things, mood swings, attention lapses, increased heart rates, compulsive behavior, unusual appetite, drowsiness, anxiety, apathy, and confusion. Interrogatories 2-4.
These behaviors, of course, can have numerous other causes, ranging from strenuous exercise (elevated heart rate) to lack of sleep (drowsiness) to depression (apathy) to even too much coffee (anxiety). Many illnesses -- the common flu, for one -- will also cause such symptoms, and some of the behaviors, such as apathy and confusion, may stem from the conditions of employment. Since these are extremely common symptoms, those authorized to determine whether reasonable suspicion exists must be able distinguish between drug abuse and the effects of the host of everyday ailments that can likewise cause such symptoms.
Such a determination is difficult even for a physician. Scholl Dec. at para. 10. Under the testing plan, however, the determination is to be made by agency supervisors with little or no training in the diagnosis of drug abuse.
What training there is, is given by one Sydney Cooper, a DMA personnel specialist who apparently lacks a medical background, much less specialized training in drug abuse. The short of it is that supervisors will be making judgments for which they lack adequate training, experience, or education. There is simply no way for DMA supervisors to determine whether these symptoms result from drug abuse or the common cold or hayfever.
2. The second criterion for drug testing is a pattern of abnormal or erratic behavior. According to the plan, such behavior includes, among other things, long lunch breaks, Monday and Friday absences, absences before and after payday or a holiday, absences due to off-the-job injury, overreaction to criticism, spasmodic work pace, making increased personal telephone calls, and a preoccupation with personal problems. Response to Interrogatory 6.
This list appears to have nothing to do with drug abuse; rather it appears to be catalogue of symptoms of poor work habits, bad attitudes, or even bad luck. Nothing in defendants' filings explains why employees who make too many personal telephone calls may reasonably on that account be subjected to drug tests. Nor is there any appreciable link between drug use and over-sensitivity to criticism, preoccupation with personal problems, or erratic work habits. Likewise, it defies common sense to assert that an off-the-job injury is symptomatic of drug abuse. The proposition that long lunch breaks are indicia of drug abuse is nothing short of ludicrous; there are dozens of more likely reasons.
3. The third criterion for drug testing is an arrest or a conviction for a drug-related offense or the identification of an employee as the focus of a criminal investigation into illegal drug possession. The problem with that criterion is that it is not limited to the recently arrested; instead, it applies any arrest or conviction, no matter how long ago. Consequently an employee who was arrested or convicted decades ago could now be required to undergo testing even if there is no evidence whatever of more recent usage, and he could be tested again and again since the prior arrest would always remain on the books. AFGE v. Sullivan, 744 F. Supp. 294, slip op. at 28 (D.D.C. 1990).
4. The fourth criterion is information provided by reliable and credible sources or independently corroborated information. That test, too, fails for a variety of reasons. In the first place, the information may be comprised of the source's perceptions of same "symptoms" of drug abuse discussed supra, and it is invalid for the same reasons. Moreover, nothing in the DMA's training program indicates or even suggests that the supervisors are equipped to determine what constitutes reliable and credible sources of information or independent corroboration. These supervisors are more likely to be skilled in cartography and geography than the difficult business of evaluating the credibility of informants. Finally, even a trained and experienced law enforcement officer's conclusions about the reliability of an informant must normally be reviewed by independent judicial authority before a search or other warrant can be issued. To be sure, the issue here does not concern the search of a home or an individual's person in connection with a possible criminal charge. But the intrusion into personal privacy detailed above and in such cases as Bangert v. Hodel, 705 F. Supp. 643 (D.D.C. 1989), is such that more than gossip must be required.
The burden is on the agency to redefine the criteria for reasonable suspicion, rather than on the Court to sift though the current overbroad and excessively vague criteria for those that might survive scrutiny. Harmon v. Thornburgh, 278 U.S. App. D.C. 382, 878 F.2d 484, 491, n. 10 (D.C. Cir. 1989).
Accordingly, it is this 17th day of July, 1990
ORDERED that plaintiffs' motion for summary judgment as to the "reasonable suspicion" testing program be and it is hereby granted; and it is further
ORDERED that the defendants be and they are hereby enjoined from enforcement of defendants' "reasonable suspicion" testing program at the Defense Mapping Agency.