Managing Lab Staff: Supervisor Liability for Subordinate Misconduct Under Civil Rights Law

Pop Quiz: Name five bad things that can happen if you fail to properly supervise your lab’s testing staff.

 Chances are, your response included testing inaccuracy leading to patient endangerment, CLIA citations, medical malpractice liability and termination of your job. But there’s one more bad consequence that you might have to account for, especially if you work or perform testing for a public agency: potential money damages for violating a test subject’s constitutional rights. A recent case illustrates how this can happen.

 Chapter 1: A Decade of Undetected Testing Abuse

 From 2003 to 2007, a chemist working at a lab run by the Massachusetts Dept. of Public Health (DPH) to do drug tests on samples submitted by law enforcement stole from the lab’s supply of methamphetamine oils. When she got word that a supplies audit was planned in 2008, she added water to the depleted oils supply to cover up her theft. And it worked. The supervisor performing the audit noticed the sample’s unusual appearance, but “surmised that the drug was just degrading.”

After the audit, the chemist’s drug use intensified, and so did her brazenness. In addition to stealing the lab’s other drug standards, including amphetamine, phentermine, ketamine, cocaine, ecstasy, marijuana and LSD, she began siphoning off a portion of actual test samples. In late 2011, she was assigned a sample from an undercover cop who allegedly purchased the substance from a gentleman named Penate. After three rounds of testing, the chemist reported them positive for a controlled substance. Penate was then indicted, convicted and sentenced to five to seven years in state prison.

By mid-2012, the chemist actually began manufacturing crack cocaine in the lab for her personal use at work. But things were about to unravel. After the misconduct of another chemist came to light, the supervisor did another audit and detected that samples were depleted or missing altogether. Shortly thereafter, he found one of the chemist’s crack manufacturing beakers with a white residue on it and confronted her. She denied any wrongdoing. But the resulting suspicion was confirmed a few weeks later when it was discovered that two of the cocaine samples assigned to the chemist were missing. In 2013, the chemist was terminated; a year later, she pled guilty to evidence tampering, larceny of controlled substances from a dispensary and unlawful possession of a Class B substance.

Chapter 2: The Innocent Victim

And what of poor Mr. Penate? From the very beginning, something seemed amiss about the testing. When the samples were returned to the officer who brought them to the lab, they no longer matched the descriptions on the evidence tags. Even stranger was the unexplained packet labeled “MOONWALK” improperly included among the materials returned. And when news of the chemist’s termination and drug abuse came to light a few months later, Penate’s attorneys tried to get the charges dismissed. But the judge reasoned that the chemist’s misconduct happened after she tested the Penate sample and denied the motion.

It wasn’t until May 2015 that the full extent of the chemist’s wrongdoing was revealed. Penate moved for and got a new trial. In June 2017, his eviction was vacated and he was released from prison the very next day.

Chapter 3: Penate v. Lab Supervisor

And here’s where our story morphs from anecdote into directly relevant legal analysis for lab managers. Two months after getting out of prison, Penate took legal action against those responsible for wronging him. The legal basis of the lawsuit: The Civil Rights Act of 1871, aka, 42 U.S.C. §1983, a federal statute that allows people to bring civil actions for money damages against the government for civil rights violations. The case targeted not just the state police, attorney general and DPH but also the lab supervisor.

The key point: Supervisors of government agencies who allow their subordinates to violate a person’s constitutional rights can be liable under §1983. Surely, the lab supervisor in this case was negligent for failing to detect what the chemist was up to. But mere negligence isn’t enough. To establish “supervisory liability,” the person must show that the supervisor would and should have known of the subordinate’s conduct but for his/her “deliberate indifference” or “willful blindness.”

The key question: Did the supervisor’s failure to rein in the chemist rise to this level?

Answer: The federal court said no.

Explanation: Penate cited three things that should have put the supervisor on notice of what was taking place:

  • The first supplies audit in 2008;
  • The revelation of drug-related misconduct by chemists at another DPH lab; and
  • The beaker incident.

But the court didn’t buy it. The supervisor’s failure to investigate these incidents, whether individually or collectively, didn’t amount to “deliberate indifference.” Hindsight is 20/20, and it’s easy to overlook the extensive steps the chemist took to hide her drug abuse and cover up her theft. The chemist had a clean discipline record and there was no allegation that anybody at the lab knew that she was abusing drugs, much less that her abuse was causing her to falsify test results, reasoned the court. So, the court dismissed the case [Penate v. Hanchett, 2019 U.S. App. LEXIS 36956].

3 Takeaways

  1. Lapses in supervision of lab workers can result in liability under §1983 if it results in falsification of test results or other actions that violate a person’s constitutional rights.


  1. Because §1983 also applies to non-government persons acting under “color of state law,” liability is a potential risk not only for government-run labs but also private labs that perform drug or other testing in connection with law enforcement, public employment screening and other government functions.


  1. The standard for supervisory liability under §1983 is significantly higher than ordinary negligence and requires evidence of deliberate indifference or ignorance that a subordinate is engaging in misconduct and that somebody’s constitutional rights are being harmed as a result.

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