Benavidez v. City of Albuquerque, s. 95-2117

• Decision Date: 14 November 1996
• Docket Number: 95-2118,Nos. 95-2117,s. 95-2117
• Citation: 101 F.3d 620
• Parties: 12 IER Cases 411 Pete BENAVIDEZ, Plaintiff-Appellant, v. ALBUQUERQUE, CITY OF; Lawrence Rael, Chief Administrative Officer, in his official capacity, Defendants-Appellees; Robert H. SMITH, Jr., Plaintiff-Appellant, v. ALBUQUERQUE, CITY OF; Lawrence Rael, Chief Administrative Officer, in his official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 620

101 F.3d 620

12 IER Cases 411

Pete BENAVIDEZ, Plaintiff-Appellant, v. ALBUQUERQUE, CITY OF; Lawrence Rael, Chief Administrative

Officer, in his official capacity, Defendants-Appellees;

Robert H. SMITH, Jr., Plaintiff-Appellant, v. ALBUQUERQUE, CITY OF; Lawrence Rael, Chief Administrative

Officer, in his official capacity, Defendants-Appellees.

Nos. 95-2117, 95-2118.

United States Court of Appeals Tenth Circuit.

Nov. 14, 1996.

Paul S. Livingston, Albuquerque, NM, for Plaintiffs-Appellants.

Charles W. Kolberg, Assistant City Attorney, Albuquerque, NM, for Defendants-Appellees.

Before KELLY, BRISCOE and LUCERO, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Plaintiffs-Appellants Pete Benavidez and Robert H. Smith, Jr., appeal from the grant of summary judgment in favor of Defendants-Appellees, the City of Albuquerque and its chief administrative officer, on their civil rights claim under 42 U.S.C. § 1983. Plaintiffs were City of Albuquerque employees. They claim they were unreasonably subjected to urinalysis drug testing in violation of the Fourth Amendment, and that the City's pre- and post-termination procedures denied them due process in violation of the Fourteenth Amendment. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Background

Plaintiffs Smith and Benavidez worked as field service operators with the City of Albuquerque's Public Works Department. Mr. Smith was Mr. Benavidez's crewleader. On April 22, 1992, while on duty, they drove in a City vehicle to the home of one of Mr. Smith's friends, another City employee. Plaintiffs did not know that Albuquerque police were already at the house, executing a search warrant for drugs. Mr. Smith remained in the vehicle drinking a beer and sent Mr. Benavidez to the back door of the house allegedly to borrow money from Mr. Smith's friend. Sgt. L. Saiz, an undercover police officer, answered the door, and asked Mr. Benavidez if he wanted a "sixteenth." A "sixteenth" is common street parlance for a sixteenth of an ounce of cocaine. The officer then offered him a baggie containing a white powder, which Mr. Benavidez refused. Mr. Benavidez later testified that he said sixteen would be fine, thinking he was borrowing $16.00. While Mr. Benavidez was at the house, another police officer approached the City vehicle and observed Mr. Smith with the beer. When asked, Mr. Smith admitted he had been drinking.

Both Plaintiffs were detained for several hours, but not arrested. After releasing them, Sgt. Saiz informed William Otto, a City Public Works official, that Plaintiffs were questioned during a drug raid, and that Mr. Benavidez admitted that he was there "to score coke." Sgt. Saiz also advised Mr. Otto that Mr. Smith had directed Mr. Benavidez to purchase the drugs. Mr. Otto and Sam Walker, another Public Works official, interviewed Plaintiffs around midnight. Mr. Walker smelled alcohol on Mr. Smith's breath, but Mr. Otto stated that he did not believe Plaintiffs appeared to be "impaired." Because of this lack of obvious impairment, an on-duty drug counselor advised Mr. Otto not to test them.

Approximately thirty-six hours later, on April 24, 1992, City Police Chief Stover received a memo about the incident. The memo specifically stated the following: while on duty, Mr. Smith and Mr. Benavidez had arrived in a City vehicle at the residence of a fellow City employee, which was the scene of a drug raid; Mr. Smith admitted that he had been drinking a beer in the vehicle; and Mr. Benavidez admitted going to the residence to buy cocaine. Chief Stover contacted the City's Chief Administrative Officer, who contacted the City's Director of Risk Management, who decided that Plaintiffs should be tested. Mr. Smith tested positive for cocaine, while Mr. Benavidez's tests were negative.

The City notified Plaintiffs that they were entitled to a pre-termination hearing. The notice informed Plaintiffs of the alleged violations, that they could respond orally or in writing, that they could be represented by counsel, and that they could face disciplinary action, including termination. Both Plaintiffs attended the hearing, accompanied by a union representative. Plaintiffs were terminated as of May 12, 1992.

The City held full post-termination evidentiary hearings on July 14, 1992 for Mr. Smith and on July 15, 1992 for Mr. Benavidez. Plaintiffs, while not represented by counsel, were again accompanied by a union representative. After these hearings, the City Personnel Hearing Board affirmed Mr. Smith's termination, and modified Mr. Benavidez's termination to a 90-day suspension without pay followed by reinstatement. Plaintiffs had the right to appeal in state district court, but chose not to do so. Instead, Plaintiffs Smith and Benavidez filed suit under 42 U.S.C. § 1983, claiming that their Fourth Amendment rights were violated by an unreasonable search and that their Fourteenth Amendment Due Process rights were violated by the City's pre- and post-termination grievance procedures. Summary judgment was granted for the City on both claims.

Discussion

We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). The substantive law determines which facts are material. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Rivendell Forest Prod. v. Georgia-Pacific Corp., 28 F.3d 1042, 1045 (10th Cir.1994).

I. Fourth Amendment Claims

It is well established that a urinalysis drug test required by a government employer for the purpose of detecting illegal drug use is a search subject to the Fourth Amendment, and therefore must be reasonable. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 678-79, 109 S.Ct. 1384, 1397-98, 103 L.Ed.2d 685 (1989); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 617-18, 109 S.Ct. 1402, 1413-14, 103 L.Ed.2d 639 (1989); Rutherford v. Albuquerque, 77 F.3d 1258, 1260 (10th Cir.1996). It is equally well settled that in the government employment context, as opposed to the criminal law context, a warrant will not be required where the intrusion is based on either reasonable suspicion or "special needs." Skinner, 489 U.S. at 619, 623-24, 109 S.Ct. at 1414, 1416-17; Saavedra v. City of Albuquerque, 73 F.3d 1525, 1531-32 (10th Cir.1996). The Supreme Court has recognized that " 'when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable,' " it will be dispensed with. Skinner, 489 U.S. at 619, 109 S.Ct. at 1414 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987)). This "special needs" exception permits drug testing of employees in safety-sensitive positions, pursuant to a random or uniform selection process, and does not require probable cause or even reasonable suspicion that an employee might be impaired. Von Raab, 489 U.S. at 679, 109 S.Ct. at 1397-98; Skinner, 489 U.S. at 633-34, 109 S.Ct. at 1421-22; Ford v. Dowd, 931 F.2d 1286, 1289 (8th Cir.1991). In the absence of a "special needs" random or uniform selection process, drug testing of a government employee does not require a warrant, but must be based on individualized suspicion, i.e., a reasonable suspicion that the employee was engaging in unlawful activity involving controlled substances. Saavedra, 73 F.3d at 1532, aff'g 917 F.Supp. 760, 762 (D.N.M.1994); Jackson v. Gates, 975 F.2d 648, 652-53 (9th Cir.1992), cert. denied, 509 U.S. 905, 113 S.Ct. 2996, 125 L.Ed.2d 690 (1993); Dowd, 931 F.2d at 1289.

Since we are not dealing with a "special needs" random or uniform selection process, our inquiry is whether the City had reasonable suspicion to order the urinalysis drug tests of Smith and Benavidez. Reasonable suspicion depends both upon the content of information possessed and its degree of reliability. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). Thus, the only material facts at issue concern what information the City possessed at the time it ordered Plaintiffs tested, and whether that information was reliable. If the information possessed by the City when it ordered the tests would create a reasonable suspicion that Plaintiffs used, possessed, or were impaired by illegal drugs on the job, then the resulting drug tests did not violate their Fourth Amendment rights. Saavedra, 73 F.3d at 1532. There is no dispute as to what information the City officials had at the time they ordered the drug tests of Mr. Smith and Mr. Benavidez--they had the incriminating information contained in Sgt. Saiz's memo to the police chief. Although Plaintiffs deny that they admitted to attempting to buy drugs, in light of the other information contained in the memo, this factual dispute is immaterial because it will not affect the outcome of the case. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Rivendell, 28 F.3d at 1045.

The parties disagree over the types of information that will support reasonable suspicion drug testing. Plaintiffs argue that such testing must be based only on direct observation and/or physical evidence that the employee's ability to perform his job was impaired because he was under the influence of a drug. We disagree. Direct observation or physical evidence of on-duty impairment, while important, is not the only information which will support such testing. Rather,...