Tanks v. Greater Cleveland Regional Transit Authority

• Decision Date: 12 April 1991
• Docket Number: No. 90-3494,90-3494
• Citation: 930 F.2d 475
• Parties: Catherine TANKS, Plaintiff-Appellant, v. GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 475

930 F.2d 475

6 Indiv.Empl.Rts.Cas. 593

Catherine TANKS, Plaintiff-Appellant, v. GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY, Defendant-Appellee.

No. 90-3494.

United States Court of Appeals Sixth Circuit.

Argued March 21, 1991.

Decided April 12, 1991.

Alan Belkin (argued), Shapiro, Turoff, Gisser & Belkin, Cleveland, Ohio, for plaintiff-appellant.

Lee J. Hutton (argued), David A. Posner, Andrew C. Meyer, Duvin, Cahn & Barnard, Cleveland, Ohio, for defendant-appellee.

Before MILBURN and BOGGS, Circuit Judges, and GILMORE, District Judge ^*.

MILBURN, Circuit Judge.

Plaintiff-appellant Catherine Tanks appeals the district court's grant of summary judgment for defendant-appellee Greater Cleveland Regional Transit Authority (GCRTA) in this civil rights action brought under 42 U.S.C. Sec. 1983 challenging GCRTA's drug testing policy. For the reasons that follow, we affirm.

I.

The district court's opinion is reported. See Tanks v. Greater Cleveland Regional Transit Auth., 739 F.Supp. 1113 (N.D.Ohio 1990). The facts, which are not in dispute, are adopted in part from the district court's opinion.

The GCRTA provides public transportation services for approximately 240,000 people daily in Northeastern Ohio. On a typical business day, the GCRTA has over 550 buses in operation. In February 1986, the GCRTA implemented an "Alcohol and Drug Abuse Policy" ("drug policy") designed to detect employees who were using alcohol or drugs on the job, and to deter them from doing so. The drug policy was adopted in response to the widespread problem of alcohol and drug abuse in society in general, and at the GCRTA in particular.

The drug policy lists several circumstances under which employees are required to submit to toxicological testing for the presence of alcohol and drugs. One set of circumstances, applicable to bus drivers and rail operators, lists eight separate types of accidents, the occurrence of which will result in drug testing. Included among this list is the occurrence of an accident involving a fixed object. All GCRTA employees received a copy of the drug policy, and the policy was also posted at the four garages which service GCRTA buses. Under the drug policy, employees who test positive for cocaine or other hard drugs are terminated.

On September 11, 1986, Catherine Tanks was employed as a bus driver by GCRTA, and she was working a "swing run," whereby she would drive a bus during the morning peak traffic hours, go home for several hours, and return to work to drive during the late afternoon peak traffic hours. After completing her morning run, Tanks struck a stationary pole while driving her bus into a GCRTA garage. Tanks was aware of the drug policy, and she understood that hitting a fixed object was one of the circumstances which required an employee to have a drug test. Tanks reported the accident, and she agreed to accompany GCRTA Zone Supervisor, Edward Butler, to a Southgate Medical Laboratory facility for testing.

At the laboratory, Tanks provided blood, saliva and urine samples. The urine specimen was analyzed for the presence of various psychoactive substances, and initial testing revealed a positive showing of cocaine. Pursuant to established procedures, the laboratory ran a second confirming test on Tanks' urine, employing the gas chromatography/mass spectrometry (GC/MS) test, which provides a "fingerprint" of the molecular structure of the metabolites contained in the urine. The GC/MS test revealed the presence of the cocaine metabolite in Tanks' urine. Accordingly, the laboratory contacted James Clark, the Assistant Director of Bus Transportation for the GCRTA, and advised him that Tanks' urine specimen tested positive for cocaine. The following day, September 17, 1986, Tanks was terminated pursuant to the requirements of GCRTA's drug policy.

On June 30, 1988, Tanks filed the present action under 42 U.S.C. Sec. 1983 alleging that GCRTA, a governmental entity, violated her Fourth Amendment right to be free from an unreasonable search by requiring her to submit to a drug test following her accident on September 11, 1986. Tanks also asserted that her subsequent discharge was unconstitutional because it was based on the unconstitutional search.

After a period of discovery, GCRTA filed a motion for summary judgment on May 1, 1989, asserting that the material facts in the case were not in dispute and that it was entitled to judgment as a matter of law. Tanks filed a brief in opposition to the motion for summary judgment, with no supporting affidavits. On April 25, 1990, the district court granted GCRTA's motion for summary judgment, holding that GCRTA's drug policy was reasonable and did not violate Tanks' constitutional rights as a matter of law.

This timely appeal followed. The principal issue on appeal is whether the GCRTA violated Tanks' constitutional rights by requiring her to submit to a drug test after the bus she was driving collided with a stationary object.

II.

Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). This court reviews a grant of summary judgment de novo. Pinney Dock and Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). Because there is no genuine dispute as to the material facts in this case, one of the parties is entitled to a judgment as a matter of law. See Eberhard Foods, Inc. v. Handy, 868 F.2d 890, 891 (6th Cir.1989).

In granting summary judgment for GCRTA, the district court was guided by the Supreme Court's recent decisions in Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). We shall look to those decisions for guidance in analyzing the present case.

In Skinner, the Court upheld the constitutionality of Federal Railroad Administration ("FRA") regulations which mandated or authorized drug testing of train crews following certain accidents. The Court initially recognized that the collection and testing of blood and urine specimens constituted a search under the Fourth Amendment, the reasonableness of which was subject to Fourth Amendment analysis. Skinner, 109 S.Ct. at 1413. The Court stated that the reasonableness of a particular practice "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Id. at 1414.

The Court next determined that the Fourth Amendment did not require a pre-test warrant because the FRA regulations provided little discretion in determining who to test, the testing was conducted for administrative rather than criminal purposes, and the warrant requirement would add little to the certainty and regularity of the process. Id. at 1415-16. The Court then noted that a search performed without a warrant must generally be based on "probable cause to believe that the person to be searched has violated the law." Id. at 1416-17. The Court added that "[w]hen the balance of interests precludes insistence on a showing of probable cause, we have usually required 'some quantum of individualized suspicion' before concluding that a search is reasonable." Id. However, the Court emphasized that "a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable." Id.

In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.

Id. Thus, to determine the reasonableness of the drug testing in Skinner, the Court balanced the intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.

Under this analysis, the Court determined that the intrusions on privacy to collect blood, breath, and urine samples under the FRA regulations were limited. The Court noted that although the urine test raised greater privacy concerns than did the blood and breath tests, the FRA regulations reduced the intrusiveness of the collection process in that the samples were collected in a medical environment by personnel unrelated to the employer through procedures often encountered in the context of a regular physical examination. Id. at 1418.

The Court also determined that the employees covered by the FRA regulations had a diminished expectation of privacy because the railroad industry is pervasively regulated "to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees." Id. at 1418. The Court noted that railroad employees have long been a principal focus of regulatory concern because a locomotive "becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs." Id. at 1419. Thus, the Court concluded that the testing procedures under the FRA regulations posed "only limited threats to the justifiable expectations of privacy of covered employees." Id.

In contrast, the Court concluded that "the government interest in testing without a showing of individualized suspicion is compelling." Id. The Court observed that "employees who are subject to testing under the FRA regulations can cause great human loss before any signs of impairment become noticeable to supervisors or others." Id. The Court explained that the post-accident testing regulations supply an effective means of deterring employees engaged in safety-sensitive tasks from using controlled substances or alcohol in the first place By ensuring that employees in safety-sensitive positions know they will be tested upon the occurrence of a...