Considering when a drug test by a public employer may constitute an “unreasonable” search for Fourth Amendment purposes, a U.S. District Court in Florida also has shed light on private sector substance abuse testing that could lack “reasonable suspicion” or “cause.” There was no factual record on which the court relied. Hudson v. City of Riviera Beach, et al., No. 12-80870-civ-Rosenbaum/Hunt (S.D. Fla. Nov. 13, 2013). Since the decision was based on a motion to dismiss the aggrieved employee’s amended complaint, the court’s discussion, summarized below, addressed only the employee’s pleading allegations.

Facts

Plaintiff Michael Hudson was a multi-media specialist for the City of Riviera Beach, Florida. As a result of Hudson’s dispute with Troy Perry (“Troy”), the City’s Fire Chief (and later Assistant City Manager), Troy unsuccessfully sought to have Hudson reprimanded. Allegedly angered over his inability to get this done, Troy was said to have enlisted the help of his mother, the City’s Human Resources Director, Doretha Perry (“Perry”), who directed Hudson to submit to three different drug and alcohol tests. Hudson said he was advised he would be fired if he refused. He submitted to a breathalyzer test, urine test and a hair sample test. However, when Hudson allegedly asked Perry to explain the reasonable suspicion for the testing and requested that she provide him with any supporting documents, Perry assertedly became infuriated. “It does not work like that,” she is claimed to have retorted. “[T]here are no records[.] I don’t have to give you anything.” When Hudson assertedly showed her the Florida Drug Free Workplace Act, according to the Amended Complaint, Perry taunted, “[I]f I did breach the law[,] what are you going to do about it?”

Hudson asserts he then took his complaint to the then-Interim City Manager, who allegedly said Perry should provide Hudson with copies of the documents he had sought. When Hudson told Perry of this, she allegedly responded by saying she had no records, but that if Hudson returned with a written records request, she would provide a report. Within an hour, Hudson was back with a request, he claims, but Perry did not provide any records at the time and instead told him angrily that she had 24 hours to respond to his request and would respond within that time.

The next day, Hudson avers, Perry provided him with a one-paragraph explanation for the testing directive. It said that she had “received several complaints from the employees,” the latest received four days before she had directed the tests, “alleging [Hudson’s] eyes were glassy and he smelled like marijuana.” However, the explanation did not identify the employees who made the alleged complaints and Perry allegedly stated later she could not recall who they were and could not even remember their gender. Neither did Perry advise her immediate supervisor of these complaints, it was claimed. During a later unemployment appeal hearing and deposition, the amended complaint avers that Perry contradicted her earlier explanation and instead said she had tested Hudson “on a whim[,] a mere hunch,” and said she had been determining who to drug test in that manner “for years.” 

Meanwhile, Hudson’s urinalysis drug test allegedly came back negative. Hudson called the laboratory, which had administered the test, to advise them of the circumstances under which the tests had been directed. The laboratory reportedly informed Hudson that he had a right under the Health Insurance Portability and Accountability Act (HIPAA) to revoke permission to disclose his test results as protected health information to the extent the results had not yet been returned. Hudson claims he then sent a letter to the laboratory revoking permission to disclose his protected health information until all administrative or legal matters were resolved. Accordingly, test results on Hudson’s hair sample were not provided by the laboratory to the City.

Hudson says he then wrote to the Interim City Manager asking her to direct Perry to end all inquiries about the drug testing she (Perry) had ordered Hudson to undergo. The Interim City Manager did not do so. Instead, under what Hudson characterized as a “new unapproved clause” that the City, City officials, and the City’s attorneys purportedly created and added to the collective bargaining agreement, the defendants suspended and terminated Hudson’s employment. Hudson claimed that the City suspended him in retaliation for his refusal to release the results of his hair sample test. Hudson undertook administrative appeals of his dismissal, but maintained they were unfair; the results, he said, were not valid.

Complaint and Court Decision

Hudson’s amended court complaint alleged Perry violated the Fourth Amendment. He claimed the tests Perry ordered him to take constituted an unreasonable search. While constitutional claims generally do not lie against private employers, the court’s discussion of the Amendment may be instructive for private employers whose substance abuse policies also provide for reasonable suspicion testing.

The court began by noting that neither side appeared to dispute that drug testing constituted a search within the meaning of the Fourth Amendment (although it noted that, unlike breath and urine tests, the status of hair sample testing as a Fourth Amendment search was less clear). A search, it said, must be based on “individualized suspicion of wrongdoing” to be reasonable. While there is no fixed threshold, intrusions on protected privacy interests of government employees for non-investigatory, work-related purposes, as well as for investigation of work-related misconduct, were to be “judged by an amorphous standard of reasonableness.” To make this determination, courts look at whether the search was “justified at its inception” and was “reasonable in scope.” This determination requires balancing the employee’s privacy interests against “the government’s need [as an employer] for supervision, control and efficient operation of the workplace.” 

The court concluded that Hudson alleged a Fourth Amendment violation by Perry. According to the amended complaint, Perry directed Hudson to submit to the drug test because she received several complaints from employees that Hudson’s “eyes were glassy’ and that he “smelled like marijuana,” but later, it was alleged, Perry could not recall who her anonymous source(s) were or whether the source(s) were male or female. Hudson asserted that Perry’s supposed reasons for testing him were fabricated. This argument, he contended, was supported by his further allegation that during an administrative hearing on his discipline Perry said she tested Hudson on a mere “hunch,” and that she frequently tested employees based on her gut feeling. Hudson further averred that Perry never personally corroborated any of the allegations from her purported sources. “Even more significantly,” the court added, “are the allegations underlying Hudson’s contention that Perry’s decision was motivated by personal animosity.” Indeed, according to the amended complaint, when Perry’s son, Troy, unsuccessfully sought to have Hudson reprimanded after the two had disagreed, he allegedly warned Hudson that “this” was “not over”, and Perry ordered Hudson’s drug test shortly thereafter. In Hudson’s view, this demonstrated Perry acted out of malice. This was especially true, he contended, because Perry was not Hudson’s direct supervisor and Perry did not consult with Hudson’s supervisor before ordering the drug tests. (The amended complaint also contained allegations that Hudson consistently received “excellent” evaluations, had never been reprimanded or disciplined in his four years of City employment, did not work in a safety-sensitive position or perform safety-sensitive duties, and that neither Perry nor anyone in her department worked at Hudson’s location or had any interaction with him; in fact, they worked in an office three miles away.)

The court found “[t]he allegations in the Amended Complaint plausibly lend themselves to a conclusion that the drug test was unreasonable from its inception.” While the Fourth Amendment may not impose any set level of individualized suspicion, the court said, “where, as here, Hudson’s job does not justify suspicionless drug-testing [because it was not safety-sensitive], somesuspicion is required.” The allegations suggested that Hudson’s testing was directed only in furtherance of a vendetta, a “purely private and spiteful motivation [that] epitomizes precisely the type of governmental intrusion against which the Fourth Amendment was intended to protect,” it reasoned. Therefore, the court found Hudson had sufficiently stated a Fourth Amendment claim against Perry.

The case is instructive for private employers, as well, who rely on “reasonable suspicion” to test employees, especially where state constitutions or statutes affect such testing. An employer generally should be able to point to some individualized, articulable, and objective ground for suspecting an employee has violated a substance abuse policy, preferably based on direct observation by a knowledgeable manager, and if appropriate, upon consultation with other management personnel. In the private sector, too, changing explanations for finding suspicion, and reliance on “hunches” and even an asserted practice of testing on such a ground, may undermine an employer’s assertion of reasonable suspicion, and raise triable issues of discrimination, retaliation or other violation of law. Witnesses to the behavior forming the basis for suspicion of drug abuse or alcohol misuse must be identified and interviewed, and may have to testify, if the test is challenged. They should be credible if any reliance is to be placed on their accounts. Managers and supervisors charged with enforcing a substance abuse policy and enforcing its provisions should be instructed on the employer’s substance abuse policy, the signs and symptoms of drug abuse and alcohol misuse, and the benefits of consulting with knowledgeable managers before making a final determination that reasonable suspicion exists to test an employer for drugs.