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Wilcher v. City of Wilmington

March 17, 1998

BEVERLY WILCHER; SHARON SMITH; MICHAEL DANYLO; CORNELIUS SKINNER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED; THE WILMINGTON FIRE FIGHTERS ASSOCIATION, LOCAL 1590, APPELLANTS,
v.
CITY OF WILMINGTON; JAMES A. SILLS, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF WILMINGTON; JAMES T. WILMORE, SR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF FIRE FOR THE CITY OF WILMINGTON; CLIFTON E. ARMSTEAD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DEPUTY CHIEF OF FIRE FOR THE CITY OF WILMINGTON; S.A. WAYNE CROSSE, IN HIS OFFICIAL CAPACITY AS DIR ECTOR OF PERSONNEL FOR THE CITY OF WILMINGTON; WILLIAM J. YANONIS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DEPUTY DIRECTOR OF PERSONNEL FOR THE CITY OF WILMINGTON SODAT-DELAWARE, INC., THIRD-PARTY DEFENDANT



On Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 94-cv-00137) Argued January 28, 1997

Before: Becker, Chief Judge, and Roth, Circuit Judges, and ORLOFSKY,*fn1 District Judge

The opinion of the court was delivered by: Roth, Circuit Judge:

OPINION OF THE COURT

In this appeal, we are asked to determine whether the City of Wilmington's method of testing firefighters for drug use violates their rights under the Fourth Amendment. We will affirm the district court's Conclusion that it does not. Nevertheless, we will remand the case for reconsideration of the state law invasion of privacy claim.

Beverly Wilcher, Sharon Smith, Michael Danylo and Cornelius Skinner are Wilmington firefighters. Along with the Wilmington Fire Fighters Association (WFFA), they brought this class action on behalf of all firefighters in the city. The defendants are the City of Wilmington, Mayor Sills (in his official capacity), James T. Wilmore (individually and in his capacity as Fire Chief), Clifton Armstead (individually and in his official capacity as Deputy Fire Chief), Wayne Crosse (in his official capacity as Director of Personnel for Wilmington), and William Yanonis (individually and in his official capacity as Deputy Director of Personnel). In addition, the firefighters sued SODAT-Delaware, Inc., the drug testing company that performs the tests for the City of Wilmington. The firefighters sought injunctive relief and damages under 42 U.S.C. § 1983 and damages for"invasion of privacy" under the state's tort law.

The district court granted summary judgment in favor of the individual defendants on the ground that they were entitled to qualified immunity and in favor of the SODAT defendants on the ground that SODAT was not a state actor. The district court then held a three-day trial. Two days into the trial, the plaintiffs apprised the district court of this Court's statement in Bolden v. SEPTA, 953 F.2d 807, 822-23 n.23 (3d Cir. 1991), that reasonableness under the Fourth Amendment was an issue of law. Concluding that there were no remaining factual issues for the jury to decide, the district court, with the plaintiffs' acquiescence, dismissed the jury. The court then decided against the plaintiffs on the merits of their Fourth Amendment claim. See Wilcher v. City of Wilmington, No. 94-137, slip. op. (D.Del. June 30, 1995). The district court also concluded that plaintiffs could not prevail on their state law invasion of privacy claim. The district court eventually elaborated on its findings in a memorandum opinion rejecting the plaintiffs' motion for reargument and for a new trial. See Wilcher v. City of Wilmington, 924 F.Supp. 613 (D.Del. 1996).

The firefighters have appealed on several grounds. First, they cite as error the district court's failure to enter an injunction permanently prohibiting the City from using the direct observation method in its urine collecting, despite the fact that during a pre-trial teleconference the City had tentatively agreed to such an arrangement. Second, they dispute the district court's Conclusion that direct observation of urine collection is reasonable under the Fourth Amendment. Third, they appeal the district court's determinations regarding qualified immunity and state action. Fourth, they urge that, in denying the plaintiffs a jury trial, the district court misapplied our decision in Bolden. Finally, the plaintiffs contend that the district court committed error when it presumed that the reasonableness standard under the Fourth Amendment of the Constitution was equivalent to the reasonable person standard under Delaware tort law.*fn2

We will reject all the plaintiffs' grounds for appeal except for the fifth one. The district court did not abuse its discretion when it denied plaintiffs' motion for injunctive relief, following the City's rejection of the tentative agreement. In addition, we agree with the district court that a drug testing monitor's presence in the same room with the firefighter during the collection of thatfirefighter's urine does not, by itself, constitute an unreasonable search under the Fourth Amendment. As for the plaintiffs' jury trial right, we agree that the district court misread our decision in Bolden when it concluded that no factual determinations remained for the jury. Nevertheless, we will not reverse the district court's dismissal of the jury because the plaintiffs clearly acquiesced in this action and thereby waived their jury right under Rule 39(a) of the Federal Rules of Civil Procedure.

However, despite our affirmance of the district court's constitutional analysis, we will remand this case for further proceedings because we believe the court erred in presuming the equivalence of the "reasonableness" inquiry under the Fourth Amendment and the "reasonable person" standard under the common law in an invasion of privacy claim.

I. FACTS

In July 1990, the City and the Wilmington Fire Fighters Association (the firefighters' union) agreed in a Collective Bargaining Agreement that firefighters would be subject to random drug testing through urinalysis in order to ensure that members of the Fire Department were drug free. Prior to January 1994, the City had employed a procedure whereby a randomly selected firefighter was notified he would be tested when he arrived at the station to begin his shift. A battalion chief would then stay with the firefighter and take him to Occupational Health Services at the Medical Center of Delaware ("Occupational Health") where the test was performed. There, the battalion leader would conduct the firefighter to a "dry room" to produce the urine specimen. The sink in the dry room did not contain water and the toilet bowl contained blue dye to prevent cheating by dilution. The firefighters provided their urine specimens in private; no observer was present in the dry room. Occupational Health's method of collecting urine in this manner followed the guidelines of the National Institute of Drug Abuse.

In November 1993, in an attempt to reduce the cost of random drug testing, the City solicited bids from drug testing facilities. The City did not specifically request a procedure which included visual observation of urine collection. SODAT, a private drug-testing company in Delaware with a primary focus on outpatient drug-counseling, submitted a proposal under which fire-fighters would produce the urine sample "under the direct supervision of counselor/authorized personnel." The City accepted SODAT's bid.

In January 1994, SODAT began drug testing the City's firefighters. The parties have given substantially different descriptions of how the SODAT employees carried out this procedure. The male firefighters, for example, claim that the SODAT monitor looked over the firefighter's shoulder at his genitals while he urinated. SODAT, on the other hand, claims that the monitors stood to the back or the right of the firefighters but did not directly observe their genitalia.

Although SODAT employees are directed to observe the urine collection process by looking in the firefighter's general direction as he or she commences urination, the monitors are neither directed nor expected to focus on the firefighter's genitals. At trial, the SODAT monitors maintained that they had acted within the company's guidelines.

After hearing this testimony, the district court accepted SODAT's portrayal of the monitoring process as accurate. "An examination of the SODAT testing program, both in terms of its design and intent, and more specifically in its execution, demonstrates that no element of the program was intended to invade the privacy of a firefighter in an overly intrusive manner." Wilcher, 924 F.Supp. at 617. The district court further stated, "Although [the collection process] may have involved some observation of the genitalia area generally, this observation was only a by-product of the general observation of the donor." Id. at 618. In its earlier memorandum, the district court had also stated:

On the evidence submitted by the parties, the Court finds that the direct supervision procedure employed by SODAT did not in principal or in fact involve the direct observation of the genital area of the person providing the urine sample. . . . [SODAT's procedure] does not direct that the SODAT employee undertake to observe the genital area of the individual providing the sample. It only requires supervision during the collection process.

Wilcher, slip. op. at 11. The district court further concluded, "The Court is convinced that the testimony concerning the position of the SODAT employee during the specimen collection is corroborated and demonstrates that genital observation was not the purpose nor the practice of the SODAT policy." Id.

Soon after SODAT began testing firefighters, the Deputy Fire Chief was informed of the firefighters' complaints about SODAT's testing method. The City did not, however, request that SODAT stop using the direct observation procedure. The firefighters' union, the Wilmington Fire Fighters Association, filed a first step grievance with the City of Wilmington protesting the direct observation procedure. The Deputy Chief denied this grievance. The WFFA filed a second step grievance, which was denied on February 17, 1994. The WFFA then filed a Notice of Arbitration. The plaintiffs filed suit on March 18, 1994, against the City and the individual defendants. The City impleaded SODAT, and the plaintiffs amended their complaint to include SODAT as a defendant. In an Order and Stipulation filed on April 15, 1994, the parties agreed that the City should direct SODAT to refrain from using direct observation of urination while this case was pending.

The district court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1343. We now have jurisdiction under 28 U.S.C. § 1291.

II. THE "TENTATIVE AGREEMENT"

Before we proceed with our analysis of the constitutional issue, we will address the plaintiffs' contention that the district court erred in not permanently enjoining the City from using SODAT's direct observation method of drug testing. We find no such error.

On April 15, 1994, the parties filed a Stipulation and Order temporarily enjoining the City from further use of the direct observation method during the pendency of this case. On June 16, the parties participated with the district court in a teleconference, during which the City expressed its willingness to refrain permanently from using the direct observation method. At the end of the teleconference, SODAT's counsel stated that she would draft a stipulation and order to that effect and send it around to the other parties for their signature.

Despite this tentative agreement, the plaintiffs and the City of Wilmington were unable to arrive at an accord on the terms of the stipulation. The City therefore refused to sign it. The plaintiffs then filed a motion with the district court for an order permanently enjoining the City and SODAT from further use of the direct observation method of urine collection. The district court denied this motion without opinion on March 31, 1995. The plaintiffs argue that this denial was error, as the ...


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