Grusendorf v. City of Oklahoma City

• Decision Date: 17 April 1987
• Docket Number: No. 85-1807,85-1807
• Citation: 816 F.2d 539
• Parties: , 2 Indiv.Empl.Rts.Cas. 51 Greg GRUSENDORF, Plaintiff-Appellant, v. CITY OF OKLAHOMA CITY, a municipal corporation; Jimmy R. Catledge, Fire Chief, City of Oklahoma City; Paul Benson, Assistant Fire Chief, City of Oklahoma City and John D. Parasich, Assistant Training Officer, City of Oklahoma City, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 539

816 F.2d 539

55 USLW 2588, 2 Indiv.Empl.Rts.Cas. 51

Greg GRUSENDORF, Plaintiff-Appellant, v. CITY OF OKLAHOMA CITY, a municipal corporation; Jimmy R.

Catledge, Fire Chief, City of Oklahoma City; Paul Benson,

Assistant Fire Chief, City of Oklahoma City and John D.

Parasich, Assistant Training Officer, City of Oklahoma City,

Defendants-Appellees.

No. 85-1807.

United States Court of Appeals,

Tenth Circuit.

April 17, 1987.

Steven M. Angel of Hughes & Nelson, Oklahoma City, Okl., for plaintiff-appellant.

Diane Davis Huckins, Asst. Mun. Counselor (Robert D. Allen, Mun. Counselor, with her on the brief), Oklahoma City, Okl., for defendant-appellee, City of Oklahoma City, Okl Richard C. Smith, Asst. Mun. Counselor, Oklahoma City, Okl., for defendants-appellees, Catlege, Benson and Parasich.

Before BARRETT and TACHA, Circuit Judges, and JENKINS, ^* District Court Judge.

BARRETT, Circuit Judge.

On December 14, 1984, appellant Greg Grusendorf took three puffs from a cigarette while on a lunch break from his job as a firefighter trainee with the Oklahoma City Fire Department. He was fired that afternoon by his supervisor on the grounds that he had violated the terms of an agreement he signed as a precondition of employment that he would not smoke a cigarette, either on or off duty, for a period of one year from the time he began work. Grusendorf brought suit against the City of Oklahoma City and his supervisors at the Oklahoma City Fire Department under 42 U.S.C. Sec. 1983, claiming his constitutional rights of liberty, privacy, property and due process had been violated. The district court for the Western District of Oklahoma granted the defendants' motion to dismiss Grusendorf's suit and awarded the defendants $2,250 in attorney's fees.

Grusendorf first applied for a position as firefighter with the Oklahoma City Fire Department in January, 1983, but was not hired. He thereafter devoted his energies to becoming a qualified applicant for future openings with the fire department by studying firefighting manuals, getting into top physical condition and, finally, giving up cigarette smoking. When the Oklahoma City Fire Department announced openings for the position of firefighter trainee in September, 1984, Grusendorf applied again. After taking a written examination, a physical ability test, and receiving a medical checkup by a physician, Grusendorf was ranked fifth on a list of four hundred applicants. He was hired in October, 1984, as a firefighter trainee. Upon being hired, Grusendorf signed a certificate indicating that he had read and understood the fire department's non-smoking rule for firefighter trainees and agreed to abide by it.

The incident that precipitated Grusendorf's dismissal occurred when, after a "particularly stressful day," Grusendorf went to lunch with several co-workers. This lunch break was unpaid and constituted Grusendorf's free time. While at lunch, Grusendorf took approximately three puffs from a cigarette and extinguished it. This act was observed by another city employee who reported the incident to the Oklahoma City Fire Department. Fire Chief Jimmy R. Catledge questioned the trainees who had been present at the lunch about the report and threatened to discharge them all if the individual who had smoked the cigarette did not identify himself. When Grusendorf admitted that he was the smoker, Chief Catledge fired him.

Grusendorf argues on appeal that the non-smoking condition imposed by the Oklahoma City Fire Department required him to surrender his constitutional rights in the area of liberty and privacy. ¹ The rights of liberty and privacy that Grusendorf relies upon are not clearly spelled out in the constitution. They have been variously described as "penumbras" emanating from the Bill of Rights, Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1964), "zones of privacy" implicit in the fourteenth amendment's concept of liberty, Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151, 82 L.Ed. 288 (1937), or simply as "the right to be let alone...." Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J dissenting). The Supreme Court recognized these implicit rights when, for example, it upheld the right of an individual to provide children with foreign language instruction, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the right of parents to educate children in private schools, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) and the right of married couples to use contraceptives, Griswold, 381 U.S. at 479, 85 S.Ct. at 1678, even though no provision in the Constitution or Bill of Rights specifically protects those activities. In the same spirit, Grusendorf argues that although there is no specific constitutional right to smoke, it is implicit in the fourteenth amendment that he has a right of liberty or privacy in the conduct of his private life, a right to be let alone, which includes the right to smoke.

Grusendorf contends that the government may not unreasonably infringe upon its employees' freedom of choice in personal matters that are unrelated to the performance of any duties. He notes that in Hander v. San Jacinto Junior College, 519 F.2d 273, 277 (5th Cir.1975), the court held "constitutionally impermissible" a junior college's requirement that instructors be clean shaven and wear "reasonable hair styles" because the regulation had no reasonable relation to any legitimate administrative or educational function. Similarly, Grusendorf points out that in Keyishian v. Board of Regents, 385 U.S. 589, 605, 87 S.Ct. 675, 684, 17 L.Ed.2d 629 (1967), the Supreme Court expressly rejected the premise "that public employment ... may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action...." Grusendorf concludes that since the defendants have failed to demonstrate a rational reason for the non-smoking rule, it is likewise constitutionally impermissible and unenforceable.

The defendants deny that the non-smoking regulation infringes upon any liberty or privacy interest. They point out that these rights of liberty and privacy have been recognized in only a limited number of circumstances. In Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973), the Supreme Court observed that only "personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' [citation omitted] are included in this guarantee of personal liberty." In Carey v. Population Services International, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977), the Court outlined the current reach of these freedoms as embracing personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education. The defendants argue that the act of smoking a cigarette does not rise to the level of a fundamental right and, further, that since there is no fundamental right to smoke a cigarette, no balancing test nor rationale of any kind is needed to justify the rule.

Though we agree with the defendants that cigarette smoking may be distinguished from the activities involving liberty or privacy that the Supreme Court has thus far recognized as fundamental rights, we are not confident that this observation effectively disposes of the Grusendorf's claim. It can hardly be disputed that the Oklahoma City Fire Department's non-smoking regulation infringes upon the liberty and privacy of the firefighter trainees. The regulation reaches well beyond the work place and well beyond the hours for which they receive pay. It burdens them after their shift has ended, restricts them on weekends and vacations, in their automobiles and backyards and even, with the doors closed and the shades drawn, in the private sanctuary of their own homes.

Furthermore, while it is true that the Court has thus far recognized a right of liberty or privacy in only a handful of circumstances, it is also true that "the outer limits of this aspect of privacy have not yet been marked by the Court...." Carey v. Population Services International, 431 U.S. at 684, 97 S.Ct. at 2015. In a case similar to ours, for example, the Court considered whether a county regulation limiting the length of a police officer's hair violated a liberty interest protected by the fourteenth amendment. Kelley v. Johnson 25 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976). Writing for the majority, Justice Rehnquist observed that the plaintiff's claim to a liberty interest in his choice of hair styles was distinguishable from the kinds of liberty interests the Court had previously recognized but noted, also, that "whether the citizenry at large has some sort of 'liberty' interest within the Fourteenth Amendment in matters of personal appearance is a question on which this Court's cases offer little, if any, guidance." Id. at 244, 96 S.Ct. at 1444. Without resolving the issue, Justice Rehnquist proceeded to "assume" that there was such a liberty interest under the fourteenth amendment and decided the case against the plaintiff on other grounds. ² Id.

Nor are we inclined to accept the defendants' contention that, since cigarette smoking has not been recognized as a fundamental right, no balancing test nor rationale of any kind whatsoever is needed to justify the restriction. This reasoning would seem to suggest that the state can, arbitrarily and for no reason, condition employment upon an agreement to refrain from any of a nearly limitless number of innocent, private and personal activities. We would be reluctant to go this far even if the law would tolerate such a venture. The success of the defendants' argument, however, does not hinge upon this contention.

To resolve the issue of whether or not Grusendorf's rights of liberty or privacy were violated by the non-smoking regulation, it is...