Gregory Kerns v. Chalfont-New Britain Township Joint Sewage Authority
Docket: 00-1391
Court: Court of Appeals for the Third Circuit; August 13, 2001; Federal Appellate Court
Gregory Kerns appealed the decision of the United States District Court for the Eastern District of Pennsylvania, which granted summary judgment to the Chalfont-New Britain Township Joint Sewage Authority regarding the constitutionality of its urinalysis drug testing policy for the superintendent position. Kerns, who applied for the superintendent role in 1997, was informed that passing a drug test was a condition of employment. After initially failing a test, he successfully passed a subsequent one, but later tested positive for marijuana approximately 60 days into his probationary period, leading to his termination.
Kerns filed a lawsuit under 42 U.S.C. § 1983, claiming a violation of his Fourth Amendment rights against unreasonable searches. The District Court found that Kerns had diminished expectations of privacy due to the potential risks associated with the operation of a wastewater treatment facility and determined that Kerns had consented to the drug tests, making them constitutionally valid. The appeal was heard by the Third Circuit, which affirmed the lower court's ruling. The Authority, a municipal agency established under the Pennsylvania Municipal Authorities Act of 1945, argued that strict regulations were necessary to prevent environmental disasters and protect public health, citing Pennsylvania's longstanding commitment to maintaining water quality.
Pennsylvania has enacted various laws to protect its waterways, including the Clear Streams Law of 1937, which prohibits the discharge of industrial and human waste into state waters. This law emphasizes the importance of clean streams for attracting industries and tourism, as well as for outdoor recreation. Its objectives include preventing further pollution and reclaiming polluted streams through comprehensive watershed management. Violations can result in civil penalties and classification as a nuisance for non-compliant municipalities.
In 1965, the Pennsylvania Sewage Facilities Act was introduced, later amended in 1974, granting the Department of Environmental Resources authority to set maintenance standards for sewage systems and oversee local agency compliance.
In relation to employment at a sewage treatment plant, the Board implemented a policy requiring drug screening for new hires. Applicant Kerns was informed of the requirement and agreed to a drug test, which initially returned a positive result for marijuana. Kerns contested the result, leading the Board to allow a second test, which was negative. Kerns believed he had completed the drug testing process and would not face further tests. However, Executive Director Schmidt claimed he instructed the personnel committee to inform Kerns of a future random test, which was not communicated to Kerns.
On September 2, 1997, Schmidt instructed Kerns to undergo another drug test, which Kerns accepted without objection. After a few days, Kerns was informed that his urine sample tested positive for marijuana. He subsequently communicated this result to Schmidt. During a meeting with Schmidt and Cordell, Kerns requested to keep his job but was told to stay home pending further instructions. He later received a call instructing him not to report to work for a few days. On September 15, 1997, Kerns was discharged due to the positive test result, leading him to initiate legal action under 42 U.S.C. § 1983.
Kerns's main argument on appeal is that the drug testing infringed on his legitimate privacy expectations and that the Authority's drug policy lacks a compelling justification, rendering it unconstitutional. The document references established legal principles, noting that urine tests are considered searches under the Fourth Amendment, but searches conducted with voluntary consent are constitutional. The District Court ruled that Kerns consented to the drug tests, a finding that is subject to review for clear error.
Kerns was informed during his job interview that passing a drug test was a condition of employment, to which he responded positively. A conditional offer of employment was extended to him in May 1997, which he accepted, acknowledging the requirement for a drug test. The first test occurred two weeks after he started working, and Kerns made no objections, arranging the test himself. Although he initially tested positive, he requested a retest, which the Authority allowed, and he passed the second test.
The court found that Kerns's actions demonstrated clear voluntary consent to the drug tests, given the circumstances of his employment agreement and his responses throughout the process.
Consent for the third drug test was ambiguous. Two months after Kerns completed his second drug test, John Schmidt, the executive director, requested another urine sample. Kerns, who thought his testing was finished, complied without objection. In this circuit, "silent submission" does not equate to consent, as established in Bolden v. SEPTA. However, Kerns had signed a document agreeing to complete a pre-employment drug test as a condition of his employment. Given the inconclusive results of his first two tests, it was reasonable for the Authority to deem Kerns' drug testing obligation incomplete and require compliance with his contractual agreement. Thus, the District Court's finding that Kerns consented to all three tests was upheld with no identified error. The judgment of the District Court is affirmed, with both parties bearing their own costs. Judge John R. Gibson sat by designation. Additionally, the Authority's drug testing policy is distinct from its written policy regarding pre-employment and random testing for Commercial Drivers' License holders. New hires are placed on a six-month probation before achieving permanent status. Kerns denied smoking marijuana but acknowledged being around second-hand smoke at a party, while Schmidt alleged Kerns admitted to smoking marijuana there.
