Rushton v. Nebraska Public Power Dist.
| Decision Date | 14 June 1988 |
| Docket Number | No. 87-1441,87-1441 |
| Citation | 844 F.2d 562 |
| Parties | 46 Empl. Prac. Dec. P 37,918, 56 USLW 2610, 3 Indiv.Empl.Rts.Cas. 257, 3 Indiv.Empl.Rts.Cas. 768, 13 O.S.H. Cas.(BNA) 1732, 1988 O.S.H.D. (CCH) P 28,185 Warren H. RUSHTON and David L. Lostroh, Appellants, v. NEBRASKA PUBLIC POWER DISTRICT, Don E. Schaufelberger, and Lawrence G. Kuncl, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
No appearance made for appellants.
Frederick Kauffman, Lincoln, Neb., for appellees.
Before ARNOLD and FAGG, Circuit Judges, and LARSON, * Senior District Judge.
Appellants Rushton and Lostroh brought this Sec. 1983 action when they lost their jobs with the Nebraska Public Power District for refusing to undergo urinalysis. After a seven-day trial, the District Court held against them. Rushton v. Nebraska Public Power Dist., 653 F.Supp. 1510 (D.Neb.1987). Now Rushton and Lostroh appeal, arguing that their First, Fourth, Fifth, Ninth, and Fourteenth Amendment rights were violated by the Nebraska Public Power District's drug-testing policy. We affirm the judgment of the District Court. 1
The Nebraska Public Power District (NPPD) is a public corporation and political subdivision of the state. It owns Cooper Nuclear Station (CNS), a nuclear power plant located at Brownsville, Nebraska. Cooper Nuclear Station, like all nuclear power plants, is heavily regulated by the Nuclear Regulatory Commission. See 10 CFR parts 0-199. The NRC maintains resident inspectors at CNS and periodically sends teams to review the plant's security. Access to the plant is restricted. The protected area of the plant is completely surrounded by a fence. To enter the protected area, a person must go through explosive and metal detectors, and submit to random pat downs by guards. Identification must be presented to the guards, and a badge issued. Though subject to observation by guards once inside the protected area, a person is also free to move about unescorted. 2
The NPPD adopted its drug-testing program, the Fitness for Duty Program, in response to a number of developments. First was issuance by the NRC of a rule requiring adoption of such a plan in 1982. See 47 Fed.Reg. 33,980. 3 Second was a report by the NRC of a rise in drug-related accidents at nuclear power plants. Indeed, the NRC had received a report of alcohol use on the premises by guards at CNS. 4 Finally, at the time of the issuance of the NRC rule and the report of impaired guards, CNS was temporarily shut down. The plant's managers feared CNS would not be allowed to reopen absent assurance that the personnel were drug-free.
Thus, in 1985 CNS adopted its first Fitness for Duty Program, requiring testing of all employees with access to protected areas of the plant. The plan called for preemployment, pretransfer, annual, and for-cause testing. If a positive result was obtained, the employee was given a chance to appeal and to take a second confirmation test. A drug- or alcohol-abusing employee was given the choice of undergoing counseling through NPPD's Employee Assistance Program or being disciplined and perhaps discharged. The plan was later modified to include random testing and to improve chain-of-custody precautions.
Appellants Dave Lostroh and Warren Rushton were engineers at CNS. Most of the time they worked at the NPPD office in Columbus, Nebraska. However, both had unescorted access to protected areas of the plant, and visited CNS 6-7 hours per month. When the first Fitness for Duty Plan was implemented, Lostroh and Rushton refused to comply, arguing that the plan violated their constitutional rights. After a series of meetings with CNS management, no solution could be worked out, and the two men were fired. Their termination led to the present litigation.
Appellants' first argument is a novel one. They contend that their First Amendment right to free exercise of religion was violated by the drug-testing program. Appellants do not object to urinalysis per se, but rather to a statement of policy in the Employee Assistance Program and incorporated by reference in the Fitness for Duty Program: "alcoholism is recognized as an illness for which there is effective treatment and rehabilitation." Rushton and Lostroh are conservative Christians who believe alcoholism is a sin, not an illness. Further, they believe they must separate themselves from heretical doctrines, such as the notion that alcoholism is a disease. By complying with the program, Rushton and Lostroh claim they would be giving their tacit support to a heretical idea. Thus, they argue they must be exempted from the plan to preserve their right of free exercise.
The First Amendment guarantees a person free exercise of his chosen religion. However, an individual does not have an absolute right to practice his religion as he pleases. The Supreme Court has developed a three-part test for determining whether a governmental regulation impermissibly burdens an individual's religious practices. First, we must ask whether the regulation burdens, directly or indirectly, the plaintiff's religious practice. United States v. Lee, 455 U.S. 252, 256-58, 102 S.Ct. 1051, 1054-55, 71 L.Ed.2d 127 (1982). If the religious practice is burdened, the state may justify a limitation on that practice if it can show an "overriding governmental interest." Id. Finally, even if the state can show a compelling state interest necessitating the regulation, it must also show that it has chosen the least restrictive means of achieving its objective. Thomas v. Review Board, 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981).
The District Court found that appellants' religious beliefs were sincere, and that their religious practices were burdened by NPPD's Fitness for Duty Program. On appeal the NPPD vigorously contests these determinations. We have no reason to question the finding of plaintiffs' sincerity. As to whether their religious freedom was actually burdened, we express no view, because the burden, if any, was amply justified under prevailing legal principles.
The District Court described two overriding state interests: the health and safety of the public and NPPD employees and the economic interest of ratepayers. The former is obvious. A radiological release could seriously injure the public and the plant employees. The second harm could occur whenever there was some malfunction, whether involving release of radiation or damage to equipment. The cost of repair would be passed on to the ratepayers.
Appellants do not contest that the state's interests are compelling. 5 Instead they assert that the inquiry should be drawn more narrowly: we shouldn't ask what general risks are associated with accidents at nuclear power plants, but what problems could occur if appellants were impaired by drugs. After all, they are not asking that the entire drug testing program be struck down, only that they be exempted from it. Cf. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Appellants note that there are numerous backup systems to prevent a release of radiation, so that it would be exceedingly difficult for a drug-impaired person to cause an accident. In addition, appellants remind us that they are seldom in the power plant, and that their jobs do not require quick reflexes or snap decisions. Appellants contend that they could do little damage even if they were drug-impaired.
We do not find appellants' contentions persuasive. Perhaps CNS was designed to withstand an impaired operator. This does not make superfluous the addition of new measures to make the plant even safer. Surely the update and reevaluation of safety concerns should not end because the plant was considered to be safe initially. Also, while it may be true that appellants spend little time at CNS, and the possibility of their causing a release of radiation while drug-impaired is small, it does not follow that the men could do no damage if they were using drugs. The District Court noted that "operators must remain aware and observant and must react promptly and accurately to mitigate damages resulting from an accident, maloperation, or sabotage." 653 F.Supp. at 1520. If impaired, appellants might violate a safety regulation, deliberately or through inadvertence, and thus make containment of an accident more difficult. In addition, drug use might cause an accident of lesser magnitude than the radiological release appellants describe. They might cause a fellow employee to be injured in a way not involving a release of radiation--a mundane industrial accident--or they might break machinery that would be extremely expensive to repair. 6
Appellants also argue that less restrictive alternatives to their participation in the drug-testing program existed. They propose that they could sign an affidavit of non-use of drugs and undergo an extensive background check, or be escorted into protected areas. They suggest returning to the first plan, which did not require random testing. 7 Finally, they propose that the policy statement in the Employee Assistance Program be amended, removing or modifying the offending language. 8
We agree with the District Court that NPPD's drug-testing program is the least restrictive method of assuring the safe operation of the power plant. An affidavit cannot provide convincing proof that an employee is drug free. There was expert testimony at trial that a drug abuser would do just about anything to avoid detection. Transcript at 653. Such a person could easily lie in his affidavit. Other employees, with religious beliefs less sincere than those of appellants, could try to claim a religious exemption. The idea of an extensive background check was not raised at trial. In any case, unless the employee were constantly monitored, there is no reason to believe a background check would conclusively rule out drug...
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