846 F.2d 1539 (6th Cir. 1988), 86-6281, Lovvorn v. City of Chattanooga, Tenn.

Docket Nº:86-6281.
Citation:846 F.2d 1539
Party Name:3 Indiv.Empl.Rts.Cas. 673 Roland M. LOVVORN; Richard Jarvis; and Michael Kennedy, on their behalf and on behalf of all others similarly situated, Plaintiffs-Appellees, v. The CITY OF CHATTANOOGA, TENNESSEE; Gene Roberts, individually and as the Mayor of the City of Chattanooga, Tennessee; Thomas Kennedy, Paul Clark, James Eberle, and John Franklin,
Case Date:May 23, 1988
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1539

846 F.2d 1539 (6th Cir. 1988)

3 Indiv.Empl.Rts.Cas. 673

Roland M. LOVVORN; Richard Jarvis; and Michael Kennedy, on

their behalf and on behalf of all others similarly

situated, Plaintiffs-Appellees,

v.

The CITY OF CHATTANOOGA, TENNESSEE; Gene Roberts,

individually and as the Mayor of the City of Chattanooga,

Tennessee; Thomas Kennedy, Paul Clark, James Eberle, and

John Franklin, individually and as Commissioners for the

City of Chattanooga, Tennessee; and Jerry W. Evans,

individually and as the Chief of the Fire Department of the

City of Chattanooga, Tennessee, Defendants- Appellants.

No. 86-6281.

United States Court of Appeals, Sixth Circuit

May 23, 1988

Argued Dec. 17, 1987.

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Thomas Woodley (argued), Mulholland & Hickey, Washington, D.C., for plaintiffs-appellees.

Michael A. McMahan, Randall L. Nelson, argued, Chattanooga, Tenn. for defendants-appellants.

Before MARTIN and GUY, Circuit Judges and JOHNSTONE, Chief District Judge. [*]

BOYCE F. MARTIN, Jr., Circuit Judge.

The single issue presented in this appeal is whether the City of Chattanooga's mandatory urinalysis testing of its fire fighters, on a department-wide basis, without reasonable cause or suspicion to believe that the fire fighters tested used controlled substances, violates the plaintiffs' rights under the fourth amendment to the United States Constitution. Three fire fighters employed by the City of Chattanooga brought this action against the City, the members of the City's Board of Commissioners, and the Chief of the City's Fire Department. The defendants appeal the decision of the district court enjoining the planned urinalyses as violative of the fourth amendment. 647 F.Supp. 875.

The drug screening at issue here involved all emergency service personnel, including regular fire fighters and emergency medical or ambulance personnel, who are also cross-trained as fire fighters. The directive did not apply to secretaries, clerks, or other so-called "civilian" employees. Among the civilian employees not tested were the dispatchers who received the incoming calls and directed the fire fighters to their assignments.

The testing at issue here was to be conducted in substantially the same manner as the testing of all fire fighters which had occurred in the spring of 1985. It is necessary, therefore, to recount some relevant history.

In 1983, Tom Kennedy was elected Commissioner of Fire and Police for the City of Chattanooga. In this position, he is responsible for running the Chattanooga Fire and Police Departments, subject to the overall supervision of a five-member Board of Commissioners, of which he is a member. In early 1984, some civilian employees were "caught or almost caught" smoking marijuana and were disciplined. As a result, Commissioner Kennedy, along with Police Chief McCutcheon and then Fire Chief A.O. Powell, decided to conduct urine tests for marijuana. All members of the Chattanooga Fire and Police Departments were to be tested.

Word that the drug testing was going to occur was spread through "the grapevine." On April 16, 1985, shortly before the testing was to begin, formal notice of the testing was given when Fire Chief Powell sent a memorandum to all fire fighters advising them that, "while on duty," they were to report to Allied Clinical Laboratories for blood testing to begin April 22, 1985. In late April and early May 1985, groups of fire fighters were taken to Allied Labs and were required to give both blood and urine samples. Because Commissioner Kennedy had "information" that one or more fire fighters to be tested were carrying clean urine samples in balloons in their pants, Kennedy ordered some of the initial donors to be "patted down" in an effort to determine if they were carrying anything that could result in a switched or an adulterated urine sample. Except for fifteen or so donors, all urine samples were given by the fire fighters under the direct observation of a Deputy or Assistant Fire Chief. Allied Laboratories subjected the samples to the Enzyme Multiple Immunoassay Technique (EMIT) test, which, on the average, is about 95% accurate. All uniformed fire

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fighters were tested. The urine tests were mandatory. One fire fighter was terminated for refusing to submit to the test.

The 1985 urine tests were not conducted pursuant to any written orders, guidelines, or standards. None of the methods for testing, nor any of the standards for handling or analyzing the urine specimens, nor any procedures for implementation of discipline, were ever put in writing. Not surprisingly, there was confusion concerning the precise test result which triggered discipline. The City applied varying standards for determining whether an employee tested positive or negative. Urine testing 100 nanograms of cannaboids (ng) per millileter (ml) or more was considered "positive." Urine testing from 50 to 100 ng/ml was considered "trace." Urine testing from 20 to 50 ng/ml was considered "minus trace." All fire fighters testing at "minus trace" or above, e.g., over 20 ng/ml, were retested. Fire fighters who tested "trace" positive or "minus trace" positive on the first test and negative on the second test were placed on one year probation and subject to unannounced drug screens. Those fire fighters who tested "positive" on one of the later unannounced drug screens were fired.

Those fire fighters with two "positive" EMIT tests were suspended from their jobs, informed of the test results, and given a hearing before Chief Powell. Their names were released to the press at the time of their suspension. At the hearing before Chief Powell, the fire fighters were permitted to make whatever explanation they could of the test results. The fire fighters were cited for disobeying Chattanooga Fire Department Rules and Regulations Sec. 38, General Conduct, 38.11 which states:

No member shall report for, or be on duty under the influence of any intoxicating liquors, drugs or compounds, nor shall he absent himself from duty, or render himself unfit to fully perform his duties for reasons, attributable to, or produced by indulgence in intoxicants.

Commissioner Kennedy disciplined the fire fighters based on Powell's recommendation. The discipline included probation, suspension, demotion in rank, or termination depending upon the level of test results and the rank of the fire fighter. Of the 400 fire fighters tested, 25 of them were found to have some level of illegal drugs in their system in 1985.

As a result of the May tests, and after some additional tests in August and September 1985, ten employees were terminated by the city, five resigned, and seventeen were placed on probation. Several of the terminated fire fighters took advantage of their right under a city ordinance for a post-termination hearing before the full Chattanooga City Commission. The Commission upheld the terminations. Several of these fire fighters have taken their cases, pursuant to state law, to the Chancery Court of Hamilton County, Tennessee, where the cases will be reviewed on the record.

After the May testing was completed and most of the discipline administered, Commissioner Kennedy had the positive EMIT tests confirmed by Compu-Chem Laboratories, in Raleigh, North Carolina. Compu-Chem performed gas chromotography/mass spectrometry tests on the samples. These tests, which are virtually 100% accurate, confirmed the results of the previously administered EMIT tests.

Several of the fire fighters terminated in 1985 participated in a drug rehabilitation program at Valley Psychiatric Hospital. That treatment was covered by the City's health insurance program. A number of these employees have been rehired and are subject to unannounced urine retests.

Because one of the rehired fire fighters again tested positive, and because Commissioner Kennedy was told by one or more of the fire fighters who were disciplined in 1985 that some fire fighters in 1985 had switched urine samples, Commissioner Kennedy decided in the summer of 1986 to give mandatory urine tests to the entire fire department once again. There has been no statistical or objective evidence that the performance of any member of the department, or the department as a whole, has been affected by the use of drugs.

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The parties have stipulated that the proposed tests will be performed in substantially the same manner as they were in 1985. Commissioner Kennedy now states that a 50 nanogram per millileter standard will be used as a "bright line" test for passing or failing, and that there will be no trace or minus trace categories. It is this proposed 1986 testing program that is being challenged here as violative of the fourth amendment of the United States Constitution. While the City of Chattanooga appeals the district court's holding that mandatory drug testing, without reasonable individualized suspicion, constitutes a violation of the fourth amendment, the fire fighters do not challenge the district court's holding that the 1986 testing program did not violate due process requirements. We seek then only to ascertain whether the City's drug testing program violates the fourth amendment.

There can be little question, and the City of Chattanooga does not seriously dispute, that the compulsory urinalysis of public sector employees constitutes a "search and seizure" within the meaning of the fourth amendment. In its entirety, the fourth amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to...

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