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PHILIP KRUPP                                                  *   NO. 2007-CA-1260
VERSUS                                                        *   COURT OF APPEAL
DEPARTMENT OF FIRE                                            *   FOURTH CIRCUIT
                                                              *   STATE OF LOUISIANA
*
APPEAL FROM
CITY CIVIL SERVICE COMMISSION ORLEANS
NO. 7306
JUDGE PRO TEMPORE MOON LANDRIEU
(COURT COMPOSED OF JUDGE JAMES F. MCKAY, III, JUDGE MICHAEL
E. KIRBY, JUDGE PRO TEMPORE MOON LANDRIEU)
JAMES B. MULLALY
ASSISTANT CITY ATTORNEY
JOSEPH V. DIROSA, JR.
CHIEF DEPUTY CITY ATTORNEY
PENYA MOSES-FIELDS
CITY ATTORNEY
1300 PERDIDO STREET
CITY HALL - ROOM 5E03
NEW ORLEANS, LA   70112
ATTORNEY FOR THE CITY OF NEW ORLEANS
SCOTT W. SMITH
SCOTT W. SMITH, L.L.C.
3324 N.CAUSEWAY BLVD.
METAIRIE, LA   70002
COUNSEL FOR PHILLIP J. KRUPP, III
NOVEMBER 19, 2008
AFFIRMED




The appellant, Captain Phillip J. Krupp, III (“Krupp”), appeals an August 1,
2007 decision of the Civil Service Commission, upholding his termination by the
Appointing Authority, the City of New Orleans Department of Fire (“NOFD”).
We affirm.
FACTS AND PROCEDRUAL HISTORY
Krupp was first hired by the NOFD on August 17, 1998, and was promoted
to his current class on April 30, 2006.   In connection with his employment, Krupp
was subject to random drug testing, and on May 1, 2006 submitted to a drug test.
Concentra Medical Center (“Concentra”) collected Krupp’s urine sample, which
was delivered to Kroll Laboratory Specialists (“Kroll”) for testing.  Kroll reported
to the Appointing Authority that Krupp had tested positive for benzoylecogonine-
cocaine metabolites.   After a pre-termination hearing, the Appointing Authority
notified Krupp by letter dated July 31, 2006 that he was terminated for violating
the NOFD’s substance abuse policy.  Krupp appealed his termination to the Civil
Service Commission.
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Civil Service Commission Hearing
A hearing was held before the Civil Service Commission Hearing Examiner
on November 16, 2006.  Mindy Jackson, an employee of Concentra, testified that
she had collected Krupp’s urine sample.    Ms. Jackson explained that after she
gave Krupp a cup, he went into the bathroom, returned a few minutes later, and
handed her the cup, which contained urine.  Ms. Jackson measured the temperature
of the urine to confirm that it was within the acceptable range of 90 to 100 degrees
Fahrenheit.  According to Ms. Jackson, Concentra required her to measure the
temperature to guard against the donor altering or substituting the specimen and, if
the urine measured outside the acceptable range, a second urine sample had to be
collected under direct supervision.
Ms. Jackson testified that Krupp provided a “cold sample” or one which fell
below the acceptable temperature range.  As a result, she was required to complete
an “Unusual Collection Form” that specified the reason for the unusual collection.
Ms. Jackson testified that she recited the information contained on the form to
Krupp and obtained his signature, confirming that he understood the reasons why
Concentra had to collect a second sample.1
Ms. Jackson testified that she then disposed of the first sample, and told
Krupp that a second sample was needed.  After consuming water and waiting
several minutes, Krupp gave a second sample.  According to Ms. Jackson, she
1 The Unusual Collection Form provided :
Specimen Temperature Out of Range
I understand that the first specimen I attempted to provide was not within
acceptable temperature range.   I have been advised of the rules and instructions
at the top of this page.   A same gender collector will immediately collect a
second urine sample under direct observation.
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followed the same procedures with the exception that Francisco Silva, M.D.,
accompanied Krupp to the bathroom and observed him urinating into the cup.    Ms.
Jackson testified that Krupp gave her the cup filled with urine, which she poured
into collection vials and sealed in his presence.  Krupp then initialed the seals to
evidence that the he had observed her sealing the specimen vials.  Thereafter, Ms.
Jackson completed the “Non-Federal Custody and Control Form,” stating in the
section of the form reserved for remarks, “1st attempt out of range.”  Although Ms.
Jackson’s and Krupp’s signatures appear on the form, Ms. Jackson acknowledged
that she failed to indicate on the form that Dr. Silva had observed the collection of
Krupp’s second urine sample.  Ms. Jackson explained that she followed the
procedures for non-federal employees, which did not require that the Substance
Abuse and Mental Health Services Administration (“SAMHSA”) guidelines be
followed.  Consequently, she did not retain the cold sample or specifically mention
Dr. Silva as an observer.
Patricia Pizzo, Kroll’s Director of Toxicology, testified regarding the testing
procedures that were followed.  She testified that she certified the positive test
results for the sample provided by Concentra bearing Krupp’s specimen
identification number.  On cross-examination, Ms. Pizzo acknowledged that
Louisiana required collection sites to follow the SAMHSA guidelines in obtaining
specimens from Louisiana residents for drug testing purposes.2  She confirmed that
2 La. R.S. 49:1005, provides:
A.                                                                                                 All drug testing of individuals in residence in the state and all drug testing of samples
collected in the state, including territorial waters and any other location to which the laws of
Louisiana  are  applicable,  shall  be  performed  in  SAMHSA-certified  or  CAP-FUDT-certified
laboratories, if both of the following apply:
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SAMHSA guidelines instruct the collector to retain the cold sample as well as the
second collected sample and to specifically name the observer of the second
collection in the remarks section of the custody and control form, neither of which
was done in this case.
Krupp confirmed that Ms. Jackson had collected his urine sample.
However, contrary to her testimony, Krupp testified that Ms. Jackson had
completed the paperwork before he gave his initial sample.  He claimed that after
giving his first sample, Ms. Jackson made a derogatory remark, told him that he
did not provide enough and would have to give a second sample.  Krupp
acknowledged that he had signed the Unusual Collection Form, but claimed that
Ms. Jackson never read or explained the form to him.  Krupp also acknowledged
that Dr. Silva had observed him giving the second sample.  He contends that Dr.
Silva took the second sample from him and then he left the collection facility
without seeing what Ms. Jackson and Dr. Silva did with the sample.    Krupp stated
that he did not observe Ms. Jackson pour the urine sample into the specimen vials
(1)                                                                                                    If, as a result of such testing, mandatory or discretionary negative employment
consequences will be rendered to the individual.
(2)                                                                                                    Drug testing is performed for any or all of the following classes of drugs:
marijuana, opioids, cocaine, amphetamines, and phencyclidine.
B.                                                                                                     Drug testing as provided in the Subsection shall be performed in compliance with the
SAMHSA guidelines except as provided in this Chapter or pursuant to statutory or regulatory
authority under R.S. 23:1081 et seq. and R.S. 23:1601 et seq.   The cut off limits for drug testing
shall  be  in  accordance  with  SAMHSA  guidelines  with  the  exception  of  initial  testing  for
marijuana.  The initial cut off level for marijuana shall be no less than fifty nanograms/ML and no
more than one hundred nanograms/ML as specified by the employer or the testing entity.   The
Department  of  Health  and  Hospitals  shall  have  the  responsibility  to  adopt  the  SAMHSA
guidelines for purposes of governing drug-testing programs specimens collected in accordance
with this Chapter.   The Department of Health and Hospitals shall have the responsibility for
adoption of any subsequent revisions of the SAMHSA guidelines as of the initial effective date of
this Chapter.
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nor seal the vials with the labels containing his initials.  Although he claimed that
he had initialed the labels prior to giving his first sample, Krupp acknowledged
that, at previous drug tests, he always initialed the labels after observing the
collector seal the vials.
Krupp offered the testimony of Patricia M. Williams, Ph.D., a board
certified toxicologist, who testified as an expert in specimen collection procedures.
Dr. Williams testified that Ms. Jackson did not comply with the SAMHSA
guidelines in collecting Krupp’s urine specimen, as the second chain of custody
form was invalid.  According to Dr. Williams, the form submitted by Ms. Jackson
was, in fact, the form for the initial, discarded specimen, and improper for use with
the second specimen.  She also noted that Ms. Jackson had failed to name Dr. Silva
as the observer for the second collected specimen on the chain of custody form.
While the hearing examiner found Ms. Jackson to be credible, he concluded
Krupp was untruthful and evasive.  He determined that Krupp had tried to alter the
first urine sample because Krupp knew he would test positive for cocaine
metabolites, and, as a consequence, the sample was below the temperature
standards.  The hearing examiner concluded that Ms. Jackson had discarded the
initial specimen because she did not believe the SAMHSA guidelines applied to
the collection of specimens from city employees, and not because of any animus
toward Krupp.    The hearing examiner determined that Ms. Jackson had informed
Krupp that a second sample was required for the reasons stated in the Unusual
Collection Form and that Krupp signed the form with full knowledge and
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understanding.  He found that Krupp had observed Ms. Jackson pour the second
sample into vials and seal the vials in his presence.    The hearing examiner further
found that Krupp had placed his initials over the sealed vials, which were still
intact when they arrived at the Kroll laboratory.
As to Dr. Williams, the hearing examiner concluded that her expertise did
not qualify her to offer legal conclusions regarding the impact of the collection
site’s failure to follow certain SAMHSA guidelines.  He determined that neither
Concentra’s failure to retain the cold sample with the chain of custody
documentation nor its failure to name Dr. Silva in the custody and control form
was a fatal flaw in the chain of custody.   Any concerns regarding the accuracy of
the testing procedures, the hearing examiner found, were addressed by the credible
testimony of both Ms. Jackson and Mr. Pizzo.  Finally, the hearing examiner
determined that the second urine sample provided by Krupp did, in fact, test
positive for cocaine metabolites, providing legal cause for his termination by the
NOFD.
The Civil Service Commission adopted the hearing examiner’s findings and
upheld Krupp’s termination.
This appeal followed.
STANDARD OF REVIEW
An employee who has gained permanent status in the classified city civil
service cannot be subjected to disciplinary action by his/her employer except for
cause expressed in writing.  La. Const. art. X,   §8(A); Walters v. Department of
Police, 454 So.2d 106 (La. 1984).  The employee may appeal from such
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disciplinary action to the City Civil Service Commission, and the burden of proof
on appeal, as to the facts, is on the appointing authority.   Id.; Goins v. Department
of Police, 570 So. 2d 93 (La. App. 4th Cir. 1990).
"Cause" for the dismissal of a person who has gained permanent status in the
classified civil service has been interpreted to include conduct prejudicial to the
public service in which the employee in question is engaged or detrimental to its
efficient operation.    Walters v. Department of Police, 454 So. 2d. at 113.  The
Civil Service Commission has a duty to decide independently from the facts
presented whether the appointing authority has good or lawful cause for taking
disciplinary action and, if so, whether the punishment imposed was commensurate
with the dereliction.  Id.
The Civil Service Commission's decision is subject to review on any
question of law or fact upon appeal to the appropriate court of appeal.   La. Const.
art. X, §12 (B).  Thus, the reviewing court should apply the clearly wrong or
manifest error rule prescribed generally for appellate review in deciding whether to
affirm the Civil Service Commission's factual findings.  Walters v. Department of
Police, 454 So. 2d. at 113; Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978).
In reviewing the Civil Service Commission's findings of fact, the court should not
reverse or modify such a finding unless it is clearly wrong or manifestly erroneous.
In judging the Civil Service Commission's exercise of its discretion in determining
whether the disciplinary action is based on legal cause and the punishment is
commensurate with the infraction, the court should not modify the commission's
order unless it is arbitrary, capricious or characterized by an abuse of discretion.
Id. at 112-14; See also Evans v. DeRidder Municipal Fire and Police Civil Service
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Board, 2001-2466 (La. 4/3/02), 815 So.2d 61; Delpit v. New Orleans Dept. of
Utilities, 2002-2008 (La.App. 4 Cir. 2/19/03), 841 So.2d 30.
In  Newman v. Department of Fire, 425 So.2d 753 (La. 1983), the Louisiana
Supreme Court discussed the meaning of “arbitrary and capricious” in the context
of a civil service commission hearing as well as the legal cause necessary to
impose disciplinary action on a civil service employee. The Supreme Court stated:
Disciplinary action against a civil service employee will
be deemed arbitrary and capricious unless there is a real
and   substantial   relationship   between   the   improper
conduct  and  the                                                                      “efficient  operation”  of  the  public
service. The appointing authority (Superintendent) must
demonstrate, by a preponderance of the evidence, that the
conduct  did  in  fact  impair  the  efficiency  and  orderly
operation of the public service.
Id. at 754.
In Bannister v. Department of Streets, 95-0404 (La. 1/6/96), 666 So.2d 641.
the Louisiana Supreme Court again considered the meaning of “arbitrary and
capricious” in the context of a Civil Service Commission hearing and determined
that “arbitrary and capricious” means that there is no rational basis for the action
taken.
DISCUSSION
On appeal, Krupp argues that the Civil Service Commission erred by
upholding his termination based on the positive drug test results where the
specimen collection procedure was fatally flawed because Concentra did not
follow SAMHSA guidelines, as required by La. R.S. 49:1005, and the NOFD
failed to produce a witness to establish the chain of custody of his second urine
sample.  Specifically, he contends that Concentra’s collection the second urine
sample did not comply with SAMHSA guidelines in three ways:   (1) Ms. Jackson
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failed to submit the initial cold sample to Kroll for testing; (2) Ms. Jackson failed
to submit a separate chain of custody form with the first specimen, and, therefore,
the chain of custody form included with the second specimen was invalid, and (3)
Ms. Jackson failed to name Dr. Silva as the observer of the second collected
specimen on the chain of custody form.   These three irregularities, Krupp argues,
compromised the chain of custody of the second urine specimen, and,
consequently, invalidated the positive drug test results.
In a case where the only evidence against an employee is the positive result
of a drug test and no corroborating evidence of substance abuse exists, the chain of
custody becomes the critical issue and must be proven by the appointing authority
with great care.   Blappert v. Department of Police, 94-1284, p. 5 (La. App. 4 Cir.
12/15/94), 647 So. 2d 1339, 1343.   “To satisfy this standard, ‘[t]he party seeking to
introduce test results must first lay a proper foundation by connecting the specimen
with its source, showing that it was properly labeled and preserved, properly
transported for analysis, properly taken by an authorized person, and properly
tested.’” Id., quoting George v. Department of Fire, 93-2421, p. 13 (La. App. 4
Cir. 5/17/94) 637 So. 2d 1097, 1106.
After reviewing the testimony and evidence in the record, we find the NOFD
established a valid chain of custody of the urine sample obtained from Krupp for
testing purposes.  We agree with the Civil Service Commission’s finding that Ms.
Jackson’s failure to follow the SAMHSA guidelines in collecting Krupp’s urine
specimen was not enough to invalidate the positive drug test results.  The cold
sample, which was discarded, fell below the necessary temperature range and, thus,
could not be used for testing purposes.   However, as pointed out by the Civil
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Service Commission, the first sample was not exculpatory, and its retention served
no purpose.
Regarding the custody and control form, it is undisputed that Ms. Jackson
completed only one form while collecting both specimens from Krupp, and sent
the form with the second specimen to Kroll for testing.  Ms. Pizzo testified that she
approved the positive test results because she was able to verify that the specimen
identification number on the chain of custody form signed by Ms. Jackson and Ms.
Krupp clearly matched the specimen identification numbers on the urine specimen
vials bearing Krupp’s name and initials.  She also testified that she was able to
verify which Kroll employees handled the specimen vials from the time they
arrived at the Kroll laboratory from Concentra through the completion of the drug
testing procedure.  According to Ms. Pizzo, the chain of custody was properly
completed in this case.
Furthermore, considering Ms. Pizzo’s testimony along with Ms. Jackson’s
explanation that she did not name Dr. Silva as the observer of the second sample
on the custody and control form because she was not aware that the SAMHSA
guidelines applied to the collection of urine specimens for the drug testing of a
non-federal employee such as Krupp, we agree with the Civil Service
Commission’s finding that Ms. Jackson’s failure to do so was not fatal to the chain
of custody.
Finally, Krupp argues that the Civil Service Commission acted arbitrarily,
capriciously and contrary to the law by upholding his termination from the NOFD.
We disagree.
The evidence in this case supports the Civil Service Commission’s finding
that Krupp was untruthful and attempted to alter the first urine sample to avoid a
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positive drug test result.  The positive results from the urine sample, evidencing
Krupp’s recent use of cocaine, clearly provided the Superintendent of the NOFD
with cause to terminate Krupp.  Thus, we find that the decision of the Civil Service
Commission was based on legal cause and was neither arbitrary, capricious, nor an
abuse of discretion.
CONCLUSION
For the foregoing reasons, we affirm the decision of the Civil Service
Commission that upheld the termination of Captain Krupp from the NOFD.
AFFIRMED
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