Wenzel v. Bankhead
| Decision Date | 14 December 2004 |
| Docket Number | No. 4:03 CV 403 RH/WCS.,4:03 CV 403 RH/WCS. |
| Parties | Roderick H. WENZEL, Plaintiff, v. William G. BANKHEAD, etc., et al., Defendants. |
| Court | U.S. District Court — Northern District of Florida |
Lisa Catherine Lambert, Richard Errol Johnson, Law Office of Richard E. Johnson, Tallahassee, FL, for Plaintiff.
Joel Steven Carter, Henry Buchanan Hudson Etc., Tallahassee, FL, for Defendants.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Roderick H. Wenzel was an employee of the Florida Department of Juvenile Justice ("DJJ"). DJJ had (and apparently still has) a random drug testing policy applicable by its terms to all DJJ employees, top to bottom. DJJ now virtually concedes the policy cannot constitutionally be applied to at least some DJJ employees.
Mr. Wenzel was a long-term strategic planner who worked in an office, did not interact with juveniles in DJJ's care, and did not access confidential information on juveniles, although he had clearance to do so. Mr. Wenzel was selected at random to submit to a drug test in accordance with the DJJ policy. Mr. Wenzel refused, citing his constitutional rights, and adhered to the refusal when given opportunities to reconsider. Mr. Wenzel was fired, solely and expressly for refusing to take the drug test. DJJ Secretary William G. Bankhead, on whose watch the drug testing policy was adopted, made the ultimate decision to fire Mr. Wenzel.
Mr. Wenzel filed this action under 42 U.S.C. § 1983 against Mr. Bankhead in his individual and official capacities. Mr. Bankhead's successor as DJJ Secretary, Anthony Schembri, has been substituted as the official capacity defendant, leaving Mr. Wenzel as a defendant only in his individual capacity. Mr. Wenzel seeks prospective relief (primarily reinstatement) and retrospective relief (back pay). The parties have filed cross-motions for summary judgment, which have been argued.
I hold that DJJ's drug testing policy is unconstitutional as applied to Mr. Wenzel. I hold further that Mr. Wenzel's claim for back pay is barred by the Eleventh Amendment () and by the doctrine of qualified immunity (as against Mr. Bankhead in his individual capacity). The case will go forward only on Mr. Wenzel's claim for prospective relief against Mr. Schembri.
DJJ began to review and revise its then-existing drug testing policy in 1999. DJJ convened a development committee which included a DJJ lawyer and DJJ operational and human resources personnel. The committee also consulted with a third-party expert, Dr. Bill Brooks, who has worked in the drug testing industry and whose company apparently conducts, or supports conducting, drug tests.1 Then-DJJ Secretary Bankhead did not have specific control over or input with the committee but knew of its existence and purpose.
The committee considered Dr. Brooks' input as well as committee members' apparently anecdotal knowledge of past drug problems and incidents involving DJJ employees with access to juvenile facilities and interaction with juvenile residents thereof. As one DJJ committee member testified:
I knew that DJJ employees had been involved with drugs and were caught bringing drugs into DJJ facilities and interacting with juveniles in our residential facilities. The members of the committee were also familiar with problems related to DJJ employees bringing drugs into residential facilities, using drugs, and interacting with the residents. Based on my experience in operations, this was a particular concern of mine and this concern was communicated to the committee members and discussed during the development of the policy. Drug access was a specific concern that was discussed and considered by the developmental committee.
Affidavit of DJJ Committee Member Haynes (document 52, ex. 10) ¶ 7.
DJJ did not provide documentation or statistics concerning drug problems with DJJ employees. Nor did DJJ provide information regarding the level or position of any employee who had exhibited such problems in the past.
DJJ also considered the access of some but not all employees to confidential information on juveniles through a computer program, the Juvenile Justice Information System ("JJIS"). The JJIS computer program
includes the names and addresses of all juveniles within the DJJ system, and also includes very specific personal data about each juvenile, including his or her particular family history, important personal relationship information, all past criminal histories (such as arrest, charges and related information), and any other important data regarding the juveniles placed in the DJJ system. This juvenile information is strictly confidential according to the Florida statutes.
Once access to the confidential juvenile information is obtained through an employee's JJIS account, the employee is then permitted to view all of the confidential information contained in JJIS....
Affidavit of DJJ Employee Kallenborn (document 52, ex. 11), ¶¶ 7-8.
Eventually, DJJ circulated its proposed drug testing policy, which included provision for random suspicionless drug testing of all employees, to the Florida Department of Management Services; to the career service employees' union, AFSCME; to Florida's Office of Drug Control; and to Secretary Bankhead. DMS and AFSCME substantially approved the new policy with the exception that AFSCME wanted its career service members to be tested by using a urine sample, while the select exempt employees would remain subject to a patch test. The policy became effective as of August 1, 2001, see Florida Department of Juvenile Justice Employment Drug Testing Program, FDJJ-4.07 ("DJJ Program") (document 52, ex. 11), but actually was implemented on April 1, 2002.
As implemented, the DJJ Program includes the following provisions relevant to the case at bar:
Definitions
. . . . .
L. Employee — Any person who works for salary, wages or other remuneration for the Department of Juvenile Justice or contractual programs.
. . . . .
T. Random Drug Test — A drug test chosen to be conducted based on a computer generated random sampling of employees. All employees shall have an equal chance of being selected each time selection is made. A minimum of five (5) % of the average number of filled positions identified shall be randomly tested on an annual basis.
. . . . .
V. Safety Sensitive Position — means a position in which a drug impairment constitutes an immediate and direct threat to public health or safety, such as a position that requires the employee to carry a firearm, perform life-threatening procedures, work with confidential information or documents pertaining to criminal investigations, or confidential juvenile information, or work with controlled substances; a position in which a drug impairment constitutes an immediate and direct threat to the employee's health or safety; a position which has access to a juvenile facility; a position in which the employee is responsible for the well-being of a minor; or a position in which a momentary lapse in attention could result in injury or death to another person.
Furthermore, the DJJ Program includes provisions for pre-employment (applicant) drug testing, reasonable suspicion drug testing for current employees, and random suspicionless drug testing for current employees. DJJ Program at 3-5. At issue in this case is the suspicionless random drug testing component. The random component lists the following possible sanctions:
Random Drug Testing Program
. . . . .
C. All employees with a first time positive confirmed drug test result shall receive a mandatory referral to the Employee Assistance Program. If the employee refuses to participate in the EAP; fails to complete a program prescribed by the EAP (as evidenced by withdrawal from the program before its completion or a report from the program indicating unsatisfactory compliance); or receives a positive test result on another random drug test, the employee may be dismissed in accordance with the department's disciplinary procedures.
DJJ Program at 5. The Florida Department of Juvenile Justice Drug Testing Program Procedures, FDJJ-4.07P (document 52, ex. 12) ("DJJ Procedures"), further elaborates on the consequences for a current employee of refusing to submit to a random drug test:
Random Drug Screening/Testing
. . . . .
G. If the employee [selected at random to be tested] has not appeared at the collection site within 24 hours or fails to return the referral form within 24 hours of collection, the employee will be considered to have refused to submit to drug testing. The employee and their supervisor shall be advised in writing by the Designated Agency Authority that the employee is subject to disciplinary action, up to and including dismissal, for failure to comply with the drug testing program, unless the employee provides sufficient justification for failure to appear, subject to approval by the Regional Director or equivalent level administrator.
Mr. Wenzel was a current DJJ employee when he was randomly selected to take a drug test on June 27, 2003. Mr. Wenzel refused. On August 8, 2003, DJJ again requested that Mr. Wenzel submit to the drug test. Mr. Wenzel again refused. DJJ administrators discussed among themselves the possible consequences for Mr. Wenzel's refusal. At that point, Secretary Bankhead apparently wanted only to ensure that Mr. Wenzel was fully advised of the policy and potential consequences, though at least some of the administrators considered the only appropriate sanction for twice refusing to take the test to be dismissal. Ultimately, DJJ officials met with Mr. Wenzel and again requested that Mr. Wenzel submit to a drug test on September 17, 2003. Mr. Wenzel again refused and was fired.
Mr. Wenzel's job was long-range...
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...an overbreadth challenge that seeks to protect First Amendment rights, even those of third parties."). Cf. Wenzel v. Bankhead , 351 F. Supp. 2d 1316, 1323 (N.D. Fla. 2004) (distinguishing overbreadth claims from Fourth Amendment claims). Thus, the panel correctly determined that Trotter has......
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...brings an overbreadth challenge that seeks to protect First Amendment rights, even those of third parties."). Cf. Wenzel v. Bankhead, 351 F.Supp.2d 1316, 1323 (N.D. Fla. 2004) (distinguishing overbreadth claims from Fourth Amendment claims). Thus, the panel correctly determined that Trotter......
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... ... protect First Amendment rights, even those of third ... parties."). Cf. Wenzel v. Bankhead , 351 ... F.Supp.2d 1316, 1323 (N.D. Fla. 2004) (distinguishing ... overbreadth claims from Fourth Amendment claims). Thus, ... ...