Follow this and additional works at: Part of the Administrative Law Commons

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1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law James R. Edens Sr Follow this and additional works at: Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE CIVIL SERVICE COMMISSION OF THE METROPOLITAN GOVERNMENT OF NASHVILLE IN THE MATTER OF: James R. Edens Sr. DOCKET NO: J INITIAL ORDER This matter came to be heard on June 2, 2008, before Rob Wilson, Administrative Judge, assigned by the Secretary of State, and sitting for the Metropolitan Civil Service Commission ( Metro ) in Nashville, Tennessee. Mr. J. Douglas Sloan, Esq., represented Metro. The Grievant, James Edens, was represented by Mr. Ed Hiland, Esq. The subject of the hearing was whether the Metropolitan Department of General Services ( the Department ) proposed termination of Grievant for violation of Metropolitan Civil Service Rules and Regulations Chapter 6, Section 6.7 (7), for being under the influence of any controlled substance at work or upon reporting to duty. After consideration of the record and arguments of counsel, it is DETERMINED that the proposed termination should not be upheld. This determination is based on the following findings of fact and conclusions of law.

3 SUMMARY OF EVIDENCE 1 Testimony was provided by Grievant James Edens. Dr. David Black testified as a witness for Metro. Deposition testimony was submitted from Dr. Raymond Fuller, Dr. David Black, and Dr. Howard Taylor. Six (6) exhibits were entered into evidence during the hearing. Exhibits 1, 2, and 3 were drug screens from September 1, 2005, October 11, 2005, and November 4, Exhibit 4 is the Return to Work Agreement. Exhibit 5 is the Substance Abuse Policy. Exhibit 6 is a pre-trial report from Biomedical Consulting. FINDINGS OF FACT 1. Grievant was employed by the Metropolitan Government. Relevant testimony established that his job duties included working on vehicles and other equipment. Grievant had a commercial driver s license. 2. On August 24, 2005, Grievant was notified that he was selected for a random drug test. 3. Grievant submitted a drug test on September 1, Grievant told his supervisor that he was going to fail the test, and the test was positive for marijuana. (718 nanograms per milliliter.) 1 Counsel for Metro did not file a witness and exhibit list as required by pre-hearing order. Consequently, two Metro witnesses were disallowed. Dr. Black was permitted to testify on behalf of Metro because his deposition had been taken previously. 2

4 4. Grievant submitted another drug test on October 11, This test was also positive for marijuana, but the nanograms per milliliter were lower. (60 nanograms per milliliter.) 5. On October 11, 2005, Grievant signed a Return to Work Agreement. The agreement stated that Grievant would abstain from using alcohol, marijuana, etc. The agreement further stated that Grievant would comply with the recommendations of the employee assistance program, and that the agreement would remain in full force and effect for a period of one year. 6. On November 4, 2005, Grievant submitted another drug test. This test was also positive for marijuana, but the nanograms per milliliter were lower than the previous test. (28 nanograms per milliliter.) 7. On January 4, 2006, Grievant received a letter from Nancy Whittemore, Department of General Services, stating that his employment with Metro government will be terminated for violating Civil Service rules and regulations including being under the influence of intoxicating beverages or drugs not specifically prescribed for the employee by a licensed physician or controlled substances when on duty or upon returning to work. 8. Grievant testified that his last marijuana use was August 31, Relevant deposition testimony from Dr. Howard Taylor, Dr. David Black, and Dr. Raymond Fuller established that, depending on a person s body fat level, marijuana can be detected in a person s system even after they stop using marijuana. The detection time can vary from one day up to 77 days. However, for a chronic marijuana user with an above average amount of body fat, it is not abnormal for lower levels to 3

5 persist for extended periods of time as the last traces of cannabinoids are removed from fat cells in the body. Grievant is overweight, and according to his body mass index, obese. 10. Grievant submitted to three drug screens, and each result showed a progressive decline in the amount of marijuana residue detected in his system. CONCLUSIONS OF LAW Metro has the burden of proof by a preponderance of the evidence that the proposed termination was an appropriate disciplinary action for Grievant s violation of Metro s substance abuse policy. Metro has failed to carry the burden of proof in this matter for two reasons. First, and most simply, according to the unambiguous wording of Section 6.7, there was no conclusive proof of an actual violation as alleged. Number seven, under grounds for disciplinary action states as follows: Being under the influence of intoxicating beverages or drugs not specifically prescribed for the employee by a licensed physician or controlled substance when on duty or upon reporting to duty. There was no testimony offered to establish that Mr. Edens was under the influence of marijuana when on duty or when reporting to duty. His drug test was the result of a random screening; not due to any reasonable suspicion that he had engaged or was currently engaging in conduct that is prohibited under the substance abuse policy. Furthermore, Grievant s urinalysis shows only the presence of the metabolite THC. Since this metabolite is not psychoactive itself, it s presence in Grievant s urine does not establish being under the influence. Similarly, if there was a test that could determine 4

6 that a person drank a glass of wine on Monday, they would certainly not be considered to be under the influence on the following Friday. Second, and more importantly, the three consecutive drug screens showing a steady decrease in the amount of cannabis metabolite is consistent with Mr. Eden s statement saying he stopped using marijuana as of August 31, The medical testimony offered overwhelmingly establishes that cannabis metabolites can be detected in a urinalysis for several weeks or even months after the subject stops smoking marijuana, particularly in a person with a high body mass index such as the Grievant. Accordingly, it is CONCLUDED that there is absolutely no conclusive proof to establish that Grievant failed to abide by the terms and conditions of the Return to Work agreement signed on October 11, Additionally, the Grievant s first time violation of Metro s substance abuse policy does not warrant termination, and the record contains no other violations or offenses that would mandate Mr. Eden s termination. Therefore, for the reasons stated, it is determined that the proposed termination of the Grievant should not be upheld. Grievant is to be reinstated subject to the signed Return to Work Agreement, with full restoration of lost wages, benefits, and seniority. 5

7 This Initial Order entered and effective this 3rd day of July, Rob Wilson Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 3rd day of July, Thomas G. Stovall, Director Administrative Procedures Division 6