Argued: December 7, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E.
COVEY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge
PELLEGRINI, Senior Judge
Metz (Petitioner) petitions for review of the decision of the
Office of the Secretary of Education, Commonwealth of
Pennsylvania (Secretary) denying his appeal and affirming the
Board of School Directors (Board) of the Bethlehem Area
School District's (School District) termination of his
tenured employment pursuant to Section 1122(a) of the Public
School Code of 1949 (School Code).
has been employed with the School District since 2004, and at
the time of his discharge, worked at East Hills Middle School
(East Hills) as a physical education teacher. He is tenured
and a member of the teacher's union, Bethlehem Education
Association (BEA). On February 4, 2016, the School District
received a copy of a letter dated January 27, 2016, which was
addressed to Petitioner's counsel in a custody dispute
and sent by opposing counsel, stating in pertinent part:
acknowledg[ing] receipt . . . of the Drug Test Results from
Any Lab Test Now, which indicate a positive result for
Cocaine Metabolites. We also received a copy of a
Prescription from [Petitioner's] Physician indicating
that he takes prescription medication which could produce a
false positive result for Marijuana.
However, I note that under the Interim Order of December 31,
2015, [Petitioner] is to undergo random drug screening
through SASY [Substance Abuse Screening Services, Inc.] for a
period of eight (8) weeks. We have received no confirmation
that [Petitioner] has complied with this provision of this
(Reproduced Record (R.R.) at 152a.) As a result, Russell
Giordano (Director Giordano), the School District's Human
Resources Director, immediately went to East Hills and met
with Petitioner as well as his union representative. During
that meeting, Director Giordano asked Petitioner to submit to
a drug test and informed him that if he did not, he would be
placing his job in jeopardy.
Petitioner refused to submit to that drug test, Director
Giordano placed him on unpaid suspension. The same day,
Petitioner's counsel sent a letter to the School
District, providing "documentation of [Petitioner] as to
his prescription medication illustrating a 'false
positive result' on a drug screen." (R.R. at 153a.)
letter dated February 8, 2016, Petitioner was again directed
to submit to a drug test. That letter provides, in relevant
This directive is pursuant to 24 P.S. [§]
14-1418(c) and based upon reasonable suspicion of
[Petitioner's] drug use in violation of School District
Board Policy 451and the Pennsylvania School Code. The
Administration's reasonable suspicion is based upon
information disclosing that [Petitioner] recently tested
positive for cocaine metabolites. He has submitted a
physician's note indicating that he is prescribed
medication that could result in a false positive result for
THC; but the note did not indicate the potential to
test positive for cocaine metabolites. Moreover, School
District's third party testing administrators provide the
opportunity for a confirmation test if there is a false
If the test is satisfactory, [Petitioner] can meet with the
HR Director (Mr. Giordano), to arrange a return to work. If
he does not comply with the aforementioned directive, the
Administration will recommend his termination from employment
based upon failure to comply with Administrative directives;
violation of the Pennsylvania School Code; School District
Policy, and willful neglect of duties.
(R.R. at 156a) (footnotes added). On February 9, 2016, five
days after refusing the first drug test, Petitioner submitted
to a urinalysis drug test.
with the custody dispute letter, Petitioner tested positive
for cocaine metabolites. (See R.R. at 163a.)
next day, Dr. Joseph J. Roy (Superintendent Roy), the School
District's Superintendent, sent Petitioner a
Loudermill notice stating that he would be discharged
because he "exhibited willful neglect of duties and
immoral conduct in violation of . . . School District Policy
451 and the Pennsylvania School Code 24 [§] P.S.
11-1122" because he refused to take a drug test and then
tested positive for cocaine metabolites on a subsequent test.
(R.R. at 158a.) Petitioner voluntarily waived that hearing.
on March 7, 2016, the School District sent Petitioner a
Statement of Charges and Notice of Hearing, notifying him
that it was recommending his dismissal from employment and
that he was being charged with willful neglect of duties and
immorality in violation of the Pennsylvania School Code and
School District Policy 451. (See R.R. at 166a-167a.)
Following a continuance, a hearing was held before the Board
on April 28, 2016.
the Board, Director Giordano testified that on February 4,
2016, he received a call from the Superintendent's Office
informing him of a letter between two attorneys in
Petitioner's custody dispute acknowledging receipt of
Petitioner's positive drug test result for cocaine
metabolites. Based upon that letter, Director Giordano stated
that he went immediately to East Hills to meet with
Petitioner because "anytime that we receive information
that a faculty member is potentially under the influence of
an illegal substance, we have an obligation to react to that
and investigate that." (R.R. at 33a.)
Giordano testified that he then held a meeting with
Petitioner and the president of the BEA, Jolene Vitalos, as
well as the principal of East Hills. He explained that during
that meeting, Petitioner "wouldn't look at me.
Wouldn't shake hands with me. Was pretty hostile."
(R.R. at 35a.)
He was slouching in his chair and you know, twisting back and
forth in his chair, obviously upset. And I told him that we
were in receipt of information that would require us to ask
him to go for a drug screen that day.
He simply shook his head no. And again, wasn't looking at
me. Simply shaking his head no. And then I informed him that
by not agreeing to go for the test, he would be placing his
job in jeopardy and that I would have no choice but to put
him on unpaid suspension immediately.
Mrs. Vitalis [sic] then said we will not be going
for a drug test. And she informed me that they would grieve
(R.R. at 35a.) Director Giordano also talked to Petitioner
about the Employee Assistance Program, which is for School
District employees who have problems with drugs and alcohol,
and offered him a brochure. However, Petitioner "tossed
the brochure back at [Giordano] across the table, obviously
not interested." (R.R. at 36a.) Petitioner was then
placed on unpaid suspension.
days later, Petitioner submitted to a urinalysis drug test
following a second request by the School District. After that
test came back positive for cocaine metabolites, the School
District issued a Statement of Charges and Notice of Hearing.