Wilcher v. City of Wilmington
| Decision Date | 30 June 1995 |
| Docket Number | Civ. A. No. 94-137-JJF. |
| Parties | Beverly WILCHER, Sharon Smith, Michael Danylo, Cornelius Skinner, Wilmington Firefighters Assoc. Local 1590, Plaintiffs, v. CITY OF WILMINGTON, James A. Sills, James T. Wilmore, Sr., Clifton E. Armstead, S.A. Wayne Crosse, William J. Yanonis, Defendants. CITY OF WILMINGTON, Third Party Plaintiff, v. SODAT-DELAWARE, INC., Third Party Defendant. |
| Court | U.S. District Court — District of Delaware |
Teresa C. Fariss, Jan R. Jurden, and Nancy E. Whinnery, of Young Conaway Stargatt & Taylor, Wilmington, DE, for plaintiffs.
Lynn S. Seth, Asst. City Sol., Wilmington, DE, for City of Wilmington defendants/third party plaintiffs.
Bruce C. Herron, of Sawyer & Akin, Wilmington, DE, for third party defendant SODAT-Delaware, Inc.
The Court held a three day bench trial in this matter commencing on September 29, 1994, and continuing through the early part of October 1994. At the close of the trial, the parties were given the opportunity to submit post-trial briefing which was completed in December 1994. The Court has considered and weighed the evidence adduced at trial and reviewed the post-trial submissions of the parties and the case is now ready for decision. This Memorandum Opinion shall constitute the Court's Findings of Fact and Conclusions of Law as required by Federal Rule of Civil Procedure 52.
The Plaintiffs in this action are Beverly Wilcher, Sharon Smith, Michael Danylo, Cornelius Skinner, and the Wilmington Firefighters Association. The individual Plaintiffs are all firefighters employed by the Defendant City of Wilmington and are all members of Plaintiff Wilmington Firefighters Association Local 1590 ("Union"). The Defendants are the City of Wilmington ("City"), James A. Sills, the Mayor of the City, S.A. Wayne Crosse, City Personnel Director, James T. Wilmore, Sr., Chief of the Fire Department, Clifton E. Armstead, Deputy Fire Chief, City of Wilmington, and William J. Yanonis, Deputy Personnel Director. Mayor Sills and Personnel Director Crosse have been sued in their individual capacities while Chief Wilmore, Deputy Chief Armstead, and Mr. Yanonis have been sued in their individual and official capacities.
The City, as a Third Party Plaintiff, has also sued SODAT Delaware, Inc. ("SODAT")1 and SODAT has cross-claimed against the City, Mayor Sills, Chief Wilmore, Deputy Chief Armstead, Personnel Director Crosse, and Mr. Yanonis. This is a class action filed on behalf of all firefighters employed by the City of Wilmington who were subject to a random drug testing program between January and March of 1994. During the course of the trial, individual Defendants Sills, Wilmore, Armstead, Crosse and Yanonis moved for judgment as a matter of law in their individual capacities asserting the defense of qualified immunity. The Court granted Defendants' motion. SODAT also moved for judgment as a matter of law which the Court granted on Plaintiffs' § 1983 claims. In both instances, the Court announced the reasons for its decision from the Bench. Therefore, presently before the Court are Plaintiffs' federal law claims under § 1983 against the City and the Defendants in their official capacities and Plaintiffs' state law privacy claims against the City, the individual Defendants in their official capacities, and SODAT.
The City and the Union entered into collective bargaining negotiations in 1990 and at that time the City sought to include in the Collective Bargaining Agreement a provision, providing for the random drug testing of City firefighters. On July 1, 1990, the parties entered into a Collective Bargaining Agreement which included a provision for random drug testing of firefighters. Plaintiffs' Trial Exhibit No. 1, A-26. However, the Agreement was silent with regard to any specific procedure that was to be implemented for the collection of the firefighters' urine specimens. Pursuant to the Agreement, all City firefighters were subjected to the requirement that they provide randomly obtained urine specimens between the years 1990 and 1993. These urine specimens were taken at the Occupational Health Department of the Wilmington Hospital in accordance with a procedure established by the Occupational Health Department. That procedure involved the random selection of a firefighter by the City Department of Fire. The firefighter randomly selected became aware of his or her selection when a battalion chief arrived at the firestation and advised the firefighter of his or her selection. The firefighter was then transported by the battalion chief to the Occupational Health Department of the hospital. Upon arrival at the hospital, the firefighter was directed to a bathroom facility, known as a "dry room," in which the water at the sink was turned off and the water in the toilet dyed blue to prevent any dilution of the urine specimen. Throughout the process, firefighters remained in their working uniforms and were not physically searched in any manner. Trial Transcript, A-3, A-6.
On or about November 1, 1993, the City sought proposals from persons and/or entities willing to provide a random drug and alcohol testing program for City employees as well as a pre-employment testing program. It was the City's view that by consolidating its alcohol and drug testing programs it might be able to obtain some cost savings benefits. Trial Transcript, A-4. In response to its Request for Proposals, the City received three proposals. One of those proposals was submitted by SODAT and contained the procedures that SODAT would follow in conducting the random and pre-employment testing sought by the City. Plaintiff's Trial Exhibit 12, A-40. In that proposal, SODAT advised that its random drug testing program involved direct supervision of the individual submitting the sample. For reasons of cost and convenience of schedule, SODAT's proposal was accepted over the other two proposals. Trial Transcript, A-138. SODAT commenced its random drug testing program of City firefighters in January 1994.
SODAT's specimen collection procedure was similar to that employed by the Occupational Health Department of the hospital, except SODAT's procedure provided for direct supervision of the person being tested as opposed to a "dry room" procedure. SODAT's procedure required that the firefighter enter a private bathroom accompanied by a SODAT employee trained in urine collection procedures, and that the SODAT employee remain in the bathroom while the firefighter urinated into the specimen bottle. The SODAT employee who accompanied the firefighter into the bathroom was of the same sex as the firefighter.
Plaintiffs and Defendants have portrayed SODAT's specimen collection procedure quite differently. Thus, a review of the relevant testimony with regard to what actually occurred in the bathroom during the specimen collection procedure is necessary. This finding is important in relationship to the balancing test the Court must perform in reaching its legal conclusions with regard to the constitutionality of the subject collection procedure. Prior to commencing the review of this testimony, the Court in reaching its finding on this factual question notes that it has evaluated the demeanor and credibility of each witness, their relationship to the outcome of the litigation, and the availability of other testimony and exhibits that either credits or rebuts the witness' testimony.
Firefighter Danylo testified that he was surprised, extremely nervous, very embarrassed and displeased as a direct result of being directly observed as he produced his urine specimen. He felt that he was being treated like a criminal. Trial Transcript, A-215, A-217, A-219. Firefighter Danylo testified he was led into the bathroom and went to the urinal where he attempted to urinate into the specimen bottle. Accompanying Firefighter Danylo was a male SODAT employee who Firefighter Danylo testified was approximately six feet tall and weighed approximately two hundred pounds. Firefighter Danylo testified that the SODAT employee stood behind him and to his right, but close enough to Firefighter Danylo so that he could hear the employee breathing. From this position, Firefighter Danylo testified that the employee leaned over his right shoulder and observed Firefighter Danylo's genital area. Firefighter Danylo testified he was unable to produce a urine specimen after approximately five minutes of standing at the urinal. Firefighter Danylo requested a drink of water which he was given, and after a period of time he returned to the bathroom where he testified that he and the SODAT employee took up the same positions near the urinal. Firefighter Danylo testified he was still unable to produce a specimen, however, when the SODAT employee stepped back, Firefighter Danylo was able to produce a urine specimen. However, he was unable to testify as to where the SODAT employee was looking at the time he produced the specimen. Trial Transcript, A-8, A-215, A-216, A-217.
Firefighter Smith testified that she was embarrassed about being required to urinate under observation and that she did not like the procedure. Firefighter Smith also testified that she was "disgusted at the system." Trial Transcript, B-116. Firefighter Smith testified that when she entered the bathroom she was accompanied by a female SODAT employee who positioned herself to the side of Smith at approximately an arms length distance. Smith produced the specimen. Thereafter, Firefighter Smith was again taken for a random drug test approximately one month later. On this occasion, Firefighter Smith testified she had great difficulty producing a urine specimen and during the course of her effort asked if the light could be turned off while she produced the specimen. Firefighter Smith testified that the SODAT employee...
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