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Macklin v. City of Santa Cruz2/5/2002
per week.
On December 5, 1996, Macklin's number was randomly selected and he submitted to a drug test pursuant to the APO. Macklin was subsequently informed that he had tested positive for marijuana. On December 16, 1996, the City advised Macklin of his rights and obligations following his positive test results. Pursuant to the APO, the City offered him the Agreement, including a one-time offer of rehabilitation in lieu of termination. Macklin signed the Agreement on December 19, 1996.
The Agreement provided: "Employee understands that such violation warrants disciplinary action; however, in lieu of said disciplinary action, the City is issuing this document as written reprimand and providing a one-time offer of rehabilitation." The Agreement further provided that as part of the rehabilitation program, Macklin agreed to undergo "unannounced frequent follow-up alcohol and/or controlled substance testing" pursuant to Section F(5) of APO II-43. This section mirrored portions of the APO, which provided in relevant part: "A positive result from a drug or alcohol test may result in disciplinary action, up to and including termination . . . If a covered employee is not terminated, the employee: . . . [ ] . . . [ ] will be required to submit to unannounced follow-up testing after he/she has been returned to his/her safety-sensitive position . . . " The APO also specified the duration of follow-up testing as follows: "In addition, because studies have shown that the relapse rate is highest during the first year of recovery, the employee will be subject to follow-up testing which is separate from the random testing obligation. The employee will be subject to at least six (6) unannounced drug/alcohol tests during the first year back to the safety-sensitive position following the violation. Upon the advice of the substance abuse professional, the City may require additional follow-up testing for a period not to exceed sixty (60) months from the date of the employee's return to duty." (Italics added.)
On March 6, 1997, the City received a "Follow-Up Evaluation Report" from Donald Lawrence, a substance abuse professional, regarding Macklin's rehabilitation and treatment. Lawrence stated that Macklin had completed 60 days of an outpatient treatment program. He recommended that Macklin be tested for illicit chemicals once a month for the first 12 months after his return to a safety sensitive position and once every two months thereafter for the following year. The City did not inform Macklin of Lawrence's recommendation regarding the duration of testing. According to Lawrence, he did not inform employees of his follow-up testing recommendations. Moreover, in Lawrence's experience, employers generally did not inform their employees of his recommendations regarding the duration of follow-up treatment.
Macklin believed that he would be subjected to follow-up testing for one year, after which he would return to the random testing pool. He based his belief on statements by Gary Wilens, his immediate supervisor.
For the first year after Macklin completed his substance abuse counseling program, his follow-up tests were negative for marijuana. However, on April 27, 1998, Macklin was called for another follow-up test. Though Macklin stated to Wilens that his follow-up testing period was over, he submitted to the test. According to Macklin, he went to the bathroom at the testing facility to urinate into a container, and then handed the container to the nurse. Macklin observed that the nurse took the temperature of the container and split the contents into two separate containers. He also observed that the nurse then took the sample into an office where the containers were sealed
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