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Fire Dep't v. Kelly OATH Index No. 804/06 (June 9, 2006), modified on penalty, Comm’r Dec. (Jan. 2, 2007), appended Petitioner proved that firefighter was selected randomly and tested positive for drug use. Although respondent suffered from severe, chronic Post-Traumatic Stress Disorder, he did not show that his drug use was involuntary. Penalty short of termination recommended due to extraordinary mitigation. Commissioner rejects penalty recommendation and terminates firefighter. ______________________________________________________ NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of FIRE DEPARTMENT Petitioner -against- THOMAS KELLY Respondent ____________________________________________________ REPORT AND RECOMMENDATION KEVIN F. CASEY, Administrative Law Judge The Fire Department (Department) brought this disciplinary proceeding under section 15- 113 of the Administrative Code, against firefighter Thomas Kelly. The charges allege that respondent tested positive for a controlled substance in violation of his oath of office, the Department All Units Circular 202 (Feb. 1, 1996) (AUC 202), and sections 25.1.6, 25.1.3, and 25.1.1 of the Rules and Regulations for the Uniformed Force (Jan. 1, 1997). Respondent admittedly tested positive for cocaine use (Tr. 108; Pet. Exs. 2 and 4). Although he challenged the randomness of the selection process, respondent primarily argued that his limited drug use was the result of a mental disability, Post-Traumatic Stress Disorder (PTSD), incurred in the line of duty. The Department did not dispute that respondent suffers from severe, chronic PTSD; however, it claimed that his drug use was a voluntary act of misconduct. -2- At a hearing on February 6, 7, and 8, 2006, petitioner called three witnesses: the Department’s chief compliance officer; an investigator; and a psychiatrist. Respondent testified on his own behalf and presented testimony from: the president of the firefighters’ union; a fellow firefighter; a retired firefighter; an associate professor of biostatistics; a clinical psychologist; and a psychiatrist. After the hearing, the parties submitted written summations and the record was closed on March 3, 2006. For the reasons below, I find that the charges have been sustained and recommend a penalty other than termination. ANALYSIS Challenge to the Randomness of the Selection Process To overcome state and federal constitutional restrictions against unreasonable searches and seizures, a public employer seeking to discipline an employee based upon a positive drug test must prove that the test was the result of random selection or supported by reasonable suspicion. Skinner v. Railway Executives’ Assoc., 489 U.S. 602, 617, 109 S.Ct. 1402, 1413 (1989); Seelig v. Koehler, 76 N.Y.2d 87, 556 N.Y.S.2d 832 (1990); Patchogue-Medford Congress of Teachers v. Bd. of Educ., 70 N.Y.2d 57, 517 N.Y.S.2d 456 (1987). The Department claimed that it randomly selected respondent’s unit for testing by using a commercially available software program. This tribunal has repeatedly upheld the Department’s current procedures. See, e.g., Fire Dep’t v. Kirk, OATH Index No. 441/06 (Apr. 26, 2006); Fire Dep’t v. O’Sullivan, OATH Index No. 1914/05 (Sept. 29, 2005); Fire Dep’t v. O’Neill, OATH Index No. 1973/05 (Sept. 20, 2005). Unlike the firefighters in those cases, however, respondent presented evidence to challenge the randomness of the selection process. Firefighter Stephen Cassidy, president of respondent’s union, recalled that, shortly after the testing program began, units in one Manhattan firehouse were selected for testing on three consecutive days. Based upon that unlikely coincidence, the union raised concerns and asked to monitor the selection process. When the Department rejected that idea, Firefighter Cassidy concluded, “they’re hiding something” (Tr. 157). Because that speculation was based upon anecdotal evidence, I did not give it any weight. Furthermore, the Department’s willingness to consult with the union was irrelevant. -3- R. Todd Ogden, associate professor of biostatistics at Columbia University and expert in statistics, offered more substantial evidence. He investigated the hypothesis that units where there had been a positive drug test were reselected more frequently (Tr. 161, 163; Respondent’s Ex. K). Dr. Ogden compared the actual units selected to the expected outcome if the process had been random. With random testing it would be expected that 5 of the 12 units with a positive drug test would be retested in six months. In fact, 9 were retested (Tr. 164). Using random selection, it would also be expected that each of the Department’s 360 units would be tested approximately once per year. But units with a prior positive drug test result were reselected, on average, every 106 days (Tr. 165). Dr. Ogden also compared firehouses, combining engine and ladder companies, and examined whether there was a greater than expected likelihood of retesting in a firehouse that had a prior positive test result (Tr. 163). Dr. Ogden summarized his results in terms of “p-values” (Resp. Ex. K). A p-value of .05 or below suggests that there is less than a 5% probability that a difference between an expected and actual result is due to chance. For each of the six tests that Dr. Ogden performed, he found p-values below .01, which is “highly statistically significant” (Tr. 164, 166). Thus, Dr. Ogden concluded, “statistical analysis of the data very strongly suggests that selection is not truly random without regard to prior drug testing” (Tr. 167). The Department did not call any expert to challenge Dr. Ogden’s methodology or findings. Instead, it argued that his testimony was irrelevant. The Department relied heavily upon Drake v. Delta Airlines, 2005 U.S. Dist. LEXIS 14789 (E.D.N.Y. 2005), a wrongful termination case where selection for drug testing showed actual results that differed “only slightly” from expected outcomes. There is dictum in Drake that statistics are not enough to challenge the randomness of drug testing, but the holding is narrower -- the statistical evidence did not raise a genuine factual issue regarding randomness. Id. at 20-21, 28. In fact, the court noted that significant statistical disparities may constitute prima facie proof that certain outcomes were not due to pure chance. Id. at 17, 24. In a variety of legal contexts, including employment discrimination cases, statistical evidence may establish a prima facie case that undermines a claim of randomness. See, e.g., Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 339; 97 S. Ct. 1843, 1856 (1977); see also Castaneda v. Partida, 430 U.S. 482, 495, 97 S.Ct. 1272, 1280 (1977). Furthermore, courts have long recognized that p-values of .05, or lower, are “statistically significant.” See, e.g. -4- Bouman v. Block, 940 F.2d 1211, 1225 (9th Cir. 1991); Palmer v. Shultz, 815 F.2d 84, 92 (D.C. Cir. 1987); Coates v. Johnson & Johnson, 756 F.2d 524, 537 n. 13 (7th Cir. 1985). Based upon Dr. Ogden’s unchallenged expert testimony, there is a serious question about the randomness of selection of units and firehouses where there had been prior positive drug tests. Petitioner, however, offered sufficient evidence to defend the selection of respondent’s unit. Chief compliance officer Frank Buccellato testified that a Department employee used the random-number program which selected respondent’s unit for testing. As another employee monitored the process, the computer-generated selection was sealed in an envelope and sent to the Bureau of Legal Affairs, where a deputy commissioner or designee wrote “night” or “day” on the outside of the envelope to indicate which tour will be tested (Tr. 40). The sealed envelope was sent to investigator Eugene Samojedny, who opened it on the testing date (Tr. 53; Pet. Ex. 4). At that point, Mr. Samojedny became the first to know what unit and tour would be tested (Tr. 53). Controls are in place to prevent unauthorized use of the random-number generator and the entire process is regularly audited (Tr. 23-25). I was not persuaded that the Department’s system was rigged to select respondent’s unit. There was no evidence of a prior positive drug test at respondent’s firehouse. Nor was there any other evidence of tampering or any indication that respondent’s unit had been singled out for scrutiny. The process was sufficiently random and anonymous. See Seelig, 76 N.Y.2d at 96, 556 N.Y.S.2d 836 (random procedure is adequate if it allows for very little discretion); cf. Storms v. Coughlin, 600 F. Supp. 1214, 1223 (S.D.N.Y. 1984) (method improper because it did not preserve anonymity). Post Traumatic Stress Disorder and Willful Misconduct Respondent’s primary defense was that his use of cocaine was the direct result of a mental disability, Post-Traumatic Stress Disorder (PTSD), and that he did not voluntarily commit misconduct (Respondent’s Memorandum, dated Feb. 3, 2006, at 1, 14, and 17). Alternatively, respondent argued that termination of his employment would violate New York’s Human Rights Law. Respondent offered extensive and un-refuted evidence that he suffered from PTSD before and after September 11, 2001. Firefighter John Hegemann and retired Firefighter Francis Witowski, have known respondent for 18 and 40 years, respectively. They described respondent as a well-respected firefighter who spent most his career in Engine Company 281, at a very busy firehouse in -5- Brooklyn. Respondent was a union delegate and the “senior man” in his engine company (Tr. 60, 67; Resp. Ex. A). He had a close call in 1992 when he was caught in a building explosion. Shaken by his brush with death, he sought counseling and was briefly placed on light duty (Tr. 61, 71). In the late 1990s respondent was profoundly upset by the death of a close colleague following a roof collapse.

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