O'Keefe v. Passaic Valley Water Com'n
| Decision Date | 27 May 1993 |
| Citation | 624 A.2d 578,132 N.J. 234 |
| Parties | , 8 IER Cases 907 William M. O'KEEFE, Plaintiff-Respondent and Cross-Appellant, v. PASSAIC VALLEY WATER COMMISSION, Defendant-Appellant and Cross-Respondent. |
| Court | New Jersey Supreme Court |
Harold Goldman, Clifton, for defendant-appellant and cross-respondent.
Paul Schachter, Newark, for plaintiff-respondent and cross-appellant (Reinhardt & Schachter, attorneys on behalf of the American Civ. Liberties Union of New Jersey; Mr. Schachter and Denise Reinhardt, on the briefs).
Robert A. Shire, Deputy Atty. Gen., for amicus curiae, Atty. Gen. (Robert J. Del Tufo, Atty. Gen., attorney; Joseph L. Yannotti, Asst. Atty. Gen., of counsel).
The opinion of the Court was delivered by
This appeal presents a challenge by respondent, William M. O'Keefe, to the drug-testing program of appellant, Passaic Valley Water Commission (PVWC). PVWC has a written policy that all applicants for employment must submit to a drug test and that it may refuse to hire any applicant who tests positive. O'Keefe asserts that PVWC refused to hire him as a water-meter reader because he would not take the test. He contends that the program is unconstitutional under both the Fourth Amendment of the United States Constitution and article one, paragraph seven of the New Jersey Constitution.
The Chancery Division held that PVWC refused to hire O'Keefe for reasons independent of his unwillingness to take the test. The trial court also concluded that the drug-testing program violated both the State and federal constitutions.
Finding that "the question of constitutionality need not have been reached at all," 253 N.J.Super. 569, 575, 602 A.2d 760 (1992), the Appellate Division affirmed both holdings. One judge dissented, rejecting the Chancery Division's finding that PVWC's refusal to hire had been based on grounds independent of O'Keefe's failure to submit to the drug test. Id. at 595, 602 A.2d 760. He also concluded that the drug-testing program did not violate either the State or the federal constitution, a conclusion that rendered moot PVWC's reasons for not hiring O'Keefe.
PVWC appealed as of right from the holding that its drug-testing program was unconstitutional. O'Keefe cross-appealed from the holding that PVWC had refused to hire him for reasons unrelated to his refusal to take the drug test. We hold that adequate evidence supports the finding that PVWC had refused to hire O'Keefe for reasons unrelated to his refusal to take the drug test. That holding renders moot the issue of the constitutionality of the drug-testing program.
-I-
Before the events that gave rise to this action, O'Keefe had unsuccessfully applied for employment with PVWC as a meter reader. When considering his earlier application, John Galletta, PVWC's personnel director, had interviewed O'Keefe. Thereafter, in May 1987, PVWC adopted a policy requiring all applicants to submit to a drug test. The stated purpose of the policy was to decrease employee absenteeism and the health costs associated with illegal drug use, and to identify "stabl[e]" candidates.
Shortly after PVWC instituted the program, a meter-reader position became available. PVWC called O'Keefe for an interview. Galletta, joined by the foreman of PVWC's water-meter-reader department, once again interviewed O'Keefe. Several days later, PVWC asked O'Keefe to fill out various forms, including an IRS W-4 form, insurance forms, and an agreement to purchase safety shoes. O'Keefe also signed a drug-test consent form explaining PVWC's policy. The form read:
It is the policy of the Passaic Valley Water Commission to have all new employees submit to a drug test as part of their application for employment with the Commission.
I understand that as part of my pre-employment application with Passaic Valley Water Commission I will have to undergo a drug test at no cost or obligation to me by a doctor employed by the Commission.
I hereby agree that the taking of this drug test is voluntary on my part and that the results will remain confidential between the doctor, the Commission and myself.
I further understand and agree that should the results of said test prove positive, my application for employment with the Commission may be rejected.
Notwithstanding the above, I hereby agree to submit to said drug test voluntarily and of my own free will.
Without extending a job offer to O'Keefe, PVWC arranged for him to take a physical examination and drug test at the Niccollai Medical Center.
At the center, a nurse gave O'Keefe two small cups for urine samples, one for the routine physical examination and the other for the drug test. O'Keefe was to provide the samples without monitoring in a private bathroom. He provided the sample for the physical examination, but refused to provide one for the drug test. In response to an inquiry from a doctor, O'Keefe stated that he was taking medication because he was recovering from hepatitis and that he feared the medication would produce false positive results. The doctor assured O'Keefe that he could eliminate any such results if he knew the names of the medications. O'Keefe, who was taking tranquilizers, not medication for hepatitis, stated that he could not recall the medications.
On learning that O'Keefe had refused to provide a urine sample for the drug test, Galletta nevertheless asked the medical center to proceed with the physical examination. After the examination, O'Keefe called PVWC. In accordance with its standard practice when not offering employment to an applicant, PVWC failed to return his calls.
PVWC ultimately hired an applicant who had made a "better impression" on Galletta, despite scoring two points lower than O'Keefe on the Civil Service examination. During both interviews, according to Galletta, O'Keefe was "flippant," seemed like a "wise-guy," and had not truthfully answered all questions. In fact, Galletta stated that on the second interview he was just "going through the motions" to comply with Civil Service regulations.
O'Keefe sued, alleging that PVWC had not hired him because he had refused to submit a urine specimen for drug testing. In separate counts, O'Keefe asserted that the drug test (1) was unconstitutional because it violated his freedom from illegal searches and seizures under the Fourth Amendment to the United States Constitution and article one, paragraph seven of the New Jersey Constitution; (2) violated his right to privacy under article one, paragraph one of the State Constitution; (3) was contrary to public policy of New Jersey; (4) violated the due-process guarantees of article one, paragraph one of the State Constitution, the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. § 1983; and (5) was contrary to the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42. He sought an injunction directing PVWC to hire him as a meter reader and preventing it from requiring any applicant or employee to submit to drug testing without a warrant or probable cause to believe that the applicant or employee was using unlawful drugs. In its answer, PVWC denied that O'Keefe "was not employed by it because of his refusal to take the drug test."
Before trial, the Chancery Division dismissed the fifth count of the complaint, which alleged a violation of the New Jersey Law Against Discrimination. After trial, the court rendered an opinion that declared unconstitutional PVWC's drug-testing policy but sustained its refusal to hire O'Keefe for independent reasons. In reviewing that opinion, the Appellate Division stated that the Chancery Division's conclusion that PVWC had refused to offer employment to O'Keefe was
entitled to our deference since it is supported by adequate credible evidence. The linchpin of the trial judge's determination was the prior rejection of plaintiff's application for the civil service position of water meter reader by its Personnel Director, John Galletta, in the summer of 1986. That was before the Commission's adoption of its pre-employment drug-testing policy.
[253 N.J.Super. at 572, 602 A.2d 760
(citation omitted).]
After reviewing the evidence, the Appellate Division concluded that
the trial judge found that Galletta declined to offer employment to plaintiff because of his justifiable belief that plaintiff "was not truthful," was a "wise guy," and had a "disrupting behavior pattern." It is true that the trial judge did note that plaintiff's refusal to take the drug test did play some part in the non-hiring decision. But as the judge explained, the non-hiring decision was not based on the refusal itself. Rather the circumstances of the refusal, including plaintiff's uncommunicated change of mind after signing the waiver and his equivocation respecting his reasons for refusing to take the exam, merely reinforced Galletta's negative impressions respecting plaintiff's attitude and trustworthiness. The judge concluded, moreover, that those impressions, which he found to be reasonable and credible, constituted a valid and independent reason for the non-hiring. We are satisfied, particularly in view of the judge's expressed appraisal of the relative testimonial credibility of plaintiff and Galletta, that these findings and conclusions are adequately supported by the record and, consequently, require our deference.
(footnote omitted).]
Although not expressly noted by the Appellate Division, any ambiguity in the trial court's findings was put to rest by paragraph three of the judgment, which stated: "Plaintiff would not have been hired by defendant independent of his refusal to submit to the pre-employment drug test, and therefore he is not entitled to damages based upon defendant's failure to hire him as a water meter reader."
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We agree with the Appellate Division that the record supports the Chancery Division's finding that PVWC's refusal to hire O'Keefe was for reasons...
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