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O''Keefe v. Passaic Valley Water Commission

Decided: February 7, 1992.

WILLIAM M. O'KEEFE, PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
v.
PASSAIC VALLEY WATER COMMISSION, DEFENDANT-APPELLANT/CROSS-RESPONDENT



On appeal from Superior Court of New Jersey, Chancery Division, Passaic County.

Pressler, Shebell and D'Annunzio. The opinion of the court was delivered by Pressler, P.J.A.D. D'Annunzio, J.A.D., Dissenting.

Pressler

PRESSLER, P.J.A.D.

Defendant Passaic Valley Water Commission (Commission) appeals from that portion of a judgment of the Chancery Division entered following a bench trial which declares that the Commission's policy of pre-employment drug testing violates the Constitutions of both the United States and the State of New Jersey. Plaintiff William M. O'Keefe cross appeals from

those portions of the judgment dismissing his claims for relief under both state and federal civil rights legislation, 42 U.S.C.A. § 1983, and N.J.S.A. 10:5-1 et seq.; dismissing his claims for punitive damages and attorneys fees; and determining that Commission's reasons for refusing to hire him as a water meter reader were independent of his refusal to submit to pre-employment drug testing. We affirm the judgment in its entirety substantially for the reasons stated by Judge Dwyer in his written opinion.

We first address the cross appeal since we are satisfied that if we affirm the Judge's holding that plaintiff's employment application was rejected for reasons other than his refusal to submit to a pre-employment drug test and if those reasons did not implicate any other civil right to which plaintiff is entitled, then plaintiff's failure to obtain the water meter reader position for which he applied is not susceptible to any remedy.

In reviewing the record in this light, we are satisfied that Judge Dwyer's "other reasons" Conclusion is entitled to our deference since it is supported by adequate credible evidence. See Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-484, 323 A.2d 495 (1974). The linchpin of the trial Judge's determination was the prior rejection of plaintiff's application for the civil service position of water meter reader by its Personnel Director, John Galletta, in the summer of 1986. That was before the Commission's adoption of its pre-employment drug-testing policy. Galletta testified that following the employment interview, he chose not to offer plaintiff the available meter reader job because:

Others were then hired.

The Commission adopted its drug-testing policy in May 1987. Plaintiff, whose civil service certification continued in effect, was shortly thereafter advised by civil service personnel that

there was another water meter reader position available at the Commission. He expressed his current interest to the Commission and was summoned for another interview.

During this second interview, Galletta told plaintiff about the new drug-testing policy. Plaintiff agreed to submit to the test and signed a waiver form. An appointment was made for him at the medical facility performing both pre-employment physical examinations and pre-employment drug tests. Galletta was satisfied to let the entire pre-employment procedure run its course in order to have as complete a basis as possible on which to compare job applicants. Nevertheless he "had the same impression [of plaintiff] the second time that [he] had the first time," namely, the negative impression that he was a "wiseguy" and all that that entails in the employment context.

When plaintiff presented himself at the medical center, he refused to submit to urine testing for drugs, apparently having telephoned an attorney for legal advice on that question in the interim. He had, however, not so advised Galletta. In any event, his first explanation to the center's physician was that he feared to take the test because of his concern that the medication he was taking for hepatitis from which he had previously suffered would cause a false positive result. The physician assured him that he could design the test to take that medication into account if plaintiff would tell him what it was. Plaintiff responded that he could not remember the name of the medication. It turns out that he was actually taking tranquilizers, not medication for hepatitis. In any event, the medical center called Galletta to advise him that plaintiff had refused to take the test. Galletta requested that such tests be administered as plaintiff would submit to in order that as full a file be developed. The job was later offered to and accepted by a candidate Galletta felt to be a superior employment prospect and of whom he had a "better impression."

Based on the foregoing, the trial Judge found that Galletta declined to offer employment to plaintiff because of his justifiable

belief that plaintiff "was not truthful," was a "wise guy," and had a "disrupting behavior pattern."*fn1 It is true that the trial Judge did note that plaintiff's refusal to take the drug test did play some part in the non-hiring decision. But as the Judge explained, the non-hiring decision was not based on the refusal itself. Rather the circumstances of the refusal, including plaintiff's uncommunicated change of mind after signing the waiver and his equivocation respecting his reasons for refusing to take the exam, merely reinforced Galletta's negative impressions respecting plaintiff's attitude and trustworthiness. The Judge concluded, moreover, that those impressions, which he found to be reasonable and credible, constituted a valid and independent reason for the non-hiring. We are satisfied, particularly in view of the Judge's expressed appraisal of the relative testimonial credibility of plaintiff and Galletta, that these findings and Conclusions are adequately supported by the record and, consequently, require our deference.

We also agree with the trial Judge's reasons for rejecting plaintiff's remaining claims based on the alleged wrongful non-hiring. Since plaintiff did not establish that he was a drug addict, or was otherwise a handicapped person, or would have tested positive had he submitted to a drug test, his claim under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., is without merit. Since his non-hiring was not based on his refusal to take a pre-employment drug test, his claim under 42 U.S.C.A. § 1983 necessarily fails whether or not the drug testing was constitutionally permissible. The rejection of his claim for counsel fees under 42 U.S.C.A. § 1988 was a matter within the court's discretion, and under all the circumstances it was properly rejected. Finally, since plaintiff's non-hiring was

not wrongful, both the compensatory damages claim and the punitive damages claim must fail.

Since plaintiff was thus not able to demonstrate a basis for relief even if the drug-testing requirement were determined to have been unconstitutional, we are satisfied that the question of constitutionality need not have been reached at all. We address it, however, because the judgment appealed from expressly adjudicates that question. We start, as did the trial Judge, with the opinions of the United States Supreme Court in Skinner v. Ry. Labor Executives Ass'n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989), and Nat'l Treasury Employees Union, et al. v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989). We read these cases to hold that a government employer's taking of a urine sample from an employee in order to conduct a test for illegal drugs constitutes a search and seizure within the intendment of the Fourth Amendment. We further read these cases to hold that the government may nevertheless require drug testing without running afoul of the proscriptions of the Fourth Amendment in those circumstances in which the government's special and compelling need to protect the public safety outweighs the employee's privacy interest. It is consequently not every government employee who is subject to involuntary drug testing. See Von Raab, 489 U.S. at 672, 109 S. Ct. at 1394, 103 L. Ed. 2d at 706, distinguishing "most private citizens or government employees in general" from the much narrower class of those government employees subject to drug testing because of the magnitude of the risk their workplace drug use imposes on public safety.

That class has been defined by Skinner, 489 U.S. at 628, 109 S. Ct. at 1414, 103 L. Ed. 2d at 667, which dealt with drug testing of railroad workers after their involvement in an accident or other defined incident, as including those who "discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." And as further defined by Von Raab, which dealt with certain

customs officers, it also includes those whose own drug use might "irreparably damage" the national interest in self-protection from the illegal drug plague and those whose drug use might impair their perception in the use of the firearms they are empowered to carry. 489 U.S. at 670, 109 S. Ct. at 1393, 103 L. Ed. 2d at 705. That safety-sensitive class as defined by Skinner and Von Raab has consequently been held to encompass civilian employees in military positions involving aviation, police guard and drug abuse treatment programs; prison employees having daily contact with prisoners; school bus drivers; municipal bus drivers and mechanics; public employees who open and close bridges; and municipal police and firefighters. See, respectively, e.g., Nat'l Fed'n of Fed. Employees v. Cheney, 884 F.2d 603 (D.C.Cir.1989), cert. denied, 493 U.S. 1056, 110 S. Ct. 864, 107 L. Ed. 2d 948 (1990); McDonell v. Hunter, 809 F.2d 1302 (8th Cir.1987); Indep. School Dist. No. 1 of Tulsa County v. Logan, 789 P. 2d 636 (Okla.Ct.App.1989); Jones v. McKenzie, 833 F.2d 335 (D.C.Cir.1987), cert. granted and judgment vacated, Jenkins v. Jones, 490 U.S. 1001, 109 S. Ct. 1633, 104 L. Ed. 2d 149 (1989); Int'l Fed'n of Professional & Technical Eng'rs v. Burlington County Bridge Comm'n, 240 N.J. Super. 9, 572 A.2d 204 (App.Div.), certif. denied, 122 N.J. 183, 584 A.2d 244 (1990); City of Annapolis v. United Food and Commercial Workers, 317 Md. 544, 565 A.2d 672 (1989). But see Fr. Order of Police v. City of Newark, 216 N.J. Super. 461, 524 A.2d 430 (App.Div.1987), holding that involuntary drug testing of police officers without individualized suspicion violates the state constitutional provision, N.J. Const. art. I, par. 7, prohibiting unreasonable searches and seizures. And see also Guiney v. Police Comm'r of Boston, 411 Mass. 328, 582 N.E. 2d 523 (1991) requiring individualized suspicion for drug testing of police officers.

While an adequate nexus between the nature of the employment and the risk to the public safety by reason of the employee's impaired judgment due to drug use will thus sustain involuntary drug testing by a governmental employer, it is also

clear that the mere desiderata of a drug-free workplace and the general stability and integrity of the work force do not provide the requisite nexus. See, e.g., Harmon v. Thornburgh, 878 F.2d 484 (D.C.Cir.1989), cert. denied sub nom. Bell v. Thornburgh, 493 U.S. 1056, 110 S. Ct. 865, 107 L. Ed. 2d 949 (1990); Taylor v. O'Grady, 888 F.2d 1189, 1196 (7th Cir.1989).*fn2 See also Patchogue-Medford Teachers Congress v. Bd. of Educ., 510 N.E. 2d 325 (N.Y.1987), holding that public school teachers are not subject to drug testing, even during the course of their annual physical examinations, absent individualized suspicion. And see Harmon, supra, so holding in respect of Justice Department attorneys.

Do water meter readers, even water meter readers who must enter customers' homes in order to read the meter, meet the public-safety nexus test articulated by Von Raab and Skinner? We are convinced that the record before us cannot support an affirmative answer. At the outset, we are constrained to reject the analysis of the Dissent respecting crime prevention. We pass the question of the propriety of an appellate court relying on sociological materials, particularly surveys, which were not part of the trial record and whose methodology and reliability were never tested. We also note that the judicial literature on the drug-testing issue is framed in terms of the safety risk by reason of the impaired perception of drug users, not on the finding or even the speculation that drug-using employees will commit criminal acts on the job. Beyond that, the fact is ineluctable on this record that crime prevention was not any part of the reason for the Commission's pre-employment drug-testing requirement.

It is certainly significant that the Commission's drug-testing policy does not include those already employed, including currently

employed meter readers, but is limited to job applicants only. Obviously if the public safety were significantly threatened by a positive-testing meter reader, the Commission could hardly justify the exclusion of currently employed meter readers from a testing protocol. But more significantly, Galletta's testimony convincingly demonstrated that the Commission's express reason for its adoption of the drug-testing policy in 1987 was not crime avoidance at all. Indeed Galletta made it quite clear that there has never been a criminal incident involving an on-the-job meter reader. There have, however, in the past, been several criminal episodes traced to employee drug use involving other Commission employees, including one minor embezzlement, one minor theft, and an incident in which an employee overdosed in the men's room, requiring emergency assistance. The record does not indicate if there have ever been any criminal episodes not involving drug use or how many drug-using employees there are who have never been involved in job-related crime. But in any event, this record fails to support any nexus at all between positive drug testing and the risk of meter reader criminality on the job.

On the other hand, Galletta's testimony demonstrates that the Commission's reason for adopting the drug-testing policy was its desire to avoid employee absenteeism and health costs resulting from drug abuse as well as its general desire for the benefits of a drug-free workplace and a stable work force. These are laudable purposes. The problem, however, is that they have been held not to be of sufficient magnitude to overcome the Fourth Amendment protection of the current work force. See Harmon, supra.

Since we are satisfied, at least on this record, that under the circumstances here, those currently employed by the Commission are not constitutionally subject to drug testing absent individualized suspicion, the next question is whether a job applicant may be disparately treated in this respect. Our view is that if involuntary drug testing of meter readers is constitutionally interdicted, it would make no difference whether the

employee is actual or prospective. That is, if the nexus between the nature of the employment and public safety warrants drug testing, both employees and applicants may be tested. If it does not, than neither may be tested.

In short, it is well established that government employment may not be conditioned on the prospective employee's prior waiver of constitutional rights. See, e.g., Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811, 817 (1968). Nor can a prospective employee be deemed to have consented to drug testing by having applied for public employment. See McDonell v. Hunter, 809 F.2d 1302 (8th Cir.1987); Feliciano v. City of Cleveland, 661 F. Supp. 578 (N.D.Ohio 1987). The point, as we see it, is that the Fourth Amendment rights of a government employee are the same when he applies for employment as they are after he is employed. It is not the distinction between prospective employment and actual employment which makes a difference in Fourth Amendment terms but rather whether the nature of the employment, irrespective of whether it is sought or obtained, poses a sufficient risk to public safety to warrant drug testing. Hence we see no constitutional basis on which to treat applicants differently from employees.

We are aware that there is some difference of judicial opinion as to whether applicants for government employment may be subject to drug testing in order to obtain a job although they could not be constitutionally tested absent individualized suspicion after obtaining it. Although the majority in Willner v. Thornburgh, 928 F.2d 1185 (D.C.Cir.1991), cert. denied sub nom. Willner v. Barr, U.S. , 112 S. Ct. 669, 116 L. Ed. 2d 760 (1991), held that that is indeed the case, we are convinced by the contrary and persuasive reasoning of the Dissenter, Judge Henderson. See 928 F.2d at 1195-1196. See also Georgia Ass'n of Educators v. Harris, 749 F. Supp. 1110, 1115 (N.D.Ga.1990), holding that applicants are entitled to the same Fourth Amendment rights as employees and noting further

the irrelevancy, in constitutional terms, of the private sector body of law. Compare Hennessey v. Coastal Eagle Point Oil Co., 247 N.J. Super. 297, 589 A.2d 170 (App.Div.1991), certif. granted, 126 N.J. 340, 598 A.2d 897 (1991); Wilkinson v. Times Mirror Corp., 215 Cal.App. 3d 1034, 264 Cal.Rptr. 194 (1989).

We are, of course, entirely sympathetic to the Commission's desire to obtain a stable and trustworthy work force. We do not, however, believe that drug testing is an indispensable screening device for achieving that goal. Legitimate personnel procedures including the judgment of experienced personnel directors based on interviews, job history, references, school ...


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