953 F.2d 807 (3rd Cir. 1991), 90-1435, Bolden v. Southeastern Pennsylvania Transp. Authority

Docket Nº:Appellant in 90-1435,
Citation:953 F.2d 807
Case Date:December 31, 1991
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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953 F.2d 807 (3rd Cir. 1991)

Russell BOLDEN, Appellant in No. 90-1478



Appellant in 90-1435,





Nos. 90-1435, 90-1478.

United States Court of Appeals, Third Circuit

December 31, 1991

Argued Jan. 8, 1991.

Reargued In Banc Oct. 9, 1991.

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[Copyrighted Material Omitted]

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H. Francis deLone, Jr. (argued), Philadelphia, Pa., for Russell Bolden.

John F. Smith, III, Richard S. Meyer (argued), Virginia H. Miller, Thomas E. Groshens, Barbara Shotel, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, Pa., for Southeastern Pennsylvania Transp. Authority.

Originally Argued Jan. 8, 1991.

Before: COWEN, ALITO and ROSENN, Circuit Judges.

Reargued In Banc Oct. 9, 1991.



ALITO, Circuit Judge:

The Southeastern Pennsylvania Transportation Authority ("SEPTA") appeals from a judgment awarding compensatory damages to Russell Bolden, a former SEPTA maintenance custodian, based on an assertedly unconstitutional drug test that resulted in Bolden's discharge. Bolden also appeals, contending that the district court improperly dismissed his claim for punitive damages. We will affirm the district court judgment insofar as it holds that SEPTA is liable for violating Bolden's constitutional right against unreasonable search, but we will reverse the award of

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compensatory damages and will remand the case for a new trial on that issue. We will also affirm the dismissal of Bolden's claim for punitive damages.


Bolden was a maintenance custodian at SEPTA's Fern Rock Depot from 1981 to 1986. In August 1986, Bolden was involved in an altercation with a SEPTA bus driver and was discharged for conduct unbecoming a SEPTA employee. Bolden's union, the Transportation Workers' Union Local 234 ("Local 234"), filed a grievance, which was denied by SEPTA and ultimately submitted for arbitration pursuant to the collective bargaining agreement. In June 1987, the arbitration panel ordered that Bolden be reinstated with one-half back pay.

In the meantime, SEPTA had unilaterally implemented a new drug testing policy. 1 In January 1987, SEPTA promulgated Order No. 87-1, which called for random testing of certain employees. On February 3, 1987, SEPTA promulgated Order 87-2, the order at issue in this case. Order 87-2 authorized drug testing of employees returning to work after certain absences, including any disciplinary suspension or any absence of more than 30 days. 2 The unions that represent SEPTA workers, including Local 234, filed an action in the Eastern District of Pennsylvania challenging the legality of SEPTA's new policy. On February 9, 1987, the district court issued a preliminary injunction against enforcement of Order 87-1 but not Order 87-2. 3 After some modification of the random-testing program, the district court held in January 1988 that this program met Fourth Amendment standards but that the return-to-work testing requirement was unconstitutional. Transport Workers' Local 234 v. SEPTA, 678 F.Supp. 543 (E.D.Pa.1988).

We affirmed both of these holdings. Transport Workers' Local 234 v. SEPTA, 863 F.2d 1110 (3d Cir.1988), vacated, 492 U.S. 902, 109 S.Ct. 3208, 3209, 106 L.Ed.2d 560 (1989), reaffirmed, 884 F.2d 709 (3d Cir.1989). 4 With respect to return-to-work testing, we wrote (id. at 1122):

SEPTA must justify its return-to-work testing on the basis of some particularized suspicion. It has, however, failed to present any evidence that the employees returning to work present some unique risk directly related to drug or alcohol use. Thus, SEPTA has not shown that this aspect of its program is initially justified or that testing of all employees returning after an absence for whatever cause has any relationship to the articulated need for the program.

As noted above, the arbitrators' decision requiring Bolden's reinstatement was issued

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in June 1987, more than six months before the district court permanently enjoined enforcement of Order 87-2. Since Bolden had missed work due to a disciplinary suspension and had been absent for more than 30 days, he was directed under Order 87-2 to submit to a medical examination, including body fluids testing, before returning to work. Bolden underwent a two-hour medical examination during which a blood sample was taken. He also provided a urine sample in private. These samples were sent to a laboratory for testing, and the results were interpreted by SEPTA to mean that Bolden had used marijuana. Thus, in August 1987, Bolden was again discharged, this time for drug use in violation of SEPTA Order 85-1. 5

Once again, Local 234 filed a grievance, represented Bolden through three levels of grievance proceedings, and requested arbitration. Prior to arbitration and after enforcement of Order 87-2 was permanently enjoined in January 1988, SEPTA and the union reached a settlement of the grievance regarding Bolden's discharge. Under this settlement, Bolden was to receive full back pay for the second part of the discharge period, but he was required to comply with one of two options. He could 1) enter SEPTA's Employee Assistance Program and present evidence of successful substance abuse treatment, agree to an "aftercare program," submit to a body fluids test before returning to work, and remain subject to unannounced follow-up tests or 2) submit to a body fluids test and, if he passed, meet with a substance abuse counsellor and remain subject to unannounced follow-up testing for six months. Thus, both options required Bolden to submit to a drug test before returning to work and to remain subject to testing for a period thereafter. Bolden did not comply with either option and consequently did not resume work.

Instead, Bolden filed a complaint against SEPTA under 42 U.S.C. § 1983, alleging that SEPTA had violated his constitutional rights by subjecting him to an unreasonable search and seizure and by discharging him without a prior hearing. His complaint sought both compensatory and punitive damages. SEPTA filed an answer denying that the drug test was unconstitutional and asserting the affirmative defense of accord and satisfaction based on the settlement of the second grievance. SEPTA later filed a third-party complaint against Local 234, claiming that the union was liable for any recovery obtained by Bolden since the union had negotiated the settlement with SEPTA. Bolden, in turn, filed an amended complaint that added Local 234 as a defendant. In this amended complaint, Bolden asserted that "[i]f ... Local 234 ... had any obligation to represent plaintiff in connection with this illegal drug testing and illegal discharge, which obligation is denied by plaintiff, then Local 234 participated in a conspiracy with [SEPTA] to deprive plaintiff of his XIVth Amendment rights." According to the amended complaint, Local 234 furthered this conspiracy by failing to file a Section 1983 action on his behalf, failing to insist on arbitration within the time required by the collective bargaining agreement, and accepting an unsatisfactory settlement.

The district court denied Bolden's and SEPTA's cross-motions for summary judgment on liability, holding that there were genuine issues of material fact with regard to whether the drug test was reasonable, whether Bolden had consented to the test, and whether accord and satisfaction based on the settlement could be shown. The court did, however, dismiss Bolden's claim for punitive damages under City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). The court also granted Local 234's unopposed motion for summary judgment on SEPTA's third-party complaint.

Bolden's claims against SEPTA and Local 234 were tried before a jury for eight days in March 1990. In response to interrogatories, the jury found that SEPTA had violated Bolden's right to be free from unreasonable

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searches and seizures and found that his damages for this violation were $285,000. The jury found that SEPTA had not violated Bolden's right to procedural due process and that Local 234 had not violated Bolden's constitutional rights by conspiring with SEPTA. The district court denied SEPTA's motion for judgment notwithstanding the verdict and entered judgment in favor of Bolden for the amount of the verdict. Both SEPTA and Bolden appealed.

In the briefs filed by SEPTA before the panel argument, SEPTA contended that Bolden's drug test was reasonable because his duties posed a substantial risk of harm to himself and others and because Bolden had consented to the test. SEPTA also relied upon the settlement it reached with Local 234 after Bolden's discharge for drug use. Finally, SEPTA contended that the judgment for $285,000 was contrary to law, excessive, and unconscionable. Bolden argued that the district court erred in dismissing his claim for punitive damages.

A panel of this court issued a judgment reversing the district court and remanding for entry of judgment in favor of SEPTA. Bolden's petition for rehearing was subsequently granted, and the judgment of the panel was vacated.


Before turning to the arguments made by the parties in the briefs submitted prior to the initial panel argument, we first address an issue that was originally raised by the panel at oral argument, viz., whether SEPTA may be sued in federal court under Section 1983. The parties addressed this question in letter-briefs submitted after the panel argument and in supplemental briefs submitted after rehearing was granted. Relying on the Supreme Court's reasoning in Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, ...

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