A June 8, 1983 report by the Food and Drug Administration to several government agencies reviewing the EMIT test stated that "it is important to remind users of this screening test that any positive result (as stated in the package insert) should be confirmed by an alternative method." Plaintiff's Statement of Material Facts No. 51.
A February 18, 1983 letter published by three toxicologists in the Journal of the American Medical Association states that "adequate alternative confirmatory tests must be used" in urine tests for marijuana use. Id. No. 50.
A scientific advisory written by the United States Center for Disease Control and published by the Public Health Service of the Department of Health and Human Services on September 16, 1983, stated that "all urine samples positive by the cannabinoid assay need to be confirmed by an alternate method that is as sensitive as the screening test." Id., No. 49.
A scientific study of the EMIT test by the United States Air Force School of Aerospace Medicine requires that all positive results be confirmed by gas liquid chromatography before being reported to local commanders or released to the Air Force. Id., No. 48.
Additional corroboration of the need for confirmation appears in the numerous decisions by state and federal courts around the country, including the opinion of an arbitrator in the District of Columbia, that a single, unconfirmed positive EMIT test is not a rational basis for disciplining the subject of the test. In the Matter of Arbitration between American Federation of State, County and Municipal Employees, District Council 20, Local 2093, AFL-CIO and the Board of Education of the District of Columbia, AAA Case No. 1639 0030 85H (Dec. 3, 1985); see also Anable. v. Ford, 653 F. Supp. 22 (W.D. Ark. 1985); Higgs v. Wilson, No. 83-0256P(J), slip op. (N.D. Ky. Feb. 22, 1985); Johnson v. Walton, No. S61-84R, slip op. (Vt. Super. Ct. Feb. 14, 1984). Moreover, numerous court decisions have further established as a matter of court usage that confirmation is not effected by a manual rerun of an automated EMIT test. See, e.g., Crowell v. Wilkinson, No. 82-1283, slip op. (M.D. Pa. Oct. 12, 1983). Compare Peranzo v. Coughlin, 608 F. Supp. 1504, 1507, 1514 and n.16 (S.D. N.Y. 1985).
The consequence of defendants' failure to confirm the positive EMIT test is not cured by their argument that even if the test failed to show actual use or effect on school premises, "it did show that plaintiff was using an illegal substance which is certainly detrimental to the school system." Defendants' Opposition to Plaintiff's Motion for Partial Summary Judgment at 4.
The School System's rules clearly prohibit detrimental conduct on or off school premises that may affect one's work performance. Even if the off duty use of drugs by Board of Education employees was proscribed with sufficient clarity to authorize termination of a user for conduct detrimental to the Board, that is not the authority invoked by defendants when they terminated plaintiff. Nor is an unconfirmed EMIT test any better proof of such conduct than it is of use or acting under the influence on school premises. But see note 2 supra.
On the basis of the undisputed facts and these persuasive authorities, plaintiff is entitled to a summary judgment that her termination on the basis of a single unconfirmed EMIT test was arbitrary and capricious. Her termination thus violated the requirements of the Board of Education and the Superintendent that precluded arbitrary and capricious termination. Since the arbitrary and capricious termination on the basis of an unconfirmed EMIT test so clearly violated District of Columbia law, it is unnecessary and inappropriate to address the question of whether plaintiff's termination violated substantive due process protections incorporated in the United States Constitution. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring); Siler v. Louisville & Nashville RR Co., 213 U.S. 175, 193, 53 L. Ed. 753, 29 S. Ct. 451 (1909).
The conclusion that termination of plaintiff's employment on the basis of an unconfirmed EMIT test was arbitrary and capricious means, at least, that before defendants can terminate plaintiff again on grounds of drug abuse, they must confirm a positive EMIT test result by an alternative process such as the two suggested by the manufacturer. An accompanying order will impose that requirement.
The question remains whether additional procedural due process was required beyond the opportunity afforded plaintiff and her counsel to make a written submission in the form of an appeal after she was terminated. The Supreme Court has recently reiterated that a deprivation of property by terminating employment must be "preceded by notice and opportunity for hearing appropriate to the nature of the case." Loudermill, supra, 105 S. Ct. at 1493, quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 94 L. Ed. 865, 70 S. Ct. 652 (1950). In this case plaintiff had no hearing before she was terminated and her post-discharge hearing was limited to a written submission, albeit in this case a comprehensive one prepared for her by first-class lawyers. It is enough to establish her procedural due process claim that plaintiff was afforded no hearing before she was discharged. This deprivation violated her constitutional right to procedural due process and affords a second ground for a decision in her favor.
It is neither necessary nor appropriate for the Court to prescribe the form of pre-termination hearing which would pass muster as appropriate to the circumstances. Suffice it to say that the literature furnished by plaintiff, primarily from defendants' files, suggests at a minimum that before plaintiff can be discharged on account of a urine test positive for drugs, some adversary process is in order to determine that (1) she is, in fact, the subject of the particular positive test, and (2) that the positive test has been appropriately confirmed.
Recognizing the public's vital interest in the safety of school children, the necessity for a hearing before termination need not preclude temporary reassignment, or even suspension, pending confirmation of a positive EMIT test and a hearing. Such reassignment or suspension is not precluded provided that the hearing is held and the issue resolved promptly, and, if plaintiff survives the confirmation test and the hearing, she is fairly compensated for any loss incurred on account of the reassignment or suspension.
There remains for consideration plaintiff's claim that subjecting her to urinalysis without probable cause or any individualized consideration, en masse with approximately 200 Transportation Department employees was an unreasonable search in violation of the Fourth Amendment. Defendants sought no warrant authorizing them to require plaintiff to furnish a urine specimen or to authorize defendants to have such a specimen examined for drugs. Nor does it appear that they had probable cause for doing so. Defendants concede that they had no particularized reason to believe that plaintiff used, possessed or was under the influence of drugs.
Defendants point, however, to the obvious and special public danger if their personnel who operate and assist in the operation of school buses are under the influence of drugs. They justify their taking and examining urine specimens of all Transportation Department employees on a significant increase in traffic accidents, an increase in absenteeism, several incidents of erratic and abnormal behavior of some Department employees and the discovery of syringes and bloody needles in Transportation Department restrooms. Moreover, defendants claim that an effort to identify drug users by more conventional police methods, e.g., insinuation of an undercover officer into the workplace, was unsuccessful. They emphasize that the testing was done in a discrete manner in health clinics or hospitals where the specimens are given in private.
Thus, while defendants admit that plaintiff was an exemplary employee and that they had no particular reason to believe or suspect that she was one of the Department employees who was using drugs, they claim that there was no feasible way to pinpoint drug users except by testing them all. Compare Hohri v. United States, 251 U.S. App. D.C. 145, 782 F.2d 227 (D.C. Cir. 1986). Furthermore, defendants argue that it is not only appropriate, but necessary, to require a periodic physical examination of personnel responsible for bus operation, that urinalysis is an appropriate incident of a physical examination, and that, in this context, examination of a urine specimen for its drug content involves minimal intrusion on privacy and is quite reasonable in every sense.
Defendants point to precedent authorizing drug screening of all personnel in the armed forces, Committee for G.I. Rights v. Callaway, 171 U.S. App. D.C. 73, 518 F.2d 466 (D.C. Cir. 1975); prisoners, see, e.g., Storms v. Coughlin, 600 F. Supp. 1214 (S.D. N.Y. 1984); and city employees engaged in extremely hazardous electrical work where one employee's drug abuse could endanger the safety of fellow employees and the public. See Allen v. City of Marietta, 601 F. Supp. 482 (N.D. Ga. 1985). Defendants also cite a case indicating that bus drivers have no reasonable expectation of privacy which precludes subjecting them to blood and urine tests for detection of liquor or drug abuse after they have been involved in serious accidents or were suspected of narcotics use. Division 241 Amalgamated Transit Union (AFL-CIO) v. Suscy, 538 F.2d 1264, 1267 (7th Cir. 1976), cert. denied, 429 U.S. 1029, 50 L. Ed. 2d 632, 97 S. Ct. 653 (1976). This Circuit has also condoned a mass search for illegal aliens despite the risk of intrusion on innocent bystanders. See Blackie's House of Beef, Inc. v. Castillo, 212 U.S. App. D.C. 327, 659 F.2d 1211 (D.C. Cir. 1981), cert. denied, 455 U.S. 940, 71 L. Ed. 2d 651, 102 S. Ct. 1432 (1982).
Plaintiff counters by pointing out that even the Metropolitan Police Department requires urinalysis only upon reasonable suspicion of use of drugs or at the particularized direction of a member of the Board of Police and Fire Surgeons. See Turner v. Fraternal Order of Police, 500 A.2d 1005, 1006 (D.C. Ct. App. 1985). City employees in Georgia who were handling high voltage electricity were only subjected to urine testing after an undercover officer observed each individual tested to be smoking what appeared to the officer to be marihuana. Allen, supra, 601 F. Supp. at 484. Moreover, even the decision approving mandatory testing of bus drivers in Illinois applied only to those who had been involved in serious accidents or "suspected of being under the influence while on duty." Division 241, supra, 538 F.2d at 1266, 1267.
There is strong authority for the proposition that taking a person's urine and testing it for drugs is a search. Division 241, supra; Allen, supra; Turner, supra.4 The ultimate question here is whether plaintiff, serving as a bus attendant assisting students, particularly handicapped ones in traveling by bus to and from school had a reasonable expectation of privacy from a search by mandatory urine testing for drugs and whether any such expectation is outweighed by public safety consideration. School bus drivers or mechanics directly responsible for the operation and maintenance of school buses might reasonably expect to be subject to urine and blood tests not required of other bus drivers without particularized suspicion. Compare Division 241, supra. While the question is not free from doubt, particularly in light of Blackie's, supra, it does not follow that a school bus attendant like plaintiff should have expected to be exposed to such testing or that public safety considerations require testing of a school bus attendant like plaintiff equivalent to that imposed by the military and more stringent than that so far found permissible for the police or for bus drivers in the absence of particularized probable cause. Accordingly, plaintiff's motion for a summary judgment that testing of her violated rights guaranteed by the Fourth Amendment must be granted.
Louis F. Oberdorfer, United States District Judge
For reasons stated in an accompanying Memorandum, it is this 24th day of February, 1986, hereby
ORDERED and ADJUDGED: that defendants' Motion for Summary Judgment is DENIED; and it is further
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 628 F. Supp.]
ORDERED, ADJUDGED and DECREED:
1. That plaintiff's Motion for Partial Summary Judgment is GRANTED as to Counts II, III and V;
2. That the defendants immediately reinstate plaintiff's employment with full backpay, seniority, and benefits;
3. That the defendants expunge from all of plaintiff's records within the District of Columbia Public School System any mention of the termination of her employment;
4. That the defendants may not administer any urinalysis test for drug use to plaintiff without first establishing probable cause to believe that she is using or under the influence of illicit drugs based on specific objective facts;
5. That the defendants may not terminate plaintiff's employment on the basis of the EMIT test without adequate confirmation by means of an alternative testing technique;
6. That the defendants must give plaintiff meaningful notice and an opportunity to be heard prior to termination; and
7. That the defendants must provide plaintiff the right to a hearing after termination, including, at a minimum, the right to appear in person with counsel and to present evidence; and it is further
ORDERED: that a status conference will be held on March 13, 1986, at 9:30 A.M. in Courtroom No. 3, to schedule further administration of this case.