Improper drug-test request backfires on Marine Corps

A recent decision by the Federal Court of Appeals demonstrates that federal employees need not be intimidated by strong-arm tactics imposed by agency managers.

The case involved Gary Cox a utility systems operator at the Marine Corps Air Station in Yuma Ariz. who refused to provide a urine sample for drug testing when asked by his employer.

On Feb. 21 1995 Cox's supervisor drove him to the chapel at the Air Station for a drug test. It is not clear whether Cox knew the purpose of the trip before he arrived at the chapel. However the applicable regulation requires that the agency notify subjects of "reasonable suspicion" drug tests in writing. In Cox's case the Marine Corps gave no written notice before during or after this event.

Two other men were present at the chapel. One of them Dennis Hansen requested a urine sample for a drug test.

When Cox asked Hansen for his authority and the required written notice for the test Hansen did not reply or identify himself although he is the drug program coordinator for Cox's agency. Richard James Stacks an outside contractor responsible for the collection of urine samples also was present and asked Cox for identification. Cox complied and then asked Stacks for his identification.

Hansen told Stacks he did not have to answer Cox's questions. Stacks like a good contractor then declined to identify himself to Cox. Cox's agency does not dispute these facts.

Needless to say Cox declined to provide a urine sample. He stated that he had "fears" and "concerns" because of the irregular procedure and the refusal of Stacks and Hansen to identify themselves. I can't say I blame him.

On the same day that Cox declined the test his agency issued a written notice of proposed removal against him for refusing to provide the urine sample. The Corps removed him immediately after issuing the notice.When Cox appealed the decision to the Merit Systems Protection Board (MSPB) it affirmed the Corp's decision.

Cox took the case to the Federal Court of Appeals which noted that Navy regulations demand that the drug program coordinator "insure appropriate notices are issued." The required written notice must contain a section in which the agency describes the basis of the decision to conduct the test. It also should identify the sources of the information that gave rise to the reasonable suspicion.

Guess how many of these requirements the court felt the Navy had complied with? You got it - none!Cox argued that in view of the lack of requisite notice and the bizarre events at the chapel his refusal to submit to the test was reasonable. The court agreed. It ruled that "the agency's omission of the written notice even after its absence was strongly pressed by Mr. Cox at the chapel cannot reasonably lead to the removal of Mr. Cox."

As for the MSPB the court said it "erred in law in not considering the improper circumstances surrounding the ordered drug test the seriousness of the agency's omission and the reasonableness of Mr. Cox's objection."

It's regrettable that the agency charged with protecting the rights of federal employees hardly ever does.-- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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