A Missed Drug Test Meets Beltway Traffic: A Case for Penalty Mitigation

By Deborah J. Hopkins, March 31, 2026

Usually, when an employee misses a required drug test, it’s a big problem – and in most cases, a removable offense. But what happens if the employee misses the test largely because of intervening circumstances out of her control?

Consider Briscoe v. DOJ, DC-0752-23-0665-I-1 (Nov. 20, 2025)(NP). The appellant was a GS-13 Program Analyst for the Drug Enforcement Administration (DEA), and her official tour of duty was 6:30 a.m. to 3:00 p.m. Id. at 2. But because the appellant had significant caregiving responsibilities for her mother and stepfather, her first-line supervisor informally allowed her to telework at the beginning of her day, then arrive at the office later in the day to finish her shift. Id.

On September 19, 2022, the appellant was notified that she had been selected to take a random drug test the following day between 8:00 a.m. and 9:00 a.m. at her agency worksite; her second-line supervisor called her that same evening to stress the importance of an on-time arrival for the test. Id. The appellant requested for a later drug test because of her caregiving schedule, but the second-line supervisor said no.

On September 20, the day of the drug test, the appellant attempted to get coverage for her family members earlier in the day so she could arrive for the test on time, but was unable to do so. She left for work shortly after 8:00 a.m., once a home healthcare worker arrived, but encountered extreme traffic. At 8:34 a.m. she texted her status to her first-line supervisor, and at 8:45 a.m. texted her second-line supervisor that she was not going to make it to work by 9:00 a.m. Id. at 4.

The appellant arrived at work around 10:00 a.m. and went immediately to the health unit for her drug test, but the individual who performed drug tests had already left. Id. Because no alternative option existed for her drug test, the appellant informed her first- and second-line supervisors that she had missed it. Id.

As a result, the agency removed the appellant for “failure to follow written or oral instructions for missing the September 20, 2022, drug test.” Id. On appeal the administrative judge (AJ) upheld the agency’s removal. The appellant filed a Petition for Review (PFR), arguing the agency did not consider the mitigating factors; and the Board agreed, finding that the deciding official did not properly consider several relevant mitigating factors. Id. at 7.

Mitigating Factors

• The appellant’s conduct was neither intentional nor malicious – she missed the test due to circumstances that were largely beyond her control.
• The appellant’s caregiving responsibilities were well-known to the agency, and her schedule had been accommodated accordingly.
• During his call with the appellant the night prior to the drug test, the second-line supervisor told her he would do “everything” he could do to help, including personally going to her mother’s house to help. Yet, after the appellant expressed concerns about her mother’s care and asked if she could take the random drug test a bit later, he told her that she needed to make arrangements, and did not actually offer an alternative solution.
• Although the deciding official believed the appellant made light of the situation by making a “joke” about being escorted from the building after missing the test, the Board found the appellant made the comment out of nervousness and frustration.
• The appellant consistently took accountability and expressed remorse for missing the drug test and attempted to mitigate her offense by asking if she could go to the contractor’s site to take a drug test, but was told that she could not do so.
• One month prior to the appellant’s removal, the same deciding official mitigated another employee’s proposed removal to a 90-day suspension after she missed a random drug test, because she did not have access to the car that she shared with her mother. The comparator also communicated with her supervisors, showed remorse and accepted responsibility, and took initiative by getting a drug test from a private clinic, even though it was not an acceptable alternative.

Id. at 7-12.

The Board mitigated the removal to a 90-day suspension based on the unconsidered mitigating factors, plus the appellant’s 34-years of service, excellent performance ratings, and lack of disciplinary record. Id. at 12.

While the aggravating factors usually determine the outcome of a penalty assessment, the mitigating factors matter more than you may realize. hopkins@feltg.com

Related training:

• MSPB Law Week, Apr. 20-24, 2026
• Advanced MSPB Law: Navigating Complex Issues, Jul. 14-16, 2026
• Hearing Advocacy: Presenting Cases Before the MSPB and EEOC, Sept. 2-3, 2026
• UnCivil Servant: Holding Employees Accountable for Performance and Conduct, Sept. 9-10

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