Failure Offer Retest Invalidates Drug Termination

Written on 04/16/2022
Will Aitchison

Pete Cortez is a former Engineer Operator with the City of Houston Fire Department. In January 2019, Cortez was randomly selected to take a urinalysis drug test pursuant to HFD’s controlled substance and alcohol abuse policy. The result was “negative and diluted.” Cortez was ordered to retest with a hair sample. According to the Executive Order, hair samples are tested twice – the hair itself and a “wash” applied to the hair sample. Cortez’s hair sample tested positive for cocaine.

Cortez provided a statement, in which he asserted that his positive result had to be a result of exposure to unknown drugs when responding to a house fire in July 2018. Following its investigation, HFD concluded that Cortez violated its substance abuse policy. The Department suspended Cortez indefinitely, which is effectively a termination. Cortez then appealed.

A Texas appeals court overturned the indefinite suspension. Cortez argued that his indefinite suspension was “tainted by illegality” because the City violated its own Executive Order by failing to notify him of his option to request a referee test. As Cortez put it, the City suspended him for violating the Executive Order regarding drug exposure when the City itself violated the same order.

The Court agreed, reasoning “when a public employer’s challenged action is arbitrary or capricious, or a clear abuse of authority, then the civil service com­mission’s ultimate ruling upholding the challenged action is not free from the taint of illegality. Arbitrary, capricious, or illegal acts hence destroy the presump­tion of validity normally accompanying commission rulings.

“Before he was terminated, Cortez was not notified of an option to request a referee test. On this point, the Executive Order provides in relevant part that ‘the Medical Review Officer is responsible for referring those with a confirmed positive controlled substance test for information or their option to obtain, at their own expense, a referee test to retest the original sample at a different certified laboratory.’

“It is undisputed that Cortez was not told of his right to a referee test, and no referee test was performed. The City argues that hair samples are not typically split for referee testing absent a specific request and notes that, in Cortez’s case, an insufficient amount of hair remained after the initial test to perform a referee test. If that is true, Cortez should not bear the consequence. As the Executive Order provides for an employee’s right to request a referee test after being notified of a positive initial result, the City is best situated to communicate to the collection site the need for adequate sample quan­tities in the event an employee exercises the right to request a referee test after the test is completed.”

City of Houston v. Cortez, 2022 WL 364041 (Tex. App. 2022).

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