APNewsBreak: US Steel sued over diabetic who claims false positive on alcohol breath tests

By Joe Mandak, AP
Friday, October 1, 2010

AP: US Steel sued over probationary alcohol tests

PITTSBURGH — The federal Equal Employment Opportunity Commission is suing to stop United States Steel Corp. from randomly testing probationary employees for alcohol use, saying the tests led to the illegal firing of a diabetic who said her positive results were false.

The lawsuit, filed late Thursday in a Pittsburgh federal court, contends an employee identified only as Abigail DeSimone was fired from U.S. Steel’s plant in Clairton on Feb. 7, 2008 for violating the company’s alcohol policy, nine days after two breath tests given 15 minutes apart showed positive results.

“Ms. DeSimone advised the administering nurse that she (DeSimone) was a diabetic and insisted that she had not ingested any alcohol within the past month,” the lawsuit said. “Ms. DeSimone suggested to the nurse that her diabetic condition may have caused or contributed to the positive test result.”

The lawsuit also names the United Steelworkers of America as a defendant. The suit said the union was included because it’s a party to the collective bargaining agreement under which the tests are administered, and therefore must be included in any request for a permanent injunction to stop the testing.

The company and the union did not immediately respond Friday to e-mailed copies of the lawsuit.

Doctors have determined that people with diabetes can sometimes falsely test positive for alcohol because the disease alters their body chemistry.

DeSimone obtained a negative result hours later from a blood test given her family doctor and faxed it to U.S. Steel at the company’s request, the lawsuit said.

The lawsuit also contends that U.S. Steel “admits that it lacked a genuine and reasonable belief based on any objective evidence” that the employee had violated its drug and alcohol policy before administering DeSimone’s tests.

The EEOC wants a judge to order U.S. Steel to end “random, suspicion-less alcohol testing” at all facilities because it claims the effect of the policy “has been to deprive all affected probationary employees of equal employment opportunities.”

The EEOC also wants the judge’s order to prevent the union from agreeing to random testing in future contracts and to notify workers that the testing policy “is unlawful and void.”

More specifically, the suit also seeks back pay with interest, and other damages for DeSimone.

An answering machine message left at a number listed under DeSimone’s name was not immediately returned Friday. An EEOC attorney who filed the suit did not immediately return a call for comment.

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