City worker loses appeal on driving record

Apr. 15, 2014 @ 05:34 PM

N.C. Court of Appeals judges have declined a city trash-truck driver’s request that they order his bosses to clear his driving record of a report that he’d failed to show up for a random drug test.
Tuesday’s ruling went against Christopher Benjamin, who lost his job with the Solid Waste Management department just before Thanksgiving 2009 only to be reinstated about two weeks later.
Benjamin in winning his job back successfully argued that city officials hadn’t given him proper instructions on what he should do at the lab, a new one that’d recently taken over for the city’s longtime drug-testing contractor.
He arrived for the test but left before submitting a sample, after discovering he’d forgotten to bring his ID. He returned with the ID, but because he’d left, lab workers reported him as having refused to take the test.
That led to his immediate firing, and a report by the city’s Human Resources Department to the N.C. Division of Motor Vehicles that he’d refused to give a sample.
The Human Resources notice to DMV prompted state officials to suspend Benjamin’s commercial driver’s license.
DMV at City Manager Tom Bonfield’s urging quickly lifted the suspension, but it left a notation about the original report on Benjamin’s driving record.
Benjamin sued in 2012, asking for a court order directing the city to send DMV a letter saying Human Resources had filed the notice in error.
But Wake County Superior Court Judge Paul Gessner dismissed the lawsuit in April 2013. Benjamin appealed, but failed to convince a three-judge Court of Appeals panel to resurrect the case.
Writing for the unanimous panel, Appeals Judge Wanda Bryant said Benjamin and his lawyer hadn’t supplied Gessner the sort of details about the “terms of his employment with the city” the trial judge needed before he could properly issue a court order.
While thus handing the city a win, Bryant and fellow Judges Linda Stephens and Chris Dillon stopped short of embracing any of the city’s arguments about why Gessner had gotten the case right.
Senior Assistant City Attorney Kim Rehberg had urged the judges to end the litigation because Benjamin was an “at-will” rather than contract employee, because any implied contract between the two sides wasn’t equal and because federal regulations require a heavy-equipment driver summoned for a random drug test to “remain at the testing site until the testing process is complete.”
The regulation doesn’t make exceptions in cases like Benjamin’s where the test subject has forgotten to bring ID; in fact, they tell lab operators they should call the person’s employer to verify his or her identity, Rehberg said.
The city earlier in the case admitted that former Human Resources Director Althea Bell had refused to send DMV a letter saying her department’s report was in error, “when it [was] a fact that he had left the site prior to being tested.”
Bonfield in asking DMV to reinstate Benjamin’s license said it was “unclear” he’d actually refused the test, Bryant said. Benjamin passed a drug test administered the day he was rehired.
DMV said it would clear Benjamin’s record only if city officials gave it a letter saying Human Resources had filed the report in error.
The Court of Appeals panel made a point of issuing its decision as an “unpublished” opinion, meaning the rest of the court and the state’s trial judges shouldn’t consult it as a precedent.
The panel included two Democrats in Bryant and Stephens and a Republican in Dillon.
Benjamin remains an “active, full-time city employee” in the Solid Waste Management Department, working as a second-level equipment operator, Bonfield said.