Taylor-Failor v. Cnty. of Haw.

• Decision Date: 13 March 2015
• Docket Number: Civil No. 15–00070 DKW–KSC.
• Citation: 90 F.Supp.3d 1095
• Parties: Rebekah TAYLOR–FAILOR, individually and on behalf of the Class of Prospective Hawaii County employees and the Class of Previous Applicants for Hawaii County Employment, Plaintiff, v. COUNTY OF HAWAII, a municipal corporation, Defendant.
• Court: U.S. District Court — District of Hawaii

90 F.Supp.3d 1095

Rebekah TAYLOR–FAILOR, individually and on behalf of the Class of Prospective Hawaii County employees and the Class of Previous Applicants for Hawaii County Employment, Plaintiff

v.COUNTY OF HAWAII, a municipal corporation, Defendant.

Civil No. 15–00070 DKW–KSC.

United States District Court, D. Hawai‘i.

Signed March 13, 2015.

Adam B. Wolf, Peiffer Rosca Wolf Abdullah Carr & Kane, San Francisco, CA, Lois K. Perrin, Daniel M. Gluck, ACLU Foundation of Hawaii, Honolulu, HI, for Plaintiff.

Molly A. Stebbins, Jennifer D.K. Ng, Melody Parker, Hilo, HI, for Defendant.

ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER

DERRICK K. WATSON, District Judge.

INTRODUCTION

Rebekah Taylor–Failor seeks a temporary restraining order prohibiting the County of Hawai'i from requiring her to submit to a urinalysis before she begins working for the County as a Legal Clerk II on March 16, 2015. Because the County has failed to establish the requisite special need to conduct a suspicionless search of Taylor–Failor, an applicant for what the County acknowledges is a non-safety-sensitive position, the Court preliminarily concludes that: the urinalysis would violate Taylor–Failor's Fourth Amendment rights; Taylor–Failor has demonstrated a likelihood of irreparable harm without the relief requested; the balance of equities tips in her favor; and the issuance of an injunction is in the public interest. Accordingly, Taylor–Failor's Motion for Temporary Restraining Order is GRANTED.

BACKGROUND

Taylor–Failor applied for and was offered a Legal Clerk II position with the County's Office of the Prosecuting Attorney. After accepting the position, County personnel informed her that she would need to undergo a medical examination prior to her March 16, 2015 start date. As a result, on January 30, 2015, the County sent Taylor–Failor a medical examination report to be completed by a physician and a web link to the County's Pre–Entry Medical Examination Guide. Declaration of Tammylyn Kaniho ¶¶ 5–6; Declaration of Rebekah Taylor–Failor ¶¶ 4–5 & Exs. 2–3.

Taylor–Failor did not want to provide the detailed medical information mandated by the County, but was “afraid that if [she] didn't, [she] would lose the job.” Taylor–Failor Decl. ¶ 7. Because she resided in Oregon at the time of her hiring, Taylor–Failor went to her own physician to have the medical examination conducted. On February 14, 2015, she emailed the medical examination report to Tammylyn Kaniho, Private Secretary to the Prosecuting Attorney, who also serves as the designated Human Resources representative for the Office of the Prosecuting Attorney. Taylor–Failor's report, however, did not include any lab work or urinalysis. Taylor–Failor Decl. ¶¶ 8–10; Kaniho Decl. ¶¶ 2–8. Accordingly, Kaniho set up an appointment for Taylor–Failor with County physician Walter Wang, M.D., for March 10, 2015 and instructed Taylor–Failor that she would need to provide a urine sample at that time. Taylor–Failor Decl. ¶ 10; Kaniho Decl. ¶ 10. Taylor–Failor moved from Oregon to Kailua–Kona on March 5, 2015 in order to take the Legal Clerk II position. Taylor–Failor Decl. ¶ 12. According to Taylor–Failor, the County “made it clear to me that the medical screening, and the urinalysis, [would be] required before I [could] start my job.” Taylor–Failor Decl. ¶ 11.

The urinalysis does not test for “prescription or illegal drugs, or for alcohol.” Declaration of Walter Wang ¶ 11. Instead, according to the County, the urinalysis is intended to “test for protein, sugar, red and white blood cells, specific gravity, nitrates, ketones, and bilirubin [,]” and “is medically reasonable and necessary in order ... to formulate an opinion as to an individual's overall physical health.” Wang Decl. ¶¶ 8–9. According to Dr. Wang, the “sole purpose of the test is to provide the County with an accurate assessment of the pre-employment patients' general health and ability to perform in the appropriate physical effort group.” Wang Decl. ¶ 12.

Gabriella Cabanas, a County Human Resources Manager, explains that pre-entry medical examinations are required of all County applicants after a job offer has been extended and accepted, but prior to entry into a civil service position. “The purpose of the pre-entry medical examination is to review the applicant's medical history and current health to ensure that persons seeking civil service employment meet the health and physical standards necessary to perform the essential job duties of the position, without or without reasonable accommodation, and without posing a direct threat to the health or safety of the person or others.” Cabanas Decl. ¶ 6. According to Cabanas, if Taylor–Failor “refused to complete all of the answers on the medical questionnaire and the County physician required this information, the County would likely not hire [her].” Cabanas Decl. ¶ 14. On March 9, 2015, Taylor–Failor filed the instant motion for temporary restraining order seeking to begin work without submitting to the County's urinalysis.

STANDARD OF REVIEW

The standard for issuing a temporary restraining order is identical to that for issuing a preliminary injunction. See, e.g., Hawaii v. Gannett Pac. Corp., 99 F.Supp.2d 1241, 1247 (D.Haw.1999) ; cf. Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir.2001) (observing that an analysis of a preliminary injunction is “substantially identical” to an analysis of a temporary restraining order).

“A preliminary injunction is ‘an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.’ ” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir.2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam) (citation omitted)); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citation omitted) (“A preliminary injunction is an extraordinary remedy never awarded as a matter of right.”).

A plaintiff seeking a preliminary injunction must show:

[1] that he is likely to succeed on the merits,

[2] that he is likely to suffer irreparable harm in the absence of preliminary relief,

[3] that the balance of equities tips in his favor, and

[4] that an injunction is in the public interest.

Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1289 (9th Cir.2013) (quoting Winter, 555 U.S. at 20, 129 S.Ct. 365 ). “[I]f a plaintiff can only show that there are ‘serious questions going to the merits'—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff's favor,’ and the other two Winter factors are satisfied.” Id. at 1291 (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.2011) (emphasis added by Shell Offshore )). “The elements ... must be balanced, so that a stronger showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at 1072. Regardless of which standard applies, the movant always “has the burden of proof on each element of the test.” Maloney v. Ryan, 2013 WL 3945921, at *3 (D.Ariz. July 31, 2013) ; see Nance v. Miser, 2012 WL 6674404, at *1 (D.Ariz. Dec. 20, 2012) (citing Envtl. Council of Sacramento v. Slater, 184 F.Supp.2d 1016, 1027 (E.D.Cal.2000), citing in turn, L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1203 (9th Cir.1980) ).

DISCUSSION

I. Likelihood of Success

The Court addresses Taylor–Failor's 42 U.S.C. § 1983 Fourth Amendment challenge to the County's urinalysis requirement as applied to her—i.e., an “as-applied” rather than a “facial” challenge to the County's action. See Pl's Reply at 10 n. 2; United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (A party asserting a facial challenge must show that “no set of circumstances exists under which the [policy] would be valid.”); Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir.2011) (“A paradigmatic as-applied attack, by contrast, challenges only one of the rules in a statute, a subset of the statute's applications, or the application of the statute to a specific factual circumstance.”); Legal Aid Serv. of Oregon v. Legal Services Corp., 608 F.3d 1084, 1096 (9th Cir.2010) (“Facial and as-applied challenges differ in the extent to which the invalidity of a statute need be demonstrated.” (quotation omitted)).

There is no dispute that a medical examination—including urinalysis—constitutes a “search” implicating the Fourth Amendment. Yin v. State of Cal., 95 F.3d 864, 870 (9th Cir.1996) (“In today's world, a medical examination that does not include either a blood test or urinalysis would be unusual. Nonetheless, any such medical examination would still implicate the Fourth Amendment.”); see also Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616–17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (explaining that the collection and testing of urine is a search, which “intrudes upon expectations of privacy that society has long recognized as reasonable”). Accordingly, the Court must determine whether the County's urinalysis mandate “fit[s] within the closely guarded category of constitutionally permissible suspicionless searches.” Chandler v. Miller, 520 U.S. 305, 309, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997).

In order to pass constitutional muster, the County has the burden of demonstrating a “special need” to conduct suspicionless searches of its prospective employees. See Chandler, 520 U.S. at 318, 117 S.Ct. 1295. Courts evaluate “special need” using a two-step inquiry. First, courts examine whether the search serves a “special governmental need” beyond crime detection. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665–66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Then, “[o]nly if the government is able to make a showing of substantial special needs will the court thereafter ‘undertake a...