Jones v. McKenzie, 86-5198

Citation266 U.S.App.D.C. 85,833 F.2d 335
Decision Date17 November 1987
Docket NumberNo. 86-5198,86-5198
Parties45 Empl. Prac. Dec. P 37,674, 266 U.S.App.D.C. 85, 56 USLW 2303, 42 Ed. Law Rep. 1082, 2 Indiv.Empl.Rts.Cas. 1121 Juanita M. JONES v. Floretta Dukes McKENZIE, Superintendent of Schools, et al., Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Charles L. Reischel, with whom Frederick D. Cooke, Jr. and James R. Murphy were on the brief, for appellants.

David A. Soley, with whom Jeffrey A. Dunn, Gary M. Hnath, Arthur B. Spitzer and Elizabeth Symonds were on the brief, for appellee.

Richard K. Willard, Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, were on the brief for amicus curiae, U.S., urging reversal in part.

Before EDWARDS, STARR and D. H. GINSBURG, Circuit Judges.

Opinion for the Court by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This case involves a suit by the appellee, Juanita Jones, against the District of Columbia and those officials in the District of Columbia Public School System responsible for the employee drug-use surveillance program. 1 Ms. Jones, who had been employed in the Transportation Branch, challenged the School System's decision to discharge her for an alleged violation of a directive prohibiting school personnel from using, possessing or being under the influence of illicit drugs while on school premises. In granting summary judgment in appellee's favor, the District Court ordered Ms. Jones reinstated with full backpay, seniority and benefits; enjoined the appellants from terminating Ms. Jones on the basis of the EMIT drug test without confirmation from some adequate alternative testing device; and enjoined the appellants from administering any urinalysis drug test to Ms. Jones "without first establishing probable cause to believe that she is using or under the influence of illicit drugs based on specific objective facts." The School System has appealed only that portion of the District Court's order that prohibits compulsory drug testing without "probable cause."

On the record before us, we find that it is not unreasonable to require drug testing where an employee's duties involve direct contact with young school children and their physical safety, where the testing is conducted as part of a routine, reasonably required, employment-related medical examination, and where there is a clear nexus between the test and the employer's legitimate safety concern. We therefore reverse the District Court's judgment, 628 F.Supp. 1500, pertaining to "probable cause," and vacate that portion of its injunction from which appeal was taken.

I. BACKGROUND

In 1984, the School System initiated a program of mandatory drug testing for employees in its Transportation Branch. These employees included bus drivers, mechanics and bus attendants, whose primary duty was the daily transportation of handicapped students between their homes and schools. 2 The drug testing program had its impetus in growing concern among School System officials over a perceived "drug culture" in the Transportation Branch. There were repeated incidents of bizarre or dangerous drug-related behavior by drivers and attendants while on duty; 3 syringes and bloody needles were found in restrooms used by Transportation Branch employees; and the head of the Branch estimated "that 60% of the employees assigned to the Transportation Branch are using narcotics to some extent." Letter from William French to William Bedford (May 17, 1984) ("French Letter"), Record Excerpts ("R.E.") 34-35; Defendants' Interrogatory Answer 6, R.E. 48. Efforts to deal with the problem had yielded only mixed results. French Letter, R.E. 35-36.

The School System's concern about drug use culminated in Superintendent's Directive Pursuant to the newly issued directive, Transportation Branch employees were administered physical examinations at a clinic during the summer of 1984. As is the normal procedure in medical examinations, they were permitted to produce their urine specimens in the privacy of a restroom. The urine samples were tested with the EMIT Cannabinoid Urine Assay. A total of 26 Transportation Branch employees classified as WAE (when actually employed) tested positive for illegal drugs and were "terminated." Defendants' Interrogatory Answer 19 & attachment C, Record Document ("R.D.") 18. 5

                205.1, issued June 12, 1984, which provided for mandatory urinalysis testing "of all employees who are or will be required to undergo medical examinations to determine physical fitness for licensing and other employment-related reasons."    R.E. 39. 4   It added that a "confirmed finding of an illicit narcotic substance in the urine of an employee" or a refusal to submit to testing would be "grounds for termination."    R.E. 40.  The employees were informed in advance that the physical examinations would include urinalysis testing for drugs.  Bedford Memorandum (June 22, 1984), R.E. 43.  Both Directive 205.1 and the notification to employees explained that the purpose of the drug tests was the enforcement of Superintendent's Directive 662.13, dating from 1977, which prohibited school personnel "to possess, use or be under the influence of intoxicating liquors, narcotics, or other drugs such as LSD, marijuana and the like, while on school premises."    Supplemental Record Excerpts ("S.R.E.") 87
                

Appellee Juanita Jones was employed, on a WAE basis, as a school bus attendant in the Transportation Branch beginning in February 1981. As such, she was paid for hours actually worked (averaging 30-35 per week), received no leave or other benefits, and was reemployed each year for a one-year term "subject to the availability of funds." In her job, Jones was responsible for assisting handicapped children on and off the bus. In some cases this required physically carrying the child. She was also responsible for ensuring that the children were properly seated and for maintaining order during the sometimes lengthy bus trips. She was considered to be an excellent employee. S.R.E. 30, 56, 82-86.

Jones underwent a physical examination and was tested for drugs along with other Transportation Branch employees in the summer of 1984. Her test was positive for THC metabolites, an indication of marijuana use. 6 Upon learning of Jones' test result, the School System terminated her employment. Following the School System's denial of Jones' request for a hearing and its rejection of her written appeal, she filed suit in the District Court, seeking injunctive relief and damages under 42 U.S.C. Sec. 1983 for violation of her rights under the Fourth and Fifth Amendments and District of Columbia statutes.

On February 25, 1986, the District Court entered partial summary judgment for The School System has acquiesced in most of the District Court's order. It appeals only the trial court's Fourth Amendment ruling which prohibits the administration of any drug test without probable cause.

                Jones.  It held that her termination on the basis of a single, unconfirmed EMIT test, without a hearing, was arbitrary and capricious and thus violative of District of Columbia law. 7   It also held that, "in the absence of particularized probable cause," requiring her to submit to drug testing was an unreasonable search.  The trial court ordered Jones reinstated with full backpay, seniority and benefits;  ordered that any mention of the termination be expunged from her personnel records;  enjoined the School System from terminating her on the basis of the EMIT test without adequate confirmation by other means;  required that any future termination be preceded by meaningful notice and an opportunity to be heard, and followed by the right to a hearing;  and enjoined the School System from administering any drug test to her "without first establishing probable cause to believe that she is using or under the influence of illicit drugs based on specific objective facts."    Jones v. McKenzie, No. 85-1624 (D.D.C. Feb. 25, 1986) (order), reprinted at R.E. 31-32;  Jones v. McKenzie, 628 F.Supp. 1500 (D.D.C.1986).  Jones' claim for damages was subsequently settled
                
II. ANALYSIS
A. The Legal Framework

The Fourth Amendment protects against "unreasonable searches and seizures" by Government officials in civil as well as criminal contexts. O'Connor v. Ortega, --- U.S. ----, 107 S.Ct. 1492, 1497, 94 L.Ed.2d 714 (1987) (plurality opinion); New Jersey v. T.L.O., 469 U.S. 325, 335, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985). To determine whether a given governmental activity is of the kind that is prohibited by the Fourth Amendment, we must first ask whether the action is a "search," and, if it is, whether it is "unreasonable."

The first inquiry need not detain us long. A "search" is a governmental action that infringes "an expectation of privacy that society is prepared to consider reasonable." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). This court and virtually all others that have passed on the issue have held mandatory urinalysis of public employees to be a "search" which implicates the Fourth Amendment. See, e.g., National Fed'n of Fed. Employees v. Weinberger, 818 F.2d 935, 942 (D.C.Cir.1987) ("NFFE "); National Treasury Employees Union v. Von Raab, 816 F.2d 170, 176 (5th Cir.1987); McDonell v. Hunter, 809 F.2d 1302, 1307 (8th Cir.1987); Patchogue-Medford Congress of Teachers v. Board of Educ., 70 N.Y.2d 57, 67-68, 510 N.E.2d 325, 329-30, 517 N.Y.S.2d 456, 460-61 (1987). 8 Even if, as in this case, the urine specimen is collected under conditions which do not seriously invade the individual's privacy, analysis of the urine permits the Government to inquire into the employee's private life. It is beyond dispute that this constitutes a "search" for purposes of the Fourth Amendment.

While the second inquiry--whether the search is a "reasonable" one--is more difficult, our framework...

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