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ASCOLESE v. SEPTA

April 15, 1996

LISA ASCOLESE
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, et al



The opinion of the court was delivered by: POLLAK

 Pollak, J.

 April 15, 1996

 On September 28, 1995, I issued an opinion ruling on a motion for summary judgment by the defendants. See Ascolese v. Southeastern Pennsylvania Transportation Authority, 902 F. Supp. 533 (E.D. Pa. 1995). On October 12, the defendants filed a motion for reconsideration contesting my denial of their motion for summary judgment as to a number of Ascolese's claims. The defendants' motion contained evidence which had been available to the defendants at the time of their first motion for summary judgment, and which it therefore would not ordinarily be appropriate to consider in connection with a motion whose purpose is "to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). However, I found, in a memorandum dated February 22, 1996, that "the plaintiff's legal claims and the applicable legal standards were sufficiently ambiguous at the time that the defendants moved for summary judgment" that it was fair to allow the defendants a further opportunity to meet the plaintiff's claims. Memorandum of February 22, 1996, at 2. Because of these unusual circumstances, I found that it would be appropriate to treat the defendants' motion for reconsideration as a renewed motion for summary judgment, and provided the plaintiff, Lisa Ascolese, with a period of time in which to make submissions appropriate to such a motion. That period has now passed.

 I. Background

 Ms. Ascolese works as a transit police officer for one of the defendants, the Southeastern Pennsylvania Transportation Authority, or SEPTA. The other two defendants are both SEPTA employees: Richard Evans is Deputy Chief of SEPTA's transit police, and Dr. Louis van de Beek is a medical doctor employed by SEPTA. Ascolese's complaint initially made a broad range of claims against these and other defendants. In my previous opinion in this case, I found that summary judgment should be entered in favor of the defendants as to all but three of Ascolese's claims. Those three claims were: (1) a section 1983 claim against SEPTA based upon a pregnancy test that Ascolese claimed SEPTA had administered to her on or after October 4, 1991; (2) a section 1983 sex discrimination claim against van de Beek based upon van de Beek's alleged sexual harassment of Ascolese during his examination of her on October 4, 1991; and (3) claims of sex discrimination and retaliation brought under both Title VII (against SEPTA) and section 1983 (against Evans) based upon Ascolese's difficulties in securing a light duty position when she became pregnant in the spring of 1992.

 The defendants argue that summary judgment should have been entered in their favor as to all three of these claims. I will consider them in turn.

 II. Ascolese's Pregnancy Testing Claim

 My previous opinion in this case gave the following summary of the facts forming the basis of Ascolese's pregnancy testing claim:

 
Ascolese also claims that SEPTA violated her privacy rights by requiring that she take a pregnancy test as a part of her physical examination. The physical examination was intended to establish a baseline from which to measure employee fitness. As a part of this examination, SEPTA administered a pregnancy test to ensure that pregnant women employees did not begin a remedial fitness program without first consulting their physicians. See Deposition of Dr. Louis van de Beek, Defendant's Exhibit F. The test, which was apparently a urine test, was to be administered to all of the female employees who were to undergo the fitness program. There is no firm evidence that Ascolese was actually tested. As already noted, however, this may be because Judith Pierce, following an investigation of the fitness-testing program that concluded, inter alia, that no further pregnancy testing should occur without the tested patients' express consent, later ordered that all records of the test results be removed from SEPTA employees' files. See Memorandum from Judith Pierce to the File, October 28, 1991, Plaintiff's Exhibit 12. A pregnancy test certainly appears to have been planned, and at least some employees presumably were tested (creating the records that were later removed from their files); moreover, SEPTA's change of policy appears to have come some time after Ascolese's examination. Thus, for purposes of this motion for summary judgment, the court will assume, based upon the foregoing circumstantial evidence, that the test occurred.

 Ascolese, 902 F. Supp. at 548-49 (footnote omitted). Ascolese's claim is that SEPTA's pregnancy test was a "search" conducted in violation of the Fourth Amendment. When searches are performed as part of a regulatory program of some sort, rather than for law-enforcement reasons, their permissibility is subject to a "special needs" analysis, which balances the governmental interest in conducting the search against the individual's privacy interest in the information at issue. See New Jersey v. T.L.O, 469 U.S. 325, 351, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985). SEPTA contests my analysis of the balance of these interests in this case, contending both that SEPTA's interest in testing Ascolese is greater than I concluded in my previous opinion and that Ascolese's reasonable expectations of privacy are lower than my previous opinion found. SEPTA also challenges my previous opinion's conclusion that there was a genuine issue of material fact as to whether SEPTA was required to obtain a warrant in order to conduct the pregnancy test.

 A. SEPTA's Interest in Pregnancy Testing Its Employees.

 My previous opinion observed that SEPTA did have a very strong interest in conducting a fitness program, and that the plaintiffs had not rebutted SEPTA's assertion that pregnant women should not undertake SEPTA's fitness program, but that SEPTA had not demonstrated that it was impossible to structure the fitness testing program to avoid harm to pregnant employees. SEPTA has now submitted an affidavit from an expert witness who asserts that SEPTA could not have made its fitness program less rigorous in order to accommodate pregnant employees without compromising the program's effectiveness. See Affidavit of Paul O. Davis, Exh. E to Defendants' Motion for Reconsideration, at 2.

 I find, however, that on the present record SEPTA has still not demonstrated a particularly strong interest in conducting the pregnancy test in question. This is because SEPTA's testing is unusual in that it is intended exclusively to protect the tested officer herself and her fetus, rather than being directed at protecting a broader population. So far as I am aware, the Supreme Court's "special needs" cases have all -- with one exception, which I will address in a moment -- involved searches directed at promoting the safety or interests of a broader population than the tested individual. See, e.g. Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 628, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989) (upholding a policy of drug and alcohol testing of railroad employees intended to prevent railroad accidents); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 670, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989) (upholding a policy of drug testing of customs officials intended to ensure their fitness to interdict drugs and operate firearms); New Jersey v. TLO, 469 U.S. 325, 341, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985) (upholding searches of public-school students on the basis of the "substantial need of teachers and administrators for freedom to maintain order in the schools").

 The exception to this rule is Vernonia School District 47J v. Acton, 132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995), in which the Court endorsed drug testing of student athletes in part on the ground that such testing would help to prevent injury to the athletes themselves. See 115 S. Ct. at 2395. This ground, however, was only one of several cited by Justice Scalia in his opinion for the Court; others included the risk of harm to other athletes "with whom [the tested student] is playing his sport," see id., and "the 'role model' effect of athletes' drug use," id. at 2396. By contrast, SEPTA does not here cite any group that would be protected by its testing policy other than the tested officer and her possible fetus.

 To the extent that SEPTA has an interest in protecting the health of its employees and their children, it could have vindicated that interest by providing Ascolese with full information on the fitness program and strongly advising her to undergo a pregnancy test. This would have been entirely adequate both as to Ascolese and as to her possible fetus. "Decisions about the welfare of future children must be left to the parents who conceive, bear, support and raise them rather than to the employers who hire those parents." International Union, United Automobile. Aerospace and Agricultural Implement Workers of America v. Johnson Controls, Inc., 499 U.S. 187, 206, 113 L. Ed. 2d 158, 111 S. Ct. 1196 (1991). *fn1" Indeed, this is precisely what SEPTA did when it revised its fitness program: under the new program, female officers are merely "advised to consult their private practitioners for a pregnancy determination prior to beginning fitness testing." Affidavit of Richard Press, M.D., Exhibit C to Defendants' Motion for Reconsideration. *fn2"

 B. Ascolese's Reasonable Expectations of Privacy

 My previous opinion concluded that Ascolese's interest in privacy as to pregnancy-related information was very strong, requiring SEPTA to demonstrate a compelling interest in order to justify obtaining that information. In reaching this conclusion, I found that the circumstances in which police officers work may lead them to have somewhat reduced expectations of privacy generally, but that "the facts as they stand at present do not indicate that Ascolese's reasonable expectations of privacy as to pregnancy testing were significantly diminished by her work circumstances." Ascolese, 902 F. Supp. at 550.

 SEPTA has now submitted an affidavit listing a number of facts that it asserts reduce its police officers' reasonable expectations of privacy. The affidavit indicates that SEPTA police officers share (single-sex) locker and shower facilities, are subject to fitness reviews every three to six months, are given annual medical examinations, and undergo annual testing and training in first aid, CPR, the use of firearms, and self-defense. Affidavit of Richard J. Evans, Exhibit D to Defendants' Motion to Reconsider. SEPTA police officers are also subject to random drug testing. See Ascolese, 902 F. Supp. at 537.

 The Skinner Court was careful to note, however, that "we do not suggest . . . that the interest in bodily security enjoyed by those employed in a regulated industry must always be considered minimal." Id. at 628. Likewise, in Von Raab, the Court emphasized the close link between the nature of the customs employees' work and the intrusion at issue: it stated that the employees are "directly involved in the interdiction of illegal drugs" and carry firearms, and so "reasonably should expect effective inquiry into their fitness and probity." 489 U.S. at 672. SEPTA's employees, too, must necessarily expect some intrusions upon their privacy that are clearly related to public safety. But a pregnancy test with no public-safety objective is a form of intrusion upon an employee's privacy quite different from most of those to which SEPTA's employees routinely submit. *fn3" It is true that the pervasive regulation of Ascolese's workplace may modestly reduce her expectations of privacy even as to information unrelated to public safety. But this modest reduction does not lead me to change my conclusion that the privacy interests at stake in this case are considerably stronger than SEPTA's interest in protecting the health of its employees and their prospective children.

 C. The Warrant Requirement

 My previous opinion also noted that SEPTA appears not to dispute Ascolese's claim that she was given no notice before her physical examination that it would include a pregnancy test. *fn4" I found in that opinion that SEPTA had no reason (other than perhaps a modest bow to administrative convenience) for conducting its pregnancy test without notice, and concluded that SEPTA's failure to give Ascolese notice greatly weakened the case for dispensing with the warrant requirement as to this test. The defendants' motion for reconsideration asserts that it would be burdensome for SEPTA to be required to obtain a warrant before administering a pregnancy test to its employees, and that the absence of any "special" facts for a magistrate to evaluate in considering SEPTA's request for a warrant argues against the application of the warrant requirement. Cf. Von Raab, 489 U.S. at 665.

 As described by the Court in Von Raab, the purpose of the warrant requirement is "to advise the citizen that an intrusion is authorized by law and limited in its potential scope and to interpose a neutral magistrate between the citizen and the law enforcement officer." 489 U.S. at 667. The Supreme Court has repeatedly found that the infringement upon privacy associated with a search is reduced when there is advance notice. See, e.g. Skinner, 489 U.S. at 622 (in finding the warrant requirement inapplicable, noting that the testing rules at issue were well-defined and "doubtless are well known to covered employees," which suggested that the formal assurance of a warrant was not necessary); see also Von Raab, 489 U.S. at 667 (reasoning similarly). Advance notice is valuable because it helps to reduce the "'unsettling show of authority,' Delaware v. Prouse, 440 U.S. 648, 657, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979), that may be ...


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