Roscoe Tinkle v. Department of Agriculture

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSCOE P. TINKLE, DOCKET NUMBER
Appellant, DA-0752-14-0377-I-2
v.
DEPARTMENT OF AGRICULTURE, DATE: October 17, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joyce E. Kitchens, Esquire, Atlanta, Georgia, for the appellant.
Julie Rook Gold and Kevin L. Owen, Esquire, Silver Spring, Maryland, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains errone ous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s d ue
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The following facts, as further detailed in the initial decision, are not
disputed. The appellant held the position of Supervisory Guide at Blanchard
Springs Caverns. Tinkle v. Department of Agriculture, MSPB Docket
No. DA-0752-14-0377-I-1, Initial Appeal File (IAF), Tab 8 at 14; Tinkle v.
Department of Agriculture, MSPB Docket No. DA-0752-14-0377-I-2, Appeal
File, Tab 6, Initial Decision (ID) at 2. 2 Among other things, the position included
safety-sensitive duties, such as driving a passenger bus and responding to injuries
incurred by visitors to the caves. ID at 2. In January 2013, he was arrested on
marijuana charges. Id. The agency subsequently approved his inclusion in its
“safe harbor” program, which allows an employee to avoid discipline if he admits
the drug use, completes counseling, and refrains from further drug use. Id.However, in November 2013, the appellant underwent a urinalysis that tested
positive for marijuana. ID at 2-3. As a result, the agency charged him with a
positive drug test and proposed his removal. ID at 3. The deciding official
sustained the action, effective April 2014, and this appeal followed. Id.2
The administrative judge dismissed the initial appeal without prejudice for automatic
refiling at a later date to accommodate scheduling conflicts, resulting in the two docket
numbers associated with this one matter. IAF, Tab 49, Initial Decision.
3
¶3 After holding the requested hearing, the administrative judge affirmed the
appellant’s removal. ID at 1. She found that the agency met its burden
concerning proof of the charge, nexus, and penalty. ID at 3 -10, 18-20. She
further found that the appellant failed to prove his allegations of a due process
violation or disability discrimination. ID at 11-15. Finally, the administrative
judge concluded that the appellant failed to timely raise his harmful procedural
error claim and, even if he had, the claim failed. ID at 15-18.
¶4 The appellant has filed a petition for review, reasserting arguments
concerning chain of custody for his drug test as well as harmful procedural error.
Tinkle v. Department of Agriculture, MSPB Docket No. DA-0752-14-0377-I-2,
Petition for Review (PFR) File, Tab 1 at 8-23. The agency has filed a response,
and the appellant has replied. PFR File, Tabs 5-6.
¶5 When an agency relies on a positive drug test to take an adverse action
against an employee, the agency must prove by preponderant evidence that the
test was valid. Holton v. Department of the Navy, 123 M.S.P.R. 688, ¶ 11 (2016),
aff’d, 884 F.3d 1142 (Fed. Cir. 2018). To meet its burden, the agency must
establish that the urine sample that tested positive was the appellant’s by showing
that the chain of custody of the sample was maintained and verifiable. Id. Any
alleged violation of the agency’s drug-testing procedures is reviewed under the
harmful error standard. Id. Under this standard, reversal is only warranted if the
appellant proves that the procedural error was likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error. Id.¶6 The appellant acknowledges a 20-year history of marijuana use up to and
including his January 2013 arrest. PFR File, Tab 1 at 5-6. He also acknowledges
that he previously had figured out a way to pass prior drug testing required by the
agency, despite his marijuana use. Id. at 6. However, he denies using marijuana
during the period leading up to his November 2013 drug test and disputes the
4
test’s validity due to purported irregularities in the chain of custody. Id.
at 6, 8-13.
¶7 The appellant asserts that he provided the urine sample at approximately
2:15 p.m., yet the agency’s documentation suggests it was both collected and
transferred to Quest Diagnostics Courier at 11:20 p.m. and the agency failed to
account for the intervening hours. Id. at 9-11; Hearing Transcript (HT) at 202-04
(testimony of the appellant); IAF, Tab 27 at 24. He also asserts that while the
agency’s documentation indicates that his urine sample left the collection facility
at 11:20 p.m. and arrived at the Quest Diagnostics Laboratory at 2:00 a.m., that
span of time is insufficient to drive the distance between those locations and the
agency failed to prove its method of transport. PFR File, Tab 1 at 11 -12; IAF,
Tab 27 at 24, 28. Next, he notes that the chain of custody log contains a
signature from the receiving official at the Quest Diagnostics Laboratory, but
does not contain a signature from the courier to that individual. PFR File, Tab 1
at 12-13; IAF, Tab 27 at 24-25. In addition, he acknowledges that the chain of
custody documentation indicates that his urine sample arrived at the Quest
Diagnostics Laboratory with the sealing label intact, but nevertheless suggests
that the agency’s evidence is deficient because there are no clear pictures
showing the same. PFR File, Tab 1 at 13; IAF, Tab 27 at 24, 86-93. Finally, the
appellant generally alleges that the agency failed to prove that the specimen
tested was, in fact, the specimen he provided. PFR File, Tab 1 at 8 -9.
¶8 We considered comparable allegations of irregularities in Forte v.
Department of the Navy, 123 M.S.P.R. 124 (2016). In that case, the employee
disputed his positive drug test on a number of bases, inc luding allegations that the
individual who collected his specimen forgot to have him initial the
corresponding vials and called him back to do so after he already had left the
room. Id., ¶ 12. We concluded that the administrative judge should have
considered that claim under the harmful error standard. Id., ¶ 18. We further
found that, standing alone, the alleged collection error did not require reversal of
5
the employee’s suspension because he had not shown that the agency likely would
have reached a conclusion different from the one it reached in the absence of that
error. Id., ¶ 19. 3 For the same reason, the appellant’s arguments concerning
chain of custody fail in the instant appeal.
¶9 Although the appellant has identified ways in which the chain of c ustody
for his specimen could have been more clearly and elaborately documented, we
agree with the administrative judge’s conclusion that the agency met its burden of
proving the positive drug test charge by preponderant evidence. ID at 3 -5; see
5 C.F.R. § 1201.4(q) (defining preponderant evidence as that “degree of relevant
evidence that a reasonable person, considering the record as a whole, would
accept as sufficient to find that a contested fact is more likely to be true than
untrue”). The agency presented extensive evidence showing, inter alia, that the
appellant initialed his specimen in a sealed vial containing identifying numbers,
qualified professionals analyzed the specimen marked with those initials and
identifying numbers, and the specimen tested positive for marijuana use. E.g.,
IAF, Tab 27 at 18-115. We further agree with the administrative judge’s
conclusion that even if the matters identified by the appellant amount to
irregularities in the drug testing procedures, there is no indication that the agency
would have likely reached a different conclusion in the absence of those
3
In Forte, the Board ultimately found that the agency failed to prove its charge of
illegal drug use because, inter alia, the appellant consistently denied the drug use, he
produced a negative hair follicle test covering the same period as the agency’s positive
urine test, and the agency refused to provide the appellant with some of the urine
sample for a DNA test to verify that, despite collection irregularities, it was the
appellant’s. Forte, 123 M.S.P.R. 124, ¶¶ 21-25. Here, the appellant also denied the
alleged drug use and produced a negative hair follicle test. IAF, Tab 9 at 28-29.
However, the administrative judge was not persuaded by these and other defenses, in
part because the appellant declined the opportunity to retest his urine sample and his
hair follicle test was conducted 3 months after his positive urine test. ID at 6-9; IAF,
Tab 9 at 28-29, Tab 27 at 17; HT at 212-13 (testimony of the appellant). The
appellant’s petition for review does not contain any arguments concerning these
matters, and we find no reason to disturb the administrative judge’s well-reasoned
findings.
6
purported irregularities. ID at 5-6; see also Frank v. Department of
Transportation, 35 F.3d 1554, 1557-58 (Fed. Cir. 1994) (finding that an agency’s
violation of its chain of custody procedures by leaving a specimen unattended did
not harm or prejudice the employee because there was no evidence that any other
person had access to the specimen during the short time it was left unattended);
Forte, 123 M.S.P.R. 124, ¶ 19.
¶10 The appellant’s harmful procedural error arguments are similarly
unavailing. PFR File, Tab 1 at 13-23. The administrative judge found the claim
both untimely and without merit. ID at 15-18. We find that it is not necessary to
address the merits of this affirmative defense because the argument was untimely,
without good cause shown.
¶11 The Board’s regulations provide that “[a]n appellant may raise a claim or
defense not included in the appeal at any time before the end of the conference(s)
held to define the issues in the case. An appellant may not raise a new claim or
defense after that time, except for good cause shown.” 5 C.F.R. § 1201.24(b).
Accordingly, the administrative judge twice instructed the appellant to identify
any and all defenses in his prehearing submissions, but the appellant’s response
included a general assertion of harmful procedural error without identifying wha t
that error might be. Compare IAF, Tabs 13, 23, with IAF, Tab 28 at 4.
Following the agency’s motion to strike this unexplained harmful procedural error
claim, the appellant asserted that he intended to preserve the argument in the
event that hearing testimony provided a factual basis for that affirmative defense.
IAF, Tab 39 at 5-6, Tab 40 at 8. Thereafter, the administrative judge issued an
order summarizing a prehearing conference and defining the issues. IAF, Tab 44.
The order did not identify harmful procedural error as a remaining claim. Id.Although the appellant objected, he indicated that he did not yet have any facts to
support harmful procedural error. IAF, Tab 45 at 4-5.
¶12 The appellant first identified specific allegations of a harmful procedural
error in closing arguments to his hearing. HT at 249 -54 (the appellant’s closing
7
argument). He alleged that the agency violated 49 C.F.R. § 382.121(b)(3) by
prematurely ordering his return to safety-sensitive duties and requiring that he
undergo the drug test underlying his removal, without proper certification by his
drug counselor. 4 Id. at 251-52 (the appellant’s closing argument). Through his
representative, the appellant defended the untimeliness of this argument by
asserting that he only learned of the nature and factual underpinnings of the
alleged harmful procedural error after obtaining testimony from his drug
counselor and the Drug Free Workplace Program Manager at the hearing. Id.
at 251 (the appellant’s closing argument); PFR File, Tab 1 at 20-22. However,
both were the appellant’s own witnesses. IAF, Tab 28 at 5, Tab 44 at 2.
Moreover, as the appellant essentially concedes in his reply brief, sufficien t
information existed in the written record to timely identify this alleged harmful
procedural error, even though the appellant failed to do so. PFR File, Tab 6
at 10. Among other things, the written record included documentation predating
the agency’s decision on the removal action, where both the appellant and his
counselor asserted that he had not yet finished treatment when he was ordere d to
undergo the drug testing. IAF, Tab 9 at 16, Tab 10 at 7-8. Accordingly, we agree
4
Section 382.121(b)(3) requires that “[a] qualified voluntary self -identification
program . . . must permit the employee to return to safety sensitive duties only upon
successful completion of an educational or treatment program, as determined by a drug
and alcohol abuse evaluation expert, i.e., employee assistance professional, substance
abuse professional, or qualified drug and alcohol counselor.” 49 C.F.R.
§ 382.121(b)(3). According to the appellant and his drug counselor, he had not yet
completed his treatment program because that program consisted of 12 weekly sessions
with a psychologist followed by 12 monthly sessions with the drug co unselor and he
had undergone only the former, not the latter. E.g., PFR File, Tab 1 at 14-15. The
agency disagrees, arguing that his completion of the 12 weekly psychotherapy sessions
satisfied his treatment program, the 12 monthly counseling sessions to follow amounted
to aftercare that did not implicate section 382.121(b)(3), and the appellant’s drug
counselor was disingenuous in suggesting otherwise. PFR File, Tab 5 at 12 -13
(referencing IAF, Tab 10 at 34-35, 37). The administrative judge found that this
defense failed, even if it were timely, because there was no persuasive evidence that the
aftercare was a barrier to the appellant’s return to safety-sensitive duties and the drug
testing. ID at 16-18.
8
with the administrative judge’s conclusion that the information needed to develop
this defense was within the appellant’s control prior to the end of the conferences
held to define the issues and he failed to provide good cause for delaying that
development until the hearing itself. ID at 16; see Franco v. U.S. Postal Service,
27 M.S.P.R. 322, 325 (1985) (recognizing that an administrative judge has wide
discretion to control the proceedings); see also Nugent v. U.S. Postal Service,
59 M.S.P.R. 444, 447-48 (1993) (finding that an administrative judge properly
disallowed a claimed affirmative defense of alcoholism where the appellant failed
to raise it until after the status conference defining the issues); Roof v.
Department of the Air Force, 53 M.S.P.R. 653, 658 (1992) (finding that an
administrative judge properly disallowed a disparate treatment affirmative
defense asserted during the hearing because it was not previously raise d in either
the prehearing submissions or prehearing conference). We will not addr ess this
untimely claim further. See Hansen v. Department of Homeland Security,
911 F.3d 1362, 1369-70 (Fed. Cir. 2018) (declining to address a harmful
procedural error claim not raised before the administrative judge in a case
concerning a removal for a positive drug test).
¶13 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
11
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Fed eral Circuit or any court
of appeals of competent jurisdiction. 6 The court of appeals must receive your
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for ju dicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.