

Disciplinary action as set forth below will be taken
under each of the described circumstances:

A. Refusal to Enter or Successfully Complete a
Rehabilitation/Abatement Program. If an
employee refuses to enter or successfully
complete a rehabilitation/abatement program, he
or she will be removed from the Federal service
for illegal off-duty drug use.

B. Repeat Usage. In all cases of illegal off-duty,
drug use, employees who test positive a second
time, or for whom a second determination of
illegal drug use has been made, will be
removed from the Federal service.

App-77

C. Refusal to Provide a Urine Specimen. An
employee who refuses to provide a urine
specimen or otherwise refuses to cooperate with
the collection procedures will be removed from
the Federal service.

D. Adulteration or Substitution of Specimen. An
employee who adulterates, substitutes or
otherwise attempts to falsify the results of a
urinalysis will be removed from the Federal
service.

E. On-duty Use of Illegal Drugs. On-duty use or
possession of illegal drugs by an employee will
result in removal from the Federal service.

F. Other Drug-related Offenses. A determination
that an employee has engaged in illegal drug
trafficking, e.g., sale, manufacture, growing,
distribution or transportation, will result in
removal from the Federal service.

SECTION 2. DISCIPLINARY PROCEDURES.

Any disciplinary action under this Chapter will be
taken in accordance with the requirements of the
Civil Service Reform Act and other governing
regulations which may apply.

App-78

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEATTLE REGIONAL OFFICE

GERALD BRUCE WATSON, JR., ) Case No.
) SE07528910074

—

Appellant,

DEPARTMENT OF
TRANSPORTATION FEDERAL
AVIATION ADMINISTRATION

Agency.

i ih i a a a

FIRST STIPULATION OF FACTS

COMES NOW the parties, through their undersigned
attorneys and hereby stipulate to the following facts in
the above matter:

App-79
GERALD B. WATSON, JR.

1. Mr. Watson was continuously employed by the
Federal Aviation Administration from September 5,
1977, to December 4, 1988.

2. At the time of his removal, Mr. Watson was an
electronics technician, assigned to the Airway Facilities
Sector Field Office at Eugene, Oregon.

3. The Airway Facilities Division is responsible for
the installation and maintenance of electronics systems
used in air navigation and air traffic control; including
communications, navigational aids, radar, and data
processing systems.

4. The Airway Facilities Sector Field Office at
Eugene, Oregon, is responsible for the installation and
maintenance of electronic systems located within central
Oregon.

5. As an electronics technician, Mr. Watson was
trained and certified to maintain specific electronic
equipment, including instrument landing systems (ILS),
remote center air-ground communication facility
(RCAG), radio controlled portion of both medium
intensity approach light system (MALSR) and visual
approach slope indicator system (VASI).

App-80

6. The instrument landing system (ILS) provides
electronic guidance to aircraft making instrument
approaches in bad weather.

7. The remote center air-ground communication
facility (RCAG) provides radio link between the Seattle
Air Route Traffic Control Center (ARTCC) and aircraft
operating under instrument flight rules (IFR) over the
western Oregon area. The Seattle ARTCC has
responsibility for providing air traffic control services to
aircraft operating over a large part of the northwestern
United States, including central Oregon.

8. The medium intensity approach light system
(MALSR) is a system of lights located at the approach
end of instrument runways. It provides visual guidance
to pilots landing at night or under instrument conditions.
At certain airports, where there is no control tower or
when the control tower is not in operation, pilots may
operate the MALSR system by "keying" their aircraft
radio on certain specified frequencies. By "keying" their
radios, pilots can turn the system off and on and control
its intensity.

9. The visual approach slope indicator (VASI) is a
system of ground operated lights which provide glide
slope information to pilots landing under all weather
conditions and at night. At some airports, 2 without an
operating control tower or with the control tower closed,

App-81

the VASI system may be turned off and on by pilots
through "keying" their microphones on their airborne
radios.

10. Most of Mr. Watson’s duties were performed
outside of the sector office. Such duties required him to
drive a personal or Government vehicle to other airports
or remote sites. Such duties had to be performed under
all weather conditions. Additionally, on occasion, Mr.
Watson’s duties required him to operate a snow cat
several miles over unimproved roads to a remote site.

PRIOR PERFORMANCE
11. On May 12, 1982, Appellent [sic] was suspended
for three (3) days for the use of obscene language to his
supervisor.

12. Each of Appellent’s [sic] performance appraisals
has been "fully successful" or its equivalent since 1977.

DELIVERY OF PROPOSED DEMOTION LETTER

13. The factual statements of Appellent [sic] (tab H)
and Alfred Zwirner (tab I) accurately reflect the
circumstances surrounding the delivery of the proposed
demotion letter to Appellent [sic]. The letter was hand
delivered to Appellent [sic] on August 31, 1988, by Mr.
Vernon Harkins.

App-82
PROPOSED REMOVAL LETTER

14. The specifications set forth in the agency’s letter
dated August 31, 1988 (tab F), are hereby stipulated to.
Additionally, it is further stipulated that on August 18,
1988, the following took place:

a. When Mr. Watson returned to his facility
at about 12 noon, he requested that his supervisor grant
him an annual leave for the rest of the day. His
supervisor then advised him that he would be required to
provide a urine sample.

b. During the 1 p.m. telephonic discussion
involving Mr. Stead, Mr. Watson and Mr. McGrady,
Mr. Stead said that Mr. Watson’s selection to be tested
was a random one and was not related to Mr. Watson’s
performance. Mr. Stead did not suspect that Mr.
Watson was using or under the influence of drugs.

15. On September 1, 1987, Appellent [sic] was
provided with a copy of the 30-day notice to employees
subject to random drug testing (tab G).

DATED this 9th day of March, 1989.

/s/ Michael McGrady sss _/s/ John J, Callahan _

Appellent’s [sic] Representative Agency Representative

App-83

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEATTLE REGIONAL OFFICE

GERALD BRUCE WATSON, JR., ) DOCKET NUMBER
) SE07528910074
Appellant,

V.

DEPARTMENT OF TRANSPORTATION

Agency.

er ee ee ee ae a es Ne

DECLARATION OF MELISSA J. ALLEN

I, MELISSA J. ALLEN, do declare under penalty of
perjury that the following is true and correct to the best
of my knowledge and belief:

1. I am the Deputy Assistant Secretary for
Administration of the Department of Transportation
(DOT), 400 Seventh Street, S.W.., Washington, D.C.
20590. I have served in that capacity since January,
1986.

App-84

2. As Deputy Assistant Secretary for
Administration, I am responsible for implementing the
Drug Free Departmental Workplace Program pursuant to
Executive Order 12564, "Drug-Free Federal
Workplace." This program was approved by the
Secretary of Transportation on June 29, 1987 and issued
as DOT Order 3910.1. FAA Order 3910.6, dated
September 23, 1987, implemented DOT Order 3910.1
within the Department’s Federal Aviation Administration
(FAA). Also, on June 29, 1987, the Department issued
a notice to all agency employees, pursuant to section 4(a)
of the Executive Order, announcing the program and
indicating that drug testing would commence no sooner
than sixty days from that date. A true and accurate copy
of this notice is attached hereto as Exhibit 1. Finally,
beginning in August 1987, the Department began issuing
individual notices to ea * *mployee subject to random
drug testing indicating th... ..c employee could be subject
to such testing no sooner than thirty days from receipt of
the notice. A true and accurate copy of this notice is
attached hereto as Exhibit 2.

II. DEPARTMENT OF TRANSPORTATION
RANDOM DRUG TESTING PLAN

11. Under criteria specified in Executive Order
12564, the Department’s program requires random drug
testing of employees in critical safety and security

App-85

positions (hereinafter defined as "sensitive positions")
whose job functions have a direct impact on public
health, safety, the protection of life and property, or
national security. Examples of sensitive positions include
air traffic control specialists, electronic technicians,
criminal law enforcement investigators, aircraft
mechanics, motor carrier safety specialists, and rail
safety inspectors. The agency requires employees in any
of these sensitive positions to submit to urinalysis in
specified circumstances and on a random basis.

12. Applicants for sensitive positions are subject to
preemployment testing. All DOT employees, whether in
sensitive positions or not, are subject to reasonable
suspicion testing, accident or unsafe practice testing, and
voluntary testing. Further, those DOT employees in a
drug rehabilitation and/or abatement program will be
subject to follow-up tests administered by the agency on
a random basis. Finally, all employees with a "Top
Secret" security clearance have been placed in the
sensitive position pool.

13. As of January 31, 1989, the total DOT civilian
workforce is 64,046. The total number of civilian
employees in sensitive positions for drug testing purposes
as of February 19, 1989 is 31,731. Of the total sensitive
position population, 30,156 (approximately 95 percent of
the total) are under the FAA. The following chart
represents (as of February 19, 1989) some of the key

App-86

sensitive positions included in the Department’s random
drug testing program, the current number of employees
in each position and the percentage of employees in each
covered position compared to the total sensitive position
population:

Occupation = Numberof Percentage of

Population
Air Traffic
Control
Specialist 20,108 63.4
Electronic 5,247 16.5
Technician
Air Traffic 1,390 4.4
Assistant
Aviation 1,035 3.3

Safety Inspector

"a

iii iaaialiaat

Employees
with "Top Secret"
Security Clearance

Railroad
Safety
Inspector

Motor Carrier
Specialist

and Highway Safety
Specialist

Civil
Aviation

Security Specialist

Aircraft
Mechanic

Motor
Vehicle Operator

App-87
687 '

311

242

227

201

71

‘Since available data indicate that 276 employees
with a "Top Secret" security clearance are also subject
to random drug testing by virtue of their occupational
grouping in a sensitive position, a total of 411 employees
are subject to random drug testing solely by virtue of

pa

1.0

0.8

0.7

0.6

0.2

their having a "Top Secret" security clearance.

App-88

24. The Department also recognizes that the
ultimate decision concerning the appropriate type of
disciplinary action that may be imposed depends upon
the circumstances of each individual case. In fact, I am
aware that in the case of at least two DOT employees
who refused to submit to a random drug test and
received notices of proposed removals, the respective
deciding officials ultimately determined that removal was
unwarranted and lesser penalties were imposed. In these
cases, the factual circumstances indicated that the
employees’ refusals to submit to drug testing was not
based upon clear and conscious decisions to disobey
wilfully the agency’s order to comply with the drug
testing procedures.

I declare under penalty of perjury that the

aforegoing is true and correct to the best of my
knowledge and belief.

/s/ Melissa J, Allen __
MELISSA J. ALLEN

Executed this 6 of March, 1989.

App-89

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEATTLE REGIONAL OFFICE

GERALD B. WATSON, ) Case No.
) SEO7528910074
Appellant, )

DEPARTMENT OF
TRANSPORTATION,

Agency.

ee See Nee See Net Nee Nee ee

401 U.S. Courthouse
620 SW Main
Portland, Oregon
March 9, 1989

At the above time and place, the above entitled
matter came on for hearing before:

JOHN W. TAPP, Administrative Judge

App-90
APPEARANCES:

GERALD B. WATSON, per
Michael McGrady

374 West 12th Avenue, Suite 2
Eugene, Oregon 97401

DEPARTMENT OF TRANSPORTATION, per
John J. Callahan, Deputy Chief Assistant Counsel
Northwest Mountain Region

Federal Aviation Administration C-68966

17900 Pacific Highway South

Seattle, Washington 98168, and

Paul S. Smith

Room 4102 (C-30)

400 Seventh Street Southwest
Washington, D.C. 20509

App-91
[TR 11>]

DONALD COONES,

Having been first duly sworn on oath, was called as a
witness herein, was examined, and testified as follows:

a

DIRECT EXAMINATION

BY MR. CALLAHAN:

Q
A

oe a)

AO > ©

Will you state your name and address, please?

My name is Donald Coones, and I live at West 8002
Mission, Spokane, Washington.

By whom are you employed Mr. Coones?

The Federal Aviation Administration.

In what capacity are you currently employed?

I am currently the Airway Facility Sector Manager at
Portland, Oregon.

How long have you been employed in that capacity?
In that specific job, one year.

Would you very briefly, for the Court, describe your
duties and responsibilities as the Sector Manager?

A

App-92

I am responsible for an organization that’s rather
large. It covers most of Oregon state and a little bit
more; and the group of people that I manage
maintain the electronic navigational systems, the
communication systems, [TR 12>] the computer
systems, in other words, they are total ground
support for the Federal airway system.

Within your organization, that is, the Portland
Airway Facility Sector, are there sub-organizations or
smaller field offices, if you will?

Yes, there are.

Approximately how many are there under your
command?

Well, there are approximately 14 sector field offices
and three larger, what we call SF02 offices, which is
an intermediate level of supervision.

O >

(TR 15>]

Mr. Coones, I want to direct your attention back to
August 18, 1988. There have already been some
stipulations entered into by the parties regarding the
facts that occurred on that date. Do you recall an
incident involving Mr. Watson on that date?

Yes, I do.

Could you briefly state when you first became aware
of the situation, what your involvement was, and how
you became aware of it?

A

App-93

Okay. As I recall, I was called by the first level
supervisor at Eugene, Dean Stead. He called to
report to me that he had a problem with the drug
testing program; that Bruce Watson had come in late,
you know, later during the [TR 16>] day,
approximately noon, as I recall, and had asked for
annual leave. And he had advised Mr. Watson that
he had to subject himself to a drug test, provide a
urine sample, and that Mr. Watson had promised to
be back, I believe it was by about 1:30. At such
time, he would provide the sample, was the
understanding that I have.

I understand that Mr. Watson did come back and said
that he had been in contact with his attorney; and that
he would like for Mr. Stead to talk to his attorney.
Together, Mr. Watson and the attorney informed
him, as I understand it, that he would not provide the
urine sample.

> O >

[TR 18>]

Did you, at any time, take any official action with
regard to Mr. Watson?

Yes.

What was the first action you took, if you can recall?
The first action that I recall taking was signing the
letter of proposal to remove him for his refusal to
submit to drug testing.

O >

> O

App-94

Why would you sign that letter? You had indicated
you weren’t Mr. Watson’s first level supervisor.

In our particular organization, it’s a known factor
that all major adverse actions are handled at my
level.

Before Mr. Watson’s removal was proposed, are you
aware as to whether he was detailed to any position
other than his existing position?

I’m sorry. Would you restate that?

Yes. Before you proposed his removal, was anything
done with regard to a detail for Mr. Watson?

Yes, I don’t remember the exact circumstances or the
time frame, but I am aware that he was taken from
his safety related duties of maintaining electronic
facilities.

And what duties was he placed in, if you recall?

I don’t know exactly. They were basically
administrative type work.

What were the circumstances leading up to your
decision [TR 19>] to propose Mr. Watson’s
removal?

There was the normal coordination with my
personnel representative in Admin. 423, Vern
Harkins. There was considerable discussion on a
frequent basis of where we were, and where we were
going. A part of his duties would normally be to
prepare the letter of proposal to remove, and to
coordinate that within the regional office. And that
was the direction that he was headed.

O >

App-95

Do you recall, at any time, whether or not Mr.
Harkins directed you to propose Mr. Watson’s
removal?
No, I don’t. He did not.
Do you recall, at any time, Mr. Harkins indicating to
you that someone above him had directed you to
propose that removal?
No I do not.
During this process, who was your supervisor, your
immediate supervisor?
My immediate supervisor -- well, it’s a
manager/assistant relationship, but Bob Waiblinger is
the assistant division manager. He does my PER,
and also with him is Melvin Yoshikami, the division
manager. I consider I work for both of them almost
equally.
JUDGE TAPP: The first name was what?
THE WITNESS: Robert Waiblinger,
W-a-1-b-]-i-n-g-e-r.

[TR 20>]

JUDGE TAPP: And he is assistant?

THE WITNESS: Assistant division manager.

JUDGE TAPP: And then Mr. Melvin?

THE WITNESS: Yoshikami. Melvin
Yoshikami. ‘.

JUDGE TAPP: Thank you.

App-96

BY MR. CALLAHAN:

Q

2)

> OP,PD >

Do you recall, at any time, discussing Mr. Watson’s
situation with either Mr. Waiblinger or Mr.
Yoshikami?

I certainly -- I’m sure that I had discussed it with
them, but I don’t remember any specific
circumstance.

Do you recall whether at any time either one of those
individuals directed you to propose Mr. Watson’s
removal?

No they did not.

Did anyone, that you recall, direct you to do so?
No.

This was your decision?

Yes. I think it was a rather obvious one, but, yes.
It was my decision.

Why did you make that decision to propose the
removal?

Well, because we have a drug testing process, and it
requires that kind of activity in the event that
someone refuses to provide a specimen.

Once you had proposed his removal, what, if any,
further involvement did you have with the matter?
Other than just passing discussions with the principles
[sic] [TR 21>] involved in the case, I don’t recall
any specific involvement until his response came to
the proposal to remove.

2)

OH >

> O >

App-97

And that’s the response that has been identified in the
Agency’s package; is that correct?

Yes.

The letter written by Mr. McGrady?

Yes.

Do you recall having any conversations, during this
process, any conversations with Mr. Watson himself?
Yes. I recall that we discussed it one time.
Essentially, what was the nature of that discussion?
The general nature of that discussion, as I recall, was
that he was challenging the system, based on his
belief that it was unconstitutional, and that he
understood that we were, more or less, unfortunate
-- well, that it was just a process that we had to go
through. And he felt like that it was really
something that we had little control over.

During that discussion, did Mr. Watson indicate to
you anything about an alternative testing that he had
submitted to?

Yes. I do remember him mentioning that he had
presented a test to his supervisor, Dean Stead.

Do you remember any further discussion regarding
that test as to what type of test it was, or when he
had submitted to it, or any other details?

App-98
[TR 22>]

Well, I recall that he said that it clearly provided that
he was not a drug user at that time. And I was not
aware of the results of this test at that time, or where
it was, or what happened to it.

He indicated to you that it had showed a negative
result; that is correct?

That’s correct.

During the time that you had talked to him or after
that, did you have any reason not to believe him
regarding that test?

No I did not.

[TR 24>]

You have issued the notice of proposed removal
letter in August of 1988. On October Sth, or
sometime thereafter, you received a written response
to that letter.

All right.

And then, at some later time, you were told that, for
whatever reason, the hold, placed by the district
court, was lifted. What did you do then? What
decisions did you make and how did you go about
having those decisions carried out?

App-99

A I had already -- if I had his letter, as soon as I

received his letter, I started studying it. I started
looking for extenuating circumstances, or any reason
not to proceed with the normally prescribed adverse
action that was required.
And in that consideration, I was looking for
something from him that would say that this was not
just a direct case of refusal to submit his specimen;
that there was, you know, some mitigating
circumstance, and I could go [TR 25>] into various
ones that may have been a big difference, but I didn’t
find any of that.

Q At the time you were considering his response, did
you have an opinion as to whether you had to
absolutely continue with the removal action, or did
you have an opinion as to whether you had any
discretion?

A I felt I had somewhat limited discretion, but I felt
like -- I always feel like I have discretion to take an
action that I have the authority to take.

Q What would be the process, had you proposed
removal and then determined that something other
than removal was the appropriate penalty? What
would you have had to do?

OO >

OO >

App-100

I would have gone to -- well, either Mr. Harkins or
my boss. I would, obviously, have to talk to both of
those people, both of those individuals, and explain
my reasons, and ask that they effect the letter in that
regard; and whatever the final penalty would be,
well, we would assess that, or no penalty. But it
would have to be written and approved within the
regional office.

But you didn’t do that, I take it?

No. I did not.

You testified that you felt you had to go ahead with
the removal action. What did you do then to have
that decision implemented?

I told Vern Harkins to proceed with the letter to
[TR 26>] remove.

At any time, prior to your making that decision,
were you directed by anyone to make the decision to
remove Mr. Watson?

No.

In making your decision, what, if any, consideration
did you give to the situation itself; to what Mr.
Watson had done? What was your opinion about
that; that action on his part?

z
3
:

App-101

A Well, a major consideration was that this was a job
performance related incident. There’s a condition of
employment within the FAA as an Airway Facilities
Technician. He certifies facilities. He has to submit
to a drug test. And he, according to all the
information that I had, had not only willfully refused
to submit, but he -- I’m sorry. I lost my train of
thought.

Q What, if any, consideration did you give to the effect

of his refusal on the organization itself; on how the

organization --

-- Considerable, really.

What conclusions or opinions did you draw from that

consideration?

A Well, my consideration was, and still is, that if there
is a lesser penalty for refusal, then you have an
option for anyone who is subject to the drug testing
program to decide [TR 27>] whether they’re going
to take their lumps, or they’re going to get tested and
go into the rehabilitation program. And I don’t think
that we can have an effective program if that option
is available to them.

Q Why do we need an effective program, in your
opinion? What’s the value of such a program?

O >

O >

App-102

Well, we need some kind of program tg assure that
we have a drug-free work force. It’s very critical
work that our technicians do. They don’t talk to
aircraft, but they do maintain -- they calibrate and
adjust facilities, which, if properly done, could result
on an airplane flying into the ground and killing
some innocent people. I think it’s very important
that we have people with a clear mind, and we do
our best to assure that we have that kind of work
force.

What, if any, consideration did you give to doing
something else to Mr. Watson; some other type of
penalty, or some other arrangement other than
removal?

Very limited consideration. I was looking for an out
from him which said, "I didn’t understand what
would happen to me if I refused", or "I am a user.
I have a problem. Help me, or something to get me
off the track of --". He had really decided that he did
not want to submit to a drug test.

Were you aware that he had been provided prior
notification of the test program?

[TR 28>]

Yes. I made sure that that happened.
And how did you make sure of that?

| App-103

A_ I checked to find out. There was a letter that was
given to everyone. And people in his position, they
were asked to sign this letter, and we kept a copy of
it in the files.

Q And did that letter indicate, or give the employee an
indication of what would happen with a refusal to
submit to it?

A Yes. I think it was very clear.

Q It’s been stipulated that Mr. Coones (sic) had, with
the exception of one three day suspension action, that
Mr. Watson’s performance, while he’s been an FAA
employee, has been fully successful, or it’s
adjunctive equivalent in the earlier days. Were you
aware of that?

A Yes.

Q What, if any, consideration did you give to that; that

basically good work record; the acceptable work

record?

Yes. I really was looking for that.

Would that be reason to change your decision?

I couldn’t find any reason to change it based on

satisfactory performance.

Q What if any, thought did you give as to the effect it
would have putting Mr. Watson back to work within
your sector or at his facility?

> O >

A

App-104
[TR 29>]

I think the most negative factor, if Mr. Watson
returned to work, would be a message to the work
force that you don’t have to take the drug test.
There is an alternative. And if you’ve got a problem
with drugs, and the random nature of the drug
testing, it could be five years before you’re faced
with this decision again, conceivably.

[TR 32>]

CROSS EXAMINATION

BY MR. McGRADY:

Q

> O >

Mr. Coones, are there circumstances under which if
someone refused to take a random drug test that you
could not propose removal?

Yes.

Could you tell me what they are?

I would probably go through the proposal process, if
I may correct that. But if there are possible
circumstances, then I would not follow through with
it.

Could you tell me what those circumstances are?

> —O

App-105

Without having the exact details, it’s difficult. But I
would think that if a person in that condition had
stated that they were a drug user, they wanted to go
into the rehabilitation program, and that they were
going to subject themselves to the safeguards that are
in that program, after we understand that someone’s
a user, then I probably would not go through the
removal proceedings.

So, would there be any other circumstances you
could think of?

Yes. To me, it’s very important that the due process
-- that people are notified ahead of time; that this is
a part of the program; that this is a condition of
employment; and that they will be subject to drug
testing as a condition of employment. If something
in that process had not [TR 33 >] occurred, then that
would also, possibly, cause me to not go ahead and
initiate a removal letter.

Would there be any other circumstances?

Those are the two that come to my mind, obviously.
I can’t think of any others.

Q

QO >

App-106
[TR 35>]

I believe you had just talked about having the call
from a Mr. Stead, and you had said your initial
discussion was with someone at the regional office,
and you didn’t recall exactly who it was. And then,
I believe, Mr. Callahan asked you, "Did you make a
decision on what would be done", and I thought you
said, "No."

No.

And right after, that you said you signed the
proposed letter of removal.

You’re very correct. And what I intended to convey
was that I did not make a decision specifically to
remove him at that time. I knew that we were likely
headed toward a major adverse action. But, at that
time, I did not firmly make a decision he would have
to be removed.

I also understood you to say that the drug testing
process requires that kind of activity, when asked
why you had decided to remove Mr. Watson. By
that, do you mean that you felt constrained by the
program’s requirement for removal?

To some point. I think, more specifically, I felt like
[TR 36>] it was a very serious matter, and that at
least a proposal to a removal process would have to
be instituted.

App-107
(TR 36>]

I don’t want to beat a dead horse here, but I just
want to make sure. Can you think of any other
circumstance you would have considered mitigating
besides admission of drug [TR 37>] use, or a
Statement that the person didn’t know removal was
involved?

Not off the top of my head, no. I can’t come up
with any other reasons.

Would it be fair to say that there probably isn’t any
other that you would consider?

No. I don’t think that is fair because I think I would
consider anything that was given, extended as a
reason.

Were you told, at any time, that Mr. Watson was
concerned, because he’s a black person, that melanin
might give a false positive in his case?

I heard that after the fact. I’m not sure about the
timing of when I heard this. But I heard this at a
conversation from someone else. I’m sure, before
the removal, a paper was delivered, but I don’t
remember exactly when. I don’t recall him ever
Stating that to me.

App-108
[TR 40>]

RECROSS EXAMINATION

BY MR. McGRADY:

[TR 41>]

Q Dol understand you correctly, however, that even if
you had known that the testing that he’d done had
been -- the chain of custody was careful; that the
sampling was careful; and that the tests done were

_Teliable and adequate testing, that wouldn’t have
changed your decision?

A Probably it would not have changed my decision.

Q Were you aware that the tests taken was taken within

the two-hour time that the drug testing regulation

provides for in the random test?

No. I was not aware of the time sequence.

Would that have made a difference to you?

I don’t believe so.

> O >

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2253%3A2. Public record. Not legal advice.