February 2020 - Parks & Recreation - 19

would result in termination. According to Plaintiff, he submitted to the
test " under pressure, " because he
didn't want to lose his job. The test
results later came back positive for
prohibited drugs.
Citing the drug-test results, the
city, on or about April 25, 2016, issued Plaintiff a Notice of Proposed
Termination for " testing positive
for illegal drugs during the postaccident alcohol/drug screen, per
city policy. "
On May 4, Plaintiff, now assisted
by his attorney, submitted a response
objecting to the proposed termination because " the city had failed to
follow its own drug-testing policy
when requiring that he submit to the
test, including by requiring that he
take the test the next day. " Further,
referring to the city's policy, Plaintiff additionally argued, " there was
no reasonable suspicion that he was
under the influence of an intoxicating substance to warrant requiring
him to take a drug test. " Plaintiff
also pointed out " the accident didn't
involve death or bodily injury, disabling damage to either vehicle, or
the striking of a pedestrian. " Further, he noted, " a citation was never
issued " by the police.
As a result, pursuant to the city's
own policy that cited these specific
situations for requiring a drug test,
Plaintiff contended he should not
have been subject to a drug test in
this particular instance. Plaintiff did
not, however, dispute the actual testing procedures (beyond the timing
of, and necessity for, the test). Plaintiff also did not take issue with the
accuracy of the results. He instead
pointed out that, under a physician's direction, he takes Orthopedic
Meloxicam (a nonsteroidal antiinflammatory) and Cyclobenzaprine
(a muscle relaxant) to ease knee pain,
as well as several over-the-counter

physician-recommended medicines.
Plaintiff claimed the combination
of these prescription and over-thecounter medications could yield a
positive drug test.

Hearing on Appeal
On May 12, 2016, the city issued a
Notice of Final Termination, citing
the city's zero-tolerance policy for
illegal drugs. Plaintiff appealed the
termination decision, and on July
28, 2016, the civil service commission held a hearing on the appeal.
Both Plaintiff and the city were
permitted to introduce evidence
and examine and cross-examine
witnesses. During this hearing,
Plaintiff opposed his termination
- again on the ground that the
city violated its own drug-testing
policy by " requiring him to take a
test even though the accident didn't
fall within any of the circumstances delineated in the city's written
policy " and " requiring him to take
a drug test the day after the alleged
incident. "
Although Plaintiff had argued
that his medications could result
in a positive drug test, he did not
produce any evidence (such as testimony from a doctor) tying his
medications to the types of drugs
found in his system.
At the hearing, park and recreation
department officials explained, " The
department's own unwritten policy requires that a drug test be taken
on every accident, regardless of the
extent of the damage or who is at
fault. " Moreover, the department emphasized, " The city also has a zerotolerance policy for drugs. " City officials also disputed whether Plaintiff
ever informed them of his prescriptions as allegedly required by the
city's policy, and further argued that
Plaintiff failed to show the relevancy
of these prescriptions.

At the conclusion of the hearing, the commission unanimously
recommended that the city manager sustain Plaintiff 's termination,
concluding that the evidence and
testimony supporting a violation
of Civil Service Rule XVII, Section
2(g) and the City's Drug and Alcohol Policy ( " AD 4.3 " ).

Medical Review
Reconsideration
Plaintiff subsequently requested reconsideration, arguing that his prescriptions offered a valid excuse for
his positive drug test. On September
2, the city assistant manager and the
assistant human resources director
met with Plaintiff and recommended that he submit his prescriptions
to the medical review officer for reconsideration. Ultimately, however,
Plaintiff 's request for reconsideration was denied. Per the medical
review officer, " None of the medications listed on Plaintiff 's submitted prescriptions would account for
the substances that tested positive on
[his] drug test. "
On October 24, 2016, the city
manager accepted the commission's
recommendation to terminate Plaintiff 's employment with the city.

Per the medical review officer,
" None of the medications
listed on Plaintiff's submitted
prescriptions would account
for the substances that tested
positive on [his] drug test. "
Due Process Claim
Plaintiff then brought a federal
civil rights claim in federal district
court, alleging " the city violated
his substantive and procedural
due process rights " and " his right
to equal protection under the law "

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February 2020 - Parks & Recreation

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