Smith v. City of Atlanta

• Court: Georgia Court of Appeals
• Writing for the Court: McFADDEN
• Citation: Smith v. City of Atlanta, 327 Ga.App. 331, 759 S.E.2d 63 (Ga. App. 2014)
• Decision Date: 21 May 2014
• Docket Number: No. A14A0034.,A14A0034.
• Parties: SMITH v. CITY OF ATLANTA.

327 Ga.App. 331

759 S.E.2d 63

SMITH

v.CITY OF ATLANTA.

No. A14A0034.

Court of Appeals of Georgia.

May 21, 2014.

Jennifer L. Knight, Douglasville, for Appellant.

William A. Castings Jr., Amber Ali Robinson, Kristen Elena Brooks, for Appellee.

McFADDEN, Judge.

Javon Smith, formerly a firefighter with the City of Atlanta, filed this discretionary appeal from the superior court's decision upholding the termination of his employment. In reaching its decision to terminate Smith's employment, the city had departed from its written drug testing policy, and Smith argues that this departure violated his rights. But because Smith was given notice and an opportunity to be heard, he was not denied due process. Accordingly, we affirm the decision upholding his termination.

The relevant facts, which are largely undisputed, are as follows. The city required sworn employees of the Atlanta Fire Rescue Department, such as Smith, to submit to random drug testing as part of its substance abuse policy. If an employee tested positive, his or her employment was terminated.

On December 15, 2011, the employees at Smith's fire station were selected to be tested. Smith gave a urine specimen at Caduceus Occupational Medicine. The specimen was divided between two containers. One container was sent to an independent lab for testing, and the results came back positive for marijuana metabolites. The city's certified medical review officer, a physician, received the results and contacted Smith to ask him if any medical reason explained the positive test result; Smith gave no reason. The medical review officer offered to have the second container of urine tested at a different independent lab. That test also came back positive for marijuana metabolites, and Smith was terminated. He appealed his termination to the City of Atlanta Civil Service Board which conducted a hearing and upheld the termination. Smith filed a petition for writ of certiorari to the superior court, which denied the petition and affirmed the administrative decision. We granted his application for discretionary appeal.

We review a superior court's decision reviewing an administrative agency's decision to determine whether the superior court has, in its own final ruling, committed an error of law. Bd. of Regents of the Univ. System of Georgia v. Hogan, 298 Ga.App. 454(1), 680 S.E.2d 518 (2009). Smith argues that the superior court erred by upholding his termination because the Fire Rescue Department's failure to administer a rapid screening test in breach of its random drug testing policy violated his due process rights. At the time of Smith's testing, the Fire Rescue Department's Random Drug and Alcohol Testing Policy provided:

For a[n] employee who has an initial positive result on a drug test, a second test will be conducted. If that result is positive, the [medical review officer] will contact the person tested to discuss the results. If the person cannot verify that the results are due to a valid medical reason (for example, appropriate use of prescription medication), the [medical review officer] will offer a split specimen (a test of [a] portion of the original specimen). The employee must contact the [medical review officer] within 72 hours after to request the split specimen test; the test must be conducted within 14 days of the date the person was notified of the initial positive results.

Under this policy, two tests were administered simultaneously on the day of testing: the employee's urine was subjected to a rapid screening test, and at the same time, a portion of the urine was sent to a laboratory for testing. If the laboratory test returned a positive result, the employee could request that a second portion of urine (the “split specimen”) be sent to a second laboratory for testing.

In spite of the written policy in place at the time of Smith's random drug testing, he was not given the rapid screening test. Smith argues that this departure from the written policy deprived him of a check on the reliability of the test results that led to his termination. The fire chief testified, on the other hand, that he had eliminated the rapid screening test because he was concerned that it made the drug policy unfair. He elaborated that in an unrelated proceeding, a firefighter had tested negative on the rapid screening test but positive on the simultaneous laboratory test; since the rapid screening test had returned a negative result, the firefighter's urine should not have been subjected to additional testing. While Smith argues that eliminating the rapid screening test deprived him of a chance to pass a test, the fire chief maintained that eliminating...