The opinion of the court was delivered by: OBERDORFER
Plaintiff sues the District of Columbia and those responsible for the School System's employee drug-use surveillance program,
challenging their decision to discharge her for alleged violation of a directive that required that school personnel refrain from using, possessing or being under the influence of marijuana while on school premises. Plaintiff claims that defendants' actions with respect to her discharge were arbitrary and capricious, violated her rights under the 4th and 5th Amendments and her right to privacy, and constituted violations of applicable Board of Education rules and Superintendent's Directives. She also claims that defendants failed to satisfy the requirements of the District of Columbia Administrative Procedures Act and were negligent in terminating her employment. Plaintiff seeks both injunctive relief and damages under 42 U.S.C. § 1983.
In 1977, the Superintendent of the District of Columbia Schools issued Directive 662.13 which states in pertinent part:
It is strictly prohibited for school personnel . . . to possess, use or be under the influence [footnote omitted] of . . . narcotics, [footnote omitted] or other drugs such as LSD, marijuana and the like, while on school premises. Personnel found violating this directive will be subject to suspension and/or termination.
The Directive defined "under the influence" as
any abnormal mental or physical condition resulting from indulging in any degree in intoxicating liquors, narcotic drugs or other drugs which tend to deprive one of the clearness of thought and control of himself which he would otherwise possess.
In the summer of 1984 the District of Columbia School System initiated a program of urinalysis testing for the detection of illegal drugs, and the System's Transportation Division implemented the program by requiring over 200 Transportation Division employees to take physical examinations which included urinalysis testing for drugs. Interrogatory Answer 18. The Division initiated the program because of, inter alia, a significant increase in traffic accidents and absenteeism, and the discovery of syringes and bloody needles in restrooms frequented by Transportation Division employees. Interrogatory Answer 6.
Before the program began, William C. French, Transportation Officer, had written to his superior, William J. Bedford, that "[a] major problem in this branch is the high percentage of employees that are actually using narcotics while on duty or reporting to work after using narcotics and having their performance of duty affected accordingly." Letter from William C. French to William J. Bedford at 1 (May 17, 1984). French cited examples. Id. at 1-2. He described the difficulty encountered in attempting to use conventional law enforcement techniques to detect and discipline drug users. He emphasized that:
The responsibility inherited [sic] in the mission of this branch in transporting handicapped students and other students in a safe manner is immeasurable . . . . Immediate action must be taken to drastically reduce or eliminate the narcotic problem.
French recommended adaption of the system used by the Washington Metropolitan Area Transit Authority for "drug or alcohol using employees as well as the screening of new applicants." Whereas WMATA limited physical examinations, including drug screening to employees suspected of using drugs and to new applicants, French recommended that the Division be authorized to require all of its employees to take a physical examination which included drug screening.
On May 24, 1984, French's supervisor, Bedford, forwarded the recommendation to the Associate Superintendent with the affirmation that he was aware of each of the incidents recited by French and could "attest to the fact that some drastic measure must be initiated as quickly as possible . . . prior to the opening of school in September." Letter from William J. Bedford to Dr. James Brown (May 24, 1984).
On June 12, 1984, the Superintendent issued Directive 205.1. It required the "urinalysis testing of all employees who are or will be required to undergo medical examinations to determine physical fitness for licensing and other employment-related reasons." The Directive concluded:
To test urine samples obtained from Transportation Division employees, defendants used the EMIT Cannabinoid Urine Assay manufactured by Syva Company. The EMIT test detects the presence of metabolites of the psychoactive chemical THC which produces the intoxicating effect associated primarily with marijuana and hashish. Solely Affidavit at 3, Exhibits 9 and 10. The EMIT test does not indicate when the ingredient was absorbed as THC metabolites may be retained in an individual's system for days or weeks. In addition, the test does not indicate with respect to marijuana whether the ingredient was ingested by active use or as a result of passive inhalation in the presence of others who were smoking marijuana. The manufacturer's label, inserted in each package, bears this legend:
Any positive should be confirmed by an alternative method. Other methods in use for the detection of [delta 9]-THC metabolites include radioimmunoassy (16-18) and gas chromatography-mass spectrometry (19-22).
Soley Affidavit (Sept. 17, 1985), Exhibit 4.
Plaintiff was originally hired in February, 1981, as a "when actually employed" employee (WAE). She served as a school bus attendant and was rehired for the 1981-1982, 1982-1983, and 1983-1984 terms. Her duties were to assist students as they got on and off the buses, particularly handicapped students who require someone to lift them on and off of a bus and to observe and assist them en route to and from school. Except for a hiatus in 1981 when she was terminated in June and reappointed in August, plaintiff worked from 30 to 35 hours each week during the school years and the summers, until August 31, 1984.
In August, 1984, plaintiff submitted to a urinalysis testing for drugs as part of the Transportation Department's testing program. The first test, effected by computer, gave a positive indication that THC metabolites were present in plaintiff's urine. The test was then repeated manually. It was not otherwise confirmed. Plaintiff, upon being informed of the positive test result, immediately voluntarily underwent two additional urinalysis tests, which came back negative for the presence of THC metabolites in her urine.
The Department does not dispute that before requiring plaintiff to take the test, the Department had no particularized suspicion that she had ever used or was under the influence of drugs, either on or off the premises. In fact, defendants failed, in their opposition to plaintiff's motion for partial summary judgment, to traverse plaintiff's representation in her formal statement of material facts that she had never used drugs or marijuana during her period of employment with the District of Columbia.
On August 16, 1984, plaintiff's supervisor notified her that she would be discharged on August 31 because the National Health Laboratories reported that a urine specimen taken in the annual physical examination required of plaintiff and all other transportation employees "indicated positive use of drugs" in violation of the Superintendent's Directive 662.13. The drug she was accused of using was marijuana. Interrogatory Answer 30. The defendants concluded that the positive test indicated that plaintiff "had used and was under the influence of marijuana in violation of Directive 662.13." Interrogatory Answer 33. She was thereupon terminated without a hearing. Twenty-seven other Transportation Division employees ...