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Metz v. Bethlehem Area School District

Commonwealth Court of Pennsylvania

January 4, 2018

Timothy Metz, Petitioner
v.
Bethlehem Area School District, Respondent

          Argued: December 7, 2017

          BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge

          OPINION

          DAN PELLEGRINI, Senior Judge

         Timothy 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).[1]

         I.

         Petitioner 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 Order.

(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.

         Because 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.)

         By letter dated February 8, 2016, Petitioner was again directed to submit to a drug test. That letter provides, in relevant part:

This directive is pursuant to 24 P.S. [§] 14-1418(c)[2] and based upon reasonable suspicion of [Petitioner's] drug use in violation of School District Board Policy 451[3]and 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 positive.
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.

         Consistent with the custody dispute letter, Petitioner tested positive for cocaine metabolites. (See R.R. at 163a.)

         The next day, Dr. Joseph J. Roy (Superintendent Roy), the School District's Superintendent, sent Petitioner a Loudermill notice[4] 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.

         Then, 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.

         II.

         Before 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.)

         Director 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 the suspension.

(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.

         Five 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. ...


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