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American Federation of State County and Municipal Employees District Council No. 33, Afl-Cio, et al. v. City of Philadelphia

March 29, 2012


The opinion of the court was delivered by: Juan R. Sanchez, J.


Plaintiffs, the American Federation of State, County and Municipal Employees District Council (AFSCME) No. 33, AFL-CIO, AFSCME Local 394, AFSCME Local 1510, Herman "Pete" Matthews, the President of AFSCME District Council No. 33, Leroy Simmons, Frank Lovett, and Lawrence Muhammed, individually, and on behalf of all others situated, brought this class action against the City of Philadelphia (City) seeking to prohibit the City from unlawfully drug testing its employees represented by District Council 33 (DC-33) in violation of their rights under the Fourth and Fourteenth Amendments of the United States Constitution. DC-33 and the City settled with court approval the class-wide claims and all individual claims except Leroy Simmons's claim. Simmons alleges there was no individualized suspicion to require him to submit to a drug test or just cause to terminate his employment. The City asserts, however, Simmons's constitutional rights were not violated because the City had reasonable suspicion to compel Simmons to undergo testing for alcohol use, and just cause to terminate his employment based on the following: (1) Simmons tried to extort $500 from a customer; (2) the City received a complaint Simmons had been drinking on the job; and (3) Simmons misrepresented the facts of the incident during his pre-disciplinary hearing. As a result of his termination, the City also asserts Simmons is not entitled to economic or other damages.


1. Simmons was hired by the City of Philadelphia Water Department on January 23, 1995. In 2001, Simmons was working as a Water Distribution Repair Worker leading a four-to-five-man crew fixing broken water mains, excavating holes, and repairing water leaks.

2. On January 26, 2001, Simmons and his crew members were repairing a water main leak which was disrupting a property owner's business and creating a hazardous condition. The property owner, a private citizen, contacted the Water Department to report Simmons had demanded $500 to repair the water service supplying the property or else Simmons would make the water problem more severe. The citizen-owner also complained the crew, and Simmons in particular, was engaged in the consumption of alcohol while on duty at the job site.

3. Upon receipt of the complaint, Water Department superintendent George Stokes went to the job site to assess the situation. Stokes determined the entire crew had to submit to alcohol testing based on the Water Department's policy on alcohol and/or drug testing at the time, which required all employees suspected of alcohol and/or drug use while on the job submit to testing.

4. Around 9:00 p.m., Water Department superintendent Christopher Toohey called Michael Augustyn, the Water Department's Safety Administrator, to determine where the crew should be taken for alcohol testing. Augustyn advised Toohey the City uses Methodist Hospital for its alcohol and drug testing. Accordingly, Simmons and his crew members were taken to Methodist Hospital.

5. In the waiting room at the hospital, Augustyn addressed the crew, and required that all crew members submit to a breathalyzer test to detect alcohol consumption. Augustyn spoke to Simmons face-to-face, during which time Simmons asked Augustyn what would happen if he refused to take the alcohol test. Before answering Simmons's question, Augustyn called his supervisor, Lorin Fields, Human Resources Manager, from whom he learned that an employee's refusal to submit to a breathalyzer test could be used against the employee in a later disciplinary proceeding. Augustyn relayed this precise information to Simmons.

6. During his conversation with Simmons, Augustyn observed Simmons had a glassy and glazed look in his eyes, slurred speech, an unsteady gait, and he smelled alcohol on Simmons.

7. Simmons then went into the room where a technician was waiting to administer the breathalyzer test. Simmons again asked Augustyn what would happen if he failed to take the alcohol test, and Augustyn repeated his previous answer. Simmons ultimately refused to submit to the test. With the exception of Simmons, the entire crew submitted to the breathalyzer test.

8. The Water Department did not request a drug test be administered to Simmons or any other crew member. Simmons was asked by Augustyn, on behalf of the Water Department, only to submit to alcohol testing. After Simmons refused the test, Augustyn drove him home.

9. Simmons's explanation that he refused the alcohol test because he was being forced to take both an alcohol and a drug test, and not just an alcohol test, is not credible, nor is Simmons's account of how he arrived home that night, testifying not that Augustyn drove him home, but that he drove himself home in a Water Department truck. On both of these points, Simmons's testimony directly contradicted Augustyn's, which was clear, unequivocal, and credible.

10. Francis Meiers had been working for the Water Department since 1980 and, at the time of the January 26, 2001, incident, was the Water Department's Assistant Personnel Officer charged with overseeing disciplinary matters within the Department. Meiers conducted an investigation into the allegations against Simmons of attempted extortion and alcohol consumption on the job site. His investigation included an interview with the property owner, as well as a pre-disciplinary hearing.

11. At the conclusion of his investigation, Meiers determined there was credible evidence that Simmons attempted to obtain money from a citizen, was drinking alcohol while on the job, and failed to submit to alcohol testing. Meiers also found Simmons consistently misrepresented the facts surrounding the incident at the ...

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