On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2007-3953.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Collester.
Petitioner, Roy Riggins, appeals from the final administrative order of the Merit System Board (Board) upholding his removal as a heavy equipment operator in the Department of Public Works for Middlesex County. We affirm.
After making an independent evaluation of the record, the Board accepted and adopted the findings and conclusions of Administrative Law Judge Joseph Lavery that the action of the County removing petitioner from employment was justified under N.J.A.C. 4A:2-2.3(a)(10) for violation of Federal regulations and County policy adopted by the Middlesex County Board of Freeholders concerning "drug and alcohol use by and testing of employees who perform functions related to the operation of commercial motor vehicles."
Since petitioner held the title of equipment operator, he was subject to both the County policy and applicable Federal regulations. The County's policy provided that J.F.K. Medical Center Occupational Health Services as the appointed testing agency provide a monthly list obtained through use of a computer program which has a random function of County employees selected for random drug and alcohol testing. Once the employee was selected and has submitted to random drug testing, he or she was not eligible for re-testing until the subsequent month. When the monthly list was generated by J.F.K. it was sent in an unalphabetized order through email to Ruth Clark, the employee designated in the County personnel department to schedule testing. On the day in which a random test was to be administered, Ms. Clark selected one of the employees for testing and notified the County department to have the employee report to J.F.K. at the assigned time for the test.
In this instance, Ms. Clark notified petitioner's supervisor approximately an hour before the scheduled time that petitioner was to provide a urine sample. After being notified, petitioner reported to the J.F.K. Medical Center testing facility at the specified time and gave a urine sample. However, the specimen failed to register a temperature within the acceptable range of 32˚ to 38˚ Celsius or 90˚ to 100˚ Fahrenheit as required by the applicable Federal regulation. 49 C.F.R. 40.65(h)(1).
Petitioner was told by the tester that Federal regulations required that he immediately provide a second urine specimen under direct observation procedures. 49 C.F.R. 40.67. Petitioner refused to submit a second specimen even though he was advised by the tester at J.F.K. Medical Center and a representative of Middlesex County personnel that leaving the testing site without giving a second sample would be considered a refusal under the County policy and applicable Federal Department of Transportation (DOT) regulations. Petitioner left the testing site without giving the second sample and returned to work.
A preliminary notice of disciplinary action was served on petitioner on December 18, 2006, and he requested a hearing. On March 8, 2007, the hearing officer found that petitioner had left the testing facility without being tested in violation of County policy and Federal regulations, subjecting him to termination. The hearing officer further noted that this offense would be considered petitioner's second offense regarding a controlled substance screen, as he had a positive result on April 15, 1997. Petitioner's employment with the County as an equipment operator was terminated on March 12, 2007.
On March 27, 2007, petitioner filed an administrative appeal with the Merit System Board, which then notified the Office of Administrative Law of the contested case. The administrative appeal was assigned to ALJ Lavery, who decided the appeal based upon stipulated facts by petitioner and the County. On March 27, 2008, Judge Lavery submitted his written findings of fact and conclusions of law in which he recommended that petitioner's termination be affirmed. He held that petitioner's refusal to provide a second urine sample contrary to County policy and Federal regulations mandated removal from employment. In so holding, Judge Lavery rejected petitioner's argument that the selection process utilized by the County for drug testing was not random and thereby violated both County and Federal regulations. He also stated:
The presence or absence of random selections for the testing in question has not been demonstrated with persuasive scientific evidence. Nonetheless, even if so found, absence of randomness would not, on the present record, forestall application of these rules which direct termination.
On May 7, 2008, the Board affirmed the action of Middlesex County in removing petitioner. This appeal followed.
After review of the record, we substantially concur with the findings and conclusions of the ALJ as affirmed by the Merit System Board. The County of Middlesex Alcohol and Drug Testing Policy and Procedure specifies that the penalty for refusing to submit to testing "shall result in automatic termination of the employee." Petitioner acknowledges knowing that termination would be the result of his failing to submit to random testing. However, he argues that the Middlesex County procedure was not random as required because Ms. Clark of the personnel department did not randomly schedule him among people to be tested during the test period. Federal regulations specify that each person scheduled for random drug testing must have "an equal chance of being tested each time selections are made." 49 C.F.R. 382.305(i)(2). When J.F.K. used its computer to randomly select the names for testing in December 2006, each person subject to testing had an equal chance of being tested, which satisfies the requirement of random testing. Contrary to petitioner's argument, there is no requirement that the ...