Opinion
CLAIM NO. E508728
OPINION FILED JUNE 12, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PAUL D. CAPPS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE DAVID S. WILSON, III, Attorney at Law, West Memphis, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on December 18, 1997. In that opinion and order, the administrative law judge found that the claimant has failed to establish that the presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv)(b) (Repl. 1996) violates the claimant's rights to due process and equal protection. In addition, the administrative law judge found that the claimant failed to establish that the implied consent provision of Ark. Code Ann. § 11-9-102(5)(B)(iv)(c) (Repl. 1996) violates the claimant's rights under the fourth amendment to the United States Constitution. The administrative law judge also found that the claimant failed to rebut the presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv)(b), and that the claimant therefore failed to prove by a preponderance of the evidence that he sustained a compensable injury. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be affirmed.To the extent that the claimant asserts that the rebuttable presumption in Ark. Code Ann. § 11-9-102(5)(B)(iv)(b) violates his due process and equal protection rights, we note that the Arkansas Court of Appeals has recently addressed and rejected this same constitutional challenge in Ester v. National Home Centers, 61 Ark. App. ___, ___ S.W.2d ___ (March 18, 1998). Accordingly, for the reasons indicated by the Court in Ester, we find that the rebuttable presumption at issue does not violate the claimant's due process and equal protection rights.
The claimant also asserts that the drug testing provided for under Ark. Code Ann. § 11-9-102(5)(B)(iv)(c) violates the constitutional guarantees of the fourth and fourteenth amendments. We recently addressed this argument in Tracy Reddick v. Binkley Company, Full Workers' Compensation Commission, May 15, 1998 (W.C.C. No. E603208). In the present case, we find that the claimant has failed to establish that Ark. Code Ann. § 11-9-102(5)(B)(iv)(c) violates his rights under the fourth and fourteenth amendments to the United States Constitution for two reasons.
First, for the above referenced statute to warrant protection under the fourth and fourteenth amendments, the claimant must show that a search was conducted pursuant to State action and that said search was unreasonable. There is no question that drug testing is recognized as a search with the purview of the fourth amendment. Schmerber v. California, 384 U.S. 757 (1966). However, the primary issue focuses on whether or not the statute in question constitutes "state action" with regard to drug testing by a private employer.
The fourth and fourteenth amendments do not apply to private parties unless those parties are engaged in activities deemed to be "state action". Langston v. ACT, 890 F.2d 380 (CA 11 1989). Private action, no matter how egregious, cannot violate the equal protection or due process guarantees of the United States Constitution. Medical Institute of Minnesota v. National Association of Trade and Technical Schools 817 F.2d 1310 (CA 8 1987). The fourteenth amendment protects individuals against state action not against alleged wrongs done by individuals.Vincent v. Department of Health and Human Services, 600 F. Supp. 110, affirmed, 794 F.2d 683 (Nev. 1984). The fourteenth amendment does not protect against private action, no matter how unfair that action may be. Brewer v. Purvis 816 F. Supp. 1560 (GA. 1983). Purely private action does not trigger any constitutional protections. Liberty Mortgage Banking Ltd. v. Federal Home Loan Mortgage Corp., 822 F. Supp. 957 (N.Y. 1993). The claimant must therefore demonstrate that the search conducted in this case was a result of state action.
Numerous decisions throughout the United States have addressed what is state action to incorporate the constitutional provisions of the fourth and fourteenth amendments. In Fidelity Financial Corp. v. Federal Home Loan Bank of San Fransisco, 792 F.2d 1432, (CA 9 1986), the Federal Court held that the fact that a business is subject to extensive and detailed regulation does not alone render the business' actions governmental for purposes of determining right to due process. Further, the state's approval of, or acquiescence in, initiatives of private parties are not sufficient to establish "state action" for purposes of the fourteenth amendment. Carlin Communications, Inc. v. Southern Bell Telephone Telegraph Co., 802 F.2d 1352 (CA 11 1986). Encouragement, support and inevitability do not provide the precise criteria for finding a private individual to be a state actor, for purposes of due process deprivations; rather, the state normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the state. Hindman v. Lincoln Towing Services, Inc., 771 F.2d 189 (CA 7 1985). It is not enough, in order to find "state action" subject to equal protection and due process limitations of the fourteenth amendment, that an institution is highly regulated unsubsidized by the state; if the state in its regulatory or subsidizing fashion does not order or cause the action complained of, and the function is not one traditionally reserved to the state, then there is no "state action". Arlosoroff v. National Collegiate Athletic Association 746 F.2d 1019 (1984).
The claimant may prove state action by showing that the state exercised coercive power or provided a significant overt or covert encouragement to induce the challenged private actions; mere approval of or acquiescence in the private activity is insufficient to prove state involvement. Grossling v. Ford Memorial Hospital 614 F. Supp. 1051 (TX 1985). Factors considered in determining whether private action may be deemed government action for constitutional purposes are whether there is sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself; whether the challenged entity performs functions that have traditionally been the exclusive prerogative of the government; and whether, with regard to the challenged decision, the government has exercised coercive power or has provided such significant encouragement, either covert or overt that the choice must in law be deemed to be that of the government. American Bankers Mortgage Corp. v. Farrell Home Loan Mortgage Corp., 75 F.3d 1401 (CA 9 1996). See also Harris v. McDonald's Corp. 901 F. Supp. 1552 (Fl. 1995). Even when state laws permit private conduct which allegedly deprives claimants of constitutional rights, those laws do not transform private conduct into state action. Campbell v. U.S., 952 F.2d 1579 (CA 11 1992).
In Skinner v. Railway Labor Executives, 489 U.S. 602 (1989) the U.S. Supreme Court addressed the issue of whether or not private employer drug testing was state action for constitutional scrutiny. In Skinner, the private employer conducted drug testing pursuant to regulations issued by the Federal Railroad Administration. These regulations required private railroad employers to conduct blood and urine tests of covered employees following certain major train accidents or incidents. The regulation did not require but allowed railroads to administer breath or urine tests or both to covered employees who violated certain safety rules. The Supreme Court held that the drug testing performed by the private railroad employers constituted state action in that the government regulations required drug testing under certain circumstances, suggested drug testing under other circumstances, expressed its desire to share the "fruits of such intrusions" and mandated that the railroads not bargain away the authority to perform the tests granted by the regulations.
In Parker v. Atlanta Gas Lite Co., 818 F. Supp. 345 (S.D. GA 1993) a former employee brought action against a public utility after he was fired for failing the urinalysis drug screening, alleging that the drug screening violated the fourth, fifth, and fourteenth amendments. The District Court noted that for purposes of constitutional claims asserted by the former employee, there must be a showing that the private employer was a "state actor". The Court held that the state actor status could not be based on the Drug Free Workplace Act because neither the Act nor any regulations cited thereunder required the Utility to perform drug testing.
In determining whether or not a private employer is a "state actor" or performing "state action" for purposes of constitutional protections it is apparent that in both Skinner and Parker the Courts relied on the fact that the governmental regulations required the private employer to perform drug testing. Ark. Code Ann. § 11-9-102(5)(B)(iv) may arguably encourage and support post accident drug testing of injured workers, however, it in no form or fashion requires private employers to conduct such drug testing. We find that Ark. Code Ann. § 11-9-102(5)(B)(iv) lacks "state action" sufficient to come under the fourth and fourteenth amendments of the United States Constitution, and said statute is therefore constitutional.
Even if is could be said that Ark. Code Ann. § 11-9-102(5)(B)(iv) constitutes state action by a private employer to invoke the protections of the fourth and fourteenth amendments, we find that the drug testing allowed pursuant to these sections does not constitute an unreasonable search as prohibited by the fourth and fourteenth amendments. It is noted by the Arkansas legislature that the purposes of Ark. Code Ann. § 11-9-102(5)(B)(iv) were to increase workplace safety and discourage drug abuse in the workplace. As already noted, the fourth amendment does not prohibit all searches and seizures, but only those that are unreasonable. United States v. Sharp, 470 U.S. 675 (1985). What is reasonable, of course, depends on all of the circumstances surrounding the search or seizure and the nature of the search and seizure itself. United States v. Montova DeHernandez 473 U.S. 531 (1985). Thus, the permissibility of a particular practice is judged by balancing its intrusion on the individual's fourth amendment interest against the promotion of legitimate governmental interests. Delaware v. Prouse 440 U.S. 648. Except in certain well defined circumstances, a search or seizure is not reasonable unless it is accomplished pursuant to a warrant. In Skinner the Court recognized exceptions to this rule when "special needs" make the warrant's probable cause requirement impracticable. In Skinner the Court noted that the safety of the traveling public and of the employees themselves justified prohibiting covered employees from using alcohol or drugs and also justified the exercise of supervision to assure that the railroad restrictions were observed. See also Griffin v. Wisconsin 483 U.S. 868 (1987). The Court in Skinner further noted that ordinarily, employees consent to significant restrictions in their freedom of movement when necessary for employment, and few were free to come and go as they please during work hours. Also, any additional interference with an employee's freedom of movement that occurs in the time it takes to procure a blood, breath or urine sample for testing could not, by itself, be said to infringe a significant privacy interest. As already noted, in Skinner the Court found a compelling state interest in protecting the safety of the general public and the employee which was balanced against the employee's privacy rights, which, as noted, were minimal, and were offset by two considerations: first, that the regulations themselves set out the procedures involved in the testing; second that the employees had sufficient notice of the triggering event which would require the "search".
Although arguably, Ark. Code Ann. § 11-9-102(5)(B)(iv) merely authorizes reasonable and responsible testing and does not set out with specificity what this constitutes, it is apparent that the other applications made by the Supreme Court in Skinner are present in the statute in question. Namely, the legitimate and compelling state interest of employee safety, reduction in drug related accidents, and promoting a drug free workplace, as well as minimal invasion of privacy interests of employees who are aware of post accident drug testing with a diminished expectancy of privacy as seen in virtually all employment in this day and time. On that basis, we find that the drug testing contemplated by Ark. Code Ann. § 11-9-102(5)(B)(iv) is constitutional, regardless of whether or not the testing falls within the scope of "state action".
With regard to the circumstances of the present case, the record indicates that the claimant sustained a fall of approximately 24 to 30 feet on June 5, 1995, at a construction site while employed by the respondent. The claimant was taken to UAMS for treatment. The claimant's urine sample tested positive for metabolites of delta-9-tetrahydrocannabinol (THC), the chemical that produces the "high" in marijuana.
Since the claimant's urine tested positive for marijuana metabolites, we find that this evidence establishes a rebuttable presumption that the claimant's injury or accident was substantially occasioned by the use of an illegal drug. See Ark. Code Ann. § 11-9-102(5)(B)(iv)(b); Brown v. Alabama Electric Co., 59 Ark. App. ___, ___ S.W.2d ___ (January 21, 1998); Graham v. Turnage Employment Group, 59 Ark. App. ___, ___ S.W.2d ___ (January 21, 1998).
The record in the present case is composed solely of the transcript of the October 20, 1997, hearing including a medical report, as well as the results of a drug test dated June 9, 1995. The claimant was the only witness to testify. The claimant seeks to rebut the presumption through his own testimony regarding his actions and the alleged actions of a co-worker. Whether the claimant's testimony is sufficiently credible to rebut the presumption is a question of fact which this Commission must determine. See Express Human Resources, III v. Terry, 61 Ark. App. ___, ___ S.W.2d ___ (April 15, 1998). However, a claimant's testimony is never considered uncontroverted. Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985); Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).
The claimant asserts that his injury was actually caused by the negligence of a co-worker and not by the use of marijuana. In this regard, the claimant testified that he was working as a construction worker on a building being constructed at UALR. The claimant testified that he and a helper hired to assist the claimant were in the process of laying sheet metal "decking" measuring approximately 36 inches wide by 24 to 30 feet long, when the claimant inadvertently fell from a third story level approximately 30 feet to the ground. According to the claimant, he and the helper had scooted a piece of sheet metal decking nearly into place along the I-beam when he fell. According to the claimant, at the time he fell he had one leg straddled over the top of the sheet metal decking and the other leg straddling the I-beam as he was waiting for his helper to pull the decking towards the helper (and away from the claimant) to a specific marked position. The claimant testified that, instead of pulling the decking towards himself, the helper actually slid the decking away from himself and towards the claimant, causing the claimant to lose his balance and fall from the third floor construction area. The claimant could not recall the name of the helper and the respondents' attorney noted at the hearing that neither party can determine the name or current address of the co-worker who was helping the claimant that day.
In assessing the weight to be accorded the claimant's uncorroborated testimony regarding the cause of his fall, we first note that the fall occurred at approximately 1:00 in the afternoon, shortly after a lunch break. We also note that the claimant has an admittedly long history of marijuana use. In addition, we note that the claimant has given inconsistent accounts as to when he allegedly last smoked marijuana. At the hearing, the claimant testified that he stopped smoking marijuana approximately five weeks prior to the incident (i.e., approximately the first of May prior to the injury on June 9, 1995). Of course, the claimant's testimony that he stopped smoking marijuana approximately five weeks prior to the date that he was tested for marijuana metabolites raises the question as to how marijuana metabolites could be found in the claimant's body if he had stopped smoking marijuana five weeks before. In addition, inconsistent with the claimant's hearing testimony, the claimant testified in his deposition that he had actually quit smoking in approximately March of 1995. Again, the claimant's deposition testimony that he stopped smoking in March of 1995 leaves unexplained how marijuana metabolites would be formed in the claimant's urine in June of 1995, shortly after the fall.
The claimant also testified that his foreman, Mike Cullum, came to visit him in the hospital several days after the accident, and according to the claimant, he advised Mike Cullum at that time that the injury occurred when the decking was slid, shoving the claimant off the structure. There was no testimony or any indication by either party as to whether or not Mr. Cullum could be located at the time of the hearing.
After considering the medical test results indicating marijuana metabolites in the claimant's urine in June of 1995, the claimant's testimony that he last smoked marijuana in March or May, and in light of the lack of any corroborating evidence to establish that the level of metabolites in the claimant's urine in June was at least plausibly consistent with the claimant's assertion that he last smoked in March or May, we accord the claimant's uncorroborated testimony as to when he last smoked marijuana very little weight.
With regard to the claimant's account of the circumstances surrounding his fall, we note that the claimant seeks to place fault with a co-worker who could not be identified and called as a witness, and likewise, the claimant seeks to increase the weight to be accorded his testimony be asserting that he gave a prior account consistent with his hearing testimony to his former supervisor. However, like the co-worker, the former supervisor (who may or may not have corroborated the claimant's account) was not called to testify. Finally, we note that, after according very little weight to the claimant's testimony as to when he last smoked marijuana and his uncorroborated testimony that his fall was due to the negligence of a co-worker, it appears at least as likely, if not more likely, that the claimant's fall was caused by impaired judgment and impaired bodily function, as to any allegedly action on the part of a co-worker. Therefore, on this record, we find that the claimant has failed to prove by a preponderance of the credible evidence that his fall was not substantially occasioned by his use of marijuana.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the decision of the administrative law judge must be, and hereby is, affirmed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.