Ford v. Dowd

• Citation: 931 F.2d 1286
• Decision Date: 28 June 1991
• Docket Number: No. 88-2782,88-2782
• Parties: , 6 Indiv.Empl.Rts.Cas. 960 Eule FORD, Appellant, v. Leatrice J. DOWD; Alvin J. Wilson; City of Pagedale, Missouri, Appellee. . Re
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1286

931 F.2d 1286

6 Indiv.Empl.Rts.Cas. 641,

6 Indiv.Empl.Rts.Cas. 960

Eule FORD, Appellant, v. Leatrice J. DOWD; Alvin J. Wilson; City of Pagedale, Missouri, Appellee.

No. 88-2782.

United States Court of Appeals,

Eighth Circuit.

Resubmitted Aug. 14, 1990.

Decided May 1, 1991.

Rehearing and Rehearing En Banc

Denied June 28, 1991.

Donna Aronoff Smith, St. Louis, Mo., for appellant.

Fran Susman, St. Louis, Mo., for appellee.

Before JOHN R. GIBSON, Circuit Judge, WOLLMAN, Circuit Judge, and BROWN, ^* Senior Circuit Judge.

JOHN R. BROWN, Senior Circuit Judge:

Ford appeals the district court's grant of summary judgment to the City and Wilson in this 42 U.S.C. Sec. 1983 suit for damages allegedly resulting from the defendants' requirement that Ford submit to a drug urinalysis test. 697 F.Supp. 1085. We find that the testing was neither routinely nor randomly applied and that the defendants did not have adequate reason to suspect Ford of drug use. Therefore, we reverse.

Malice in Pagedale

Eule Ford was a police officer with the City of Pagedale, Missouri, Police Department. Prior to this lawsuit, he had been employed there since 1981. In 1985, Ford was appointed Pagedale's Acting Chief of Police. Following that, in April 1986, Leatrice Dowd was elected Mayor of Pagedale. Alvin Wilson succeeded Ford as permanent Chief of Police in December, 1986.

Up until the time of Mayor Dowd's taking office, no disciplinary actions had ever been instituted against Ford. However, as Mayor, Dowd brought several disciplinary actions against Ford and actually fired him on several occasions. Dowd's threats to terminate Ford often corresponded to Ford's refusal to honor the Mayor's rather suspect demands. For instance, on one occasion Dowd fired Ford because he refused to violate police department regulations and supply the Mayor with a police vehicle for her personal use. Each time Dowd fired Ford the Pagedale Board of Alderpersons (the Board) overturned the Mayor's act.

In conjunction with his appointment as Acting Chief, Ford received the salary of a lieutenant. He understood that this constituted a permanent promotion to lieutenant, and that he would remain a lieutenant once a permanent Police Chief was found. However, when Chief Wilson was appointed in December 1986, Ford was returned to the position of patrolman and began to receive a salary which reflected this rank. Ford requested that Mayor Dowd schedule a meeting for him before the Board to contest this action, which he viewed as a demotion. Dowd responded with a caustic letter stating that Ford was not entitled to a hearing before the Board and could resign if he was unhappy with her actions. The Board nevertheless scheduled a hearing for Ford on January 26, 1987.

On the same day, after the hearing was postponed, Mayor Dowd issued an order directing Ford to undergo urinalysis testing. The next day, Ford was called into Chief Wilson's office where Wilson handed Ford the Mayor's written order (the Order). The Order stated that Ford's failure to comply would result in "serious disciplinary actions." Ford assumed that he would be fired if he failed to undergo the urinalysis. Dowd had related to Chief Wilson that she had heard allegations that Ford was associating with a reputed drug dealer, Robert Wood, which she took to mean that Ford was involved in "some type of illegal drug use and/or abuse," according to the Order. At his meeting with Ford, Wilson told Ford that he did not know the specifics of the allegations against the officer.

Chief Wilson told Ford to report to the office of a Pagedale physician that morning at 10:00 a.m. to give the urine sample. Wilson personally made the appointment for Ford. Ford went to the doctor's office and provided a urine sample with the doctor present in the room while the sample was being given. All test results on the sample were negative. After the Mayor was informed of the test results, she continued to insist that Ford was involved with Wood, but never provided any specific allegations or the names of any witnesses.

Dowd's January Order was placed in Ford's personnel file. ¹ Since that time Ford has left the Pagedale Police Department and has sought patrolman positions in other police departments. Despite these efforts, Ford has failed to obtain such a position. He asserts that Dowd's Order has harmed his reputation and contributes to his inability to find similar police employment in other communities.

Ford filed this suit for damages under 42 U.S.C. Sec. 1983 naming Dowd, Wilson and the City of Pagedale as defendants. Mayor Dowd died one day prior to the filing of the suit. The district court found after limited remand from this Court that Dowd never became a party to this lawsuit, as no estate was ever opened for her. Cf. F.R.Civ.P. 25(a)(1). The court also found that Dowd's successor as Mayor of Pagedale is not a party to this action in either an individual or a representative capacity, as the action was not pending when Dowd died. Cf. F.R.Civ.P. 25(d)(1).

The district court entered summary judgment in favor of the remaining defendants Wilson and the City of Pagedale on the grounds that the urinalysis order was reasonable as a matter of law. The court did not reach the appellees' alternative arguments that Ford consented to the testing and that Wilson was protected from liability by way of qualified immunity. Ford appealed.

Standard of Review

We review the grant or denial of a summary judgment de novo. Holloway v. Conger, 896 F.2d 1131, 1134 (8th Cir.1990). Under this standard, summary judgment is proper only where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law," Meyer v. Barnes, 867 F.2d 464, 466 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 86, 107 L.Ed.2d 51 (1989). We rely upon the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, in resolving this question. F.R.Civ.P. 56(c). Finally, we read all facts in the light most favorable to the non-moving party and give that party the benefit of any reasonable inferences arising from the facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987).

What We Decide

The principal issue before this Court is whether, in line with the Fourth Amendment prohibition against unreasonable searches and seizures, a police superintendent can require one of his officers to submit to drug testing based upon unsubstantiated rumor that the officer associated with drug dealers where there is no more specific allegation that the officer was known to have used drugs. We conclude that the Fourth Amendment does not permit such a search and reverse the district court's grant of summary judgment for the reasons assigned.

Acceptable Drug Testing

The Fourth Amendment guards against unreasonable searches and seizures of persons by officers of the Government or those acting at their direction. Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930, 935 (1967). ² It is settled law that drug urinalysis testing is a search within the meaning of the Fourth Amendment. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 663-66, 109 S.Ct. 1384, 1390-91, 103 L.Ed.2d 685, 701-02 (1989); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 617-18, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639, 660 (1989); McDonell v. Hunter, 809 F.2d 1302, 1307 (8th Cir.1987). It follows that any Government-imposed order for urinalysis testing must be reasonable. Von Raab, 489 U.S. at 665-66, 109 S.Ct. at 1390-91, 103 L.Ed.2d at 702; Skinner, 489 U.S. at 618-19, 109 S.Ct. at 1413-14, 103 L.Ed.2d at 661; Rushton v. Nebraska Public Power Dist., 844 F.2d 562, 566 (8th Cir.1988).

The reasonableness of drug urinalysis testing depends upon the particular circumstances in the context in which the search takes place. The Court must balance the individual's legitimate privacy expectations against the Government's need to conduct the testing in the manner it proposes. Von Raab, 489 U.S. at 665-66, 109 S.Ct. at 1390-91, 103 L.Ed.2d at 702; Rushton, 844 F.2d at 566.

The Supreme Court and this Court have upheld drug testing where either of two sets of circumstances are present. First, urinalysis can be required where the testing is carried out under a specific plan and is applied either randomly or routinely to Government employees, or private employees tested in satisfaction of Government regulations, Skinner, supra, who occupy particularly sensitive positions. E.g., Von Raab, 489 U.S. at 676-77, 109 S.Ct. at 1396-97, 103 L.Ed.2d at 709 (customs employees); Rushton, 844 F.2d at 566 (nuclear power plant workers); McDonell, 809 F.2d at 1308 (prison security guards). Second, regardless of whether any drug testing plan is in place, a Government employer may require an employee to submit to urinalysis where the employer has reasonable, articulable grounds to suspect an employee of illegal drug involvement. This second standard requires individualized suspicion, specifically directed to the person who is targeted for the urinalysis test. McDonell, 809 F.2d at 1307; Hunter v. Auger, 672 F.2d 668, 675 (8th Cir.1982).

As this Court made clear in McDonell, a Government cannot, in either of these two situations, enforce drug testing in a discriminatory manner. There we held that selection for testing pursuant to a random or routine plan must not be arbitrary, and that testing on account of a reasonable suspicion that an employee uses or abuses illegal drugs must be based on more than mere hunches or predispositions toward the employee. In the Court's language:

[U]rinalyses may be performed uniformly or by systematic random selection ... [which] must not be arbitrary or discriminatory.

Urinalysis testing ..., other than uniformly or by systematic random selection of those employees so designated, may be made only on the basis of a reasonable suspicion, based on specific...