UNITED STATES COURT OF APPEALS
Office of the Clerk
Byron White United States Courthouse
1823 Stout Street
Denver, CO 80257
Patrick Fisher Elisabeth Shumaker
Clerk Chief Deputy Clerk
February 28, 1996
To: ALL RECIPIENTS OF THE CAPTIONED OPINION
Re: 95-2003, Rutherford v. City of Albuquerque
Filed February 23, 1996, by Judge Coffin
Please be advised of the folowing correction to the
captioned decision:
Page 1, within the paragraph for the counsel for the
defendants-appellees , the City of Albuquerque is incorrectly listed
as Aluquerque.
Page 16, third paragraph, third line, the reference to
(10th Cir. Jan. xx, 1996) should read (10th Cir. Jan 17, 1996).
Please make these corrections to your copy.
Very truly yours,
Patrick Fisher,
Clerk
By:
Barbara Schermerhorn
Deputy Clerk
PUBLISH
UNITED STATES COURT OF APPEALS
Filed 2/23/96
TENTH CIRCUIT
____________________
JERRY RUTHERFORD, )
)
Plaintiff-Appellant, )
)
v. ) No. 95-2003
)
ALBUQUERQUE, CITY OF; LOUIS E. )
SAAVEDRA, Mayor, ARTHUR BLUMENFELD, )
Chief Administrative Officer; JACK )
BURKHARD, JULIE GARCIA, MYRA )
GUTIERREZ, MARYANNE OLLER, individually )
and in their official capacities; )
ALBUQUERQUE PARKING/TRANSIT DEPARTMENT; )
CITY OF ALBUQUERQUE EMPLOYEE HEALTH )
CENTER, )
)
Defendants-Appellees. )
____________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-91-1235-JB)
____________________
Paul Livingston, Albuquerque, New Mexico, for Plaintiff-Appellant.
Victor S. Lopez, Assistant City Attorney, Albuquerque, New Mexico
(Robert M. White, City Attorney, and Judy K. Kelley, Assistant City
Attorney, on the brief), for Defendants-Appellees.
____________________
Before SEYMOUR, COFFIN, 1 and McKAY.
____________________
COFFIN, Senior Circuit Judge. Appellant Jerry Rutherford was
fired from his job with the City of Albuquerque because of a
positive drug test. His challenge to the testing on due process
and Fourth Amendment grounds was rejected by the district court,
1
The Honorable Frank M. Coffin, United States Senior Circuit
Judge for the First Circuit, sitting by designation.
-2-
which granted summary judgment for the City on both claims. We
affirm the court's ruling on the due process claim, but conclude
that the circumstances surrounding Rutherford's testing constituted
an unreasonable search in violation of the Fourth Amendment.
I. Factual Background 2
Rutherford began working for the City of Albuquerque as a bus
driver in April 1980. In April 1990, as a result of back problems
that followed a work-related accident and a subsequent heart
attack, he was placed into physical layoff status. He remained out
of work until April 1991, when a doctor determined that he was fit
to resume employment.
Rutherford was scheduled to return to work on Monday, April
15, as a truck driver in the Public Works Department. He was sent
first to the Employee Health Center for a medical examination,
including a urinalysis to test for drugs. The test revealed the
presence of marijuana metabolites, indicating recent exposure to
the drug. Rutherford admitted in his deposition that he had smoked
marijuana a week or two before the test.
The drug test had been given to Rutherford pursuant to city
policy adopted earlier in 1991. The policy, set out in
Administrative Instruction Nos. 121 and 123, provided for drug
testing in several specific situations, including testing as a
prerequisite to obtaining a city operator's permit. Such a permit
is required for the truck driving position Rutherford was to fill.
2
Unless otherwise noted, the facts are not significantly in
dispute.
-3-
The City also requires drug testing as a condition of beginning
employment. In the district court and in its appellate brief, the
City maintained that Rutherford was tested because he needed an
operator's permit; at oral argument, the City's counsel
acknowledged that Rutherford had such a permit and asserted that he
was tested as a "new hire" because of his new position. 3
The substance abuse policy required termination for any
employee in Rutherford's position who tested positive for drugs
and, following his positive result, Rutherford was fired. He
received both a pre-termination hearing and a full evidentiary
hearing following his discharge on May 3. The personnel hearing
officer upheld the firing, and the City Personnel Board unanimously
adopted the officer's recommendation.
Rutherford thereafter brought this action, claiming that he
was denied procedural due process and that the mandatory drug test
violated his Fourth Amendment right to be free from unreasonable
searches and seizures. Defendants moved for summary judgment on
both claims, and Rutherford also moved for summary judgment on the
Fourth Amendment claim. In rejecting the due process claim, the
district court noted that Rutherford was given the opportunity to
challenge the validity of his drug test at all stages of the
administrative proceedings and therefore concluded that Rutherford
was provided "all the process he was due." On the Fourth Amendment
3
The policy also requires testing based upon reasonable
suspicion and following self-referral to the Employee Assistance
Program.
-4-
claim, the court canvassed the precedent on the constitutionality
of mandatory drug testing of public employees and determined that
"the City's compelling interest in reducing the risk of drug-
related accidents among drivers of vehicles weighing over 26,000
pounds outweighs Plaintiff's privacy expectations."
In this appeal, Rutherford challenges each of those
determinations.
II. Fourth Amendment
It is well established that a urinalysis required by a
government employer for the purpose of detecting illegal drug use
is a search protected by the Fourth Amendment. See Skinner v.
Railway Labor Executives' Ass'n , 489 U.S. 602, 617-18 (1989);
National Treasury Employees Union v. Von Raab, 489 U.S. 656, 678-79
(1989); Saavedra v. City of Albuquerque, slip op. at (10th Cir.
Jan. 1996). The Fourth Amendment, however, does not proscribe
all searches; it bars only unreasonable ones.
What is reasonable, of course, "depends on all of the
circumstances surrounding the search or seizure and the
nature of the search or seizure itself." . . . Thus,
the permissibility of a particular practice "is judged by
balancing its intrusion on the individual's Fourth
Amendment interests against its promotion of legitimate
governmental interests."
Skinner, 489 U.S. at 619 (citations omitted).
In the two leading Supreme Court employee drug testing cases,
Skinner and Von Raab, the justices concluded that the testing at
issue was permissible without the usual protection of a warrant
based on probable cause, and even without "any measure of
individualized suspicion," 489 U.S. at 668. See also id. at 633.
-5-
In Skinner, the Court ruled that railroad employees' privacy
expectations, which were limited because of the industry's
pervasive regulation, were outweighed by the government's
compelling interest in ensuring the safe operation of the rails.
In Von Raab, the Court similarly found that the government's
interests in safety and the integrity of its borders outweighed the
individual privacy interests of customs officials who carry
firearms or are involved in drug interdiction. 4
The City argues that the balancing here leads to the same
result. Because Rutherford's new job required him to drive a
26,000-pound truck, whose mishandling could cause serious and
substantial injury or other harm, his position is classified as
"safety sensitive" by the City and he is required to submit to drug
testing. The City contends that the privacy interests of "safety
sensitive" employees such as Rutherford unquestionably must give
way to the City's need to assure their sobriety and, ultimately, to
ensure the safety of the general public and the employees
themselves. In agreeing with the City, the district court heavily
relied on a Ninth Circuit decision validating mandatory drug
testing of commercial truck drivers whose vehicles are comparable
in weight to Rutherford's. See International Broth. of Teamsters
v. Department of Transp., 932 F.2d 1292, 1304 (9th Cir. 1991) ("A
26,000 pound truck . . . `becomes lethal when operated negligently
4
The Court withheld judgment, however, on the reasonableness
of testing employees solely because they handled classified
material, remanding for further development of the record on that
issue. 489 U.S. at 677-78.
-6-
by persons who are under the influence of . . . drugs.'") (citation
omitted).
Rutherford responds in two ways. First, he argues that city
truck drivers such as himself are inappropriately classified as
"safety sensitive"; hence, the City may not subject him to
mandatory, suspicionless drug testing. He rejects the City's
comparison to the Ninth Circuit's Teamsters case, and asserts that
significant differences exist between the long-distance truckers at
5
issue there and city dump truck drivers like himself.
Rutherford's second response is narrower. Whatever the validity of
suspicionless drug testing for heavy truck drivers generally, he
claims that the City unfairly implemented its policy in the
particular circumstances of this case. Because we find merit in
this latter complaint, we decline to reach the broader question.
We therefore accept for the moment the City's assertion that
Rutherford's job properly was designated as safety sensitive, and
that he may be subject to mandatory drug testing even in the
absence of reasonable suspicion. The question that remains is
whether the specific procedures used here and the intrusion on
privacy they caused were reasonable. See Taylor v. O'Grady, 888
5
Although not based on record evidence, he asserts that over-
the-road truckers often work many miles from their home office and
supervisors, while city employees report each day to the same
location and seldom are far from their supervisors, rendering day-
to-day scrutiny more feasible. In addition, he notes that city
drivers frequently interact with their crews and colleagues, and
direct observation of them is therefore possible. In addition, he
points out that the trucking industry is closely regulated, and the
drivers' privacy expectations consequently are more limited.
-7-
F.2d 1189, 1195 (7th Cir. 1989) ("[W]hile urinalysis may be within
the government's prerogative in a given circumstance, the manner in
which the program is carried out may be so unnecessarily intrusive
as to render it constitutionally intolerable.")
Rutherford points to several aspects of his testing that
distance it from cases, such as Skinner and Von Raab, in which
courts have upheld drug tests. First, he notes that neither of the
provisions of the substance abuse policy invoked by the City
expressly applied to him at the time he returned to work. Because
he already had a city operator's license, the provision requiring
a test as a prerequisite to such licensing facially was
inapplicable. The policy states that a city employee who has a
license will be tested at the time of license renewal, which, in
Rutherford's case, had not yet arrived. In addition, because he
was not an applicant seeking employment with the City for the first
time, but instead was a city employee returning to work after a
medical absence, he asserts that the provision for pre-employment
testing also was inapplicable. 6 Cf. Laverpool, et al. v. New York
City Transit Auth., 835 F. Supp. 1440, 1456 (E.D.N.Y. 1993), aff'd,
41 F.3d 1501 (2d Cir. 1994) (policy provided for drug testing of
safety sensitive employees when "they return to work after an
extended absence of suspension"). He emphasizes, as well, that he
6
At argument, the City contended that it was routine practice
to test employees who were transferred to new positions. The
Administrative Instructions do not, by their terms, contemplate
such testing, and we found no support in the record for the
statement that it nevertheless was commonplace.
-8-
was not told that he would be tested until he came to work on April
15.7
Rutherford maintains, and we agree, that the circumstances
surrounding his urinalysis resulted in a substantially more
intrusive search than those upheld by the Supreme Court in Skinner
and Von Raab. In both of those cases, the Court observed that "the
circumstances justifying toxicological testing and the permissible
limits of such intrusions are defined narrowly and specifically in
the regulations that authorize them," Skinner, 489 U.S. at 622; Von
Raab, id. at 667. Thus, because "minimal discretion [was] vested
in those charged with administering the program," a search warrant
authorized by a neutral magistrate was less crucial than in other
Fourth Amendment contexts. Skinner, 489 U.S. at 622. See also Von
Raab, 489 U.S. at 667; International Broth. of Teamsters, 932 F.2d
at 1299-1300.
Here, however, the officials who decided Rutherford should be
tested did exercise significant discretion -- indeed, departing
from the literal language of the substance abuse policy. It also
is of importance that Rutherford was given no advance warning of
the testing. Not only did the substance abuse policy on its face
fail to alert him, but the city officials who called him in to work
7
The parties disagree about whether Rutherford knew that a
substance abuse policy had been put into effect in early 1991,
while he was on leave. Even if he had some general awareness,
however, it appears undisputed that he had no occasion while out of
work to receive an explanation of its applicability.
-9-
also did not tell him that the test would be administered the day
he returned. 8
This sort of unwarned testing is, we think, the most intrusive
possible, contravening all of one's reasonable expectations of
privacy. In Skinner, testing was triggered by accidents, other
safety-related incidents, and rule violations. In Von Raab,
testing was required only for employees who sought transfer or
promotion to certain positions, and the employees were notified in
advance of the scheduled sample collection. 489 U.S. at 672 n.2.
In both cases, the employees knew when testing would, or could,
occur. Even when drug screening is not linked to any event, and
truly is random, employees typically know that they are subject to
unannounced testing: "Drivers will be aware of the existence of a
random drug-testing scheme, so while the precise time of the test
will be unknown, the fact that they are subject to this search
8
In Findings of Fact and Conclusions following Rutherford's
post-termination grievance hearing, the City Personnel Hearing
Officer reported the testimony of a Personnel Testing Analyst that
she had asked Rutherford whether he wanted to take the drug test
the same morning as his physical or wait until later.
Martinez [the analyst] said that Rutherford replied,
"Might as well get it out of the way". Rutherford stated
that he remembered speaking with Martinez . . . , but she
only told him where to sign the appropriate forms.
We found no further reference to this factual dispute in the record
and, consequently, consider it of limited significance.
Presumably, if Rutherford were given the option of waiting a
meaningful period of time after his return to work, the City would
have so informed us -- in light of Rutherford's repeated assertion
that he was subjected to a surprise test, without any advance
warning. An option to delay the test a short time would not lead
us to a different result.
-10-
procedure will not be a surprise." International Broth. of
Teamsters, 932 F.2d at 1303.9 This knowledge, the Ninth Circuit
observed, means that "the amount of anxiety should not be
substantial," id. The privacy intrusion consequently is less
severe. The Supreme Court acknowledged the importance of notice in
the Fourth Amendment calculus in Von Raab, where it identified
advance notice as a factor that minimized the testing program's
intrusion on privacy. See 489 U.S. at 672 n.2.
Nor were other factors present to diminish Rutherford's
expectation of privacy. Unlike the workers in Skinner or the
jockeys and other horse race participants in Dimeo v. Griffin, 943
F.2d 679, 681 (7th Cir. 1991) (en banc), he does not serve "in an
industry that is regulated pervasively to ensure safety," Railway
Labor, 489 U.S. at 627.10 His job does not implicate the national
concerns underlying the Supreme Court's conclusion in Von Raab,
where the Court noted that Customs employees who carry firearms or
enforce drug laws -- "[u]nlike most private citizens or government
9
The plan at issue in American Federation of Gov't Emp. v.
Cavazos, 721 F. Supp. 1361 (D.D.C. 1989), aff'd in part, vacated
and remanded in part, AFGE v. Sanders, 926 F.2d 1215 (D.C. Cir.
1991), for example, provided that, in addition to the general 60-
day notice of its implementation, each employee subject to random
testing be given individual notice stating that his or her position
was selected as sensitive, or "testing designated," and that the
employee could be tested 30 days after the date of the notice.
10
In addition to safety concerns, the regulation of horse
racing stems from its status as a "magnet for gambling" and its
"shadowed[] reputation, growing out of a long history of fixing,
cheating, doping of horses, illegal gambling, and other corrupt
practices." 943 F.2d at 681.
-11-
employees in general," id. at 672 -- "reasonably should expect
effective inquiry into their fitness and probity." 11
The City's interest in ensuring safety, meanwhile, appears to
have been at a fairly low ebb with respect to Rutherford's test.
First, he was not a new employee whose work habits were unknown.
The City had had substantial experience -- a decade -- with
Rutherford, and presumably detected no signs of drug or alcohol
abuse during that period. 12 See Willner v. Thornburgh, 928 F.2d
1185, 1193 (D.C. Cir. 1991)13 Second, he was not moving to a more
safety-sensitive position; his previous job as a bus driver was at
11
The Court observed that "[t]he Customs Service is our
Nation's first line of defense against one of the greatest problems
affecting the health and welfare of our population," referring to
"`the veritable national crisis in law enforcement caused by
smuggling of illicit narcotics.'" 489 U.S. at 668 (citation
omitted).
12
We do not mean to suggest that a drug testing program may
not be applied to employees with substantial tenure. We note this
factor here only because the City seeks to justify testing
Rutherford as a "new" hire.
13
Willner involved the suspicionless testing of applicants for
Justice Department attorney positions. The court observed that
"[t]he government's interest in detecting drug use is substantial
at the pre-employment stage because . . . the applicant is an
outsider." It also noted:
The fact remains that the applicant is a person the
government, as prospective employer, has had no
opportunity to observe in the setting of the workplace.
. . . In regard to incumbents . . . , direct observation
together with the reasonable suspicion test may uncover
those employees who ought to be tested. That obviously
is not true for applicants and is another factor to be
weighed in favor of finding it "impractical" for the
Justice Department to obtain warrants or information
leading it to suspect drug use before requiring
candidates for employment to be tested.
-12-
least as safety-sensitive as the new job to which he was assigned.
There was no change in his status, therefore, requiring more
caution with him than with other employees who were subject to
testing only upon expiration of their commercial driver's licenses.
Third, the absence of notice to Rutherford that he would be tested
on the day he returned to work deprived the City of any deterrence
justification for administering the test to him.
Finally, because he had not been at work in more than a year,
even a positive test result could have revealed nothing about his
work behavior unless it showed that he presently was under the
influence of drugs. Although we do not minimize the importance of
detecting impaired employees, the fact that such tests may show
only that the employee was exposed to drugs weeks earlier means
that Rutherford's testing would be a uniquely unreliable gauge of
his on-the-job conduct. 14 While past drug exposure by regular
employees could reflect use while they were at work, such an
inference is not possible for an employee who has been on an
extended medical leave until the day of the test. 15
In sum, even conceding that the City has an important safety
interest in ensuring that its heavy truck drivers are free from
14
It is uncontroverted that the test administered to
Rutherford was incapable of determining the timing, amount, or
manner of the marijuana exposure.
15
The City admitted in its answer to the complaint and in its
Responses and Objections to Plaintiff's Requests for Admissions
that "the drug test given to Jerry Rutherford on April 15, 1991,
could not possibly have demonstrated drug use or impairment at work
or in the workplace."
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drugs, that interest in this case is considerably diluted by the
factors we have just discussed. We conclude that, when balanced
against the unusually intrusive nature of the testing as described
above and the fact that a positive test leads inexorably to
termination, this diluted interest must give way to Rutherford's
expectation of privacy. Cf. Willner, 928 F.2d at 1188 ("The
protections of the Fourth Amendment are graduated in proportation
to the privacy interests affected. Decreasing levels of
16
intrusiveness require decreasing levels of justification").
Accordingly, we hold that the City's testing of Rutherford
constituted an unreasonable search in violation of the Fourth
Amendment.
III. Due Process 17
16
We note that the relative weights of the interests in
Skinner and Von Raab do not constitute a standard that must be met
in every case. The Court noted recently that, although the
government interest in both of those cases was characterized as
"compelling,"
[i]t is a mistake . . . to think that the phrase
"compelling state interest," in the Fourth Amendment
context, describes a fixed, minimum quantum of
governmental concern, so that one can dispose of a case
by answering in isolation the question: Is there a
compelling state interest here? Rather, the phrase
describes an interest which appears important enough to
justify the particular search at hand, in light of other
factors which show the search to be relatively intrusive
upon a genuine expectation of privacy.
Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386, 2394-95 (1995)
(emphasis in original).
17
Our disposition of the Fourth Amendment issue gives
Rutherford a basis for reinstatement and damages. We nevertheless
think it appropriate to address why his due process claim does not
fair as well.
-14-
Rutherford argues that the City denied him procedural due
process in terminating him based on the positive drug test. He
claims that he was not given a meaningful opportunity to challenge
the City's decision to discharge him "[b]ecause there was nothing
[he] could do or say that would mitigate or alter the City's use of
the positive drug test to terminate his employment . . . ." He
also contends that the City unfairly put the burden of proof on him
to show the absence of just cause, arguing that the City instead
should have been required to prove beyond a reasonable doubt or
with clear and convincing evidence that there was just cause for
the firing.
We recently have rejected essentially the same claims
involving the same policy, see Saavedra v. City of Albuquerque, No.
94-2220 (10th Cir. Jan. 17, 1996), and we see no reason to reach a
different conclusion here. Rutherford's primary objection is to
the City's equating a positive drug test with just cause for
discharge. As the Supreme Court has noted, however, there can be
no doubt "that drug abuse is one of the most serious problems
confronting our society today," Von Raab, 489 U.S. at 674. In the
face of that reality, the City's decision to treat a positive drug
test as "just cause" for immediate discharge of employees deemed
safety sensitive, though harsh, is not irrational and cannot be
held offensive to the Constitution. 18
18
We note the Supreme Court's observation that "a prior
hearing facilitates the consideration of whether a permissible
course of action is also an appropriate one," Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 543 n.8 (1985). Although it was
-15-
For the foregoing reasons, the judgment of the district court
is affirmed in part and reversed in part, and the case is remanded
for further proceedings consistent with this opinion. Costs to
appellant.
to no avail, Rutherford did have the opportunity in his pre- and
post-termination hearings to urge departure from the City's "zero
tolerance" drug policy.
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