No. 20123 - Robert L. Mace, Plaintiff Below, Appellee, v.
Charleston Area Medical Center Foundation, Inc., A West Virginia
Corporation, Defendant Below, Appellant
Workman, Justice, dissenting:
The majority opinion gets my vote for the Court's most
outrageous decision of the year.See footnote 1
It is incredible that when the person in charge of filling
drug carts with drugs to be administered to patients, filling
employee prescriptions, copying doctor's written orders for
patients, and preparing intravenous solutions for patients comes to
work in such a drug-impaired condition that he cannot by his own
admission perform his duties, the majority believes he cannot be
It is also incredible that this Court as recently as July 1990 in the case of Twigg v. Hercules Corp., 185 W. Va. 155, 406 S.E.2d 52 (1990), enunciated the law governing this precise issue, yet the majority fails to even mention it. But most incredible of all is that the author of the majority opinion in the instant case wrote a ringing dissent in Twigg in which he said "I believe that an employer is entitled to know whether his employees are using drugs which may affect their work performance and, in some cases, the safety of others at work." 185 W. Va. at 161, 406 S.E.2d at 58.
This Court in McClung v. Marion County Comm'n, 178 W. Va. 444,
450-51, 360 S.E.2d 221, 228 and Syl. Pt. 3 (1987), held that an
employer may defeat a retaliatory discharge claim by showing that
the employee would have been discharged even in the absence of the
protected conduct. (The protected conduct at issue in this case
was Mace's wage claim under the Veterans Reemployment Rights Act at
least one year prior to the drug screen request.) The record is
replete with evidence that the reason for Mace's discharge was his
insubordination in refusing to submit to a drug screen. But even
if it could be demonstrated that CAMC was ill-motivated in its
actions, they were still entitled under Twigg to demand that this
employee submit to drug screening and, in the event of his refusal
to do so, to fire him. Clearly under McClung, the employee could
have been discharged even absent the protected conduct.
In Twigg, this Court made it abundantly clear that drug
testing by an employer is permissible "where it is conducted by an
employer based upon reasonable good faith objective suspicion of an
employee's drug usage or where an employee's job responsibility
involves public safety or the safety of others." 185 W. Va. at
158, 406 S.E.2d at 55. Both factors existed here.
Not only did employee Mace acknowledge ingesting fifteen
prescription drugs, but his conduct in the workplace was bizarre.
According to unrefuted testimony, his words were slurred, he was
staggering, his eyelids were drooping, and he could barely sit up.
He had also received written warning as a result of belligerent
and discourteous behavior to fellow employees, and on the basis
that he went about muttering obscenities and refused a direct order
from his supervisor. Given Mace's duties, it is beyond dispute
that his "job responsibility involved[d] public safety or the
safety of others."
This certainly was not the case of an employee being unfairly
singled out for a random drug-test. CAMC's reasonable suspicion of
drug useSee footnote 2 was confirmed by Mace himself. CAMC had an obligation to
its patients to pursue the drug screen to verify both the quantity
and the nature of the drugs ingested by Mace to determine whether
he should participate in the hospital Employee Assistance Program,
and to determine whether he was improperly removing drugs at his
disposal from the hospital pharmacy. The sheer quantity of drugs
revealed by Mace, together with his further admission that some of
the drugs were actually drugs prescribed for his wife, gave CAMC a
bona fide reason for insisting on the drug screen.
Another critical fact regarding the drug screen is that Dr.
Willard Pushkin of Employee Health, the person who first suggested
the need for the drug screen, had no knowledge whatsoever of any
problem between Robert Mace and the hospital administration, nor
was he aware of the wage claim which Mace claims to have been the
motivating force behind the drug screen demand. Moreover, Dr.
Pushkin also testified that he had previously recommended other
hospital employees be screened for drugs and that rehabilitation
was provided to those individuals.
The lower court should have granted CAMC's motion for a
directed verdict on the issue of retaliatory discharge as CAMC had
a valid nondiscriminatory reason for discharging Mace and he could
have been discharged even in the absence of his wage claim.
Ironically, if a drug-impaired employee were to cause injury
or death to a patient, this Court would be most eager to uphold a
multi-million dollar verdict against a hospital for its negligence
in permitting the employee to be in a position to cause such harm.
We should be fair enough to this hospital and to the general public
to give them the opportunity to assure that drug-impaired employees
are not put in a position to injure innocent people.
Footnote: 1Of course, the year isn't over yet. We still have the September term.
Footnote: 2It is immaterial that the employee here claimed that all fifteen drugs he was taking were prescribed medications, and thus may not have been illegally obtained. The purpose of employer drug screening where justified is not to ferret out unlawful criminal activity. It is to determine if one is drug-impaired.