Amalgamated Transit Union v. City of Oklahoma City

• Decision Date: 06 September 1988
• Docket Number: No. CIV-86-2182-A.,CIV-86-2182-A.
• Parties: AMALGAMATED TRANSIT UNION, LOCAL 993, an Unincorporated Association, et al., Plaintiffs, v. The CITY OF OKLAHOMA CITY, a Municipal Corporation, d/b/a The Central Oklahoma Transportation and Parking Authority, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

710 F. Supp. 1321

AMALGAMATED TRANSIT UNION, LOCAL 993, an Unincorporated Association, et al., Plaintiffs, v. The CITY OF OKLAHOMA CITY, a Municipal Corporation, d/b/a The Central Oklahoma Transportation and Parking Authority, et al., Defendants.

No. CIV-86-2182-A.

United States District Court, W.D. Oklahoma.

September 6, 1988.

David M. O'Dens, George J. McCaffrey, Lampkin, McCaffrey & Tawwater, Oklahoma City, Okl., for plaintiffs.

Diane Davis Huckins, Gerald S. Rakes, Asst. Mun. Counselor, Oklahoma City, Okl., for the City of Oklahoma City, Okl.

Patricia Sellers Dennis, Oklahoma City, Okl., for John T. Patillo, Steven C. Klika, Mark E. Glandon and Phillip E. Hanley.

ORDER

ALLEY, District Judge.

This is a civil rights action, filed pursuant to 42 U.S.C. § 1983, challenging the program of urinalysis for drug testing instituted by the defendant, the Central Oklahoma Transportation and Parking Authority (COTPA). The plaintiffs, Amalgamated Transit Union Local 993 (a union of COTPA employees) and its president, Omega Robinson, contend that COTPA's program violated their rights under the Fourth Amendment by subjecting them to an unreasonable search. The plaintiff union seeks a declaratory judgment that COTPA's program is unconstitutional and an injunction barring further testing. The plaintiff Robinson claimed damages on account of the urinalysis testing to which he submitted.

In February, 1988, trial was held on both the claims of the union and Robinson. Robinson's claim was submitted to a jury, and the claims of the union were tried to the Court. The jury returned a verdict against Robinson and in favor of the defendant COTPA, and the Court took the claims of the union under advisement. The Court now issues its findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

Findings of Fact

COTPA is a public trust whose beneficiary is the City of Oklahoma City. Among other enterprises, COTPA operates a masstransit system providing bus service in the Oklahoma City area. It employs individuals to drive, maintain, and repair buses and has an administrative and management staff.

On September 10, 1986, COTPA announced the program at issue by means of two memoranda signed by its executive director John P. Patillo and distributed to COTPA employees. The first of these described COTPA's "physical examination policy." The second set forth a more specific "alcohol and substance abuse policy."

The physical examination memorandum declared that "because of many factors, management has determined it prudent to have periodic physical examinations conducted for each employee directly involved in the operating, maintaining, and decision-making concerning the public transit service." It informed employees that such examinations would be performed in the near future and, beginning July 1, 1987, during the months of employees' respective birth dates. The memorandum asserted that such examinations were authorized by the collective bargaining agreement between the union and COTPA and that "drug/alcohol testing shall be included in the examinations." Employees were given a direct order to submit to the examination and testing and informed that refusal to submit "is insubordination and may result in disciplinary action up to and including termination." The Memorandum lists specific positions that are to be tested.¹

The second memorandum discussed the alcohol and drug testing policy in more detail. It explained the reasons for the testing as follows:

From knowledge gained from the media, newspapers, magazines, past employee experiences, et cetera, indications are that drug abuse (including alcohol) is increasing. As our organization is involved in the work that directly exposes the citizens to situations to which safety is critical, an employee abusing drugs or alcohol can be a hazard to the public, as well as other employees. As a public entity, we cannot ignore the possibility of a drug problem and its potential consequences.

The memorandum also stated that the testing "is not intended to be punitive in nature" and that reports of drug abuse would not be used for criminal prosecution.

Attached to the second memorandum was a document entitled "Central Oklahoma Transportation and Parking Authority Alcohol and Drug Abuse Policy." That document set forth eight instances in which COTPA employees would be required to submit to alcohol and/or drug testing:

1. At the time of the pre-employment physical examination.

2. At the time of any work related physical examination.

3. When two supervisors concur that the employee appears to be acting in an intoxicated or impaired manner.

4. When an employee is involved in a vehicle accident involving:

a. A pedestrian

b. A fixed object

c. Two or more COTPA vehicles

d. A COTPA vehicle striking the rear of another vehicle

e. A head-on collision

f. A COTPA vehicle striking another vehicle broadside

g. Substantial physical damage (combined physical damages in excess of $1,000.00)

h. Personal injury

5. When an employee is involved in an industrial accident which, in the sole discretion of management, it appears carelessness, poor judgment, or lack of alert mental facilities may have contributed to the accident.

6. When an employee is in flagrant violation of standard operating or safety procedures.

7. As a condition of discipline due to a previous alcohol or drug related offense.

8. When an employee returns from any unscheduled absence from work whereby two or more consecutive days of absence occurred, the employee may be required to submit to a test.

The memorandum also explained the consequences of a positive test for alcohol or drugs. For alcohol, a positive test of an employee on probation would result in immediate discharge. The consequences for a nonprobationary employee depended upon the amount of alcohol detected, and ranged from a three month suspension without pay up to immediate discharge. When an employee tested positive for drugs, the announced consequence was immediate discharge, without regard to probationary or nonprobationary status or to the level detected.

COTPA's policy offered employees the opportunity to enroll in a rehabilitation program referred to as the "Employee Assistance Program." Employees with drug and alcohol abuse problems who voluntarily enrolled in the program were not subject to the normal disciplinary consequences. Instead, they were referred to outside agencies for evaluation and counseling and were placed on probationary status. Restoration to full employment status was within the discretion of COTPA management. Employees in this program were required to submit to drug/alcohol as well as psychological testing at the discretion of management in order to determine their fitness for duty. The policy provided that testing might be required up to one year after the employee completed the recommended course of treatment.

According to COTPA's executive director, John T. Patillo, the impetus for drug urinalysis testing was a series of reports received by COTPA management that its employees were selling and using illegal drugs on the job. These reports began in February 1984, when Patillo was informed that about ten employees were selling and using such drugs. COTPA took no direct action against them but did initiate a policy of requiring job applicants to submit to testing during a pre-employment physical. In October 1984 and in early 1985, Patillo received similar reports, and, in response to this information, announced that COTPA would begin a program of random drug urinalysis testing. This proposal was withdrawn in December 1985 after Patillo discovered that the constitutionality of a random program had not yet been resolved. COTPA management decided to adopt the program here at issue after attending an industry conference on drug abuse in July, 1986. They patterned their program after the regulations of the United States Department of Transportation.

Beginning September 22, 1986, some 160 employees in the affected positions underwent the required physical examinations and testing. Employees were required to sign consent forms stating that they agreed to both the examination and the testing and authorizing the release to COTPA of medical information discovered during the examinations. The consent forms stated that refusal to consent to either the examination, the urinalysis testing, or the disclosure of information to COTPA would be considered grounds for termination.

The Industrial Health Management Service (IHMS) located at Presbyterian Hospital in Oklahoma City conducted the physical examinations. Thorough medical, occupational, social, and family histories were obtained. Examinations included a complete review of the eyes, the ears, nose and throat, and the cardiovascular, respiratory, musculo-skeletal, genital-urinary, and central nervous systems. In addition to the drug urinalysis testing, urine was occasionally analyzed for diabetes if other signs of that disease were discerned. If evidence of any disease or risk factors associated with disease were discovered, the employee in question was informed of the discovery and referred to his or her private physician.

During the course of the physical examinations, urine samples were obtained as follows. The employees were given plastic cups and shown to a bathroom in the hospital. They were told to urinate into the cup and return to the examination room. Ordinarily, employees were not witnessed during the act of urination, but in instances in which it was suspected that a particular employee might offer a fraudulent sample, a physician's assistant would accompany an employee into the bathroom where the sample would be collected. Only one instance of the latter procedure was presented in evidence. When the employees returned to the examining room, IMHS personnel transferred the sample to a plastic vial. The vials were then labeled and IHMS personnel filled out...