Wardle v. Lexington-Fayette Urban County Government

45 F. App'x 505
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 5, 2002
DocketNo. 01-5154
StatusPublished
Cited by16 cases

This text of 45 F. App'x 505 (Wardle v. Lexington-Fayette Urban County Government) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wardle v. Lexington-Fayette Urban County Government, 45 F. App'x 505 (6th Cir. 2002).

Opinion

PER CURIAM.

David Wardle appeals the district court’s grant of summary judgment in favor of the Lexington-Fayette Urban County Government (“LFUCG” or the “government”) in his suit charging LFUCG with violating his Fourth, Fifth, and Fourteenth Amendment rights and various state laws. Wardle is an employee of LFUCG and his claims arise out of a drug and alcohol test he was forced to take after he was involved in a minor accident while driving a county vehicle. The district court considered the parties’ cross-motions for summary judgment and held that the government’s actions did not violate Wardle’s constitutional rights; having dismissed Wardle’s federal claims, the court declined to exercise jurisdiction over Wardle’s state law claims and dismissed those claims without prejudice. Because Wardle failed to raise the arguments he presents to this court before the district court, we affirm the district court’s disposition.

I

Wardle is employed by LFUCG as a carpenter in its Division of Building Maintenance and Construction. On April 28, 1999, Wardle backed the LFUCG vehicle he was driving into a pillar. Section XI(F) of LFUCG’s “Alcohol and Drug Free Workplace Policy,” entitled “PosWCritical Incident Testing (PCI),” requires employees involved in a single vehicle accident involving property damage of $2,500 or more to notify their supervisor immediately and take a drug and alcohol test.

Wardle notified his supervisor, Ben Turpin, who in turn notified his superior, Carolyn Smith, director of the Division of Building Maintenance and Construction. Smith instructed Turpin to have Wardle take a drug test. Wardle argued unsuccessfully that a drug test was not called for, because the damage was sure to be less than $2,500. Both Wardle and Turpin stated in deposition testimony that Turpin expressed to Smith no opinion as to the level of damage and told Wardle that he could not estimate the amount of damage.

Turpin accompanied Wardle that day to an independent medical facility called an Urgent Treatment Center (“UTC”), where Wardle took a drug and alcohol test. On May 4, 1999, the UTC informed LFUCG that Wardle had tested positive for drugs. Based on that result, LFUCG suspended Wardle for thirty days and ordered him to submit to a substance abuse evaluation. However, Susie Taylor, a member of the LFUCG human resources department who oversees the drug testing program, testified that she learned on May 5, 1999 that it had been determined that Wardle’s accident had caused less than $2,500 in damage and therefore did not invoke a mandatory drug test. Wardle’s suspension was immediately revoked, all record of his posi[507]*507tive test was removed from his personnel file, and he was reinstated with back pay.

Wardle filed suit in district court, alleging that the testing violated his Fourth and Fifth Amendment rights as applied to the state by the Fourteenth Amendment. He also alleged violations of corresponding provisions of the Kentucky Constitution, and he asserted state law claims for breach of contract, breach of an implied covenant of good faith and fair dealing, intentional infliction of emotional distress, fraud, deceit, and misrepresentation. After the government’s answer, Wardle moved for partial summary judgment on his Fourth Amendment claim. The government moved for summary judgment on all of Wardle’s claims.

In deciding the summary judgment cross-motions before it, the district court addressed Wardle’s argument that “requiring him to undergo drug and alcohol testing when the property damage fell below the threshold set forth in the LFUCG’s ‘Alcohol and Drug Free Workplace Guidelines and Procedures’ eonsti-tute[d] an unreasonable search in violation of the Fourth Amendment.”1 It is important to note, however, that Wardle did not contest LFUCG’s assertion that it discovered that the accident had caused less than $2,500 damage after it received the positive test result and suspended Wardle.2 Accordingly, the district court understandably read Wardle’s complaint as alleging that LFUCG violated Wardle’s constitutional rights by testing him in what it later found out to have been contravention of its drug testing policy.

The court first noted that drug testing required by a government employer is considered a search, that a search must be reasonable to avoid running afoul of the Fourth Amendment, and that a search generally must be based on individualized suspicion for it to be reasonable. See Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 618-20, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). However, the court went on to note that there is an exception to the individualized suspicion rule, under which a search can be reasonable based upon “special needs” of the government; in evaluating the constitutionality of a search premised on special needs, the district court wrote that it must balance the privacy interest of the plaintiff against the government’s interest in the search. See id. at 619.

In conducting this balancing, the court first held that Wardle’s privacy interest was diminished by the fact that he knew in advance that he could be tested following a single vehicle accident. While it was true that the damage turned out to be below the $2,500 threshold, the court explained that LFUCG did not know that at the time [508]*508of the test; it was therefore necessary for LFUCG to test Wardle, both because the Handbook required testing within eight hours and because drugs pass from the system with time. The court finally mentioned that the drug testing was accomplished with a minimum of intrusiveness, as it was done at an independent medical center and Wardle had not alleged that he was observed in any way during the test.

The court held that the burden placed on Wardle’s diminished expectation of privacy was outweighed in this case by LFUCG’s interests in protecting public safety by keeping impaired drivers off the road, deterring drug use among employees, and determining the cause of the accident. Therefore, the court held that the testing was reasonable for Fourth Amendment purposes and granted LFUCG’s motion for summary judgment on Wardle’s constitutional claims. The court then dismissed without prejudice Wardle’s state law claims. Wardle filed an unsuccessful motion for reconsideration and then appealed the district court’s grant of summary judgment to this court.

On appeal, Wardle argues that the district court erred in two ways in granting LFUCG’s summary judgment motion. First, Wardle contends that the court ignored a “judicial admission” by LFUCG that Wardle had been tested in contravention of its drug testing policy, thereby making the testing unreasonable per se. Second, Wardle argues that the court erred in failing to recognize that, regardless of whether the testing was performed in contravention of LFUCG’s policy, the testing violated Wardle’s Fourth Amendment right to be free from unreasonable searches. According to Wardle, for a governmental employer’s post-accident drug testing to pass constitutional muster, the target employee must be engaged in safety-sensitive activities; Wardle contends that his job is not safety sensitive.

LFUCG’s Admission

In its answer to Wardle’s complaint, LFUCG admitted that “an error was made in requesting Wardle to undergo a test when the actual property damage done to the vehicle was less than $2,500.” Answer at 3.

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45 F. App'x 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wardle-v-lexington-fayette-urban-county-government-ca6-2002.