February 2020 - Parks & Recreation - 22

LAW REVIEW

tiff was aware of the city's zerotolerance drug-and-alcohol policy
that provides for random drug testing at any time, with only two-hours'
notice. " In the alternative, assuming
Plaintiff never received notice of the
park and recreation department's
policy, the court found it would
not be an arbitrary and capricious
employment decision that would
" shock the conscience " for the city
to subject Plaintiff to a drug test " the
day after the incident instead of that
same afternoon or evening. "
According to the court, nothing in
the city-wide policy or " relevant due
process protections " would require
" only a same-day post-accident drug
test. " On the contrary, the federal district court found administering Plaintiff's drug test the next day was reasonable, certainly not arbitrary and
capricious, under the circumstances:

The court found the city
had provided Plaintiff " a full
evidentiary post-termination
hearing at which he was
permitted to present evidence
and cross-examine witnesses. "
[T]he uncontested evidence establishes that the traffic incident
here occurred late in the day and
after either all or at least a majority
of the witnesses had already left for
the day. Given that random tests
are authorized, it makes abundant
sense under these undisputed facts
to administer a test and to do so the
next day, and it certainly did not
- and could not as a matter of law
- shock the conscience to do so.
The federal district court further
found the " undisputed evidence
establishes that the city provided
Plaintiff with both notice and an
opportunity to 'present his side of
20

Parks & Recreation

the story' prior to his termination. "
As a result, the court concluded,
" the pre-termination process employed by the city here sufficiently
served as an initial check against a
mistaken decision. " Moreover, the
court found the city had provided
Plaintiff " a full evidentiary posttermination hearing at which he was
permitted to present evidence and
cross-examine witnesses. " Plaintiff
conceded, " He wasn't prohibited
from calling any witness to testify. "
Further, the court found " no evidence (or argument) suggesting that
the civil service commission was
biased. " Accordingly, the court concluded: " Plaintiff does not have an
actionable procedural due process
claim merely because he disagrees
with the results after having been
afforded ample process " :
Procedural due process rights
do not guarantee a particular
outcome to a disciplinary proceeding but only assure that it is
fairly conducted. While Plaintiff
may disagree with the outcome,
the evidence and Plaintiff 's own
admissions make clear he received
appropriate notice and a hearing.

More Stringent Drug Policy
The federal district court also addressed Plaintiff 's claim that the
city had violated its own policies on
drug testing. In so doing, the court
acknowledged, " the city-wide written drug policy delineates several
specific circumstances in which an
employee will be subject to a drug
test. " The court, however, found
that " the policy by its own terms sets
a drug-testing floor, not a ceiling. "
As cited by the court, the expressed
language of the policy explained:
" Department policies may be more
stringent but never more lenient than
this administrative directive. "

| F E B R U A RY 2 02 0 | W W W. PA R K S A N D R E C R E AT I O N . O R G

Accordingly, in the opinion of
the court, the city could apply a
" more stringent [park] and recreation department policy " under the " undisputed facts " in this
particular case without violating
" any constitutional guarantees " to
Plaintiff 's right to due process.

Medications Evidence
Plaintiff had also claimed that his
positive drug test could have been
caused by the combination of his
prescription pain and over-thecounter medications. The court,
however, found " no evidence in the
record " of " a physician's order directing him to take certain medications, " including the drugs for which
Plaintiff tested positive. In particular, the court found no evidence
that " the City had approved his use
of those medications while driving a
City vehicle. " (Emphasis of court.) Further, the court noted that Plaintiff 's
" Fitness for Duty Forms " made no
mention of any " medication restrictions. " Moreover, the medical review
officer had reported: " none of the
medications listed on Plaintiff 's submitted prescriptions, would account
for the substances that tested positive
on [his] drug test. "
In the opinion of the federal district court, the city was entitled to
rely on this information provided by
the medical review officer in upholding the termination of Plaintiff 's
employment. Further, the court
found Plaintiff had " done nothing "
to " bring into question " the medical
review officer's opinion.

Lab Test Confirmation
The federal district court also addressed Plaintiff 's claim that " the
city officials had refused Plaintiff 's
request to submit his sample to an
independent medical laboratory of



February 2020 - Parks & Recreation

Table of Contents for the Digital Edition of February 2020 - Parks & Recreation

February 2020 - Parks & Recreation - 1
February 2020 - Parks & Recreation - 2
February 2020 - Parks & Recreation - 3
February 2020 - Parks & Recreation - 4
February 2020 - Parks & Recreation - 5
February 2020 - Parks & Recreation - 6
February 2020 - Parks & Recreation - 7
February 2020 - Parks & Recreation - 8
February 2020 - Parks & Recreation - 9
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