Reeves v. Singleton, WD

• Decision Date: 18 May 1999
• Docket Number: No. WD,WD
• Citation: 994 S.W.2d 586
• Parties: 15 IER Cases 259 Stephen REEVES, Superintendent, Fulton State Hospital, Appellant, v. David SINGLETON, Respondent. 56260.
• Court: Missouri Court of Appeals

Page 586

994 S.W.2d 586

15 IER Cases 259

Stephen REEVES, Superintendent, Fulton State Hospital, Appellant, v. David SINGLETON, Respondent.

No. WD 56260.

Missouri Court of Appeals Western District.

May 18, 1999.

Hugh L. Marshall, Atty. Gen., Kansas City, for Appellant.

John L. Patton, Columbia, for Respondent.

Before Presiding Judge LAURA DENVIR STITH, Judge HAROLD L. LOWENSTEIN, and Judge ALBERT A. RIEDERER.

LAURA DENVIR STITH, Judge.

Appellant, Stephen Reeves, the Superintendent and Appointing Authority of Fulton State Hospital (the Hospital), appeals the decision of the Personnel Advisory Board (PAB) ordering him to reinstate Respondent, David Singleton, to his former position and pay him back pay accrued during the time of his dismissal. The Hospital argues the PAB erred because the totality of the circumstances surrounding Mr. Singleton's refusal to take a urinalysis drug screen provided the Hospital with a reasonable suspicion that Mr. Singleton was a drug user and justified his dismissal for refusing to take the drug test. We disagree, and affirm the PAB's reinstatement of Mr. Singleton with back pay.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 2, 1996, the Fulton State Hospital facility nurse, Louise Mitchell, received a telephone call from an anonymous caller, who complained of having to work with "potheads." The caller reported that Mike McDonald, a security aide at the hospital, had been smoking marijuana that day during his morning break. The caller told the nurse he would identify himself and reveal the name of another worker who also used drugs if everything "went O.K." with his reporting. The nurse relayed the information to Superintendent Reeves, who summoned the Director of Security to take Mr. McDonald to the nurse for a drug screen.

Mr. McDonald was escorted to the nurse's office and was told that Mr. Reeves requested that he have a drug screen. Mr. McDonald refused to undergo the drug screen without first speaking with his attorney. As a result, Mr. Reeves placed Mr. McDonald on administrative leave and required him to turn in his identification badge and keys. He was escorted to his car and told to leave the premises.

A few hours later, at approximately 1:10 p.m. that same day, the facility nurse, Ms. Mitchell, received another call from someone whose voice she believed was the same as that of the anonymous morning caller. The caller again refused to identify himself, but told the nurse that another hospital security aide, David Singleton, also used drugs while on duty. The caller did not state how he knew this, nor did he identify what drugs had been used or when or where this use had occurred. The nurse reported this information to Mr. Reeves, who requested that the security officer have Mr. Singleton submit to a drug screen when he reported to work that afternoon for the evening shift.

When Mr. Singleton arrived at work at 2:45 p.m. that afternoon, he found a note on his schedule telling him to report to his supervisor. Mr. Singleton's supervisor told him to go to the security office. Two security officers escorted him to the nurse's office, but, as they approached, Mr. Singleton said he was sick and was not going inside. ¹ According to security officer Wilson, Mr. Singleton stated that Mike McDonald told him that he had been asked to take a drug screen and that he was not going to take a drug screen based on an anonymous call. ² Mr. Singleton was informed that he could be terminated if he did not take the test, but Mr. Singleton replied that he was sick and was going home. The officer then requested Mr. Singleton to return his identification and keys. Mr. Singleton did so and went home.

The next day, April 3, 1996, the Hospital terminated Mr. McDonald and Mr. Singleton for their refusals to take the drug screen test. The Hospital's letter to Mr. Singleton stated:

The specific reason for this action is your refusal to take a urine drug screening test which had been ordered because of a report that you were abusing drugs while on duty. On April 2, 1996 you were escorted to the Employee Health Nurse's Office and told by Security Officers that you were brought there for a drug screen. You said you knew that and had been contacted by another employee. Although you were told you could be terminated for refusing to take the test you said you were not going to take the test because of an anonymous call. You said you were sick and were going home, at which time you were allowed to leave.

We have an obligation to protect our clients from negligent care which is provided by employees who may be impaired by drugs or alcohol, or who may offer these things to our clients. It is even more critical for someone such as yourself who is assigned to a security area. Your refusal to cooperate with the urine drug screen constitutes insubordination and is grounds for dismissal. (emphasis added).

Mr. Singleton appealed his dismissal to the PAB on April 26, 1996, claiming his dismissal was made without good cause and violated his rights to due process of law. Following a hearing, the PAB issued its findings of fact and conclusions of law, stating:

The Appointing Authority had insufficient basis for reasonable suspicion. The content of the call provided nothing to show that the caller was honest or his information reliable.... The caller failed to state when and where the Appellant [Singleton] was using drugs at work, what drug he used, and how the caller came to know the information.... That is not the kind of call from which a person can infer that the caller is honest or provides reliable information.

The Appointing Authority argues that McDonald's call to the Appellant about his refusal to submit to the drug screen tends to confirm the caller's allegation of drug use. That one employee calls another about such a matter does not - even in conjunction with the anonymous call - tend to show illegal activity.

....

Without reasonable suspicion, the Drug Free Workplace Policy did not require the Appellant to submit to a drug test. Therefore, the Appellant's refusal was not insubordination under 1 CSR 20-3.070(2)(K), and there was no cause to discipline him under section 36.380, RSMo 1994.

The PAB ordered the Hospital to reinstate Mr. Singleton and to pay him all lost salary resulting from the dismissal, less his earnings from other employment during his period of dismissal, as reduced by his attorney's fees in seeking reinstatement and back pay, under Wolf v. Missouri State Training School For Boys, 517 S.W.2d 138 (Mo. banc 1974). The Hospital filed a Petition for Review with the circuit court, which affirmed the PAB's ruling that Mr. Singleton should be reinstated, but remanded for a redetermination of the amount of back pay in light of our Supreme Court's recent decision in McGhee v. Dixon, 973 S.W.2d 847 (Mo. banc 1998). The Hospital now appeals the affirmance of the PAB's order in favor of Mr. Singleton.

II. STANDARD OF REVIEW AND JURISDICTION OF THIS COURT

We review the decision of the PAB, not the circuit court's judgment. Division of Family Services v. Cade, 939 S.W.2d 546, 550 (Mo.App.1997). We defer to the PAB's findings of fact and will uphold its decision unless we find the decision "is in excess of jurisdiction, unsupported by competent and substantial evidence, or is arbitrary, capricious, or unreasonable." Burgdorf v. Bd. of Police Comm'rs, 936 S.W.2d 227, 230 (Mo.App.1996), citing Ogden v. Henry, 872 S.W.2d 608, 611 (Mo.App.1994). In making this determination, we consider the evidence in the light most favorable to the PAB's decision. SGOH Acquisition Inc. v. Mo. Dep't of Mental Health, 914 S.W.2d 402, 404 (Mo.App.1996).

Mr. Singleton has filed a motion to dismiss this appeal. In support, he argues that, because the circuit court remanded the case to the PAB for redetermination of back pay and attorney's fees in light of McGhee, there is, as yet, no final judgment, and appeal is premature. We disagree. A remand by the circuit court precludes finality only where the remand is for the purpose of enabling the PAB to enter findings necessary for judicial review. See, e.g., Giesler v. City of Ste. Genevieve, 943 S.W.2d 793 (Mo.App.1997). Where, as here, the basis of the circuit court's remand is the circuit court's holding, on the merits, that the PAB erroneously decided a legal issue, then the aggrieved party has a right to appeal that legal decision to this Court. Campbell v. Labor & Indus. Relations Comm'n, 907 S.W.2d 246 (Mo.App.1995). And, as noted, once appeal is made to this Court, we review the decision of the PAB, not that of the circuit court, and the latter drops out of the case. Cade, 939 S.W.2d at 550. We therefore deny the motion to dismiss the appeal. ³

III. THE HOSPITAL DID NOT HAVE REASONABLE SUSPICION TO ORDER A DRUG SCREEN AND THEREFORE COULD NOT TERMINATE MR. SINGLETON FOR REFUSING THE DRUG SCREEN

As a state employee, Mr. Singleton had a property interest in his job. McCall v. Goldbaum, 863 S.W.2d 640, 642 (Mo.App.1993). As such, he could only be terminated for "good cause." Pursuant to Section 36.380, RSMo 1994, a State employee may be terminated for good cause by an appointing authority, "when [the authority] considers that such action is required in the interest of efficient administration and that the good of the service will be served thereby." § 36.380. Here, the Hospital stated its grounds for dismissal as insubordination based on Mr. Singleton's refusal to submit to a drug screen while on duty, pursuant to hospital policy.

It is well-established that a urinalysis drug test required by a government employer for the purpose of detecting drug use is a search subject to the Fourth Amendment, and, therefore, must be reasonable. Benavidez v. City of Albuquerque, 101 F.3d 620, 623-24 (10 th Cir.1996); Ford v. Dowd, 931 F.2d 1286, 1289-90 (8 th Cir.1991); McDonell v. Hunter, 809 F.2d 1302, 1307-08 (8 th Cir.1987). It is equally well-settled that, in...