Krieg v. Seybold
| Decision Date | 21 March 2007 |
| Docket Number | No. 06-2322.,06-2322. |
| Citation | 481 F.3d 512 |
| Parties | Robert A. KRIEG and Local No. 3063 American Federation of State, County, and Municipal Employees, Plaintiffs-Appellants, v. Wayne SEYBOLD, Jack Antrobus, and City of Marion, Indiana, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William R. Groth (argued), Fillenwarth, Dennerline, Groth & Towe, Indianapolis, IN, for Plaintiffs-Appellants.
Robert T. Keen, Jr., Diana C. Bauer (argued), Carson Boxberger, Fort Wayne, IN, for Defendants-Appellees.
Before FLAUM, KANNE, and EVANS, Circuit Judges.
On October 28, 2004, Jack Antrobus, the Superintendent of Marion, Indiana's Streets and Public Works Department administered a random drug test to all employees in the Streets and Sanitation Department. Robert Krieg, a Streets and Sanitation Department employee, refused to be tested, and Antrobus ordered him to leave the building. On November 15, 2004, the City's Board of Public Works voted to terminate Krieg's employment. Krieg filed suit arguing that the drug test violated his Fourth Amendment rights and that the City terminated him without due process. The district court granted summary judgment to the City, and Krieg appeals. For the following reasons, we affirm the district court's judgment.
The City of Marion, Indiana hired Robert Krieg as a driver/laborer in its Streets and Sanitation Department in 1985. During his employment, Krieg was a member of American Federation of State, County and Municipal Employees Local No. 3063 ("the Union").
Prior to 2001, the Streets and Sanitation Department gave its employees prior notice of any drug testing. However, on October 28, 2002, the Union and the City entered into a Collective Bargaining Agreement ("CBA") for 2003-2004, that provided as follows:
All Streets and Sanitation workers shall comply with the City's Drug and Alcohol Policy. Drug/Alcohol Testing may be conducted on Streets and Sanitation workers post-accident, upon reasonable suspicion or randomly as per the current City policy. A minimum of 50% of the employees shall be tested at least once a year.
The City's Personnel Policies Handbook then in effect provided that the department heads could drug test all "safety-sensitive" employees, defined as "all positions which require an employee to operate a commercial motor vehicle and/or hold a commercial driver's license."
The CBA required all newly-hired employees in the Streets and Sanitation Department to obtain a valid Commercial Drivers License ("CDL") within six months of being hired. However, employees who were hired prior to September 10, 2000 were exempt from this requirement under a grandfather clause in the agreement.1 Krieg opted not to obtain a CDL, which prevented him from operating several larger pieces of heavy equipment used by other Streets and Sanitation Department employees. Nevertheless, Krieg still operated a one-ton dump truck, a dump truck with a plow, a front end loader, and a backhoe as part of his regular job duties. He also regularly patched holes in city streets, sealed cracks, plowed snow, loaded salt or sand into City vehicles, and directed traffic. Krieg was never involved in any accidents during his employment.
In December 2002, Krieg submitted to an unannounced drug test that came back positive for marijuana. The Department suspended Krieg for thirty days and required him to undergo drug counseling. Krieg filed a grievance through the Union, arguing that as a non-CDL holder, the City should not have subjected him to urinalysis without probable cause. The City eventually reinstated Krieg after conceding that his testing was improper.
On June 7, 2004, after Wayne Seybold took over as the City's new Mayor, the City unilaterally adopted a new Personnel Policy and Procedures Manual, which provided for random, unannounced drug testing for "[e]mployees in safety-sensitive positions." The manual stated that "a safety sensitive function is any duty related to the safe operation of City equipment during any period in which the City employee is actually performing, ready to perform, or immediately available to perform any safety sensitive functions." The Manual also provided that any employee "who refuses to comply with a request for testing shall be removed from duty and their employment terminated." The Union filed a grievance and complained that the City did not negotiate with it in implementing the new personnel manual. The Union employees signed documents to indicate that they received the handbook, but specifically withheld their signatures from any language stating that by receiving the handbook they agreed to its terms.
On October 28, 2004, Antrobus informed the Streets and Sanitation Department employees, with the exception of Antrobus's personal secretary, that they would be subjected to a drug test administered that day. Krieg refused to take the drug test. Antrobus warned Krieg that he could be fired for refusing to submit to the urinalysis, but Krieg again refused. Antrobus told Krieg to leave the building because he was no longer employed. Krieg went to a telephone in the building and called his attorney. Antrobus again ordered Krieg to leave the building and threatened to call the police. Antrobus called the police, and Krieg waited for them outside of the building by his car. While they were waiting for the police, Krieg asked Antrobus if he was fired. Krieg testified that Antrobus said yes. Antrobus testified that he said, When the police arrived, they told Krieg to leave the premises, and he left.
The following day, Steve Johnson, the Union steward, filed an official grievance on Krieg's behalf, alleging "disparaging treatment of Robert Krieg and any and all applicable violations of the contract" and requesting reinstatement. Antrobus rejected the request for reinstatement. On November 1, 2004, Darren Reese, the City's Human Resources Director, sent Krieg a letter stating that because Krieg refused to submit to the mandatory drug screen, Reese intended to recommend Krieg's termination to the Board of Public Works ("the Board") at its November 15 meeting.
On November 15, 2004, the Board held its regularly scheduled meeting, which Antrobus and Johnson both attended. At his attorney's advice, Krieg did not attend the meeting. He concedes, however, that he had an opportunity to attend the meeting, present evidence, and have an attorney or a union representative represent him. After hearing statements about the incident, the Board voted to terminate Krieg's employment.
On November 17, 2004, Krieg and the Union filed a complaint in district court under 42 U.S.C. § 1983, alleging violations of the Fourth and Fourteenth Amendments. On December 1, 2005, both parties filed motions for summary judgment. On April 3, 2006, the district court denied Krieg's motion and granted summary judgment in favor of the City. Krieg and the Union now appeal.
First, Krieg claims that the City's drug testing policy as applied to non-CDL employees violates the Fourth Amendment. Second, Krieg alleges that he was terminated in violation of his due process rights. This Court reviews de novo the district court's grant of summary judgment to the City. Employers Mut. Cas. Co. v. Skoutaris, 453 F.3d 915, 923 (7th Cir.2006). Summary judgment is proper if the "pleadings, depositions, answer to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Because this case involves cross-motions for summary judgment, the Court must construe all inferences in favor of the party against whom the motion was granted. Employers Mut. Cas. Co., 453 F.3d at 923. Accordingly, we review the record in the light most favorable to Krieg, drawing all reasonable inferences from those facts in his favor, and reversing if we find a genuine issue concerning any fact that might affect the outcome of the case. Id.
As a preliminary matter, the City contends that Krieg cannot challenge the constitutionality of the drug testing policy because the Union consented to drug testing in the 2003-2004 CBA. The CBA permitted drug testing under "the current policy," which allowed the City to test all "safety sensitive" employees. The policy stated, "In accordance with [Department of Transportation]/[Federal Highway Administration] regulations, included in this classification of safety-sensitive positions are all positions which require an employee to operate a commercial motor vehicle and/or hold a commercial driver's license." Krieg maintains that because he did not possess a CDL and he did not drive "commercial motor vehicles" as defined by federal law, he did not consent to drug testing under the 2003-2004 CBA.
The Federal Omnibus Transportation Employee Testing Act of 1991 defines a "commercial motor vehicle" as a vehicle that:
A) has a gross vehicle weight rating or gross vehicle weight of at least 26,001 pounds, whichever is greater, or a lesser gross vehicle weight rating or gross vehicle weight the Secretary of Transportation prescribes by regulations, but not less than a gross vehicle weight rating of 10,001 pounds;
B) is designed to transport at least 16 passengers including the driver; or
C) is used to transport material found by the Secretary to be hazardous . . . .
49 U.S.C. § 31301(4). The City acknowledges that Krieg did not operate "commercial motor vehicles" as defined above, but contends that the term as used in its drug testing policy was not restricted to the federal definition. The City maintains that "commercial motor vehicle" should be interpreted broadly to encompass the types of vehicles that Krieg regularly operated. We disagree.
Although the CBA...
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