Pubdate: Sat, 29 Jul 2000
Source: Albuquerque Journal (NM)
Copyright: 2000 Albuquerque Journal
Contact:  P.O. Drawer J, Albuquerque, N.M. 87103
Website: http://www.abqjournal.com/
Author: Guillermo Contreras

DRUG-TEST CASE OK'D FOR TRIAL

Former city of Albuquerque mechanic Donald E. Morales chose his family over
work in 1996, and he ended up getting fired for it. This week, U.S. District
Judge Martha Vazquez denied the city's request to throw out his lawsuit.

Vazquez also dismissed two of three total counts and Transit Department
director Anne Watkins and Chief Administrative Officer Lawrence Rael as
defendants from the suit.

Trial is scheduled for Aug. 21.

The case stems from Morales' refusal to take a random drug test in April
1996. Court documents said Morales refused because he was given late notice
that he would have to take the test.

Morales told his bosses he had a prior commitment to take his children to
school and accompany his daughter on a field trip, but the city refused to
let him call his wife and make other arrangements, court records said.

The drug-testing facility is at a different location from where Morales
worked as a transit mechanic, and Morales had said an earlier test took
about 21/2 hours to complete.

Vazquez's ruling said that in this case, family came first, and that there
was no evidence Morales used drugs during his two years with the Transit
Department. She also said the timing of the test was "motivated purely by
the city's administrative convenience."

"Under these circumstances, the plaintiff's private interest of maintaining
the integrity of his familial commitments greatly outweighs the city's
interest in administering its drug detection and deterrence policy," the
judge wrote.

Vazquez noted that Morales was amenable to the city's drug-testing policy
because he consented to a test months earlier.

"We're very pleased. We're glad the judge studied the case the way she did,"
said Morales' attorney, Paul Livingston. "It's a city drug situation where
they took a man with no drug history, with a spotless record ... yet they
became unreasonable."

Assistant City Attorney Victor Valdez said the city was pleased the judge
dismissed all the defendants except the city and all counts except Morales'
claim that the city violated his Fourth Amendment rights to be free from
unreasonable search and seizure.

"The city's happy, and it looks forward to addressing the court's concerns
and showing the judge that the city's procedures were reasonable in this
particular matter," Valdez said.

Valdez said the city administers random drug tests to all employees in
safety-sensitive positions -- including transit mechanics.

According to court records:

Morales, who worked the overnight shift, was selected for random drug
testing four days before the incident took place.

An hour before his shift ended on April 22, 1996, a supervisor told him he
had to take a drug test.

Morales told his supervisor about the family commitment, and that when he
took a previous test, he was told to do so at the start of his shift. He was
told he could be fired if he refused to take the test immediately.

He was also told he could not call his wife to make other arrangements for
his children.

When he refused to take the test, he was put on leave and then fired for
violating the city's drug-testing policy. An arbitrator later upheld the
firing.

Vazquez said the city gave no justification for refusing to allow Morales to
call his wife. The judge also said there is dispute over whether it was
feasible to call Morales in for testing four days earlier, when the city had
chosen him for the drug test.
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