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KNOXVILLE UTILITIES BOARD Plaintiff-Appellee
vs.
KNOXVILLE CIVIL SERVICE MERIT BOARD Defendant and KELLY H. BURNETTE Defendant-Appellant
 
Case:
APP. NO. 03A01-9301-CH-00008
 
Location:
COURT OF APPEALS OF TENNESSEE EASTERN SECTION AT KNOXVILLE
 
Date:
June 28 1993 Filed
 
Attorneys:
For PLAINTIFF-APPELLEE: EDWARD G. PHILLIPS GREGORY P. ISAACS Suite 2500 Plaza Tower Knoxville Tennessee 37901.
For DEFENDANT-APPELLANT: STEVEN G. SHOPE 800 South Gay Street 1610 Plaza Tower Knoxville Tennessee 37929.
 
Court:
LEWIS FRANKS INMAN
 
Author:
The Hon. Justice Samuel L. Lewis
 

This is an appeal by defendant Kelly H. Burnette from the judgment of the Chancery Court for Knox County which set aside the decision of the city of Knoxville Civil Service Merit Board. The Knoxville utilities Board (KUB) had terminated Mr. Burnette after he tested positive for marijuana use in violation of the KUB drug abuse policy. The Knoxville Civil Service Merit Board had overturned the termination in favor of a temporary suspension.

THE CASE

The KUB terminated Mr. Burnette after he had tested positive for marijuana in violation of KUB's drug abuse policy. Mr. Burnette appealed his termination to the City of Knoxville Civil Service Merit Board.

The Knoxville Civil Service Merit Board hearing was held before a hearing examiner and thereafter the examiner issued a written final decision which modified the termination of Mr. Burnette to a ninety day suspension without pay and ordered KUB to reinstate Mr. Burnette at the end of the period to the job he had held at the time of his termination.

KUB filed a petition for review in the Chancery Court for Knox County and contended that the hearing examiner's decision was arbitrary capricious constituted an abuse of discretion was unsupported by substantial material evidence and was contrary to law. Following a hearing before the chancellor the Chancellor issued a memorandum opinion in which he held that the hearing examiner's decision returning Mr. Burnette who had admittedly violated KUB's drug policy to a dangerous position working with live gas was unreasonable and constituted an unwarranted exercise of discretion. The Chancellor set aside the hearing examiner's decision and reinstated KUB's decision to terminate the defendant Kelly K. Burnette. *fn1

From the Chancellor's judgment Mr. Burnette timely filed his notice of appeal.

THE FACTS

KUB is divided into four different bureaus: 1) the Bureau of Gas; 2) the Bureau of Power; 3) the Bureau of Water and Waste Water; and 4) the Bureau of Accounts.

The Bureau of Gas where Mr. Burnette was employed since 1987 provides natural gas to KUB customers and maintains the natural gas distribution network. Bureau of Gas employees are responsible for installing and maintaining natural gas lines insuring that the system is operational twenty-four hours a day and making emergency repairs to the system when required.

The hearing examiner found that the work performed has "enhanced safety risks associated with combustible gas. This safety risk extends to the public at large as well as KUB personnel and property." This finding is supported by material evidence in the record. The United States Department of Transportation (DOT) has singled out the gas industry as involving substantial safety risks. There are safety risks inherent with the presence of leaking gas at emergency repair sites as well as during the installation of gas lines. There are also certain risks intrinsic to the construction industry involving the use of machinery. The work performed by the Bureau of Gas is generally alongside the roadways often at night or in inclement weather.

DOT regulates the Bureau of Gas but not other KUB divisions. DOT regulates the Bureau of Gas because of the safety-sensitive nature of the work involving its natural gas lines. In November 1988 DOT promulgated regulations requiring the Bureau of Gas to maintain a strict anti-drug program which prohibits the use of illegal drugs and which includes pre-employment post-accident random reasonable suspicion and return to duty testing. These regulations apply to certain safety-sensitive positions in the Bureau of Gas. Jim Carmon superintendent of the Bureau of Gas testified that many but not all jobs in the Bureau of Gas are designated as safety-sensitive and are covered by the regulations. The DOT regulations prohibit the Bureau of Gas from using a person who has failed a drug test in a covered position until certain requirements are met. 49 C.F.R. Sec. 199.9. Among these requirements are rehabilitation and passing a drug screen. The DOT regulations do not restrict an employer from terminating an employee who violates the policy even for a first offense. KUB was also subject to the Drug Free Work place Act which required it as a government contractor to develop a drug abuse policy and communicate that policy to its employees and certify that it has a drug-free work place.

KUB began as early as June 1989 to implement a drug abuse policy strictly prohibiting the use of drugs. KUB notified each employee about the new drug abuse policy including immediate implementation of pre-employment testing. KUB urged each employee to put any alcohol and drug problems behind them and offered them an opportunity to participate voluntarily in the Employee Assistance Program (EAP). The policy adopted stated unequivocally that the use of controlled substances "while on KUB properties while on duty for regularly scheduled emergency work while operating KUB vehicles or equipment . . . is strictly prohibited. Violation of this policy will lead to disciplinary action up to and including discharge."

To comply with DOT requirements KUB implemented additional elements of the drug abuse policy effective 20 April 1990. The 20 April 1990 policy which is applicable to the instant case provided for post-accident reasonable suspicion promotion and transfer and return to duty testing in all KUB departments. Because of the DOT regulations the Bureau of Gas employees in safety-sensitive positions were singled out for random testing as well. No other employees of KUB were subject to random testing.

The current policy emphasizes that failing to comply with the policy is grounds for immediate discharge and stated: "Nothing in this policy shall be deemed to preclude KUB from taking immediate steps to terminate any employee found to be in violation of any part of this policy." The policy further states no less than seven times that: "An employee who tests positive for drugs as a result of such a test will be in violation of this policy and will be subject to disciplinary action up to and including termination."

As the hearing examiner found employees were advised that a violation of KUB's drug policy could subject them to disciplinary action up to and including immediate discharge.

KUB took steps to encourage employees with drug or alcohol problems to step forward voluntarily and seek rehabilitation without any punitive consequences. An eligible employee could as a matter of right voluntarily seek rehabilitation or consult with a licensed psychologist. However when an employee had violated the policy by testing positive he or she lost the right to volunteer for rehabilitation and was subject to termination at KUB's discretion.

In determining whether an employee who tested positive for drugs should be discharged KUB considered a number of factors including the safety-sensitivity of the employee's position whether there were injuries or property damage the length of service and craft level of the employee circumstances of drug use and the employee's general work record. The issue of safety-sensitivity was acute in the Bureau of Gas because the DOT regulations prohibited KUB from employing people who used drugs in safety-sensitive positions. It is undisputed that KUB made its decision to terminate or rehabilitate employees who tested positive on a case-by-case basis and that employees had been terminated for a single violation of the policy.

KUB introduced evidence of twelve employees who had either: 1) violated the drug abuse policy by testing positive on a KUB drug test; 2) voluntarily referred themselves for rehabilitation; or 3) been mandatorily referred before violating the policy. Five of the twelve employees were employed in the Bureau of Gas. These violations occurred in April 1989 and continued through February 1992. The first six of the twelve employees were either mandatorily referred or voluntarily referred themselves to the EAP before they tested positive. Of the twelve two were terminated the first time they failed the KUB drug test. The Bureau of Gas had begun random testing in April 1990 and had no positive test until April 1991 when one employee tested positive. This was followed by two more employees in December 1991 and January 1992. Six employees tested positive on 10 February 1992. Two of the six were Mr. Burnette and a fellow crew member Gibby Bowman. This was Mr. Bowman's first violation of the policy although Bowman had previously been through voluntary rehabilitation.

KUB had previously suspected Mr. Burnette of using marijuana while on the job. During 1991 and early 1992 Randy Williams an area supervisor in Mr. Burnette's department received a number of reports from Mr. Burnette's supervisors that they suspected he was smoking marijuana while on duty. The supervisor's complaints were based on the fact that they smelled marijuana on Mr. Burnette or in the truck he had been operating. Randy Williams declined to identify all the complaining employees because they "didn't want to get involved." However Mr. Williams did specifically identify a complaint from David Walton who suspected that Mr. Burnette was smoking marijuana as early as 1991. Mr. Walton identified what he believed to be a marijuana roach in Mr.Burnette's truck. Mr. Walton attempted to catch Mr. Burnette in the act of smoking marijuana but was unable to do so before a transfer removed Mr. Burnette from Mr. Walton's supervision.

In early February 1992 Mr. Burnette's new foreman Kenny Etherton suspected Mr. Burnette of using marijuana while on the job after smelling marijuana on Mr.Burnette while on the job. As a result of these suspicions Jerry Pratt manager of Mr. Burnette's department Ms. Carlton Little Manager of Policy Development and Randy Williams arranged for the foreman to alert Mr. Williams the next time he suspected Mr. Burnette of smoking marijuana on the job. Ms. Little then arranged to have the Knoxville Police Department's "drug-detection dogs" available on short notice to "sniff" the Bureau of Gas vehicles.

On 7 February 1992 Mr. Burnette's foreman gave the pre-arranged signal to Randy Williams. That evening the Knoxville Police Department's K-9 division conducted a "sweep" of the KUB Bureau of Gas vehicles. The drug dogs sniffed out the vehicle driven by Mr. Burnette that day indicating the presence of illegal drugs. A search of the vehicle by the Knoxville Police Department yielded a quantity of what the officer identified as marijuana. No other vehicle within the Bureau of Gas was found to contain illegal drugs on that date.

Mr. Burnette had driven the vehicle containing the marijuana on the date the marijuana was found. However other crew members also had access to it during the day. KUB was confident the marijuana was Mr. Burnette's but they could not be certain. They therefore had all six of the crew members who might have had access to the truck tested. Mr. Burnette was the only one who tested positive for marijuana. Another employee Gibby Bowman tested positive for cocaine.

James Carmon superintendent of the Bureau of Gas was responsible for deciding what disciplinary action to take regarding Mr. Burnette's and Mr. Bowman's violation of the drug policy. In evaluating Mr. Burnette Mr. Carmon discussed the situation with both Ms. Little and Mr. Pratt. In deciding to terminate Mr. Burnette Mr. Carmon considered several factors including the safety-sensitivity of Mr. Burnette's job; his relatively short service with KUB; his apparent drug use on the job as confirmed by the discovery of marijuana during a search of the truck Mr. Burnette had driven earlier that day coupled with the positive test result for marijuana; the fact that Mr.Burnette's work performance was as found by the hearing examiner satisfactory "but not above average;" and that Mr. Burnette had exhibited mood swings resulting in temper problems in the past. Mr. Carmon testified that he was concerned about the accelerating use of drugs within the Bureau of Gas and he stated: "Finding two people out of six using [drugs] in one test was certainly an alarming thing." Primarily Mr. Carmon was concerned over the potential of returning a drug impaired employee to a safety-sensitive job working around live gas.

There is overwhelming evidence of the danger of working a drug-impaired employee in a position such as Mr. Burnette occupied. In May 1991 an explosion occurred at a KUB job site which caused the death of one Bureau of Gas employee and seriously burned three others. Mr. Burnette acknowledged that his responsibilities posed many dangers including handling natural gas on a daily basis operating heavy machinery and equipment using plastic pipes with welding apparatus and responding to emergency situations involving gas leaks.

Approximately a year before his termination Mr. Burnette became a "B" foreman which meant that he was in charge of the crew when the foreman was absent or otherwise occupied. As a "B" foreman Mr. Burnette was responsible for the safety of the public and for making critical judgments in terms of responding to a gas leak and deciding what remedial action to take. Mr. Burnette admitted that as a "B" foreman he would not want an employee responding to emergency gas leaks who was operating under any of the effects produced by the use of marijuana such as distortion of time and energies reduced motor skills and coordination impaired memory hallucinations rapidly changing emotions etc. Mr. Burnette stated that to do his job You just need to be able to have a clear head.

The hearing examiner found that Mr. Burnette's marijuana use "poses serious risks and cannot be taken lightly."

Mr. Burnette uses as an excuse to smoke marijuana the very danger that requires a drug-free work place. Mr. Burnette claims that his marijuana use began after his personal observation at the scene of the May 1991 natural gas explosion which resulted in the death of one KUB employee and serious injuries to three others. Mr. Burnette contends that after the accident he began using marijuana two to three times a week at night in an effort to cope with his alleged nightmares resulting from the accident. He acknowledged that he used marijuana regularly for a period of several months.

Mr. Burnette admitted that after the accident he smoked marijuana when he was "on call" and was therefore subject to being called into work without notice to respond to an emergency gas leak. His excuse for using marijuana while on call was that "I don't think I smoked enough to impair me no." Fortunately Mr. Burnette's subjective assessment of his drug use was never tested. As the hearing examiner found: "The conduct in which the employee engaged fortunately was caught before it resulted in any adverse results to the employee his co-workers employers or the public at large."

Mr. Burnette acknowledged that he knew that if he violated KUB's drug abuse policy he would be subject to being terminated. He made no claim that he knew or relied on what discipline KUB had meted out in other cases to justify discipline short of termination should he be caught. Mr. Burnette admitted that it was "crystal clear" to him that if he was caught he would be subject to termination.

As is argued by KUB Mr. Burnette's apparent defense to his violation of the drug policy is denial. Even though Mr. Burnette admitted that he smoked marijuana three times a week for a period of at least three months he maintained that his drug use did not constitute a drug problem. Mr. Burnette has never sought help for his drug problem. The hearing examiner found: "There is no indication that the employee intended to voluntarily take steps to seek assistance for the problem he was having although such assistance is available through the Employee Assistance Program."

Mr. Carmon decided to terminate both Mr. Burnette and Mr. Bowman who had tested positive for cocaine. With respect to Mr. Burnette Mr. Carmon testified that he considered that Mr. Burnette violated the drug policy by testing positive for marijuana KUB reasonably suspected he had brought marijuana onto the premises and was using it at work his work record was average at best and he was a relatively short-service employee who had had temper and attitude problems in the past. Mr. Carmon was also concerned that he would have to return Mr. Burnette to a safety-sensitive job if he was not terminated.

Mr. Burnette appealed his termination to the city of Knoxville Civil Service Merit Board.

THE HEARING EXAMINER'S DECISION

Mr. Burnette's grievance was heard before the hearing examiner on 27 April 1992. On 6 May 1992 the hearing examiner rendered a final decision in which he made findings of fact and conclusions of law. The hearing examiner found that Mr. Burnette violated the KUB drug abuse policy by testing positive for marijuana on 10 February 1992. He also found that KUB had the authority to implement the drug abuse policy. He held that "there is no dispute that the nature of the activities conducted by KUB employees does raise a significant sensitive concern and that an effective drug abuse policy is an effective means of addressing those concerns." He further found that "the employee himself admits that he violated the policy and was therefore subject to disciplinary action." He also found that Mr. Burnette admitted that on several occasions he smoked marijuana while he was "on call" and subject to being called in for emergency work that "the conduct in which the employee engaged fortunately was caught before it resulted in any adverse results to the employee his co-workers employers and the public at large." He further held that Mr. Burnette's actions "certainly posed a serious risk and cannot be taken lightly." However he concluded that "KUB has not proven by a preponderance of the evidence that just cause existed to terminate the employee and concluded that the termination should be modified to a ninety-day suspension without pay.

The hearing examiner reversed KUB's decision to terminate Mr. Burnette because he concluded that under a just cause analysis individual cases must still be taken within the context of those which came before it in order to determine whether the decision on any individual case is arbitrary." He then stated:

A review of the information submitted by KUB in Exhibit 7 shows as mentioned earlier that in the ten instances of prior positive drug tests of KUB employees three of which were in the Bureau of Gas there was only one instance where the employee was not offered rehabilitation after the first positive test. The only exception involved an employee who tested positive in a return-to-duty test when returning after a prior disciplinary suspension. With respect to the three prior positive tests in the Bureau of Gas all three of the employees were offered rehabilitation rather than termination after the first positive test. The facts certainly then raise the question of whether there were factors present in this Employee's case that so distinguish it that termination is shown not to be arbitrary.

The factors stated by James Carmon and the other KUB supervisory personnel justifying the termination in this case other than the violation itself involve the length of service the suspicion of drug use on the job site and the Employee's work history. The Hearing Examiner cannot conclude from the proof introduced with respect to these factors that they established a distinction in this case justifying a departure from the pattern of not terminating employees on the basis of one positive drug test. The hearing examiner then proceeded to attempt to compare the facts in Mr. Burnette's case with the ten earlier unknown employees most whom work in different bureaus with different safety risks from Mr. Burnette. He held that KUB's consideration of Mr. Burnette's relative short service was not sufficient to distinguish Mr. Burnette from the so-called pattern of rehabilitation. The hearing examiner held that the "primary" factor relied on by KUB to terminate Burnette was its suspicion that he was smoking marijuana on the job. The hearing examiner then stated: "While the circumstantial evidence certainly raises questions the hearing examiner could not find that it established on-the-job use sufficiently to serve as a basis for termination." After finding the evidence of Mr. Burnette's on-the-job use "too circumstantial he then rejected Mr. Burnette's admitted use of marijuana while on call as being sufficient to distinguish him from the pattern" or to create just cause. The hearing examiner observed: "The Employee has admitted [the] smoking of marijuana while 'on call'. While this [is] true there was no testimony that [Mr. Burnette] was called to duty during these periods of time or [that] it in any way became a factor in his ability to perform work which he was assigned." The hearing examiner then attempted further boot-strapping by speculating that: "In reviewing the history of the prior drug test set forth in Exhibit 7 it does not seem unreasonable to conclude that some number of the employees who previously tested positive very likely used drugs during the times they were on call."

The hearing examiner then acknowledged that "the supervisors in the Bureau of Gas were justifiably concerned about the increasing number of positive tests within their division." However he reasoned that this was insufficient to subject Mr. Burnette to termination. He stated:

Where an agency has made the decision to retain discretion within its policy and then has established a course of dealing with its employees in the administration of that decision it is the opinion of the Hearing [Examiner] that the agency should not undertake a substantial change in its use of discretion without taking steps to either change the policy or to at least put the employees on notice that what had been the practice under the policy previously would no longer be the practice. However we find no evidence in the record that Mr. Burnette knew of the actions taken with respect to other employees or that Mr. Burnette relied upon any so-called course of dealings to support a belief that he would be entitled to rehabilitation after testing positive for drug use. Mr. Burnette's unequivocal testimony was that he knew he was subject to termination if he tested positive.

The hearing examiner then held that "KUB has not established by a preponderance of the evidence that there were factors present in this case that so distinguished it from prior cases that there was a basis to treat this employee differently by not imposing some discipline short of termination." The hearing examiner then modified the termination to a ninety-day suspension and ordered KUB to return Mr. Burnette to his safety-sensitive job at the end of the ninety days. Rehabilitation was not ordered.

THE CHANCELLOR'S DECISION

KUB appealed the decision of the hearing examiner to the Chancery Court for Knox County. On 1 December 1992 the Chancellor filed his memorandum opinion in which he stated he agreed with the hearing examiner in one respect the hearing referee correctly determined that Mr. Burnette violated the employee's drug policy. The Chancellor went on to emphasize the dangerous nature of Mr. Burnette's job and that Mr. Burnette was an admitted drug user. The Chancellor emphasized the public policy reasons for assuring to the extent possible that drug users do not work with escaping gas. Chancellor McDonald reasoned:

Mr. Burnette worked in the gas bureau attending to repairs and the installation of gas lines which on occasion involved work in the presence of escaping gas. The extremely dangerous and explosive nature of gas as well as being well known was a specific circumstance involved in this case: Mr. Burnette admits that following a gas explosion at work he smoked marijuana to help him sleep at night. Indeed although denying he used marijuana on the job he conceded that he used it at home when he was on call for possible work duty. Because of the dangerous nature of gas there is a strong policy reason for assuring as absolutely as possible that persons identified as using or possessing marijuana so that they may come under its influence on the job not be permitted to work with gas. This policy is recognized in federal regulations as well as in the employer's policy.

The chancellor addressed the obvious dangers associated with a drug-impaired employee working with combustible gas and then focused on the reasonableness of KUB's decision to terminate Mr. Burnette versus the hearing examiner's modification of KUB's action to a ninety-day unpaid suspension.

Plaintiff's discharge of the employee in this case was in accord with its policy and reasonable. The Hearing [Examiner's] modification of Plaintiff's action to a 90 day unpaid suspension was not. Unless changed the modification ordered below assures that an employee who has used and possessed marijuana in violation of company policy will be returned to work with escaping gas. The conclusion below that the employee's conduct was "fortunately caught before it resulted in any adverse results" recognizes the fearful danger the employee represents.

The Chancellor then went on to discuss the broad latitude that KUB had in determining the discipline for the use of illegal drugs in safety-sensitive positions and held that it was inappropriate to compare Mr. Burnette to employees serving in other capacities and stated:

To continue that danger contrary to the employer's judgment in the hope that perhaps rehabilitation or something else less than discharge might eliminate the danger does not assure the danger will be alleviated at all. What might be appropriate in other circumstances for example with respect to employees in other bureaus of Plaintiff's organization where gas is not used so that there is not a comparable safety problem is not appropriate here. In employment involving escaping gas the discretion that may be exercised by the employer in dealing with an employee's drug use or potential drug use must be and is very broad. It is concluded that the decision below setting aside the discharge from employment constituted at least a clearly unwarranted exercise of discretion. That ruling accordingly is set aside and the discharge from employment by plaintiff reinstated.

The Chancellor thus held that KUB's discharge of an admitted drug user who regularly works with escaping gas was within KUB's policy and was for just cause. He also held that it was error for the hearing examiner to attempt to compare Mr. Burnette to unknown employees in other positions in other bureaus so as to justify reinstating Mr. Burnette. The Chancellor stated: "What might be appropriate in other circumstances for example with respect to employees in other bureaus of Plaintiff's organization where gas is not used so that there is not a comparable safety problem is not appropriate here."

STANDARD OF REVIEW

Tennessee Code Annotated Section 27-9-114 provides that contested case hearings by civil service boards of municipalities are conducted in conformance with the Uniform Administrative Procedures Act Tenn. Code Ann. Sec. 4-5-301 et seq. The standard of review applicable to the trial court and this Court is set forth in Tennessee Code Annotated Section 4-5-322(h) and provides in pertinent part as follows:

Court may reverse or modify the decision if the rights of the petitioner have been prejudiced because the administrative findings inferences conclusions or decisions are:

(4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or

(5) Unsupported by evidence which is both substantial and material in the light of the entire record.

In determining the substantiality of evidence Court shall take into account whatever in the record fairly detracts from its weight but Court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.

This is the statutory codification of the scope of review of the common law writ of certiorari and was succinctly described by the Tennessee Supreme Court in Watts v. Civil Service Board for Columbia 606 S.W.2d 274 (Tenn. 1980) cert. denied 450 U.S. 983 101 S. Ct 1519 67 L. Ed. 2d 818 (1981) as follows:

Under the common law writ of certiorari questions of law only will be reviewed by Court. An action of an administrative agency which is not supported by any evidence is arbitrary and void and may be quashed on common law writ of certiorari. Whether or not there is any material evidence to support the action of the agency is a question of law to be decided by the reviewing court upon an examination of the evidence introduced before the agency. Any additional evidence offered to the reviewing court is limited to the question of whether the agency exceeded its jurisdiction or acted fraudulently illegally or arbitrarily.

In the trial court under the common law writ reversal or modification of the action of the Civil Service Board may be had only when the trial court finds that the Board has acted in violation of constitutional or statutory provisions or in excess of its own statutory authority; has followed unlawful procedure or been guilty of arbitrary or capricious action; or has acted without material evidence to support its decision. The trial court does not weigh the evidence. The scope of review by the appellate courts is no broader or more comprehensive than that of the trial court with respect to evidence presented before the Board.

Id. at 276-77 (citations omitted).

The question of law before the hearing examiner and the trial court was whether KUB had just cause to terminate Mr. Burnette for violating KUB's drug abuse policy. The hearing examiner has the authority by city charter to accept the action taken by the disciplinary authority reject it or modify it. Nevertheless if the facts in the record as found by the hearing examiner establish just cause as a matter of law the hearing examiner cannot simply substitute his judgment for that of the employer and return the employee to work. If he does so the decision will not be sustained where it is arbitrary capricious characterized by an abuse of discretion or a clearly unwarranted exercise of discretion or is unsupported by substantial and material evidence.

This Court in Coghill v. Coghill Industries Inc. 3 TAM-2 (E.S. Tenn. App. 28 Feb. 1978) stated that "there is nothing magical or arcane about the words 'just cause'. They are to be sure not equatable to 'legal cause' see 17 C.J.S. 889 but rest on grounds which must be fair and reasonable." Coghill slip op. at 3.

The legal standard which constitutes "just cause" to terminate civil service employees is succinctly stated in 67 C.J.S. Officers and Public Employees Sec. 132:

As a general rule a civil service employee may be discharged or demoted on grounds or for a cause . . . . The term "cause" implies good cause which must be substantial; but any reasonable sufficient cause may be ground for dismissal and the power to discharge is not limited to specific grounds. The term "cause" is construed to mean some substantial shortcoming which renders continuance in office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and sound public opinion recognize as good cause for removal.

In determining whether the employee should be discharged whatever the cause overriding consideration is whether the conduct of the employee harms the public service. Where lawful grounds for dismissal of a civil service employee exist the character and work record of the employee involved is of no importance and the fact that he has previously received a general rating of satisfactory does not bar his removal.

Id.

KUB contends and we agree that violating its drug abuse policy by smoking marijuana while being employed in a safety-sensitive job is beyond peradventure a just cause for discharge. The hearing examiner's decision to the contrary was arbitrary capricious and characterized by an abuse of discretion or an unwarranted exercise of discretion. The hearing examiner's reliance on what KUB had done in other cases the facts of which were not before him was arbitrary and unsupported by substantial and material evidence in this case.

Mr. Burnette's first issue is as follows:

Whether the Hearing Examiner for the Civil Service Merit Board committed an unwarranted exercise of discretion when he analyzed explicit policy in conjunction with the employer's course of dealing with its employees in reaching his decision that the termination of the employee was arbitrary and without just cause.

There is no dispute that Mr. Burnette's employment with KUB was subject to the drug abuse policy which prohibited the use of Mr. Burnette's choice of drug marijuana. KUB's policy unequivocally stated no less than seven times that violation of the drug abuse policy would subject Mr. Burnette to termination and that rehabilitation was at KUB's sole discretion.

The hearing examiner found that Mr. Burnette tested positive for marijuana and that he had smoked it two or three times a week for months and had thereby violated KUB's policy. The hearing examiner also found that Mr. Burnette was in an extremely safety-sensitive position in which one KUB employee had recently been killed and three others seriously injured. He found that Mr. Burnette admitted smoking marijuana while "on call" for emergency duty and that this is expressly prohibited by KUB's policy.

Mr. Burnette knowingly broke the rules over a long period of time. The hearing examiner found that he never voluntarily sought assistance for his problem. The record reflects that Mr. Burnette repeatedly denied that he had a drug problem. Mr. Burnette acknowledged that he had no expectation that he would be given any lesser disciplinary action than termination. In fact he testified that it was "crystal clear" that if he was caught he would be subject to termination. KUB contends that violation of its drug policy by Mr. Burnette in a safety-sensitive position is just cause for discharge as a matter of law and that the chancellor properly so held.

Our courts have consistently held that an employer has just cause to terminate an employee who violates established drug policy. Shelby County Sheriff v. Shelby County Civil Service Board No. 1989 WL 118614 (Tenn. App. 9 Oct. 1989); Butler v. Board of Commissioners of Chattanooga No. 1989 WL 55735 (Tenn. App. 2 June 1988). KUB argues that Shelby County Sheriff is directly on point and dispositive. We agree. In Shelby County Sheriff a deputy jailer was discharged after a positive drug screen. The deputy sheriff was subject to a drug abuse policy which prohibited a prison employee from possessing or using illegal drugs. The Shelby county civil service Board found that although the employee had violated the policy the termination of the employee was too severe. The chancellor reversed the Board's decision to reinstate and found that it was arbitrary and capricious. This Court in affirming the Chancellor's decision stated:

In the instant case proof not only was introduced concerning the sheriff's policy toward drugs there was also proof introduced concerning jail procedures and the duties of the deputy jailers and their relationship with prisoners.

In considering the question of whether the Board acted properly in reinstating Hall to his employment we must accept the established fact that Hall was a cocaine user. As a deputy jailer he was charged with the responsibility of handling and supervising prisoners many of whom are charged with the sale and use of unlawful drugs. . . . The magnitude of the drug problem in this nation is common knowledge. To put a person in charge of prisoners detained for their connection with the drug trade either as suppliers or users who is himself a user cannot be satisfactorily explained. Such action is akin to putting the . . . fox in charge of the hen house.

Therefore we hold that the Board abused its discretion in modifying the disciplinary action taken by the Sheriff. Since Hall was rightfully terminated from his employment we do not find it necessary to discuss his insistence that he should be referred to the Employee Assistance Plan which is provided to help county employees.

1989 WL 118614 at 4.

In the instant case there is no question that Mr. Burnette was a marijuana user. He admitted that he used it for several months regularly including when he was on call to respond to emergencies. As a pipe fitter in the Bureau of Gas Mr. Burnette surely was in a safety-sensitive position when working in and around natural gas escaping into the atmosphere. The risks associated with Mr. Burnette's employment are very real. Mr. Burnette saw a fellow employee killed and three others seriously injured in a natural gas explosion. Mr. Burnette admits that he knew he was violating KUB's policy and knew he was subject to termination. He insists he doesn't have a drug problem and doesn't need rehabilitation.

As this Court in Shelby County Sheriff stated to force KUB to return Mr. Burnette to his safety-sensitive position "cannot be satisfactorily explained" and constitutes an abuse of discretion. And Chancellor McDonald stated: "To continue that danger contrary to the employer's judgment in the hope that perhaps rehabilitation or something else less than discharge might eliminate the danger does not assure the danger will be alleviated at all."

This Court in Butler v. Board. of Commissioners of Chattanooga NO. 1989 WL 55735 (Tenn. App. 2 June 1989) addressed the issue of an employee in a safety-sensitive position who tested positive for marijuana in violation of the employer's drug abuse policy and stated:

In the case at bar urinalysis was merely the third phase of a physical examination program provided for by city ordinance. . . . The purpose is to ensure and maintain high-level physical and psychological fitness for such critical public employment. A fireman's duties particularly those of Mr. Butler whose job was as an emergency medical technician directly impact public safety. He was frequently involved in emergency situations; . . . . A close nexus existed between the testing and the government's public safety concern. The purpose of the physical including the drug screen was quite reasonably aimed at preserving the integrity of the Chattanooga police force and fire department. . . . There is no evidence the commissioners' action in terminating Mr. Butler was arbitrary or capricious.

Id. at * 4.

KUB had just cause for terminating Mr. Burnette. There clearly existed a "close nexus" between KUB's testing and its public safety concern. The risks posed by a drug-impaired employee in a safety-sensitive job which involved daily interactions with combustible gas cannot be overstated. KUB the hearing examiner and Mr. Burnette agreed that a marijuana impaired employee cannot safely perform day-to-day job functions required in this safety-sensitive position. Applying the rationale of Shelf County sheriff and Butler to the facts of the instant case it becomes clear that the safety risks caused by an employee in the gas department using marijuana are as great if not greater than the safety risks of a jailer or fire fighter under the influence of marijuana.

There was a clear violation of KUB's policy and a safety risk and the Chancellor was correct in holding that the hearing examiner's decision setting aside the discharge from employment constituted at the least a clearly unwarranted exorcise of discretion.

Mr. Burnette argues that the chancellor exceeded the permissible scope of reviews and relies on Austin v. Shelby County Government 761 S.W.2d 298 (Tenn. App. 1988).

The only parallel we find between Austin and the instant case is the fact that the discharge was modified to a ninety-day suspension. In Austin the issue was the propriety of a discharge resulting from an employee's violation of a dress code. Austin is distinguishable from the issue of returning a drug-impaired employee who has admitted violating the drug policy to a safety-sensitive position working with natural gas.

We have determined from our review of this record that the facts found by the hearing examiner established just cause for discharge as a matter of law. The chancellor property held that Mr. Burnette's discharge was in accordance with the policy and reasonable. The chancellor property held that the hearing examiner's decision was not in accordance with the policy and was not reasonable. The chancellor properly held that "the decision below setting aside the discharge from employment constituted at the least a clearly unwarranted exercise of discretion."

Mr. Burnette also argues that KUB did not have just cause to terminate him because KUB had rehabilitated a number of other employees. Mr. Burnette acknowledges that disciplinary decisions are made on a case-by-case basis. However he argues that based solely on Exhibit 7 KUB had established a pattern of rehabilitating other employees and that it had not established sufficient facts to distinguish Mr. Burnette from these other employees. KUB argues that for a number of reasons this holding was not only arbitrary and capricious and an abuse of discretion but was also unsupported by evidence which is substantial and material.

The issue is whether there was just cause to terminate Mr. Burnette not whether KUB could have terminated others and chose not to. In a case such as this the relevant inquiry is whether the actions of the employee before the administrative tribunal constituted just cause for discharge. Fairweather v. Long 10 TAM 11-3 (W.S. Tenn. App. 18 Feb 1985).

In Fairweather five civil service employees were discharged for similar conduct. The Civil Service Board reinstated two and upheld the termination of the other three. The three terminated employees appealed claiming in part that the decision was arbitrary and capricious because they were not dealt with the same as the two employees who had been reinstated. This Court held that their claim was without merit and stated as follows:

Appellants complain that although all five employees involved in the hearings were found to have violated departmental policies only the three appellants were dismissed from their employment. Appellants contend that this action on the part of the Commission is arbitrary capricious and an abuse of discretion.

The state did not appeal the Commission's decision regarding the two reinstated employees and neither the trial court nor this Court is called upon to determine the correctness of the Commission's ruling as to these two employees. The Commission stated its reasons for dismissing the appellants and we are only called upon to determine the correctness of the Commission's ruling in that respect. The punishment meted out to others not involved in this proceedings [sic] should not be considered by this Court.

Fairweather Slip op. at 8.

In the instant case the hearing examiner had before him for review only the propriety of discharging Mr. Burnette. The punishment meted out to others not before the hearing examiner cannot be considered by him or by this Court on review. The Chancellor agreed saying: "What might be appropriate in other circumstances for example with respect to employees in other bureaus [of KUB's organization] where gas is not used so that there is not a comparable safety problem is not appropriate here." We completely agree.

The hearing examiner's conclusion that KUB failed to distinguish Mr. Burnette from the other employees disciplined by KUB is not supported by substantial and material evidence. The only evidence in the record regarding the discipline of other employees is found in Exhibit 7. However the limited data contained in that exhibit does not show the facts and circumstances surrounding the reasons for the disciplinary actions given each of the other employees. It is undisputed that KUB made its disciplinary decisions on a case-by-case basis weighing such facts as the safety-sensitivity of the job; the nature of the incident; the injuries if any; the loss of material associated with the incident; the length of service of the employee; the skill level; the circumstances of the employee's drug use; and his general work record. None of that relevant information is in the record either in Exhibit 7 or elsewhere with respect to the other employees. In fact most of the employees seven of twelve relied upon by the hearing examiner did not work in the Bureau of Gas and were not subject to the stringent DOT regulations. There is no evidence to support the hearing examiner's conclusion that KUB failed to sufficiently justify or distinguish Mr. Burnette from the other three Bureau of Gas employees listed in Exhibit 7. This conclusion is certainly not supported by substantial material evidence.

There is no material evidence in this record to compare the length of service the safety-sensitivity of specific jobs the different employees' general work records skill level performance circumstances surrounding the test nature of the incident etc. with the facts present in this case. This lack of substantial and material evidence is taken to the extreme in the hearing examiner's conclusion that since Mr. Burnette smoked marijuana while on call others listed on Exhibit 7 must have also done so. The issue is whether KUB had "just cause" to terminate Mr. Burnette. The hearing examiner cannot base his decision on unsupported inferences drawn from employees in unknown jobs who he concluded might have done the same thing Mr. Burnette did.

Even if the facts as found by the hearing examiner with respect to the other twelve employees listed in Exhibit 7 are not supported by substantial and material evidence a perusal of Exhibit 7 shows that the first six of the twelve employees had not violated the drug abuse policy by testing positive for illegal drugs. Rather they were either voluntarily or mandatorily referred to KUB's EAP prior to any positive test. KUB clearly provides that voluntary and mandatory referrals to EAP are not treated as violations of the policy. In addition to Mr. Burnette four employees were terminated after their first positive drug test under the policy. Mr. Bowman was terminated at the same time as Mr. Burnette and his termination was upheld by the hearing examiner in a separate decision. Even if comparing Mr. Burnette to other employees is appropriate and we hold that it is not then it would be error to compare him to employees referred to the EAP before violating the policy. It is similarly error to compare him to employees in other departments where comparable safety interests are not present.

In Dresser Industries Inc. 86 La. 1307 (Taylor 1986) the issue was whether the employer had "just cause" to discharge a grievant who was a drug user under the collective bargaining agreement. The union claimed that the grievant was not terminated for just cause because management had rehabilitated other employees but no such opportunity was offered to the grievant. 86 La at 1310. The arbitrator in rejecting this argument stated:

The union has argued that [the employee] had an admitted drug problem and that Management shirked its responsibilities by not mandating treatment. To be sure it is apparent that the Company mandated drug treatment for other Employees. And it is upon this claim that the Union has based much of its defense. Circumstances such as the [other] Employee's past work and disciplinary records adverse effects the use of drugs may be have had on the Company and the Company's property as well as other Employees the severity of the misconduct whether hard or soft drugs were involved are unknown in the examples cited by the Union.

All of this simply means that Management is not required to assist every Employee in a rehabilitation program. Management has a right to consider each case on its own merits and to make a determination if the Employee was indeed a good candidate for rehabilitation.

86 La 1311-1313.

In the instant case KUB's policy does not mandate that KUB must assist every employee with a rehabilitation program. KUB has reserved the right by its policy to determine if an employee is a good candidate for rehabilitation. It is not the function of the hearing examiner to substitute his judgment for the judgment of KUB in evaluating whether Mr. Burnette should be rehabilitated. The fact that KUB decided that other employees were appropriate for rehabilitation after testing positive in and of itself does not create any right in Mr. Burnette. In fact KUB and Mr. Burnette both share the same interpretation of the drug abuse policy as it relates to rehabilitation that is an employee caught violating the policy is subject to termination with no assurances or expectation of rehabilitation. Most importantly Mr. Burnette testified that he did not have a drug problem had never had a drug problem and that he did not need rehabilitation.

Here Mr. Burnette knowingly violated an established policy by smoking marijuana and admitted doing it during his "on call" duty. Mr. Burnette recognized that if he got caught he was subject to termination. A civil service employer has just cause under these facts to terminate an employee particularly where he works in a dangerous job such as repairing ruptured gas lines. KUB's safety interests are manifest and overriding. The hearing examiner erred in considering the decision to offer rehabilitation to other employees at other times in other jobs in other bureaus and under totally unknown circumstances as creating a responsibility on KUB's part to rehabilitate Mr. Burnette. The hearing examiner compared Mr. Burnette to employees whom the hearing examiner knew nothing about. The issue in this case is whether KUB had just cause to discharge Mr. Burnette. We are of the opinion that the record substantially and materially supports the finding of the Chancellor that KUB had just cause to terminate Mr. Burnette.

It therefore results that the judgment of the Chancellor is affirmed with the costs assessed to the defendant-appellant Mr. Burnette.

 
Notes:

*fn1 Hereafter Mr. Burnette or grievant.