ROY NEELY * NO. 2021-CA-0454
VERSUS * COURT OF APPEAL DEPARTMENT OF FIRE * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 9210, “” Honorable Jay Alan Ginsberg, Hearing Officer ****** Judge Terri F. Love ****** (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Tiffany Gautier Chase)
Louis L. Robein ROBEIN, URANN, SPENCER, PICARD & CANGEMI, APLC 2540 Severn Avenue, Suite 400 Metairie, LA 70002
Laura K. Cline ROBEIN, URANN, SPENCER, PICARD & CANGEMI, APLC 2540 Severn Avenue, Suite 400 Metairie, LA 70002
COUNSEL FOR PLAINTIFF/APPELLEE
Michael J. Laughlin ASSISTANT CITY ATTORNEY 1300 Perdido Street City Hall - Suite 5E03 New Orleans, LA 70112
Elizabeth S. Robins DEPUTY CITY ATTORNEY 1300 Perdido Street City Hall - Suite 5E03 New Orleans, LA 70112 Churita H. Hansell CHIEF DEPUTY CITY ATTORNEY 1300 Perdido Street City Hall - Suite 5E03 New Orleans, LA 70112
Donesia D. Turner SENIOR CHIEF DEUPTY CITY ATTORNEY 1300 Perdido Street City Hall - Suite 5E03 New Orleans, LA 70112
Sunni J. LeBeouf CITY ATTORNEY 1300 Perdido Street City Hall - Suite 5E03 New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
DECEMBER 1, 2021 TFL
JFM
TGC In this civil service case, firefighter Roy Neely was terminated by the New
Orleans Fire Department (“NOFD”) for refusing to participate in a mandatory
substance abuse screening procedure following an on-the-job accident. After the
accident, Mr. Neely submitted to a breathalyzer test, which he passed, and then
provided a urine sample. The urine sample was outside of the acceptable
temperature range and a second observed sample was required. Mr. Neely was
unable to provide urine in an observed collection, despite drinking fluids and
making three attempts to provide a sample. The Civil Service Department advised
Mr. Neely and NOFD that it deemed this to be a positive result of the screening
procedure.
In a subsequent pre-termination hearing, NOFD terminated Mr. Neely for
refusing to participate in the substance abuse screening procedure, per Civil
Service Rule V, Section 9.4. Mr. Neely appealed his termination to the Civil
Service Commission (the “Commission”). The Commission found that NOFD
failed to carry its burden of showing good or lawful cause to terminate Mr. Neely,
1 and, even if cause existed, NOFD failed to show that termination was
commensurate with the offense. The Commission also determined that Mr. Neely
failed to receive due process in the disciplinary procedure. The Commission
granted Mr. Neely’s appeal and reinstated him with back pay and other
emoluments of office. NOFD filed this timely appeal.
Upon review, we find that NOFD violated the applicable standards for the
substance abuse screening procedure and that Mr. Neely’s behavior did not
constitute a refusal to participate in the procedure. We find that because the
complained of misconduct did not occur, it did not impair NOFD’s efficient
operations and termination was not reasonable discipline. Lastly, we hold that
because NOFD predetermined the outcome of Mr. Neely’s pre-termination
hearing, Mr. Neely was deprived of a meaningful opportunity to be heard.
Therefore, we affirm the Commission’s judgment.
FACTUAL AND PROCEDURAL HISTORY
On September 1, 2020, at approximately 10:46PM, Mr. Neely was driving a
rescue unit vehicle out of Fire Station 7. As the vehicle exited the station, it struck
the overhead door, causing damage to the door. Mr. Neely’s District Chief ordered
a post-accident substance abuse test, as required by Civil Service Rule V, Section
9.13. The test was administered by Jeffrey Mendler, the owner of Toxicology and
Drug Analysis Laboratory (“TDAL”). TDAL contracts with the City of New
Orleans to provide substance abuse collection and testing. The contract is
managed by the Civil Service Department.
2 Mr. Mendler first administered an alcohol breath test to Mr. Neely at
11:45PM, with a negative result from Mr. Neely. Next, Mr. Mendler requested an
unobserved urine sample of Mr. Neely, which Mr. Neely provided at 11:55PM.
Mr. Mendler inspected the urine sample and detected it to be out of the acceptable
temperature range. Mr. Mendler proceeded to discard the first unobserved sample
and requested an observed sample, as required by the testing protocol. Mr.
Mendler advised Mr. Neely that, per the protocol, he would be given up to three
hours to provide a second sample and would be offered up to forty ounces of fluids
to facilitate a second sample. Mr. Neely drank over fifty ounces of fluid in that
time and made three observed attempts to provide urine, but did not produce urine
before the three hour time limit expired. Mr. Mendler filled out an “Unusual
Collection Form” and recorded the outcome of Mr. Neely’s attempts to provide
urine as a “shy bladder.” On the form, Mr. Mendler checked a box next to
“Specimen Temperature Out of Range,” indicating that the first specimen was out
of the acceptable temperature range. Mr. Mendler checked a box stating, in part:
Donor Left the Office, Refused Observed Collection or Refused to Give a Valid Sample after being advised that: First specimen will be discarded. I will be allowed to drink up to 40 ounces of fluid distributed evenly over a three (3) hour period, or until I have provided a sufficient urine specimen, whichever comes first. If at any point during that three (3) hour period I feel that I am able to provide an adequate specimen, I will notify a staff member. If I cannot provide an adequate specimen within (3) hours from my first attempt, the collection process will be discontinued and my employer / prospective employer will be notified. I have been instructed not to leave the testing site during this period. I understand that failure to remain at the testing site until the testing process is complete will be considered a refusal.
3 Above the first bullet, Mr. Mendler wrote in “EXHAUSTED 3 HOUR
TIME LIMIT.” Mr. Neely initialed that text, signed the sheet at the bottom, and
returned to work to complete his shift. Mr. Mendler sent the form and
accompanying paperwork to his contact in the Civil Service Department,
characterizing the procedure as a refusal to test.
Beginning the next afternoon, Mr. Neely contacted the Deputy Chief of
Safety and Investigations, Terry Hardy, multiple times to attempt to discuss the
incident. Mr. Neely declares that he did so with the intention of arranging for
another substance abuse test. There is no record of Deputy Chief Hardy
responding to him on that subject. On September 7, 2020, NOFD Superintendent
Timothy McConnell issued a Notification of A Suspension and Pre-Termination
Hearing to Mr. Neely, informing him that he was immediately suspended due to a
refusal to participate in a substance abuse test, in violation of Civil Service Rule V,
Section 9, and that a hearing would take place on September 9, 2020. On
September 8, the Civil Service Department issued a letter to Mr. Neely and NOFD
enclosing “a copy of the positive test results” of the comprehensive substance
abuse screening. The letter quoted an excerpt from Civil Service Commission,
Rule V, Section 9.4: Refusal to participate in the substance abuse screening procedure, or failure to undergo the screening procedure at the time and place designated for testing, or tampering with or attempting to adulterate the sample, shall be considered to be presumptive evidence of the individual’s inability to pass the substance abuse testing procedure.
The letter continued to state, in relevant part: In view of the serious nature of these test results, a representative of your Appointing Authority will be in contact with you in the very near
4 future, to discuss the appropriate course of action to remedy this situation.
Per Civil Service Rules, after having failed to successfully complete the substance abuse screening procedure, to be considered for employment with the City, an applicant must submit documentation of their successful completion of a certified treatment program and continuing participation in an aftercare program.
If you wish to be considered for future employment with the City of New Orleans, you must submit documentation of your successful completion of a certified treatment program and continuing participation in an aftercare program.”
On that same day, Mr. Neely undertook an unobserved drug test, at his own
expense, at an Ochsner Urgent Care facility and received a negative result. Mr.
Neely presented the test results during the pre-termination hearing. Deputy Chief
Hardy conducted the hearing. On September 25, 2020, Superintendent McConnell
issued a letter to Mr. Neely informing him that he was terminated from
employment with NOFD for his refusal to participate in a substance abuse
screening procedure, in violation of Civil Service Rule V, Section 9, Substance
Abuse Testing. The letter stated that Mr. Neely did not provide any credible
explanation for his refusal to participate. The termination letter also explained that
the agency relied on the substance abuse screening form and the letter from the
Civil Service Department in reaching its conclusion.
Mr. Neely appealed his termination to the Civil Service Commission. A
hearing took place on November 18, 2020. On May 24, 2021, the Commission
granted Mr. Neely’s appeal and reinstated him with all back pay and other
emoluments of office, finding that NOFD failed to carry its burden of showing
good or lawful cause to terminate Mr. Neely. The Commission further found that
5 even if cause existed, NOFD failed to show that termination was commensurate
with the dereliction complained of. Last, the Commission determined that Mr.
Neely failed to receive due process. It is from this decision that NOFD presently
appeals.
DISCUSSION
Standard of Review
Civil Service Commission decisions are “subject to review on any question
of law or fact upon appeal to the court of appeal wherein the commission is
located.” La. Const. art. X, § 12. That review is multifaceted, and, in reviewing
factual findings, appellate courts “should apply the clearly wrong or manifest error
rule.” Walters v. Department of Police of City of New Orleans, 454 So. 2d 106,
113-14 (La. 1984). Appellate courts review procedural decisions of the
Commission “under our traditional plenary function of insuring procedural
rectitude” and examine questions of law de novo. Byrd v. Department of Police,
12-1040, p. 10 (La. App. 4 Cir. 2/6/13), 109 So. 3d 973, 980 (citing Walters, 454
So. 2d at 113-14).
However, while an appointing authority is “charged with the operation of his
or her department and it is within his or her discretion to discipline an employee,”
employees who achieve permanent status in the civil service system may only be
subject to disciplinary action for sufficient cause. Pope v. New Orleans Police
Dept., 04-1888, pp. 6-7 (La. App. 4 Cir. 4/20/05), 903 So. 2d 1, 4-5; La. Const.,
art. X, § 8(A). Legal cause to terminate an employee exists if the employee’s
6 conduct impairs the efficient operation of the appointing authority. Evangelist v.
Department of Police, 08-1375, p. 3 (La. App. 4 Cir. 9/16/09), 32 So. 3d 815, 818
(quoting Cittadino v. Dept. of Police, 558 So. 2d 1311, 1315 (La. App. 4th Cir.
1990)). The appointing authority bears the “burden of proving, by a
preponderance of the evidence that the complained-of activity or dereliction
occurred, and that such dereliction bore a real and substantial relationship to the
efficient operation of the appointing authority.” Cure v. Department of Police, 07-
0166, p. 2 (La. App. 4 Cir. 8/1/07), 964 So. 2d 1093, 1094 (citing Marziale v.
Department of Police, 06-0459, p. 10 (La. App. 4 Cir. 11/8/06), 944 So. 2d 760,
767).
When the Commission or a court of review evaluates cases involving the
termination of permanent employees, neither “should ‘second-guess’ an appointing
authority’s decisions.” Byrd, 12-1040, p. 10, 109 So. 3d at 980 (citing Lange v.
Orleans Levee District, 10-0140, p. 17 (La. 11/30/10), 56 So. 3d 925, 936). In
these cases, a “reviewing court should not reverse a Commission conclusion as to
the existence or absence of cause for dismissal, unless the decision is arbitrary,
capricious or an abuse of the Commission’s discretion.” Whitaker v. New Orleans
Police Dept., 03-0512, p. 3 (La. App. 4 Cir. 9/17/03), 863 So. 2d 572, 574 (citing
Jones v. Louisiana Department of Highways, 250 So. 2d 356, 359 (La. 1971);
Konen v. New Orleans Police Department, 77 So. 2d 24, 28 (La. 1954)). A
decision is arbitrary or capricious if there is an “absence of a rational basis for the
action taken.” Bannister v. Department of Streets, 95-0404, p. 8 (La. 1/16/96), 666
7 So. 2d 641, 647 (citing Shields v. City of Shreveport, 579 So. 2d 961, 964 (La.
1991)).
Assignment of Error #1
In its first assignment of error, the appellant asserts that the Commission
abused its discretion by determining that NOFD did not demonstrate that the
misconduct for which Mr. Neely was terminated was, in fact, misconduct and
occurred.
The appellant, as the appointing authority, bore the burden of proving that
the misconduct occurred. Cure, 07-0166, p. 2, 964 So. 2d at 1094. In its letter of
termination to the appellee, the appellant stated that the appellee was terminated
for his refusal to participate in a mandatory substance abuse screening procedure,
which is considered presumptive evidence of a positive test result and a violation
of Civil Service Rule V, Section 9. In concluding that the appellee’s actions
constituted a refusal to test, the appellant explicitly relied on the September 8, 2020
letter from the Civil Service Department. This approach was confirmed by
Superintendent McConnell during the Civil Service Commission hearing.
Superintendent McConnell testified that because the Civil Service Department
deemed the appellee’s behavior to be a refusal to test, the appellant was compelled
to accept that finding as a foregone conclusion.
Personnel Director Lisa Hudson of the Civil Service Department testified
that the Department determined that the appellee refused to take the test based on
the report from Mr. Mendler. Personnel Director Hudson stated that if a situation
8 is “black-and-white,” the Department will rely on the report of the certified tester
and have a staff member process the letter. However, Personnel Director Hudson
also stated that if the situation is not “black-and-white,” staff members alert the
Director and the Department will investigate further. The Director acknowledged
that, while her staff had not alerted her to this incident, under these conditions, the
Department would normally “dig a little deeper.” These admissions by Personnel
Director Hudson lead us to find that the Civil Service Department improperly
relied wholesale on the conclusions of Mr. Mendler in categorizing the appellee’s
conduct as a refusal to test, without any further analysis.
In conducting the substance abuse screening procedure, Mr. Mendler was
obligated to act in accordance with the Civil Service Rules, La. R.S. T. 49, Ch. 14,
and federal Substance Abuse and Mental Health Services Administration
Mandatory Guidelines for Federal Workplace Drug Testing Programs
(“SAMHSA”) guidelines, per the contract specifications within Amendment 1 to
the Agreement between the City and TDAL and La. R.S. 49:1005. Neither the
Civil Service Rules, nor the Revised Statutes define a “refusal” to test. La. R.S.
49:1001; Civil Service Rule I, Definitions. The Revised Statutes require that
testing generally “be performed in compliance with the SAMHSA guidelines,” but
does not address specific procedures to implement in the case of employees who
do not provide a second sample after an initial out-of-range sample. La. R.S.
49:1005(B). Similarly, the Civil Service Rules do not outline specific procedures
to follow for employees who do not provide a second sample.
9 Contract Specifications
The contract specifications state that “[i]f a medical condition makes it
impossible to produce a urine specimen, Contractor upon request will collect a hair
or blood sample for testing.” The appellant argues that the appellee presented no
evidence of a medical condition that would have warranted a request from the Civil
Service Department for a hair or blood sample test. The appellant also asserts that
Mr. Mendler’s description of appellee’s “shy bladder” is not a diagnosis of a
medical condition because Mr. Mendler is not a medical practitioner. The
appellant further contends that no medical condition was alleged by the appellee.
However, it is unclear how the appellant concluded that a medical condition did
not exist, if no medical practitioner reviewed the appellant’s test result.
SAMHSA Guidelines
The SAMHSA guidelines state that:
“As a donor for a federally regulated drug test, you have refused to take a federally regulated drug test if you: (1) Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the federal agency, consistent with applicable agency regulations, after being directed to do so by the federal agency; (2) Fail to remain at the collection site until the collection process is complete with the exception of a donor who leaves the collection site before the collection process begins for a pre-employment test as described in section 8.4(a); (3) Fail to provide a specimen (e.g., urine or another authorized specimen type) for any drug test required by these Guidelines or federal agency regulations with the exception of a donor who leaves the collection site before the collection process begins for a pre- employment test as described in section 8.4(a); (4) In the case of a direct observed or monitored collection, fail to permit the observation or monitoring of your provision of a specimen when required as described in Sections 8.9 and 8.10;
10 (5) Fail to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no legitimate medical explanation for the failure as determined by the process described in Section 13.6; (6) Fail or decline to participate in an alternate specimen collection (e.g., oral fluid) as directed by the federal agency or collector (i.e., as described in Section 8.6); (7) Fail to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process (i.e., Section 13.6) or as directed by the federal agency. In the case of a federal agency applicant/pre-employment drug test, the donor is deemed to have refused to test on this basis only if the federal agency applicant/pre- employment test is conducted following a contingent offer of employment. If there was no contingent offer of employment, the MRO will cancel the test; (8) Fail to cooperate with any part of the testing process (e.g., refuse to empty pockets when directed by the collector, disrupt the collection process, fail to wash hands after being directed to do so by the collector); (9) For an observed collection, fail to follow the observer's instructions related to the collection process; (10) Bring materials to the collection site for the purpose of adulterating, substituting, or diluting the specimen; (11) Attempt to adulterate, substitute, or dilute the specimen; (12) Possess or wear a prosthetic or other device that could be used to interfere with the collection process; or (13) Admit to the collector or MRO that you have adulterated or substituted the specimen.
Mandatory Guidelines for Federal Workplace Drug Testing Programs, 82 Fed. Reg. 7920-01, §1.7 (Oct. 1, 2017) (emphasis added).
Pursuant to these standards, contractors are instructed to discontinue urine
collection if the donor “has not provided a sufficient specimen (i.e., at least 45 mL)
within three hours of the first unsuccessful attempt to provide the specimen.”
Mandatory Guidelines for Federal Workplace Drug Testing Programs, 82 Fed.
Reg. 7920-01, §8.5(f)(2)(iii). The contractor must note the reason for not
collecting a urine specimen, notify the agency’s designated representative for
authorization of an alternate specimen to be collected, and send copies of the
collection form to the Medical Review Officer (“MRO”) and the agency’s
11 designated representative. Id. Additionally, the SAMHSA guidelines state that
agencies are free to enact a standard protocol for testing contractors to follow for
alternate collections instead of seeking authorization in each case that might
require an alternate specimen.1 Id. If the agency did not authorize collection of an
alternate specimen, the MRO consults with the agency and the “agency
immediately directs the donor to obtain, within five days, an evaluation from a
licensed physician, acceptable to the MRO, who has expertise in the medical issues
raised by the donor’s failure to provide a specimen.” Mandatory Guidelines for
Federal Workplace Drug Testing Programs, 82 Fed. Reg. 7920-01, §13.6.
SAMHSA guidelines required Mr. Mendler to at least notify a Civil Service
Department staff member for authorization to collect an alternate specimen, which
he did not do. The appellant argues that although the option for an alternate
specimen existed, there was no obligation for it or the Civil Service Department to
authorize such a specimen. However, although the appellant and the Civil Service
Department were not obligated to authorize collection of an alternate specimen, in
those cases, §13.6 of the SAMHSA guidelines requires a medical evaluation to
determine whether there was a legitimate medical reason that could justify the
insufficiency of the sample. Id. Only after the MRO or another qualified
1 The comments reveal that in drafting updates to the guidelines, a commenter requested that immediate alternate collections be made mandatory, to avoid additional costs associated with medical evaluations of “shy bladder” that would otherwise be necessary. Instead, the Department gave agencies the authority to decide whether to implement a standard protocol requiring an immediate alternate specimen, or to decide on a case-by-case basis whether to request an alternate specimen. This commentary illustrates a collective understanding that a “shy bladder” is a condition requiring further evaluation. 12 physician conducts an exam to determine that no medical condition exists, can the
donor’s behavior be categorized as a refusal to test. Id.
Analyzing these guidelines together, it is evident that the appellee’s conduct
did not characterize a refusal to test. He appeared for the test, underwent and
passed the first portion of it, stayed on the premises for the duration of the test,
drank more than the minimum amount of fluid to facilitate urination, made three
observed attempts to provide a sample, and expressed a willingness to undergo
additional testing when he was unable to provide a second specimen. The appellee
believed that he would have an opportunity to provide an alternate specimen, and
when one was not requested, he paid for an additional test himself. The appellant
failed to follow the mandatory testing protocol set forth in SAMHSA by not
requesting an alternate sample or ordering a medical evaluation, and incorrectly
concluded that the appellee’s behavior constituted a refusal to test.
DOT Regulations
The appellant asserts that the DOT Regulations do not apply to this contract.
However, the contract specifications contain a provision stating that in the apparent
absence in the specifications of any detail, or the apparent omission of a detailed
description concerning any point, the best professional practices will prevail.
During the November 18, 2020 hearing, Mr. Mendler asserted that although city
employees are not covered under the DOT regulations, he relied upon the
regulations as a best practice, describing them as the “gold standard to try to follow
13 … for all collections … yes, we follow those same guidelines as best we can the
whole way through.”
The definition of a refusal to test under the DOT Regulations is equivalent to
the definition under SAMHSA. 49 C.F.R. § 40.191 (2010); Mandatory Guidelines
for Federal Workplace Drug Testing Programs, 82 Fed. Reg. 7920-01, §1.7. The
failure to provide a sufficient amount of urine is only deemed a refusal when “it
has been determined, through a required medical evaluation, that there was no
adequate medical explanation for the failure.” 49 C.F.R. § 40.191(a)(5). As under
SAMHSA guidelines, if an employee does not provide a sufficient amount of urine
within three hours of the first unsuccessful sample, the contractor must
“immediately notify the DER” (Designated Employer Representative). 49 C.F.R.
§ 40.193(b)(4). The DER “must, after consulting with the MRO, direct the
employee to obtain, within five days, an evaluation from a licensed physician,
acceptable to the MRO, who has expertise in the medical issues raised by the
employee’s failure to provide a sufficient specimen.” 49 C.F.R. § 40.193(c).
Significantly, the DOT Regulations explicitly contemplate that a “shy bladder” is a
condition warranting a physician’s evaluation, stating that “[a]s a referral physician
(e.g., physician evaluating a “shy bladder” condition or a claim of a legitimate
medical explanation in a validity testing situation), you must notify the MRO, who
in turn will notify the DER.” 49 C.F.R. § 40.191(d).
Under both the SAMHSA guidelines, which explicitly govern the substance
abuse screening procedure, and the DOT Regulations, which the contractor relied
14 upon for best practices, the appellee’s conduct cannot be construed as a refusal to
test, and cannot be considered as presumptive evidence of a positive test result.
Therefore, the Commission did not abuse its discretion in concluding that the
appellant failed to demonstrate that the misconduct for which Mr. Neely was
terminated was, in fact, misconduct and occurred.
Assignment of Error #2
In its second assignment of error, the appellant asserts that the Commission
abused its discretion by granting Mr. Neely’s appeal, and ordering his
reinstatement with back pay and emoluments of office, because NOFD
demonstrated that the misconduct occurred, that it impaired the efficient operation
of the NOFD, and that termination was reasonable discipline.
The appellant bore the burden of proving that the misconduct occurred, and
that it “bore a real and substantial relationship to the efficient operation of the
appointing authority.” Cure, 07-0166, p. 2, 964 So. 2d at 1094 (citing Marziale,
06-0459, p. 10, 944 So. 2d at 767). If the appointing authority has proven that the
complained of activity occurred and it had sufficient cause to discipline, the
Commission then determines if the discipline was commensurate with the
infraction. Matusoff v. Department of Fire, 19-0932, p. 4 (La. App. 4 Cir.
5/20/20), --- So.3d ----, ----, 2020 WL 2562940, *2 (citing Abbott v. New Orleans
Police Dept., 14-0993, p. 7 (La. App. 4 Cir. 2/11/15), 165 So. 3d 191, 197). In
making that determination, the Commission “considers the nature of the offense as
well as the employee’s work record and previous disciplinary record.” Matusoff,
15 19-0932, p. 8, --- So.3d at ----, 2020 WL 2562940, at *4 (citing Hills v. New
Orleans City Council, 98-1101, pp. 6-7 (La. App. 4 Cir. 12/9/98), 725 So. 2d 55,
58). Termination is “the most severe form of disciplinary action that can be taken
by the Appointing Authority, and should be reserved for the most serious
violation.” Matthews v. Department of Police, 98-0467, p. 9 (La. App. 4 Cir.
11/18/98), 723 So. 2d 1044, 1049.
In Matusoff, a firefighter was terminated after testing positive for a
marijuana metabolite that his doctor and pharmacist recommended as part of a
treatment plan. Matusoff, 19-0932, pp. 1-3, --- So.3d at ----, 2020 WL 2562940, at
*1. In terminating him, NOFD cited the City of New Orleans’ Policy
Memorandum No. 89, subsection X.B.5 (Revised): B. A first offense discharge shall be invoked if an employee commits one (1) of the following violations: 5. As the result of a first offense confirmed (MRO certified) positive test result as established by City Civil Service Rules for the use of alcoholic beverages or any of the illegal and/or unlawfully obtained (used) drugs prohibited by [sic] while working.
The firefighter appealed to the Commission, which denied his appeal for different
reasons than the appointing authority had identified. This Court found that, as the
agency accepted Mr. Matusoff’s explanation that he tested positive due to his
medical treatment, “NOFD failed to meet its burden of proving that Mr. Matusoff
had either used an illegal/prohibited substance or consumed it while on duty.” Id.,
19-0932, p. 6, --- So.3d at ----, 2020 WL 2562940, at *3. This Court also found
that the Commission abused its discretion by failing to consider the nature of the
16 offense as well as Mr. Matusoff’s twelve years of experience and lack of a prior
disciplinary record. Id., 19-0932, p. 8, --- So.3d at ----, 2020 WL 2562940, at *4.
The appellant argues that Matusoff does not preclude reliance on Policy
Memorandum No. 89 and its first-offense discharge mandate. The appellant
submits that Policy Memorandum No. 89 expressly authorized and required the
appellee’s termination. However, in the instant matter, as in Matusoff, NOFD
failed to demonstrate that the misconduct complained of occurred. As discussed in
the previous section, the appellee did not refuse to participate in the substance
abuse screening procedure and did not violate the Civil Service Rules. Since the
offense did not occur, the appellant had no authority to rely on Policy
Memorandum No. 89 for a first-offense discharge.
Consequently, the appellant fails to demonstrate how the non-occurrence of
an offense by an employee impairs its efficient operation. While true that the
Commission “should give heightened regard to the appointing authorities that
serve as special guardians of the public’s safety and operate as quasi-military
institutions where strict discipline is imperative,” the appointing authority in this
case violated its own operational procedures. Stevens v. Department of Police, 00-
1682, p. 8 (La. App. 4 Cir. 5/9/01), 789 So. 2d 622, 627. Had the SAMHSA
guidelines been followed, an alternate specimen would have been quickly collected
or a medical evaluation would have occurred within five days, thereby facilitating
the agency’s efficient operation.
17 Furthermore, even if the appellee was guilty of a refusal to participate in a
substance abuse screening procedure, that act is only “presumptive evidence,”
under Civil Service Rule V, Section 9.4, of his inability to pass the test and would
have required a more thorough review of the circumstances before proceeding to
termination. In Matusoff, an actual positive test result was not found to require
termination. In the instant case, the only offense the appellee committed was his
failure to produce a specimen for collection under observation.
The appellee has served as a firefighter for eleven years and has no prior
disciplinary record. The appellant presented no evidence of any other behavior by
the appellee that would give rise to concerns of substance abuse. The testimony of
Chief Hardy and Superintendent McConnell illustrate their belief that the only
recourse was termination and that no further consideration was given to the context
of the case. Therefore, the Commission did not abuse its discretion in granting the
appellee’s appeal and ordering his reinstatement because the appellant did not
demonstrate that the misconduct occurred, impaired the efficient operation of the
NOFD, and that termination was reasonable discipline.
Assignment of Error #3
In its third assignment of error, the appellant contends that the Commission
abused its discretion and erred as a matter of law by determining NOFD did not
afford Mr. Neely due process because it did not provide him a meaningful
opportunity to be heard.
18 Civil service employees who achieve permanent status may only be
disciplined for cause and in writing. La. Const., art. X, § 8(A). That writing
should inform the employee of the charges against him or her, and the opportunity
to be heard, at a meaningful time and in a meaningful manner. Moore v. Ware, 01-
3341, pp. 12-13 (La. 2/25/03), 839 So. 2d 940, 949. The appellee, as a permanent
employee, acquired a vested property right in his employment with the appellee
and was entitled to due process in the disciplinary process.
In its September 7, 2020 letter to the appellee, the appellant provided notice
of the charges against the appellee, and the date of a pre-termination hearing. The
letter stated that the hearing would be the appellee’s opportunity to present a case
for why he should not be terminated and called upon him to prepare any supporting
documentation and testimony as to why he should be allowed to continue
employment. The letter stated that the “information you provide at the hearing will
be used to determine what course of action the New Orleans Fire Department will
take.” Chief Hardy conducted the hearing.
However, in his Commission hearing testimony, Chief Hardy concedes that
the outcome of the hearing was predetermined by the Civil Service Department’s
letter labeling the appellee’s conduct as a refusal to test and a positive result. This
concession does not comport with the testimony of the Civil Service Department
Personnel Director, who acknowledged that while the appointing authority
typically relies on the Department’s letter, the authority retains the responsibility to
conduct an investigation of the case. However, it does not appear that any such
19 investigation was conducted. At the time the hearing took place, the appellant had
already adjudged the outcome. Additionally, the appellee neglected its duties
under the SAHMSA guidelines to provide a medical evaluation or request an
alternate specimen of the appellee.
Accordingly, the hearing did not provide the appellee with an opportunity to
be heard in a meaningful manner and the Commission did not abuse its discretion
or err as a matter of law by determining the appellant did not afford the appellee
due process.
CONCLUSION
For the above-mentioned reasons, we hold that the Commission did not
abuse its discretion in finding that the appellant failed to carry its burden of
showing good or lawful cause to terminate the appellee. We further hold that the
Commission did not abuse its discretion in finding that, even if cause existed, the
appellant failed to show that termination was commensurate with the offense.
Lastly, we hold that the Commission did not abuse its discretion or err as a matter
of law by determining the appellant did not afford the appellee due process.