Failure to Allow Discovery

In Baird v. Department of Army, No. 2007-3046 (Fed. Cir., Feb. 26, 2008), in a split decision the court remanded back to the Merit Systems Protection Board (MSPB or Board) the case of a civilian employee who tested positive for marijuana in a random drug test and had been removed from employment. The court found that proper legal process was not followed, thereby denying the employee the required chance to prove her case. The Board had not allowed the employee the discovery she had requested, and the court found this improper.

The employee was subject to random drug testing under the Army's Drug-Free Federal Workforce Program. She was advised as to what this entailed, including the warning that if she refused to take a test, or failed a test, she could be removed from her job. The employee failed her drug test, which was a first for the Army facility where she worked. Eventually, after apparently many e-mail communications about what the Army should do, it was decided that the employee's removal should be proposed. After the removal was sustained, the employee appealed to the Board.

During the processing of the appeal, there was a dispute between the employee and the Army about the production of certain documents, i.e., emails that were exchanged relating the decision to initiate and remove the employee. Eventually, the hearing was held, and the administrative judge (AJ) ruled in favor of the Army, sustaining the employee's removal. The employee then appealed to the Federal Circuit. In her appeal, the employee did not dispute that she failed the drug test. Instead, she made several arguments as to the reasonableness of the penalty and procedural arguments, including that the AJ should have compelled the Army to produce all the disputed emails.

While not deciding whether the employee's theories had any merit, the court took the Army to task for its failure to produce the disputed e-mails, noting that the need for full discovery of all relevant emails related to the employee's case was "beyond question." The court further held that the AJ should have required the Army to produce the emails since the evidence was central to the employee's theory of her case. The court then remanded the case back to the Board, ordering full compliance with the employee's discovery requests, and further ordering that if the evidence required it, that a new hearing be held.

Another interesting note was the court's discussion of the Army's Table of Penalties. The court noted that the Army's table provided for a range of penalties from a three-day suspension to removal for "unauthorized use or possession of a controlled substance." This table proved inapplicable to this case, the court found, as there was no evidence that the employee introduced a controlled substance to a work area. Her drug test was positive for the metabolite of marijuana, not the drug itself. At most, said the court, she brought the metabolite (inside her) into the workplace. Thus, the agency's existing Table of Penalties did not have a proposed penalty for this employee's offense, and the drug-free policy statement did not mandate removal as the sole penalty.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com/.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Third Edition, a comprehensive overview of federal employees' legal rights. This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we've reduced the price to only $29.95 plus s&h.