Rutherford v. Albuquerque, City of

• Decision Date: 23 February 1996
• Docket Number: No. 95-2003,95-2003
• Parties: , 11 IER Cases 737 Jerry RUTHERFORD, Plaintiff-Appellant, v. ALBUQUERQUE, CITY OF; Louis E. Saavedra, Mayor, Arthur Blumenfeld, Chief Administrative Officer; Jack Burkhard, Julie Garcia, Myra Gutierrez, Maryanne Oller, individually and in their official capacities; Albuquerque Parking/Transit Department; City of Albuquerque Employee Health Center, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1258

77 F.3d 1258

64 USLW 2547, 11 IER Cases 737

Jerry RUTHERFORD, Plaintiff-Appellant, v. ALBUQUERQUE, CITY OF; Louis E. Saavedra, Mayor, Arthur

Blumenfeld, Chief Administrative Officer; Jack Burkhard,

Julie Garcia, Myra Gutierrez, Maryanne Oller, individually

and in their official capacities; Albuquerque

Parking/Transit Department; City of Albuquerque Employee

Health Center, Defendants-Appellees.

No. 95-2003.

United States Court of Appeals, Tenth Circuit.

Feb. 23, 1996.

Paul Livingston, Albuquerque, New Mexico, for Plaintiff-Appellant.

Victor S. Lopez, Assistant City Attorney, Albuquerque, New Mexico (Robert M. White, City Attorney, and Judy K. Kelley, Assistant City Attorney, on the brief), for Defendants-Appellees.

Before SEYMOUR, COFFIN, ¹ and McKAY, JJ.

COFFIN, Senior Circuit Judge.

Appellant Jerry Rutherford was fired from his job with the City of Albuquerque because of a positive drug test. His challenge to the testing on due process and Fourth Amendment grounds was rejected by the district court, which granted summary judgment for the City on both claims. We affirm the court's ruling on the due process claim, but conclude that the circumstances surrounding Rutherford's testing constituted an unreasonable search in violation of the Fourth Amendment.

I. Factual Background ²

Rutherford began working for the City of Albuquerque as a bus driver in April 1980. In April 1990, as a result of back problems that followed a work-related accident and a subsequent heart attack, he was placed into physical layoff status. He remained out of work until April 1991, when a doctor determined that he was fit to resume employment.

Rutherford was scheduled to return to work on Monday, April 15, as a truck driver in the Public Works Department. He was sent first to the Employee Health Center for a medical examination, including a urinalysis to test for drugs. The test revealed the presence of marijuana metabolites, indicating recent exposure to the drug. Rutherford admitted in his deposition that he had smoked marijuana a week or two before the test.

The drug test had been given to Rutherford pursuant to city policy adopted earlier in 1991. The policy, set out in Administrative Instruction Nos. 121 and 123, provided for drug testing in several specific situations, including testing as a prerequisite to obtaining a city operator's permit. Such a permit is required for the truck driving position Rutherford was to fill. The City also requires drug testing as a condition of beginning employment. In the district court and in its appellate brief, the City maintained that Rutherford was tested because he needed an operator's permit; at oral argument, the City's counsel acknowledged that Rutherford had such a permit and asserted that he was tested as a "new hire" because of his new position. ³

The substance abuse policy required termination for any employee in Rutherford's position who tested positive for drugs and, following his positive result, Rutherford was fired. He received both a pre-termination hearing and a full evidentiary hearing following his discharge on May 3. The personnel hearing officer upheld the firing, and the City Personnel Board unanimously adopted the officer's recommendation.

Rutherford thereafter brought this action, claiming that he was denied procedural due process and that the mandatory drug test violated his Fourth Amendment right to be free from unreasonable searches and seizures. Defendants moved for summary judgment on both claims, and Rutherford also moved for summary judgment on the Fourth Amendment claim. In rejecting the due process claim, the district court noted that Rutherford was given the opportunity to challenge the validity of his drug test at all stages of the administrative proceedings and therefore concluded that Rutherford was provided "all the process he was due." On the Fourth Amendment claim, the court canvassed the precedent on the constitutionality of mandatory drug testing of public employees and determined that "the City's compelling interest in reducing the risk of drug-related accidents among drivers of vehicles weighing over 26,000 pounds outweighs Plaintiff's privacy expectations."

In this appeal, Rutherford challenges each of those determinations.

II. Fourth Amendment

It is well established that a urinalysis required by a government employer for the purpose of detecting illegal drug use is a search protected by the Fourth Amendment. See 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); 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); Saavedra v. City of Albuquerque, 73 F.3d 1525, 1531-32 (10th Cir.1996). The Fourth Amendment, however, does not proscribe all searches; it bars only unreasonable ones.

What is reasonable, of course, "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." ... Thus, the permissibility of a particular practice "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."

Skinner, 489 U.S. at 619, 109 S.Ct. at 1414 (citations omitted).

In the two leading Supreme Court employee drug testing cases, Skinner and Von Raab, the justices concluded that the testing at issue was permissible without the usual protection of a warrant based on probable cause, and even without "any measure of individualized suspicion," 489 U.S. at 668, 109 S.Ct. at 1392. See also id. at 633, 109 S.Ct. at 1421-22. In Skinner, the Court ruled that railroad employees' privacy expectations, which were limited because of the industry's pervasive regulation, were outweighed by the government's compelling interest in ensuring the safe operation of the rails. In Von Raab, the Court similarly found that the government's interests in safety and the integrity of its borders outweighed the individual privacy interests of customs officials who carry firearms or are involved in drug interdiction. ⁴

The City argues that the balancing here leads to the same result. Because Rutherford's new job required him to drive a 26,000-pound truck, whose mishandling could cause serious and substantial injury or other harm, his position is classified as "safety sensitive" by the City and he is required to submit to drug testing. The City contends that the privacy interests of "safety sensitive" employees such as Rutherford unquestionably must give way to the City's need to assure their sobriety and, ultimately, to ensure the safety of the general public and the employees themselves. In agreeing with the City, the district court heavily relied on a Ninth Circuit decision validating mandatory drug testing of commercial truck drivers whose vehicles are comparable in weight to Rutherford's. See International Broth. of Teamsters v. Department of Transp., 932 F.2d 1292, 1304 (9th Cir.1991) ("A 26,000 pound truck ... 'becomes lethal when operated negligently by persons who are under the influence of ... drugs.' ") (citation omitted).

Rutherford responds in two ways. First, he argues that city truck drivers such as himself are inappropriately classified as "safety sensitive"; hence, the City may not subject him to mandatory, suspicionless drug testing. He rejects the City's comparison to the Ninth Circuit's Teamsters case, and asserts that significant differences exist between the long-distance truckers at issue there and city dump truck drivers like himself. ⁵ Rutherford's second response is narrower. Whatever the validity of suspicionless drug testing for heavy truck drivers generally, he claims that the City unfairly implemented its policy in the particular circumstances of this case. Because we find merit in this latter complaint, we decline to reach the broader question.

We therefore accept for the moment the City's assertion that Rutherford's job properly was designated as safety sensitive, and that he may be subject to mandatory drug testing even in the absence of reasonable suspicion. The question that remains is whether the specific procedures used here and the intrusion on privacy they caused were reasonable. See Taylor v. O'Grady, 888 F.2d 1189, 1195 (7th Cir.1989) ("[W]hile urinalysis may be within the government's prerogative in a given circumstance, the manner in which the program is carried out may be so unnecessarily intrusive as to render it constitutionally intolerable.")

Rutherford points to several aspects of his testing that distance it from cases, such as Skinner and Von Raab, in which courts have upheld drug tests. First, he notes that neither of the provisions of the substance abuse policy invoked by the City expressly applied to him at the time he returned to work. Because he already had a city operator's license, the provision requiring a test as a prerequisite to such licensing facially was inapplicable. The policy states that a city employee who has a license will be tested at the time of license renewal, which, in Rutherford's case, had not yet arrived. In addition, because he was not an applicant seeking employment with the City for the first time, but instead was a city employee returning to work after a medical absence, he asserts that the provision for pre-employment testing also was inapplicable. ⁶ Cf. Laverpool, et al. v. New York City Transit Auth., 835 F.Supp. 1440, 1456 (E.D.N.Y.1993), aff'd, 41 F.3d 1501 (2d Cir.1994) (policy provided for drug testing of safety sensitive employees when "they return to work after an extended absence of suspension"). He emphasizes, as well, that he was not told that he would be tested until he came to work on April 15. ⁷

Rutherford maintains, and we agree, that the circumstances surrounding his urinalysis resulted in a substantially more intrusive search than those upheld by the Supreme Court in Skinner and Von Raab. In both of those...