On February 25, 2010 the Civil service commission upheld the bypass of a Full time Boston Police Officer candidate in Melissa Pinckney v. Boston Police Dept. case # G1-08-312. The reason proffered by the Department for the bypass was that the Appellant tested positive for the use of anabolic steroids during the medical portion of the Department’s pre-employment screening process.
In deciding the case the Commission stated “Based on all of the reasons cited in the findings, I conclude that the BPD has shown, by a preponderance of the evidence, that it had reasonable justification to bypass the Appellant for the position of police officer.
The Department reviews each and every candidate’s suitability for appointment to its force which includes the candidate’s application and an extensive background investigation to determine his or her character and fitness. Once this is completed, the Department screens each candidate to ensure that they are both physically and psychologically fit for the position of police officer. This medical screening involves a physical examination, lab work, and a urinalysis as well as both a written and oral psychological assessment. Candidates must successfully complete each part of the medical screening process before being allowed to take the Physical Abilities Test (PAT) and finally being admitted to the Academy. It is reasonable for the Department to bypass a candidate for appointment if she tests positive for the use of an illegal substance during her pre-employment screening process
Here, the Department has provided reasonable justification for bypassing the Appellant for appointment due to her positive drug screen for the use of anabolic steroids during the Department’s pre-employment screening process. As Robin Hunt testified, it is the Department’s policy not to consider applicants who have tested positive for an illegal substance. The Appellant was given an opportunity to provide alternate explanations for the positive drug screen result and she was unable to do so. Consequently, the positive result was reported by a trained MRO directly to the Department.
The Department, through documentary evidence and credible testimony of a trained and seasoned medical review officer, demonstrated why the Appellant’s drug screen result was positive. It is the function of the hearing officer to determine the credibility of the testimony presented before him. See Embers of Salisbury, Inc. v. Alcoholic Beverages Control Comm’n, 401 Mass. 526, 529 (1988); Doherty v. Retirement Bd. Of Medford, 425 Mass. 130, 141 (1997). See also Covell v. Dep’t of Social Services, 439 Mass. 766, 787 (2003); (In cases where live witnesses giving different versions do testify at an agency hearing, a decision relying on an assessment of their relative credibility cannot be made by someone who was not present at the hearing); Connor v. Connor, 77 A. 2d. 697 (1951) (the opportunity to observe the demeanor and appearance of witnesses becomes the touchstone of credibility).
Dr. Roston explained why the only explanation, offered by both the Appellant and her primary care physician, for the positive test result was not plausible. Before reporting the positive test result to the Department, Dr. Roston did research and attempted to find any medical authority that would support the Appellant’s explanation that the Sudafed she had taken had interfered with the test results and he was unable to do so.
The Appellant was unable to provide any evidence to refute the positive drug screen as reported by Dr. Roston. Her primary care physician, Dr. Tremblay theorized that the Sudafed that the Appellant had taken had somehow caused the positive test result. However, Dr. Tremblay testified that she is not trained as a MRO to review the results of these types of drug screens. She also testified that she is unfamiliar with the chemical compositions of Sudafed and testosterone and has no knowledge of whether Sudafed could interfere with a drug screen to cause a positive result. Further, the subsequent drug screening tests facilitated by Dr. Tremblay were not reliable, including one test in which the sample was given under unsupervised conditions with no chain of custody.
While the Appellant was a compelling witness, no other facts or evidence bolstered her testimony. I give more weight to the positive test results administered by LabCorp and the testimony of Dr. Roston. Finally, I conclude that there is no evidence of any political considerations, favoritism and/or bias that would warrant the Commission’s intervention.
For all the above reasons, the Appellant’s appeal under Docket No. G1-08-312 is hereby dismissed.”
Attorney Ronald A. Sellon