By Deborah Hopkins, February 13, 2019
We know intentional marijuana use, even for medicinal purposes, is a no-no for federal employees (see my recent article here). But what happens to a federal employee who is fired for marijuana use after failing a drug test, when he challenges the removal by stating the intake of marijuana was accidental?
The Federal Circuit recently looked at that very issue in Hansen v. DHS, No. 2017-2584 (Fed. Cir. Dec. 28, 2018). Hansen, an IT Specialist at the United States Customs and Border Protection, was subjected to a random drug test, and the results showed marijuana in his system. The agency proposed his removal for “positive test for illegal drug use— marijuana.” Regarding nexus, a portion of the proposal read “[t]he use of an illegal drug, such as marijuana, stands in direct conflict with the principles of law enforcement, the mission of the Agency, and the public’s trust.”
In his response to the proposal, Hansen said he had inadvertently consumed drug-laced brownies at a barbeque he had attended, which was hosted by someone he did not know. Hansen revealed that he wasn’t initially aware the brownies had marijuana in them, and though he felt no immediate effects from the brownies, later that evening he felt tired and suffered an upset stomach. He attributed the upset stomach to a bratwurst he had consumed at the party, and as a result he called in sick the day after the barbecue.
The Deciding Official gave Hansen’s response “significant consideration” but ultimately determined it was not convincing. In her explanation, the DO said the employee did not present “any evidence from either the person who purportedly brought the brownies, or from the host” or even “a statement from anyone else who either knew that the brownies contained marijuana or who did not know, but felt the effect of the drug.” The DO subsequently removed Hansen.
Hansen appealed his removal to the MSPB, where it was upheld. The Board said that inadvertent marijuana ingestion would be relevant to its decision, if shown, but it determined that Hansen, not the government, bore the “burden of showing such inadvertent ingestion” and he did not show any evidence to convince the Board. The decision from the Board also said Hansen relied on “thirdhand hearsay” to support his story about marijuana in the brownies, and had not supplied “statements from the hosts, other attendees who observed the presence of the brownies, or the individuals who brought the brownies,” or even any evidence confirming that he ate brownies at all.
The Board further noted that though Mr. Hansen claimed fatigue and upset stomach after consuming the brownies, he attributed those ailments to marijuana consumption only after the deciding official expressed skepticism regarding his lack of symptoms.
Hansen also argued that the removal should be reversed because the agency could not show his “intent” to use marijuana, but the Federal Circuit correctly said the charge as written did not have an intent element. The agency was not required to show intent; it was only required to show by preponderant evidence that the employee tested positive for marijuana. This highlights a fundamental principle we cover in MSPB Law Week and Developing and Defending Discipline: Words matter when drafting a disciplinary charge. Had the agency charged “intentional use of marijuana,” then Hansen might very well be back at work today.
Hansen also argued that the agency violated his Fourth Amendment right against unlawful search and seizure by conducting the drug test because the government failed to show that he occupied a testing designated position, This argument failed because the agency’s “Drug-Free Federal Workplace Program” handbook listed employees with “access to the Customs Law Enforcement Automated Systems” as testing designated, and IT Specialists fall under that designation. The Federal Circuit upheld the removal.