Opinion
DOCKET NO. A-4516-13T3
08-03-2015
THOMAS A. BYE, Plaintiff-Appellant, v. BURLINGTON COUNTY BRIDGE COMMISSION, Defendant-Respondent.
Mark W. Catanzaro argued the cause for appellant. Carmen Saginario, Jr., argued the cause for respondent (Capehart Scatchard, P.A., attorneys; Mr. Saginario, of counsel and on the brief; Katheryn Eisenmann, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2858-12. Mark W. Catanzaro argued the cause for appellant. Carmen Saginario, Jr., argued the cause for respondent (Capehart Scatchard, P.A., attorneys; Mr. Saginario, of counsel and on the brief; Katheryn Eisenmann, on the brief). PER CURIAM
Plaintiff Thomas A. Bye appeals from an April 28, 2014 order which denied relief and dismissed his complaint challenging his termination from employment by defendant Burlington County Bridge Commission (Commission). Plaintiff, a former Commission maintenance employee, was terminated following a disciplinary hearing for his failure to comply with mandatory drug testing procedures. Specifically, when plaintiff's first sample was rejected as adulterated, he left the testing facility after refusing to submit a second sample under direct observation of a testing professional. The consequence of failing to complete testing was discharge.
Plaintiff's complaint is not included in the appendix. --------
Plaintiff's complaint sought declaratory relief, asserting the drug testing policy, as applied to him, constituted a warrantless search because the Commission failed to disseminate detailed written procedures of the testing policy once a sample was rejected as adulterated. Alternatively, plaintiff argued the infraction did not warrant termination.
Judge Ronald E. Bookbinder reviewed the matter de novo. See N.J.S.A. 40A:9-25 (providing "[t]he Superior Court shall have jurisdiction to review the determination of the governing body," removing a county employee for cause, and "shall hear the cause de novo on the record below"). Initially, the parties agreed their written submissions were sufficient for the judge's determination. These included exhibits and witness testimony elicited before a Commission-appointed hearing officer who reviewed the underlying disciplinary determination. However, questions arose regarding the nature of plaintiff's employment responsibilities as the Commission's drug policy required all employees who performed "safety-sensitive" functions to participate in mandatory random drug testing. A three-day evidentiary hearing was conducted, followed by oral argument.
Judge Bookbinder issued a detailed written opinion, rejecting plaintiff's arguments of alleged constitutional violations, and found plaintiff's employment position required he participate in the policy's mandatory random drug testing. Judge Bookbinder found the preponderance of the credible evidence showed plaintiff knew he was subject to drug testing, as he had previously been selected twice for testing, under the Commission's prior drug testing policy. Further, plaintiff was informed of the requisite procedures for collecting samples and the consequences for submitting an adulterated sample. Importantly, plaintiff was notified he would be discharged if he refused to comply with the mandatory drug testing policy. Judge Bookbinder concluded the "drug test was constitutional" and the Commission's termination of plaintiff's employment for refusing to complete mandatory testing was reasonable. He denied plaintiff's requested relief and dismissed his complaint, upholding his termination.
On appeal, plaintiff repeats the arguments he raised before the Law Division, arguing the factual findings were unsupported by the record and the legal conclusions based on those facts were erroneous. Specifically, he contends testimony by the Commission's witnesses showed dim recollection regarding the policy and was not credible; implementation and enforcement of the Commission's drug policy violated his constitutional rights; the policy is invalid as implemented and drafted; and the guidelines followed by the private testing company were unwarranted. We reject these arguments and affirm substantially for the reasons set forth in the sixty-four page written expansion of the initial written opinion issued by Judge Bookbinder. R. 2:11-3(e)(1)(A). We add these brief comments.
The Commission's policy provided:
If an employee refuses to submit to a drug or alcohol test, he/she will be immediately discharged. Actions constituting refusal to submit to a test include
(i) failing to appear for a test within a reasonable time;
(ii) failing to remain at the testing site until the testing process is complete;
(ii) adulterating or substituting a specimen; or
(iv) failing to cooperate with any part of the testing process.
While testifying before the hearing officer, plaintiff presented various unsubstantiated justifications for his rejected first sample. These included suffering from an undocumented medical condition that adversely affected his ability to void and accounted for its low temperature, and taking an undisclosed over-the-counter medication that caused the sample to be discolored. The hearing officer found plaintiff was not believable and rejected his claims as incredible.
The Commission's witnesses refuted each of plaintiff's explanations. At the testing facility, medical professionals repeatedly attempted to convince plaintiff to provide a second sample under observation. He was also advised leaving the facility prior to submitting a second specimen resulted in a refusal under the Commission's policy, which could lead to his dismissal.
The hearing officer further credited the witnesses' testimony, noting plaintiff received a copy of the Commission's drug testing policy during a training session in July 2008. During the presentation, the policy was related, including the provision of a second sample under direct observation once an individual provided an adulterated specimen.
The Law Division, in its de novo review, gave due but not controlling deference to the hearing officer's credibility determinations. Judge Bookbinder thoroughly expressed the basis for adopting the credibility determinations rendered by the hearing officer. He described testimony elicited by the Commission's witnesses as containing "specificity and corroboration," with a lack of "material contradiction or other indicia of fabrication." Plaintiff, on the other hand, was found to have a motive to fabricate. Judge Bookbinder found his testimony to be "indefinite and qualified," containing internal inconsistencies and failed recollections. Importantly, plaintiff did not "present any significant testimony to contradict" the facts related by the testing facility's nurse and doctor involved in administering his test.
Accordingly, we defer to the credibility findings that plaintiff's conduct qualified as a "refusal" under the policy. See Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997) (stating appellate courts "must . . . give due regard to the opportunity of the one who heard the witnesses to judge their credibility").
We also defer to the findings as supported by the substantial, credible evidence in the record. See In re Disciplinary Procedures of Phillips, 117 N.J. 567, 579 (1990) ("[U]nless the appellate tribunal finds . . . the decision below was arbitrary, capricious[,] or unreasonable or unsupported by substantial credible evidence in the record as a whole, the [de novo] findings should not be disturbed. (brackets omitted) (citation and internal quotation marks omitted)). These include plaintiff's knowledge of the testing procedures, such as (1) the requirement to provide a second sample under direct observation, when the first is rejected as adulterated, and (2) that his refusal to comply may result in disciplinary action "up to and including termination."
Plaintiff offered a sample that was adulterated and, when instructed to provide a second sample, he refused. Plaintiff then left the testing facility, without permission and prior to completing the testing, despite his knowledge it would result in a refusal and discharge. Finding plaintiff's conduct violated clearly-delineated language in the Commission's drug policy, Judge Bookbinder concluded the disciplinary policy reasonably provided for his discharge. We discern no reason to intervene with that determination.
Next, we concur the Commission's drug testing policy is constitutional. "Case law in the federal courts and in our state has firmly established that any government-compelled drug or alcohol testing is a search." N.J. Transit PBA Local 304 v. N.J. Transit Corp., 151 N.J. 531, 543 (1997). Testing programs must "meet the reasonableness requirement of both the Fourth Amendment and Article 1, Paragraph 7" of New Jersey's Constitution. Ibid. This is especially true under these facts involving "a citizen's 'excretory function[, which] traditionally is shielded by great privacy.'" Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568, 598 (2003) (brackets omitted) (quoting N.J. Transit, supra, 151 N.J. at 559-60).
The government may randomly drug test an employee upon demonstration of a "special need" based on the employee's performance of a safety-sensitive function. N.J. Transit, supra, 151 N.J. at 556 (adopting the federal special needs exception to the requirement for particularized suspicion, see Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 620, 109 S. Ct. 1402, 1415, 103 L. Ed. 2d 639, 661-62 (1989), and noting employees in safety-sensitive positions have a diminished expectation of privacy). "[W]hile considerations of public safety may justify the privacy intrusion implicit in random drug testing," drug testing procedures must be designed to minimize that intrusion to hold constitutional muster. See Reames v. Dep't of Pub. Works, City of Paterson, 310 N.J. Super. 71, 81 (App. Div. 1998); N.J. Transit, supra, 151 N.J. at 560-62.
Plaintiff concedes he held a "safety-sensitive" function. His challenge suggests no distinction was drawn between types of maintenance employees and all were subject to the drug testing policy, making it invalid. The argument lacks merit as it is unaccompanied by evidential support. R. 2:11-3(e)(1)(E).
The plain language of the Commission's policy provides regulated employees were tested. "Regulated employees" were defined as "employees who perform safety-sensitive functions that impose a risk of immediate and substantial harm to others." This includes maintenance department employees who worked on the Commission's bridges and their surrounds, whose functions "ha[ve] a clear impact on public safety." See, e.g. Int'l Fed'n of Prof'l & Technical Eng'rs, Local 194A, AFL/CIO-CLC v. Burlington Cnty. Bridge Comm'n, 240 N.J. Super. 9, 24 (App. Div.), certif. denied, 122 N.J. 183 (1990).
We also repudiate plaintiff's claims suggesting the collection procedure was unreasonably intrusive. Rather, we find the procedure was "designed to address the[] privacy concerns [implicated by drug testing] and to minimize the intrusion on the employee's privacy." N.J. Transit, supra, 151 N.J. at 560. In New Jersey Transit, the Court summarized the policy at issue, which it found complied with the privacy interest of those tested:
[T]he procedures require the urine sample to be collected in a manner that ensures the modesty and privacy of transit employees. The collection site must permit individual privacy while a specimen is produced. Only when the employer has reason to believe that the employee may adulterate the sample, and only after review and approval by a supervisor, may another person of the same gender as the employee observe the employee produce a specimen.
[Ibid.]
Here, the private testing company hired by the Commission and involved in plaintiff's testing employed similar procedures. As noted, plaintiff's first sample was altered, warranting more intrusive observation to assure the integrity of any second sample. Plaintiff's suggestions to the contrary are rejected.
As to the notice of the procedures, plaintiff had the benefit of a written policy, explained during classroom instruction and through a PowerPoint presentation, reminders through explicit posters at the testing site, verbal instructions from the testing professionals, and prompting during telephone calls with his supervisor. Plaintiff's suggestions he was unaware of what constituted an adulterated sample or of the consequences when an adulterated sample is supplied, i.e., testing under direct observation, are specious.
Following our review of the arguments advanced on appeal, in light of this record and the applicable law, we determine no basis to alter Judge Bookbinder's comprehensive determination. Plaintiff failed to demonstrate a factual or legal basis for relief.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION