Smith v. Fresno Irrigation Dist.

Page 775

84 Cal.Rptr.2d 775

72 Cal.App.4th 147, 15 IER Cases 130,

99 Cal. Daily Op. Serv. 3641,

1999 Daily Journal D.A.R. 4619

Ronald SMITH, Plaintiff and Respondent, v. FRESNO IRRIGATION DISTRICT, Defendant and Appellant.

No. F028993.

Court of Appeal, Fifth District, California.

May 17, 1999.

Rehearing denied June 9, 1999.

Review Denied Aug. 25, 1999.

Certified for Partial Publication. ^*

Horvitz & Levy, Sandra J. Smith, Ari R. Kleiman, Encino, Brown & Peel, Carl L. Brown, Fresno, and R. Ernest Montanari, for Defendant and Appellant.

Oliver & Duncan, Donald E. Oliver and Karen E. Duncan, Redmond, OR, for Plaintiff and Respondent.

O P I N I O N

LEVY, J.

INTRODUCTION

Defendant Fresno Irrigation District challenges two rulings of the trial court: (1) the determination that plaintiff Ronald Smith was not required to exhaust the District's internal grievance procedure prior to filing suit for wrongful termination; and (2) the ruling that plaintiff was not in a safety-sensitive position and hence the random drug test which plaintiff was required to take violated his constitutional right to privacy and his right to be free of unreasonable searches and seizures.

In the unpublished portion of this opinion, we will affirm the trial court's ruling that plaintiff's suit was not barred by his failure to exhaust the District's internal grievance procedure. However, upon a de novo review of plaintiff's constitutional claims, we will find that the random drug test was justified by the hazards inherent in plaintiff's employment and, hence, the judgment entered in favor of plaintiff must be reversed. ¹

BACKGROUND FACTS

Plaintiff was hired by the Fresno Irrigation District (District) in February 1989. The District is an independent state agency responsible for water distribution and flood control. (Wat.Code, § 20570.) During the irrigation season, which generally spanned the months of March to September, plaintiff worked as a ditchtender. Plaintiff was employed the balance of the year as a construction and maintenance worker for the District.

After consultation with representatives of the employees' association, the District adopted a "Drug-Free Work Safety Program Substance Abuse Policy" (Substance Abuse Policy) for all of its employees in July 1994. The stated purpose of the policy was to: (1) further enhance safety in the workplace for all employees; (2) promote employee health; (3) maintain a high level of quality in the service to the public; (4) improve productivity; (5) provide protection against public liability; and (6) promote the public's trust in the District.

Under the policy, those employees who worked in safety-sensitive positions were required to take random tests for drugs and alcohol. ² The District employed a computerized random number generator to determine which employee would be tested and on what date the testing would occur. The policy called for an average of two tests per classified employee each calendar year. The policy defined " 'Safety sensitive' positions" as those "which as a normal course of business require the employee to operate District vehicles or heavy equipment, or those positions in which the employee's performance, reflexes, and/or judgment impact the safety of others."

The list of positions deemed safety sensitive was developed by management. Although the Substance Abuse Policy was adopted by the District's board of directors, the list of positions deemed safety sensitive was not itself adopted by the board. Out of 32 positions within the District, 23 were found to be safety sensitive. Both the position of ditchtender and the position of construction and maintenance worker were deemed safety sensitive. Only positions which were more clerical in nature were found not to be safety sensitive. All management positions were deemed safety sensitive. Management designated their own jobs safety sensitive due to the type of responsibilities inherent in their positions and as a show of support for the District's drug-free policy.

After the Substance Abuse Policy was adopted, the District informed its employees of the provisions of the policy. Under the policy, any employee who had a substance abuse problem was given a "grace period" of six months in which to obtain counseling and treatment without risk of termination. However, after the grace period expired on January 1, 1995, any employee who tested positive for any amount of any illegal drug would be terminated. During the six-month period between the adoption of the policy and implementation of the drug testing program, plaintiff attended several informational sessions held by the District and was vocal in his opposition to the policy.

On January 9, 1995, plaintiff was told to report to an independent testing laboratory and to submit to a urine test for drugs. The results of the test were positive for amphetamines, methamphetamines and marijuana. Plaintiff was suspended from duty on January 11, 1995, and was told to report to the controller of the District. Plaintiff did not report to the controller as requested.

Plaintiff received a written termination notice on January 13, 1995. The notice advised plaintiff that he had a right to file a grievance, to have a hearing before the general manager or his designee, and to appeal any decision to the board of directors. Plaintiff did not attend a meeting with the District's representative on January 17, 1995. This meeting had been scheduled for appellant by the District's manager to give plaintiff the opportunity to appeal his termination.

On January 31, 1996, plaintiff filed a complaint for wrongful termination in violation of public policy, invasion of privacy under the California Constitution, and for violation of his Fourth Amendment right under the federal Constitution to be free of unreasonable searches and seizures. The constitutionality of the District's drug testing policy and whether this policy was justified by the safety-sensitive nature of plaintiff's employment was bifurcated and tried as a matter of law before the court sitting without a jury.

The court initially heard argument on the District's affirmative defense that plaintiff's suit should be dismissed as a result of plaintiff's failure to exhaust the District's internal grievance procedure. The trial court found the District's internal procedures too informal and confusing to require adherence thereto.

A three-day trial was conducted to determine if the safety concerns inherent in plaintiff's employment justified the random drug test. The nature of plaintiff's employment and the general job descriptions for the positions of ditchtender and construction and maintenance worker were not disputed by plaintiff. Evidence was received with respect to the types of duties inherent in both positions. However, because plaintiff was drug tested during his employment as a construction and maintenance worker, and because he was terminated therefrom, the constitutional validity of the test must focus on the safety sensitivity of that position. We therefore deem it unnecessary to discuss the evidence presented by the parties with respect to the ditchtender position.

There were many reasons why the District deemed the position of construction and maintenance worker safety sensitive. The former general manager of the District testified that the hazards connected with the construction and maintenance work in the District were unique. The workers built pipes, forms, diversions and bridges, however, what made these particular duties especially hazardous was the fact that the structures were built in and around dirt trenches.

The trenches were typically 10 feet deep. Given this environment, there was always the possibility that a worker might fall into a trench or onto forms with exposed rebar uprights. If the construction work was to be performed in a trench, there was a "risk of cave-in or slides." The possibility that a trench might collapse was aggravated by the fact the employees had to climb in and out of the trench with tools and heavy equipment. Additional reasons for the safety-sensitive classification included the fact that employees operated power tools and heavy equipment in close proximity to one another and the fact that employees were required to crawl through sections of pipe in order to make needed repairs.

Construction and maintenance workers always worked in a crew. Since the District was in the process of replacing its water delivery system with pipes, plaintiff would sometimes be called upon to work in a crew responsible for casting and placing pipes in a trench. This job required a crew of four. One worker would stand on the bank of the ditch and oil the forms to be used in casting the pipe in place. The forms weighed 50 pounds or more. The oiled form would be handed by the first worker to a second who worked on the casting machine. A third worker in the casting machine would set the oiled form in the machine. A fourth worker, who was also located in the machine, would trowel the imperfections in the pipe as the machine advanced. Apart from the ever-present hazard of a cave-in, an aspect of this job which was particularly hazardous was the 20 to 25 foot boom which would swing back and forth as the concrete was being poured into the cast and place pipe machine.

Plaintiff's job duties also included constructing forms for the gates, pouring concrete to prevent erosion around gates, and weed and brush abatement. In the performance of these duties plaintiff operated a jackhammer, skill saw, chain saw, chipper and roto-hammer. A coworker thought the chipper was a particularly dangerous piece of equipment due to the potential of injury or loss of life if loose clothing got caught on the blades and the worker was pulled into the machine.

Plaintiff also operated a piece of heavy equipment called a sloper. A sloper was used to shape and clean the ditch. The sloper was not self-propelled. It would be attached...