Morgan v. City of St. Louis

• Court: Missouri Court of Appeals
• Writing for the Court: Lawrence G. Crahan
• Citation: Morgan v. City of St. Louis, 154 S.W.3d 6 (Mo. App. 2004)
• Decision Date: 21 December 2004
• Docket Number: No. ED 84267.,ED 84267.
• Parties: James MORGAN, Plaintiff/Cross-Appellant, v. CITY OF ST. LOUIS, et al., Defendants/Respondents.

154 S.W.3d 6

James MORGAN, Plaintiff/Cross-Appellant, v. CITY OF ST. LOUIS, et al., Defendants/Respondents.

No. ED 84267.

Missouri Court of Appeals, Eastern District, Division Four.

December 21, 2004.

Charles W. Bobinette, St. Louis, MO, for appellant.

Patricia A. Hageman, Carl W. Yates III, St. Louis, MO, for respondents.

LAWRENCE G. CRAHAN, Judge.

The City of St. Louis ("City") and its Civil Service Commission ("Commission") appeal the judgment reversing the decision of the Commission upholding dismissal of Captain James Morgan ("Morgan") for violation of a City drug policy and reinstating him to the St. Louis Fire Department ("Department"). The circuit court ruled that the finding of the Commission that Morgan had tested positive for drugs after completing a random drug test was not supported by substantial and competent evidence. Morgan cross-appeals from the circuit court's denial of his motion to remand the case to the Commission to calculate the amount of back pay, interest, and benefits due to him for the wrongful termination of his employment. We affirm the judgment of the circuit court as modified with directions to remand to the Commission to calculate the amount of back pay and any other benefits Morgan lost as a result of his wrongful termination, together with interest as provided by law.

Our scope of review is limited to a review of the administrative ruling and not the decision of the circuit court. Lagud v. Kansas City Bd. of Police Comm'rs, 136 S.W.3d 786, 791 (Mo. banc 2004). Pursuant to article V, section 18 of the Missouri Constitution we are to determine whether the agency's action is "supported by competent and substantial evidence upon the whole record." Under section 536.140.2,¹ when the court reviews the record to determine if the findings of the agency are supported by substantial and competent evidence, the court must look to the whole record and not merely the evidence that supports the decision. Lagud, 136 S.W.3d at 791. Thus, a reviewing court is no longer required to view the evidence in a light most favorable to the agency's decision. Id. For evidence to be substantial, it must be competent and support the Commission's discretionary determination. Mertzlufft v. Civil Service Comm'n, 85 S.W.3d 63, 66 (Mo.App.2002). Substantial evidence is competent evidence that would have probative force upon the issues if believed. Id.

The evidence before the Commission showed the following. Morgan has been a member of the Department since 1978. In 1990, he became the first from his class to be promoted to Captain. A lifelong resident of St. Louis, Morgan has received numerous awards and distinctions including the "Meritorious Service Award," the "Departmental Image Award" and "Firefighter of the Year." St. Louis City Fire Chief Sherman George and two Battalion Chiefs attested to Morgan's work ethic and good character. He served in many voluntary positions over the years, including working to increase public education about fire safety. He has been tested numerous times for drugs and always passed.

In April 2002, Morgan sought further promotion within the Department. As part of the promotion process, the Department required Morgan to submit to drug testing. On April 11, he was selected for random drug testing and was required to provide urine samples at BJC Health Services. Four days later, Morgan was informed that he had tested positive for carboxy — THC, the marijuana metabolite. Except for inhaling smoke during a fire a week or so before the test or a mistake in the collection or testing processes, he could not think of a reason for a positive test result. As was his right under City of St. Louis Department of Personnel Administrative Regulation No. 120 ("Regulation 120"), Morgan requested that his split sample² be tested by an independent laboratory, MedTox. MedTox confirmed the presence of the marijuana metabolite in the specimen, but the results were not quantified and there was no indication whether or not the presence of the marijuana metabolite reached or exceeded the cut-off level for a positive test under the guidelines adopted by the City in Regulation 120.

A pretermination review hearing was called, and Morgan appeared before a three-member Fire Department Review Board ("Board") in May 2002 to respond to the allegations of drug use. Morgan denied that he had used marijuana, and in his defense he produced the results of an additional independent drug test and a polygraph examination conducted at his expense. The Board felt that it had no other option but to recommend Morgan's termination to his Appointing Authority,³ Chief George. Morgan offered to submit to an additional independent polygraph test, but his offer was refused. The Appointing Authority believed he had no discretion and was required to terminate Morgan because of the positive drug test, so Morgan was terminated for violating the City's drug policy regulations.

Morgan then appealed to and requested a hearing by the Commission. Hearings were held in August 2002 before a hearing officer. Morgan moved the Commission to order the urine sample to be provided to a DNA expert for testing prior to the introduction of evidence and briefed the Commission on this issue at the close of the evidence, but no action was taken.

The keeper of records at BJC testified for the Department as to the records regarding the specimen collected from Morgan, records of the delivery of a specimen to MedTox, and a computer-generated laboratory report. The Department did not introduce any evidence concerning the chain of custody of the split sample. Dr. Kammerer, the Director of Toxicology at the Clinical Reference Laboratory that performed the first test, testified, based on the records of his lab and identified the sample bottle. Although Dr. Kammerer did not personally perform the drug test, he described the testing process, including the possibility of false positives, especially when lower levels of the drug are found to be present in a specimen. Dr. Kammerer noted that the initial specimen, tested by the Clinical Reference Laboratory, was found to contain 25 nanograms per milliliter (ng/mL) of the marijuana metabolite upon confirmation testing. Dr. Kammerer stated that if the donor had drank a glass of water before the specimen was given, it very possibly would have been below the cutoff level.

A positive drug test that would result in the dismissal of a City employee is defined in Regulation 120 as "a test result that confirms the presence of drugs or drug metabolites at the level that equals or exceeds the limits established by the United States Departments of Transportation and Health & Human Services." Under the federal regulations in effect here at all relevant times, the cutoff concentration for a confirmation drug test of marijuana was 15 ng/mL.

Dr. Kammerer also identified records showing the split sample was sent to MedTox. There was no evidence from Dr. Kammerer or from anyone at the MedTox lab showing the receipt of the split sample by MedTox. The records do show, however, that a split sample was sent from the Clinical Reference Laboratory to MedTox, and MedTox reported back its test results on the split sample. The records of both companies indicate that the sample had the same patient identification number associated with Morgan. The report from MedTox, admitted over Morgan's objection to the lack of foundation, confirmed the presence of the marijuana metabolite, but it did not quantify the results or otherwise report whether it equaled or exceeded the cutoff concentration of 15 ng/mL specified by Regulation 120 as constituting a positive drug test.

Morgan testified on his own behalf. The hearing officer sustained City's objection to the introduction of the independent polygraph examination report on the basis of relevancy. At the end of the hearings, the hearing officer prepared a written report that was delivered to the Commission.

By a vote of 2-1, the Commission...