On Friday, January 4, 2002, I was charged with “misconduct for refusal to take a drug test” the previous week. The charge was leveled, in person, by the disciplinary counsel for my employer, the New York City Department of Environmental Protection (DEP). A little over a month later, on Tuesday, February 12, I received by certified mail a United States Coast Guard complaint against my merchant marine master mariner license. The charge was the same: “misconduct for refusal to take a drug test” on December 27, 2001.
In my capacity as a marine captain, I was required to submit to random, without-cause drug tests. And since this was the fifth time I was being drug tested over a nine-year period (the first drug test was in 1992), I knew what to expect—trouble. It’s not that I used illegal drugs. In fact, I rarely used any drugs. Perhaps I took over-the-counter pain relievers on several occasions, likewise for prescription medication. If there were a dozen occurrences of medicinal drug use over the past twenty-five years, that was a lot for me. The problem was that I once again found myself in the embarrassing position of not being able to provide a sample for urinalysis, the only testing method allowed, even under the threat of loss of livelihood. I didn’t know exactly why I couldn’t, so I just assumed it was an idiosyncratic psychological anxiety that was temporarily shutting down my excretory system. Since I was not a substance abuser, I always went into a drug test optimistically thinking that things would eventually sort themselves out, and I could then get on with the rest of my life.
By this time, I had been a city employee for over thirteen years, having signed aboard New York City’s fleet of municipal tankers in October of 1988. I had lost a good job working tugboats and coastal oil tankers to the bitter and ultimately devastating (from the union’s perspective) New York Harbor boatmen’s strike, which began in February of 1988. I enjoyed life as a harbor man, and hauling sludge for the city seemed a more glamorous endeavor than scabbing on Union Local 333. Upon graduating from the United States Merchant Marine Academy in 1975, I didn’t plan on spending so many years at sea, but for whatever reason the profession seemed to agree with me. Over the intervening years, I developed a genuine respect for the seagoing life and for those individuals who were successful in meeting its sometimes harsh demands. Few other professions foster the independence and self-reliance required on the bridge of a merchant vessel. During my early years at sea, I sailed on the decks of oceangoing freighters and tankers that traded to all corners of the globe, which allowed me weeks and even months away from home but also equally extended periods ashore. The profession provided not only a decent income but also something more important to me—the time to navigate some of the backwaters of life instead of being swept along with the subtly enslaving currents of superfluous consumption and appearances. Because of my seagoing career, I had the time to hike, bike, canoe, or drive through forty-seven of our fifty United States.
But then there were the drug tests. For some, as one major newspaper was to write, “it might sound like the stuff of late night comedy,” but for me the drug tests were a series of unfortunate and disconcerting events. During the first one, which began on Wednesday, September 30, 1992, I found myself sitting across from the city’s medical review officer (as in truant, parole, or police officer). She was a middle-aged, pleasant-looking woman who was wearing a white lab coat with the initials “MD” after her name. The doctor brusquely asked why I was unable to provide a sample for the drug test urinalysis.
“I don’t know—I must have some sort of mental block concerning these drug tests. Isn’t there some other type of drug test I could take?”
“No!”
I could, however, sense her powers of deduction click into gear, undoubtedly searching for a panacea. After a few brief moments, she moved slightly forward in her chair and leaned over her side of the desk. I, taking her cue, did likewise on the opposite.
“You’re just going to have to get over it,” she stated.
What could I say? It was not a bad idea. Her prescription was to confine myself to a bathroom stall until the sample was produced. Actually, it did work, as I eventually provided the sample for the drug test on the second afternoon of the two-day debacle.
Succeeding random drug tests proved equally confounding. Admittedly I did solve the stall-confinement dilemma—which, before my own situation, had been reserved only for farm animals—by simply handing off tap water in lieu of the sample requested. It worked wonderfully the first time but backfired the second time and, if I may speak frankly, seemed to greatly inflame the hypersensitivities of the urine authorities. It was only retrospectively, after a series of encounters with drug-testing operatives, that I began to realize there was more to drug testing than its stated goal of worker safety and productivity—ultimately it was a system of control. On my fifth and, as it turned out, final random drug test, after I easily shattered the newly imposed three-hour time limit for providing a sample, I was whisked off the job site in an official city vehicle, accompanied by senior management. This all took place before a wide-eyed and open-mouthed marine crew. I’m sure the jokes and innuendoes were flying. It’s difficult enough for a captain to maintain respect and authority over a crew without having to deal with this situation. Perhaps even masculinity issues were raised. We all know of the big male felids marking their territory with urine, or of male canids defiantly squirting any inanimate object that can possibly be reached on three legs. I’m not quite sure what this has to do with Homo sapiens, but who would be willing to take any chances on this account?
I was told I was being escorted to a “downtown” location, and shortly thereafter I found myself in a rather stark medical room of sorts, before another white-coated medical review officer. The look of contempt on his dry, bony face capped by that balding head still reverberates with me. I realize now that, prior to the meeting, he had probably been informed by someone that I was trying to game the system.
“You’re a doctor, right?” I asked, to no response. He did, however, seem confident concerning my prognosis. “You are going to lose your fucking job,” he stated as a matter of fact. He then scribbled “No medical reason” on a small notepad and quickly scurried out of the room. I was eventually escorted by city personnel to another gentleman, impeccably outfitted in business attire, who introduced himself as Peter Brucas, executive vice president of NEDPC Drug Testing and Background Checks.
“Why wouldn’t they accept the urine sample?” I asked. (I had produced one by this time.)
“It’s after the three-hour limit.”
“Can’t I take a blood test?”
“No, there are no alternative tests allowed,” he shot back triumphantly.
“Look, I’ve always had trouble coming up with these urine samples.”
“Well, you are the only one out of about ten thousand.”
I sensed Mr. Brucas was a man of satisfaction—satisfied with himself, with the present situation, and with life in general. And why not? He had a right to be. As executive vice president of NEDPC, he was one of a new breed of entrepreneurs. He was providing a valuable service to society as well as undoubtedly making a good buck. Life can be beautiful—for some. I’ve seen that same self-satisfied look on men as they strain to hold aloft a thirty-pound striper or a pool winning codfish. Brucas had reeled in a nice one today—a captain who refused to provide a sample for a drug test and was no doubt covering up abuse of a controlled substance. He gave me a set of instructions for a physician referral and told me to see a doctor within five days.
I did not go to the doctor of my own volition very often. In fact, I avoided doctors whenever possible, even though I thought I had found a good one in Dr. Calderbank. He was an elderly gentleman who worked in a nondescript office. He had a kindly, unpretentious, small-town demeanor and appeared to be anywhere but on the cutting edge of the medical profession. Yet on my initial visit, I could tell immediately from our interaction that he was smart and enjoyed his work. I was not looking forward to this visit, however, where I would have to relay details of a delicate nature about a condition that, according to Brucas, I was the only employee of New York City to have. I watched Dr. Calderbank closely, waiting for his jaw to drop as I imparted the details of my history with the urine mavens. The raw fact of the matter is that I have never been a good urinator, particularly when coerced by doctors, nurses, other assorted urine collectors, or long lines at restrooms. I expected him to begin writing the names of medical and psychological specialists I would have to see to undergo who knows what kind of diagnostic tests. Instead he responded, “Oh, that’s nothing. It’s called shy bladder syndrome. It’s not cancer, you know.”
It was embarrassing, but from the way Dr. Calderbank described the condition, I knew the diagnosis was accurate. He was also right on another account, the fact that it was “nothing”—nothing that the drug-testing officials would accept. His medical diagnosis was rejected on the premise that it did not meet the federal requirements as prescribed for personal, prior documentation of a preexisting problem with a psychological component. In other words, I wasn’t allowed to have the condition I had unless I knew I had it and accounted for having it ahead of time. Thereafter, I found myself in the realm of the irrational. The many Kafkaesque twists and turns lasted for almost a decade. They included three formal sets of misconduct charges and a charge of incompetence. And counseling by substance-abuse professionals for substances I didn’t abuse.
“Mr. Kinneary, you mean to tell me you have been to sea all those years, and you have never used drugs?”
“Never.”
“You have been all over the world on merchant ships, and you mean to tell me you have never used drugs?”
“That’s what I mean to tell you.”
“All those ships and no drugs?”
“Mr. Chestnut, I will bet you my bottom nickel you are closer to being a substance abuser than I am.”
And there were myriad surreal and confrontational New York City administrative meetings and conferences held on the sixth floor of DEP headquarters in LeFrak City. As I sat waiting for the start of the first meeting and sensing that I was about to receive some sort of admonishment for not being able to urinate in a timely fashion, I wondered how I was going to react. Would I whimper softly as I promised to pee better next time, or would I burst out laughing? I was beginning to have flashbacks to the Coney Island funhouse where, as a child, I did both laugh and cry. At another informal conference with the DEP disciplinary counsel, I was melodramatically given an article from the New York Times that detailed the problem other non–drug users and I were having with the random drug-testing system.
“Let’s talk about all the inaccuracies in this article.”
“I don’t know about the other people mentioned, but as far as I’m concerned, it’s an accurate and well-written article.”
“What about the misquote concerning the water?”
“It’s an accurate and well-written article,” I responded once again.
“Mr. Kinneary, we are going to have to convene a fact-finding interview concerning the water to determine if any federal laws have been broken or any criminal acts have occurred.”
And, at a United States Coast Guard hearing before an administrative law judge: “Let the record show I have been tendered the Master license of the respondent, and it reads as follows. . . . This matter involves an action brought by the United States Coast Guard against Joseph Kinneary seeking revocation or suspension of license for the charge of Misconduct.”
And finally, there were the federal courts: the district court and the court of appeals (for the Second Circuit). I was found to be drug free by separate, forensic-quality hair, blood, and saliva tests, but they were not accepted by the urinalysis-only system. Instead I was urged by medical and legal professionals to use prescription drugs, with who knows what side effects, in order to prove that I didn’t use illegal drugs by the only testing method allowed.
Am I the only one who sees a perversity in a system that, on one hand, increasingly subjects its private citizens to random, without-cause drug testing and, on the other, directly markets prescription medications, some of which are highly addictive, to consumers? In 1985, the FDA, which regulates the approval and marketing of medications, lifted a moratorium on this type of advertising (the United States and New Zealand are the only industrialized nations that allow direct-to-consumer advertising of prescription medications). A central theme has arisen: if you are alive, you are in the process of dying, and this inevitable state should be staved off by using some sort of pharmaceutical.
Ironically, when the Andrew J. Barberi, a New York City ferry, crashed on approach to its Staten Island terminal on October 15, 2003, the use of prescribed medications (including tramadol, a narcotic-like analgesic) was noted as a contributing factor in the marine disaster. Eleven passengers were killed, and approximately seventy others were injured. An article in a recent issue of the US Coast Guard’s Proceedings of the Marine Safety & Security Council (Winter 2015–2016) focuses on a growing concern over prescription drug–related marine incidents and the potential for these types of drugs to impair a mariner’s faculties. In addition, the Coast Guard issued an important safety warning regarding mariner medication use in April of 2016.
At about the same time the marketing of medications to consumers began in earnest, so did drug testing. In 1986, President Reagan and several advisors very publicly submitted urine samples to be tested for illegal drugs. This was their way of actively promoting drug testing as a solution to a perceived drug crisis that was harming worker productivity. By the end of that year, urinalysis drug testing had grown to an estimated $300 million per year industry. Approximately two years later, on June 9, 1988, the president delivered a keynote address at the launch of Hoffmann–La Roche’s “Corporate Initiatives for a Drug-Free Workplace.” The Swiss pharmaceutical giant had become a major player in the drug-testing business. In his address, the president called upon the corporate sector to “partner” with the government in the battle against illegal drugs. He called for “zero tolerance” regarding illegal drug use by employees. While there were reasonable utilitarian arguments for the program, the president was also sending an implied message to the business community that day. His directive gave the employer unrestrained control and power over the employee.
Profits associated with drug testing for banned substances accelerated annually by 10 percent through the 1990s. Today’s testing enterprise is a multibillion-dollar industry that has arguably taken on a life of its own, finding its way into schools and lobbying hard for access to other social programs, such as welfare and unemployment. Momentum is generated by institutions that have sprouted to support the drug-testing programs. Multiple professionals are involved, including researchers, administrators, employee-assistance program staffers, laboratory technicians, urine collectors, and, finally, the lawyers—lawyers who write drug-testing policies, lawyers who defend employees, and lawyers who defend companies. All of this generates a positive economic feedback loop that fuels more testing programs, as workers and others are conditioned to automatic docility by drug tests without sufficient cause. The common denominator for both direct-to-consumer marketing of prescription medications and random drug testing is huge profits for the pharmaceutical and associated drug-testing corporations.
In a vain attempt to appease an unappeasable system, I saw a psychiatrist, a urologist, and a research physician. I spent thousands of dollars for legal assistance in fighting the palpable stigma and draconian ramifications of the charge of “refusal to test.” Over a two-year period, I was suspended, reinstated, terminated, rehired, and reinstated to my marine captain’s position and terminated again by the City of New York. The US Coast Guard suspended my master mariner’s license for a year and then brought further charges seeking permanent revocation of the maritime credentials I had worked on for almost thirty years. (They withdrew the associated charges at the eleventh hour, before a scheduled administrative hearing, after I refused their unilateral settlement offer.) We eventually wound up in federal court before a jury. The entire episode was a nightmare for me, my wife, and my two teenage daughters. I will never forget my younger daughter’s comment as we climbed the courthouse steps at 346 Broadway in Manhattan on October 16, 2002, for a US Coast Guard administrative hearing: “Mommy, this building says ‘criminal’ court.”
According to the federal drug-testing regulations that were interpreted by the Coast Guard in my case (49 CFR 40, Department of Transportation, which have been adopted by much of the corporate sector), if an individual is subject to random drug testing and for a first time does not supply the required urine sample in a three-hour period, he or she can be considered to have refused a drug test. This incurs the same drastic sanctions as testing positive for an illegal drug. One’s life can be ruined. There were no alternative testing methods allowed, and no regulatory protection built into the system to protect the dignity of the individual. If one is not properly documented as having an officially sanctioned condition, as I was not, one becomes dependent solely on the good graces of urine collectors, low-level administrators, and a medical review officer—a medical doctor whose primary allegiance is to a powerful, corporately run antidrug campaign.
Many of the officials I came into contact with through force of circumstance wore blank faces while droning on with trancelike incantations about federal urine regulations. I realize that they were simply serving a system, and that their own livelihood was at stake, so I don’t want to be too judgmental—at least not any more than I would be of a dog who fetches a stick for the accolades and patting of its master while giving no conscious thought to the appropriateness of the activity. These individuals appeared to be suffering from some sort of disorder or maladaptation of their own, which I have identified as Small People with Large Power Syndrome (SPLPS). They have abdicated their internal sense of moral responsibility to a group or agency. Conversely, they have assimilated and incorporated the sense of power inherent in groups into their own personality.
This disorder was readily apparent in the medical review officers (MROs) involved in my case. It is frighteningly disconnecting and downright creepy to be sitting across from a medical professional who is wearing a white coat, who uses the abbreviation MD, and who one has been socialized to believe is going to be a humane benefactor, and then suddenly come to the realization that you are no longer being treated as an individual but rather as a means to other ends. I have never met or even spoken to the third medical officer who was involved in my drug-testing fiascoes. At the US Coast Guard license suspension and revocation hearing held on that wind-driven, rainy Wednesday in October of 2002, this third MRO testified that he had a family medical practice located on Broadway in New York City. It was also established that he was being paid by a corporate drug-testing contractor to serve as its MRO. As I sat before him in the courtroom, I wondered why this medical doctor would want to be a review officer for a drug-testing company. It seemed so far removed from being a healer of the sick. He was self-assured in manner, apparently used to having his words carry great weight and effect. In face and voice, however, there was a softness that would not have served him well as a seaman, particularly when the tide turned against him, as it did with my attorney’s very first query. As the questioning continued, his answers were preceded by longer and longer periods of silence. It almost seemed as if he were trying to overcome a stubborn disability as he searched the courtroom ceiling for an appropriate response. I thought tears might flow at any moment. Then the doctor proceeded to flat-out lie under oath while throwing me to the merciless urine police.
Clearly I wasn’t being treated as a patient or even as a person by these MDs. But what was I? I had to be something. Had I spent less time attending to ship handling, navigation, the weather, and other relatively mundane maritime tasks required by my job, and more time studying the drug-testing regulations, I would have known. It was all right there before me on page 79,501 of the Federal Register, volume 65, no. 244, dated Tuesday, December 19, 2000. I was not a patient, a person, or even an experimental subject. I was an “employee,” an economic entity, and as such could simply be added to or—as in my case—subtracted from an equation. I suppose from their perspective, these medical professionals deserve some measure of commendation for extending their considerable expertise and power over and beyond the individual sitting before them to the more utilitarian benefits of the war on drugs. Given the primary police function of the medical review officer, some ethicists have wondered if it’s even appropriate for physicians to function in this capacity. However, if the medical professional can sidestep this seemingly minor moral inconvenience, the not-unhealthy fees collected for MRO services can make it an altogether satisfying lunchtime diversion.
Thank God for our sacrosanct right to the courts, the last real power with the ability to level the playing field for an individual. Walking with my wife into the federal courtroom at 70 Pearl Street on a Monday morning in late September of 2007, I experienced a sense of patriotism I hadn’t felt since singing “The Star-Spangled Banner” as a kid attending St. Clare’s Grammar School in Queens, New York. There was a high-vaulted ceiling, flags and emblems, expert attorneys for both sides, and a jury of eight ranging from black to white, young to elderly, and male to female. A black-robed judge towered above it all, appearing to be a regal gatekeeper of justice. All of this evoked an unexpected sense of calm. As I sat in the courtroom that first morning, awaiting my call to the witness stand, I was humbled by the realization that throughout the history of civilization, there was probably not a better institution created to serve justice than trial by a jury of one’s peers.
After an exhaustive week of testimony, which included every nuance of evidence, the jury rendered the verdict I knew any reasonable, unbiased group of people would decide. The City of New York had violated city, state, and federal human rights laws, and we were awarded $225,000 in damages and back pay. In addition, because of the civil-rights nature of the precedent-setting case, the court would handle all legal fees. My family and I were overjoyed at our triumph of individual rights over the powerful and profitable drug-testing establishment. It was not only a validation of our resolve not to bow before an irrational and ignorant system but also a restoration of our faith—which had been lost somewhere along the way—in “liberty and justice for all.”
And then the verdict was overturned. Approximately two and half years after our hallowed day in court, a three-judge panel for the US Court of Appeals for the Second Circuit reversed the jury verdict. Some background information might be useful here. Several months after the trial, I turned down a “nice package,” as the city attorney called it (consisting of money and pension benefits), to settle the case. My chief concern at the time was that a settlement would not create a public record and that others would follow and find themselves in a similar, downward-spiraling quagmire. By this time, I was aware of other drug-testing situations like my own. And wasn’t it disrespectful to the magnificent process we had been through to put a monetary price on the result and essentially treat the federal jury verdict like any other commodity, something to be sold and bought? I also wanted my job as a marine captain back; it was a good job, and I wanted it back. The federal judge who presided over the jury trial eventually took me aside and warned me that the appellate process was a “crapshoot,” and that if I didn’t settle the case, I could walk away with nothing. I guess he wasn’t kidding. 
