Dixon v. Department of Transp., F.A.A.

• Decision Date: 26 October 1993
• Docket Number: No. 92-3478,92-3478
• Citation: 8 F.3d 798
• Parties: 144 L.R.R.M. (BNA) 2569, 62 USLW 2324, 8 IER Cases 1846 David L. DIXON, Petitioner, v. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 798

8 F.3d 798

144 L.R.R.M. (BNA) 2569, 62 USLW 2324,

8 IER Cases 1846

David L. DIXON, Petitioner, v. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, Respondent.

No. 92-3478.

United States Court of Appeals, Federal Circuit.

Oct. 26, 1993.

Donald L. Kohl, Shea & Kohl, St. Charles, MO, argued, for petitioner.

Robert J. Krask, Dept. of Justice, Washington, DC, argued, for respondent. Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Thomas W. Petersen, Asst. Director, and Ellen M. McElligott, Commercial Litigation Branch, Dept. of Justice, Washington, DC, were on the brief, for respondent.

Before NEWMAN, RADER and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

Petitioner David L. Dixon petitions for review of an arbitrator's award denying his grievance that he was improperly removed from his position with the Department of Transportation's ("DOT's") Federal Aviation Administration ("agency") for having altered, adulterated, or substituted a urine sample during a random drug test. ¹ Because we conclude that the arbitrator's award is not supported by substantial evidence, we reverse and remand.

BACKGROUND

Following his removal, petitioner filed a timely grievance in accordance with the terms of the labor relations agreement between his union and DOT ("Agreement"). After the grievance was denied, the matter was submitted to an arbitrator. The following statement of facts is based upon the evidence before the arbitrator, including testimony taken at a hearing on February 20, and 21, 1992. ²

At the time of the events in question, petitioner had been employed by the agency for five years as an electronics technician. Award at 1. In that position, he was responsible for maintaining vital equipment and was classified as a Category I employee by the agency. Id. As such, he was subject to random drug testing as a condition of his federal service. Petitioner had previously passed several random drug tests, the most recent one having been on January 14, 1991. Tab A15, Exhibit A at 8.

At about 9:30 a.m. on April 4, 1991, petitioner's supervisor, Leo J. Tabaka, notified him that he had been scheduled for a random drug test later that morning. Award at 2. Petitioner continued in his work routine until about 11:00 a.m., at which time he went to the lunchroom. There, he waited with two other agency employees who also were scheduled for random testing that day. Id. When these employees were unable to give samples at the time they were scheduled to do so, petitioner volunteered to give his sample. Id. There is no evidence in the record that petitioner left the lunchroom or used the drinking fountain or sinks near the lunchroom prior to giving his sample. Id. at 3; Tab A15, Exhibit A at 1-2.

In the sample collection area, petitioner met Kenneth Zimmerman, a specimen collector for a private health care company contractor. Award at 3. After filling out the first part of a drug test custody and control form ("custody and control form"), Mr. Zimmerman accompanied petitioner to a restroom. Once in the restroom, Mr. Zimmerman taped the faucets in the sink and poured a blue dye into the toilet water. Id. Then he directed petitioner to fill at least half of a collection cup, at which point he left the restroom. Id. After he had filled the cup, petitioner knocked on the door to summon Mr. Zimmerman. Id. Mr. Zimmerman accompanied petitioner back into the restroom. Id. Inside the restroom, Mr. Zimmerman asked petitioner to read a temperature strip attached to the collection cup. Id.

Petitioner testified that the temperature of the sample was 92? F, id., and that the sample was "[t]he color of urine." Tr. at 369. At the hearing, Mr. Zimmerman could not remember the exact temperature of the sample. Award at 3. However, Mr. Zimmerman did mark on the custody and control form that the sample's temperature had been read within four minutes of collection and was in the acceptable range of from 90.5? to 99.8? F. Tr. at 111. When asked at the hearing whether he remembered anything about the color of the sample, Mr. Zimmerman testified as follows: "No. I'll tell you. I--it's really hard to say, you know. It just looked okay to me, you know. I can't--had a good temperature. We looked for that, and I, you know--it looked like it was okay to me." Tr. at 116-17. Mr. Zimmerman did not note on the custody and control form anything unusual about the color of petitioner's specimen. Award at 3; Tab A2 at 5. Patrick Moran, a specialist in DOT's Departmental Drug Office, who managed the contract for the collection of urine samples for DOT's drug testing program, Tr. at 10-11, testified that a clear sample would be unusual. Tr. at 55. He also testified that if a specimen collector observed a clear sample, he or she was expected to make a note of such an observation on the custody and control form. Tr. at 55-56.

After observing that the sample's temperature was within the acceptable range, Mr. Zimmerman poured the sample into a specimen bottle and sealed the bottle with an adhesive seal taken from the custody and After leaving the restroom, Mr. Zimmerman and petitioner walked down the hall to an office, where the balance of the custody and control form was completed. Id. Mr. Zimmerman testified that it was his general practice next to insert the custody and control form into the shipping box, and to seal the shipping box for delivery to a drug testing company in the presence of the sample donor. Id. Then, Mr. Zimmerman testified, he would place the sealed shipping box in a larger shipping bag for transfer to an airborne shipping company. Tr. at 138. However, petitioner testified that when he left the office, the custody and control form was still on the desk and had not been sealed in the shipping box with the bottle containing his sample. Award at 4; Tr. at 354.

                control form.   Award at 3.   At the hearing, Mr. Zimmerman demonstrated the sealing of a specimen bottle.   Tr. at 112-114.   The resulting seal was smooth and unwrinkled.   Tr. at 355.   At Mr. Zimmerman's request, petitioner initialed and dated the seal.   Award at 3-4.   Petitioner testified that the seal he initialed on April 4 looked approximately like the demonstration seal and that he did not notice any wrinkles on it.   Tr. at 355-56.   Mr. Zimmerman then placed the specimen bottle in a small shipping box, and petitioner and Mr. Zimmerman left the restroom.   Award at 4
                

Block VI of the custody and control form has a space where the person who receives the package containing the sample on behalf of the airborne shipping company is to sign. Tab A2 at 5. In petitioner's case, Mr. Zimmerman signed the custody and control form on behalf of Airborne Express. Id.

On the custody and control form, beneath Mr. Zimmerman's April 4, 1991 signatures releasing custody of the sample and indicating receipt of the sample on behalf of Airborne Express, the next person specifically identified as having custody of the sample is Marilyn Snelling, an employee of CompuChem Laboratories, Inc. ("CompuChem"). Id. Ms. Snelling's signature attesting to receipt of the sample from the airborne shipping company appears next to an April 5, 1991 date stamp. Id. However, Dr. Shirley Brinkley, a CompuChem Senior Technical Analyst, who testified at the hearing concerning CompuChem procedures for handling and testing of the sample, explained that Ms. Snelling was "[n]ot necessarily" the person who took the box containing petitioner's specimen out of the Airborne Express package. Tr. at 229.

According to Dr. Brinkley, the shipping box was removed from the larger shipping bag and opened by an unidentified receiving clerk at CompuChem. Tr. at 156, 229-33. Upon removing the specimen bottle from the shipping box, Dr. Brinkley testified, the receiving clerk noticed that the sample was unusually clear in color, and on the basis of that observation sent the sample directly to a "trouble room" rather than through the normal processing routine. Tr. at 161-62. A trouble room clerk attempted to contact Cynthia Schaeffer, CompuChem's customer service representative for DOT, on April 5. Tr. at 162. Ms. Schaeffer was out of town, however, and did not receive the voice mail notification from the trouble room clerk until four days later on April 9. Id.

After speaking to the clerk in the trouble room on April 9, Ms. Schaeffer, on April 10, contacted Ken Edgell, a DOT manager. Id. Mr. Edgell directed CompuChem to take photographs of the bottle containing the sample and to then perform adulteration panel tests on the sample. Tr. at 162, 166. Rather than photographing the sealed specimen bottle, CompuChem photocopied portions of the seal which showed petitioner's initials. Tr. at 162-63. One of the photocopies shows what appears to be a wrinkle near petitioner's initials. Tab A14, photocopy immediately following custody and control form; Tr. at 355-56. A series of adulteration panel tests performed on April 11 and April 18 revealed that the sample in the specimen bottle was not urine. Tr. at 173-74, 177.

On April 12, petitioner was informed that there was a problem with his drug test. Award at 6. William Horstman, the agency's section manager for the State of Missouri, told petitioner that the agency would give him an opportunity to be retested on April 15. Tr. at 302. Mr. Tabaka testified at the hearing that petitioner told him that he wanted to be retested. Tr. at 90; Tab A15 At the meeting on April 12, in which petitioner was informed that there was a problem with his drug test, he was asked if he would be willing to have his specimen retested. Tr. at 359. At the hearing, petitioner testified: "I didn't think it would help me, because it it wasn't--if the sample wasn't urine, it wasn't the sample that I submitted, and I did not see how it would help, so I didn't--I really didn't agree to have it retested at that time." Tr. at 359-60. Subsequently, on April 19, Robert Lindsey, an agency...