Sanman Quits Under Pressure; Ducked Drug Tests Twice

A Sanitation Worker resigned in lieu of termination by Sanitation Commissioner John J. Doherty after an Administrative Law Judge recommended termination for him because he did not report for a random drug test, noting that the absence was considered the same as failing the test.

Administrative Law Judge Kara J. Miller found Sanitation Worker Henry Morrison failed to report to the Sanitation Department clinic on Feb. 5, 2008, was not at home during a sick-leave telephone check on two occasions and refused to submit to a substance use test.

Questioned Timing of Illness

On Feb. 4, Mr. Morrison reported sick and began medical leave before his drug test the next day. He reported for a test on Feb. 6 but failed to provide any medical documentation to substantiate his illness or his inability to travel to the clinic on the two previous days, according to Judge Miller.

Under new 2007 rules, Mr. Morrison was required to report for testing by Feb. 5, the day after he was called. Mr. Morrison said he had never received a copy of these new rules, which were changed in August of that year. He argued since the department could not prove he was given a copy of these new rules, he did not commit misconduct.

Ms. Miller agreed with him and dismissed this charge but not the others. He was found to have not been home while out on sick leave on Nov. 19 and 23, 2007 because he did not return the department's home verification call within one hour as instructed.

Mr. Morrison also refused to submit to a random drug test on July 14, 2008. Supervisor Christopher Errante's computer picked Mr. Morrison's name along with 29 other employees of Manhattan 12 garage.

Suspicious Reaction

At 5:49 a.m. on that day, the Drug and Alcohol Testing Unit pulled up in front of the Manhattan 12 garage. Mr. Errante spoke with Howard Joseph, the garage supervisor on duty, and Superintendent Nicolae Busuioc, who was also there, to notify them of the unannounced random testing.

Just 20 minutes later, Mr. Morrison called in sick for his 6 a.m. to 2 p.m. shift. Since Mr. Morrison called in after the test was announced, he was ordered to report to the clinic or be suspended. The line went dead. The Supervisor could not reach Mr. Morrison at his home in The Bronx and he later learned that he called from New Jersey.

Mr. Morrison and his son testified that they went to the son's house in southern New Jersey on July 11 and stayed until July 15. He got sick on July 12 and called in on the morning of July 14. He said his cell phone battery died and there were no other operable phones in the house.

A 'Convenient' Death

Mr. Morrison's "assertion that he was unable to call the garage back because his cell phone had conveniently died during the conversation and that there were no other operable telephones in the house was contradicted by both his and his son's testimony," Ms. Miller wrote in her decision. "On cross-examination, he testified that he did not bother to call back because he was already suspended and figured the 'hell with everybody.' "

Ms. Miller reiterated the point that employees must obey a direct order and report for drug testing regardless of the circumstances. "Once Supervisor Errante ordered [Mr. Morrison] to go to the clinic, he was obligated to do so," she said. "It is well settled that once a directive has been given, an employee must abide by the principle of 'obey now, grieve later.' This means that an employee is required to obey the order when it is given and subsequently challenge it through formal grievance procedures if there are any substantive or procedural objections."