Database Search Result Details
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First Name
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Joseph
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Last Name
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Smith
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Decision Date
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8/21/2018
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Docket Number
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2018-0993-DOT
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ALJ
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CHL
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Respondent
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Division of Highways
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Employment Type
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STATE
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Job Title
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Transportation Worker III
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Topics
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Termination; Dismissal
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Primary Issues
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Whether Respondent proved by a preponderance of the evidence that Grievant refused a drug test thereby justifying its decision to terminate Grievant’s employment. Whether Grievant proved his claims of discrimination and harassment by a preponderance of the evidence.
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Outcome
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Denied
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Statutes
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W. Va. Code St. R. § 156-1-3 (2008); W. Va. Code § 6C-2-2(d); W. Va. Code § 6C-2-2(l); W. Va. Code St. R. § 143-1-12.02 (2016)
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Related Cases
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Leichliter v. Dep't of Health & Human Res., Docket No. 92-HHR-486 (May 17, 1993), aff’d, Pleasants Cnty. Cir. Ct. Civil Action No. 93-APC-1 (Dec. 2, 1994); Oakes v. W. Va. Dep't of Fin. & Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980); Guine v. Civil Serv. Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1965); W. Va. Dep't of Corr. v. Lemasters, 173 W. Va. 159, 162, 313 S.E.2d 436, 439 (1984); Drown v. W. Va. Civil Serv. Comm'n, 180 W. Va. 143, 145, 375 S.E.2d 775, 777 (1988) (per curiam); Sloan v. Dep't of Health & Human Res., 215 W. Va. 657, 600 S.E.2d 554 (2004); Sellers v. Wetzel County Bd. of Educ., Docket No. 97-52-183 (Sept. 30, 1997)
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Keywords
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Termination; Discrimination; Harassment; Substance Abuse; Drug; Safety; Rehabilitation; Follow-Up Test; Dismissed; Refusal; SAP; Directly Observed; Return-to-Duty; Urine Sample
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Intermediate Court of Appeals
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Circuit Court
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Supreme Court
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Synopsis
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Grievant was employed by Respondent as a Transportation Worker 3 (Bridge) After having tested positive for drugs on a required drug test, pursuant to the requirements of Respondent’s policy, Grievant entered into a rehabilitation program. After he returned to duty Grievant was required to take eight follow-up drug tests over the next year. Grievant took and passed five valid drug tests. Grievant refused to cooperate with testing on his sixth test, and such was counted as a positive test. Respondent dismissed Grievant for his refusal to test and a second offense violation of the applicable drug and alcohol policies. Grievant denied refusing to test, argued that he was only required to take six tests which he had done, and raised claims of discrimination and harassment. Respondent proved by a preponderance of the evidence that Grievant refused to take a required drug test and that such is good cause for his dismissal. Grievant failed to prove his claims of discrimination and harassment. Accordingly, this grievance is DENIED.
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