Wilcher v. City of Wilmington

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

3-17-1998

Wilcher v. Wilmington

Precedential or Non-Precedential:

Docket 96-7276

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Filed March 17, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-7276

BEVERLY WILCHER; SHARON SMITH; MICHAEL

DANYLO; CORNELIUS SKINNER, on behalf of themselves

and all others similarly situated; THE WILMINGTON FIRE

FIGHTERS ASSOCIATION, LOCAL 1590,

Appellants,

v.

CITY OF WILMINGTON; JAMES A. SILLS, in his official

capacity as Mayor of the City of Wilmington; JAMES T.

WILMORE, SR., individually and in his official capacity as

Chief of Fire for the City of Wilmington; CLIFTON E.

ARMSTEAD, individually and in his official capacity as

Deputy Chief of Fire for the City of Wilmington;

S.A. WAYNE CROSSE, in his official capacity as Dir ector

of Personnel for the City of Wilmington; WILLIAM J.

YANONIS, individually and in his official capacity as

Deputy Director of Personnel for the City of Wilmington

SODAT-DELAWARE, INC.,

Third-Party Defendant

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil Action No. 94-cv-00137)

Argued January 28, 1997

Before: BECKER, Chief Judge, and ROTH, Circuit Judges,

and ORLOFSKY,1 District Judge

(Opinion Filed March 17, 1998)

Teresa C. Fariss, Esq. (Argued)

Young, Conaway, Stargatt & Taylor

P.O. Box 391

Rodney Square North, 11th Floor

Wilmington, DE 19899-0391

Attorney for Appellants

John W. Morgan, Esq. (Argued)

City of Wilmington

Law Department

800 French Street, 9th Floor

Wilmington, DE 19801

Attorney for Appellees

Bruce C. Herron, Esq. (Argued)

Sawyer, Akin & Herron

1220 North Market Street

P.O. Box 25047, Suite 606

Wilmington, DE 19899

Attorney for Third-Party Defendant

OPINION OF THE COURT

ROTH, Circuit Judge:

In this appeal, we are asked to determine whether the

City of Wilmington's method of testing firefighters for drug

use violates their rights under the Fourth Amendment. We

will affirm the district court's conclusion that it does not.

_________________________________________________________________

1. Honorable Stephen M. Orlofsky, United States District Court Judge for

the District of New Jersey, sitting by designation.

2

Nevertheless, we will remand the case for reconsideration of

the state law invasion of privacy claim.

Beverly Wilcher, Sharon Smith, Michael Danylo and

Cornelius Skinner are Wilmington firefighters. Along with

the Wilmington Fire Fighters Association (WFFA), they

brought this class action on behalf of all firefighters in the

city. The defendants are the City of Wilmington, Mayor Sills

(in his official capacity), James T. Wilmore (individually and

in his capacity as Fire Chief), Clifton Armstead (individually

and in his official capacity as Deputy Fire Chief), Wayne

Crosse (in his official capacity as Director of Personnel for

Wilmington), and William Yanonis (individually and in his

official capacity as Deputy Director of Personnel). In

addition, the firefighters sued SODAT-Delaware, Inc., the

drug testing company that performs the tests for the City of

Wilmington. The firefighters sought injunctive relief and

damages under 42 U.S.C. S 1983 and damages for"invasion

of privacy" under the state's tort law.

The district court granted summary judgment in favor of

the individual defendants on the ground that they were

entitled to qualified immunity and in favor of the SODAT

defendants on the ground that SODAT was not a state

actor. The district court then held a three-day trial. Two

days into the trial, the plaintiffs apprised the district court

of this Court's statement in Bolden v. SEPTA, 953 F.2d 807,

822-23 n.23 (3d Cir. 1991), that reasonableness under the

Fourth Amendment was an issue of law. Concluding that

there were no remaining factual issues for the jury to

decide, the district court, with the plaintiffs' acquiescence,

dismissed the jury. The court then decided against the

plaintiffs on the merits of their Fourth Amendment claim.

See Wilcher v. City of Wilmington, No. 94-137, slip. op.

(D.Del. June 30, 1995). The district court also concluded

that plaintiffs could not prevail on their state law invasion

of privacy claim. The district court eventually elaborated on

its findings in a memorandum opinion rejecting the

plaintiffs' motion for reargument and for a new trial. See

Wilcher v. City of Wilmington, 924 F.Supp. 613 (D.Del.

1996).

The firefighters have appealed on several grounds. First,

they cite as error the district court's failure to enter an

3

injunction permanently prohibiting the City from using the

direct observation method in its urine collecting, despite the

fact that during a pre-trial teleconference the City had

tentatively agreed to such an arrangement. Second, they

dispute the district court's conclusion that direct

observation of urine collection is reasonable under the

Fourth Amendment. Third, they appeal the district court's

determinations regarding qualified immunity and state

action. Fourth, they urge that, in denying the plaintiffs a

jury trial, the district court misapplied our decision in

Bolden. Finally, the plaintiffs contend that the district court

committed error when it presumed that the reasonableness

standard under the Fourth Amendment of the Constitution

was equivalent to the reasonable person standard under

Delaware tort law.2

We will reject all the plaintiffs' grounds for appeal except

for the fifth one. The district court did not abuse its

discretion when it denied plaintiffs' motion for injunctive

relief, following the City's rejection of the tentative

agreement. In addition, we agree with the district court that

a drug testing monitor's presence in the same room with

the firefighter during the collection of thatfirefighter's urine

does not, by itself, constitute an unreasonable search

under the Fourth Amendment. As for the plaintiffs' jury

trial right, we agree that the district court misread our

decision in Bolden when it concluded that no factual

_________________________________________________________________

2. The plaintiffs also contend that the district court should not have

determined that SODAT's drug testing method was not in violation of the

firefighters' Collective Bargaining Agreement with the City. See Wilcher,

at 17-19 (June 30, 1996 Memorandum). According to the plaintiffs, this

issue was moot by the close of the trial because the City had agreed at

least temporarily to discontinue using the method. Because the City has

explicitly reserved its right to use this procedure in the future, we do

not

agree that this issue is "moot." Moreover, the City has never conceded

the impermissibility of SODAT's drug testing procedure under the

Collective Bargaining Agreement with the firefighters. Nevertheless, we

agree that this issue should not have been decided by the district court.

The plaintiffs never raised the Collective Bargaining Agreement in the

pleadings. Moreover, when the case was tried, plaintiffs had not yet

exhausted their administrative remedies, such as arbitration. Therefore,

the issue was not properly before the district court, and we will vacate

the district court's ruling on it.

4

determinations remained for the jury. Nevertheless, we will

not reverse the district court's dismissal of the jury because

the plaintiffs clearly acquiesced in this action and thereby

waived their jury right under Rule 39(a) of the Federal

Rules of Civil Procedure.

However, despite our affirmance of the district court's

constitutional analysis, we will remand this case for further

proceedings because we believe the court erred in

presuming the equivalence of the "reasonableness" inquiry

under the Fourth Amendment and the "reasonable person"

standard under the common law in an invasion of privacy

claim.

I. FACTS

In July 1990, the City and the Wilmington Fire Fighters

Association (the firefighters' union) agreed in a Collective

Bargaining Agreement that firefighters would be subject to

random drug testing through urinalysis in order to ensure

that members of the Fire Department were drug free. Prior

to January 1994, the City had employed a procedure

whereby a randomly selected firefighter was notified he

would be tested when he arrived at the station to begin his

shift. A battalion chief would then stay with the firefighter

and take him to Occupational Health Services at the

Medical Center of Delaware ("Occupational Health") where

the test was performed. There, the battalion leader would

conduct the firefighter to a "dry room" to produce the urine

specimen. The sink in the dry room did not contain water

and the toilet bowl contained blue dye to prevent cheating

by dilution. The firefighters provided their urine specimens

in private; no observer was present in the dry room.

Occupational Health's method of collecting urine in this

manner followed the guidelines of the National Institute of

Drug Abuse.

In November 1993, in an attempt to reduce the cost of

random drug testing, the City solicited bids from drug

testing facilities. The City did not specifically request a

procedure which included visual observation of urine

collection. SODAT, a private drug-testing company in

Delaware with a primary focus on outpatient drug-

5

counseling, submitted a proposal under which fire-fighters

would produce the urine sample "under the direct

supervision of counselor/authorized personnel." The City

accepted SODAT's bid.

In January 1994, SODAT began drug testing the City's

firefighters. The parties have given substantially different

descriptions of how the SODAT employees carried out this

procedure. The male firefighters, for example, claim that the

SODAT monitor looked over the firefighter's shoulder at his

genitals while he urinated. SODAT, on the other hand,

claims that the monitors stood to the back or the right of

the firefighters but did not directly observe their genitalia.

Although SODAT employees are directed to observe the

urine collection process by looking in the firefighter's

general direction as he or she commences urination, the

monitors are neither directed nor expected to focus on the

firefighter's genitals. At trial, the SODAT monitors

maintained that they had acted within the company's

guidelines.

After hearing this testimony, the district court accepted

SODAT's portrayal of the monitoring process as accurate.

"An examination of the SODAT testing program, both in

terms of its design and intent, and more specifically in its

execution, demonstrates that no element of the program

was intended to invade the privacy of a firefighter in an

overly intrusive manner." Wilcher, 924 F.Supp. at 617. The

district court further stated, "Although [the collection

process] may have involved some observation of the

genitalia area generally, this observation was only a by-

product of the general observation of the donor." Id. at 618.

In its earlier memorandum, the district court had also

stated:

On the evidence submitted by the parties, the Court

finds that the direct supervision procedure employed

by SODAT did not in principal or in fact involve the

direct observation of the genital area of the person

providing the urine sample. . . . [SODAT's procedure]

does not direct that the SODAT employee undertake to

observe the genital area of the individual providing the

sample. It only requires supervision during the

collection process.

6

Wilcher, slip. op. at 11. The district court further concluded,

"The Court is convinced that the testimony concerning the

position of the SODAT employee during the specimen

collection is corroborated and demonstrates that genital

observation was not the purpose nor the practice of the

SODAT policy." Id.

Soon after SODAT began testing firefighters, the Deputy

Fire Chief was informed of the firefighters' complaints about

SODAT's testing method. The City did not, however, request

that SODAT stop using the direct observation procedure.

The firefighters' union, the Wilmington Fire Fighters

Association, filed a first step grievance with the City of

Wilmington protesting the direct observation procedure.

The Deputy Chief denied this grievance. The WFFA filed a

second step grievance, which was denied on February 17,

1994. The WFFA then filed a Notice of Arbitration. The

plaintiffs filed suit on March 18, 1994, against the City and

the individual defendants. The City impleaded SODAT, and

the plaintiffs amended their complaint to include SODAT as

a defendant. In an Order and Stipulation filed on April 15,

1994, the parties agreed that the City should direct SODAT

to refrain from using direct observation of urination while

this case was pending.

The district court had jurisdiction over this case

pursuant to 28 U.S.C. SS 1331 and 1343. We now have

jurisdiction under 28 U.S.C. S 1291.

II. THE "TENTATIVE AGREEMENT"

Before we proceed with our analysis of the constitutional

issue, we will address the plaintiffs' contention that the

district court erred in not permanently enjoining the City

from using SODAT's direct observation method of drug

testing. We find no such error.

On April 15, 1994, the parties filed a Stipulation and

Order temporarily enjoining the City from further use of the

direct observation method during the pendency of this case.

On June 16, the parties participated with the district court

in a teleconference, during which the City expressed its

willingness to refrain permanently from using the direct

observation method. At the end of the teleconference,

7

SODAT's counsel stated that she would draft a stipulation

and order to that effect and send it around to the other

parties for their signature.

Despite this tentative agreement, the plaintiffs and the

City of Wilmington were unable to arrive at an accord on

the terms of the stipulation. The City therefore refused to

sign it. The plaintiffs then filed a motion with the district

court for an order permanently enjoining the City and

SODAT from further use of the direct observation method of

urine collection. The district court denied this motion

without opinion on March 31, 1995. The plaintiffs argue

that this denial was error, as the City defendants had

reneged on their agreement in bad faith. The defendants

reply that the oral agreement was only tentative.

As a general rule, we encourage attempts to settle

disagreements outside the litigative context. A settlement

agreement is a contract and is interpreted according to

local law. See Pennwalt Corp. v. Plough, Inc., 676 F.2d 77,

79 (3d Cir. 1982). A district court may enter injunctive

relief on a party's behalf to enforce a settlement agreement

when it determines that one of the parties has failed to

perform its obligations. See Read v. Baker, 438 F.Supp.

732, 735 (D. Del. 1977), citing Petty v. General Accident Fire

& Life Assurance Co., 365 F.2d 419, 421 (3d Cir. 1966).

The power to grant or deny an injunction, however, is firmly

within the discretion of the district court. See Castrol, Inc.

v. Pennzoil Co., 987 F.2d 939, 943 (3d Cir. 1993).

According to the City, the district court did not abuse its

discretion by denying the injunction because the parties

had produced no more than a tentative agreement,

unenforceable by law. We agree. Under Delaware law, the

criteria for deciding whether a contract exists is the

intention of the parties, evidenced by their objective

conduct and manifestations. See Industrial America, Inc. v.

Fulton Indus., Inc., 285 A.2d 412, 415 (Del. 1971). The

parties' subjective intent is irrelevant. Id. Rather, the

court's inquiry is "whether a reasonable man would, based

upon the `objective manifestation of assent' and all of the

surrounding circumstances, conclude that the parties

intended to be bound by contract." Leeds v. First Allied

8

Connecticut Corp., 521 A.2d 1095, 1101 (Del.Ch. 1986). As

Chancellor Allen has noted,

This is not a simple or mechanical test to apply.

Negotiations typically proceed over time with

agreements on some points being reached along the

way towards a completed negotiation. It is when all of

the terms that the parties themselves regard as

important have been negotiated that a contract is

formed.

Leeds, 521 A.2d at 1101 (emphasis added). The Chancellor

further stated, "Until it is reasonable to conclude . . . that

all of the points that the parties themselves regard as

essential have been expressly or . . . implicitly resolved, the

parties have not finished their negotiations and have not

formed a contract." Id., at 1102.

These basic principles of contract law lead us to conclude

that the district court committed no abuse of discretion in

denying injunctive relief. Although the parties agreed in

principle at the pre-trial teleconference to a stipulation

permanently halting the direct observation procedure, they

did not discuss the details of the agreement. Thus, we

cannot say that all the essential terms were resolved before

or during the teleconference. The teleconference

represented but one step of a complex negotiation between

three parties (the firefighters, the City, and SODAT). The

record indicates that the City made a good faith effort to

work with the plaintiffs to draft a stipulation acceptable to

everyone. Unfortunately, the parties never reached that

stage. This failure, however, does not represent a breach of

contract. Accordingly, we will affirm the district court's

denial of the permanent injunction.

III. THE CONSTITUTIONALITY OF

DIRECT OBSERVATION

The gravamen of the plaintiffs' complaint is that the

direct observation method of urine collection violates the

firefighters' right under the Fourth Amendment, as

incorporated by the Fourteenth Amendment, to be free from

unreasonable searches and seizures. The district court held

that the direct observation method, as executed by SODAT,

9

did not constitute an "unreasonable" search. Because the

reasonableness of a search under the Fourth Amendment is

an issue of law, we exercise plenary review. See Bolden, 953

F.2d at 822-23 n.23; Dykes v. SEPTA, 68 F.3d 1564, 1568

(3d Cir. 1995).

The Fourth Amendment guarantees the "right of the

people to be secure in their persons . . . against

unreasonable searches and seizures." U.S. Const. Amend.

IV. It is well established that the government's collection

and testing of an employee's urine constitutes a "search"

under the Fourth Amendment. Skinner v. Railway Labor

Executives' Assn., 489 U.S. 602, 617; Treasury Employees

v. Von Raab, 489 U.S. 656, 665 (1989). Ordinarily, the

Constitution requires the government to obtain a warrant

supported by probable cause to search a person or his

property. There are, however, several well-established

exceptions to the warrant and probable cause

requirements. The Supreme Court has explained:

[O]ur cases establish that where a Fourth Amendment

intrusion serves special government needs, beyond the

normal need for law enforcement, it is necessary to

balance the individual's privacy expectations against

the Government's interests to determine whether it is

impractical to require a warrant or some level of

individualized suspicion in the particular context.

Von Rabb, 489 U.S. at 665-66. See also Griffin v. Wisconsin,

483 U.S. 868, 873 (1987); New Jersey v. T.L.O., 469 U.S.

325, 340 (1985). Under the "special needs" analysis, the

government need not show probable cause or even

individualized suspicion for its search. Instead, it must

prove that its search meets a general test of

"reasonableness." Under this standard, the constitutionality

of a particular search " `is judged by balancing its intrusion

on the individual's Fourth Amendment interests against its

promotion of legitimate governmental interests.' " Skinner,

489 U.S. at 619 (quoting Delaware v. Prouse, 440 U.S. 648,

654 (1979)). In particular, the Supreme Court's

jurisprudence directs us to consider three factors when

judging the constitutionality of employee drug tests: (1) the

nature of the privacy interest upon which the search

intrudes; (2) the extent to which the search intrudes on the

10

employee's privacy; and (3) the nature and immediacy of

the governmental concern at issue, and the efficacy of the

means employed by the government for meeting that

concern. Vernonia School Dist. 47J v. Acton, 115 S.Ct. 2386

(1995).

The firefighters do not dispute the reasonableness of

compulsory drug testing per se. To the contrary, the

firefighters have agreed to drug testing in their Collective

Bargaining Agreement with the City. Rather, the plaintiffs

challenge the City's method of testing, which entails visual

observation of the firefighters as they provide their urine

samples. This issue has been described as "distinct and

clearly severable from those that govern reasonable

suspicion testing generally". National Treasury Employees

Union v. Yeutter, 918 F.2d 968, 975 (D.C. Cir. 1990).

For this reason, we apply the Fourth Amendment's

reasonableness test solely to the direct observation method

utilized by SODAT and not to the broader issue of

compulsory drug testing. See id.3

A. The Nature of the Firefighters' Privacy Interest

"Reasonableness" entails a three pronged inquiry. First, a

court examines the individual's privacy interest upon which

the search at issue allegedly intrudes. See Vernonia, 115

S.Ct. at 2391 (1995). This expectation of privacy must be

legitimate as measured by objective standards. "The Fourth

Amendment does not protect all subjective expectations of

privacy, but only those that society recognizes as

`legitimate.' " Id.

The district court properly concluded that firefighters

enjoy only a diminished expectation of privacy. "Because

they are in a highly regulated industry, and because they

had consented to random testing in their collective

bargaining agreement, the firefighters had a reduced

privacy interest." Wilcher, 924 F.Supp. at 618. Plaintiffs

now argue on appeal that the firefighting industry is not

_________________________________________________________________

3. Because it is the method of testing, rather than the fact of testing,

which is at issue, we do not find that appellants' post-argument citation

to Chandler v. Miller, 117 S.Ct. 1295 (1997), is helpful to our

considerations here.

11

"highly regulated" and that the firefighters therefore did not

have a diminished expectation of privacy.

Plaintiffs' argument lacks merit. Even though extensive

regulation of an industry may diminish an employee's

expectation of privacy, see Policemen's Benevolent Ass'n,

Local 318 v. Township of Washington, 850 F.2d 133 (3d Cir.

1988) (police department described as "highly regulated");

Shoemaker v. Handel, 795 F.2d 1136 (3d Cir. 1986)

(upholding law requiring jockeys to submit to breathalyser

and random urinalysis testing), we have never held that

regulation alone is the sole factor that determines the scope

of an employee's expectation of privacy. It is also the safety

concerns associated with a particular type of employment

-- especially those concerns that are well-known to

prospective employees -- which diminish an employee's

expectation of privacy. Supreme Court precedent

demonstrates this principle. In National Treasury

Employees v. Von Raab, the Court held that a government

employee's expectation of privacy depended in part on the

nature of his employment and whether it posed an

attendant threat to public safety. See 489 U.S. at 672.

Upholding the drug testing of customs officials, the Court

explained:

We think Customs employees who are directly involved

in the interdiction of illegal drugs or who are required

to carry firearms in the line of duty likewise have a

diminished expectation of privacy in respect to the

intrusions occasioned by a urine test. Unlike most

private citizens or government employees in general,

employees involved in drug interdiction reasonably

should expect effective inquiry into their fitness and

probity . . . . Because successful performance of their

duties depends uniquely on their judgment and

dexterity, these employees cannot reasonably expect to

keep . . . personal information that bears directly on

their fitness.

Id. (emphasis added). Customs officials enjoyed a reduced

expectation of privacy because of the sensitive nature of

their duties and of the information they received. We have

held that railway employees also enjoy a diminished

expectation of privacy because of the safety concerns

12

associated with those who operate trains. See e.g. Transport

Workers' Union, Local 234 v. SEPTA, 884 F.2d 709, 712 (3d

Cir. 1988) (random testing of rail operators upheld because

of "great human loss" they can cause prior to detection of

drug problem).

Certainly, a firefighter with a drug problem poses as great

a threat to public safety as does a customs official or a rail

operator. A firefighter whose drug use is undetected is a

source of danger both to his colleagues and to the

community at large. In addition, the firefighter puts himself

at great risk of harm. Since the perils associated with

firefighting are well known, we have no trouble concluding

that firefighters enjoy a diminished expectation of privacy.

Our inquiry, however, does not end here, as we must

balance the firefighters' diminished interest with the

character of the search at issue and with the concerns that

have propelled that search.

B. The Character of the Search

The second factor we must consider is the character of

the government's search and the extent to which it intrudes

on the employee's privacy. The Supreme Court has held

that the degree of intrusion "depends upon the manner in

which production of the urine sample is monitored."

Vernonia, 115 S.Ct. at 2393. Before we judge the

intrusiveness of SODAT's drug testing method, however, we

must first determine what that method actually entails.

At trial and on appeal, both the plaintiffs and the SODAT

employees have presented highly divergent pictures of the

urine collection process. The firefighters claim that

monitors looked at their genitalia as they urinated. SODAT

and its employees, on the other hand, steadfastly maintain

that they did not focus on the firefighters' genitalia during

the urine collection process. Instead, they claim that they

looked in the firefighters' general direction to ensure that

no tampering was taking place during the production of the

urine specimen.

Based on the evidence before it, the trial court concluded

that SODAT's drug testing procedure involved only the

monitors' direct observation of the urine collection process

in general and not the intentional observation of the

13

firefighters' genitalia. Wilcher, 924 F. Supp. at 617-18. We

accept as accurate the district court's finding of fact

concerning the nature of the urine collection process

employed by SODAT. Although the reasonableness of a

search is a legal question, the particular character of that

search is a factual matter. Cf. O'Connor v. Ortega, 480 U.S.

709, 726-729 (factual dispute regarding character of search

precluded lower court's grant of summary judgment on

Fourth Amendment issue). As such, the trial judge's factual

finding regarding the character of SODAT's drug testing

procedure is reversible only if it is clearly erroneous. See

Marco v. Accent Pub. Co., Inc., 969 F.2d 1547, 1548 (3d Cir.

1992). In light of the nature of the testimony from the

SODAT employees, which the trial judge chose to credit, we

cannot say that the district court's finding was clearly

erroneous.4 Consequently, we will adopt the district court's

description of the SODAT procedure as one which entails

only incidental observation of a firefighters' genitals.

Having adopted the district court's description of the

SODAT drug-testing procedure, we must concede that the

direct observation method represents a significant intrusion

on the privacy of any government employee. Urination has

been regarded traditionally by our society as a matter

"shielded by great privacy." Skinner, 489 U.S. at 626; 109

S.Ct. at 1418. Few cases have dealt with the issue of the

specific method used by the government to test its

employees for drugs. In Vernonia School District 47J v.

Acton, the Supreme Court upheld the constitutionality of a

mandatory random drug testing program that a school

district employed to reduce drug use among its student

athletes. The Court described the Vernonia drug testing

procedure in the following manner:

The student to be tested completes a specimen control

form which bears an assigned number. . . . The

student then enters an empty locker room

accompanied by an adult monitor of the same sex.

Each boy selected produces a sample at a urinal,

_________________________________________________________________

4. In addition, we note the concession of plaintiffs' attorney at oral

argument that she was not seeking reversal of the trial court's factual

findings.

14

remaining fully clothed with his back to the monitor,

who stands approximately 12 to 15 feet behind the

student. Monitors may (though do not always) watch

the student while he produces the sample, and they

listen for normal sounds of urination. Girls produce

samples in an enclosed bathroom stall, so that they

can be heard but not observed.

Vernonia, 115 S.Ct. at 2389. The Supreme Court concluded

that this method of testing was not unreasonable under the

Fourth Amendment. "Under such conditions, the privacy

interests compromised by the process of obtaining the urine

sample are in our view negligible." Vernonia, 115 S.Ct. at

2393.

Relying on Vernonia, the district court stated, "The Court

finds the SODAT collection method no more intrusive on

the firefighters' privacy than was the high school's drug

testing program found to be constitutional in [Vernonia]"

Wilcher, 924 F. Supp. at 618. The district court further

concluded, "The presence of monitors in the bathrooms

with firefighters is similar to the presence of the monitors

in Vernonia, and even though the monitors may have stood

closer than those in Vernonia, this close proximity was a

result of the collection facilities, in this case a bathroom as

opposed to a locker room, and not a more intrusive

method." Wilcher, 984 F.Supp. at 619.

We agree with the district court insofar as its analogy to

Vernonia applies to male firefighters. In a world where men

frequently urinate at exposed urinals in public restrooms,

it is difficult to characterize SODAT's procedure as a

significant intrusion on the male firefighters' privacy.5

Plaintiffs fail to demonstrate how the presence of a monitor

in a boys locker room while a student athlete urinates

differs significantly from the presence of a monitor in a

bathroom while an adult firefighter urinates. Both monitors

stand behind the individual providing the urine specimen.

Similarly, as the district court found, both monitors observe

only the collection process generally and not the particular

_________________________________________________________________

5. See also Dimeo v. Griffin, 943 F.2d 679, 682 (7th Cir. 1991) (noting

that "[u]rination is generally a private activity in our culture, though,

for

most men, not highly private.")

15

individual's genitalia. The only difference is the distance

between the monitor and the person producing the

specimen. We cannot conclude that this difference by itself

justifies a determination that SODAT procedure is

unreasonable.6

We must admit that we are more cautious about the

reasonableness of the direct observation method as it

applies to female firefighters. We simply cannot characterize

the presence of a monitor in a bathroom while a female

urinates as an ordinary aspect of daily life. Indeed,

Vernonia noted with approval the fact that female student

athletes provided urine behind a stall as monitors stood

outside listening. Vernonia, 115 S.Ct. at 2393.

Nevertheless, nothing in Vernonia suggests that the

presence of a female monitor in a bathroom when an adult

female firefighter provides a urine specimen is per se

unconstitutional under the Fourth Amendment. Moreover,

the facts of this case suggest that SODAT took substantial

measures to minimize the intrusion of privacy to female

firefighters caused by the direct observation procedure. The

district court found that the female monitors stood to the

side of the female firefighters and that the monitors did not

look at the firefighters' genitalia as they urinated, but

rather in their general direction. Wilcher, 924 F.Supp. at

617-18. Finally, SODAT provided a nurse-practitioner as a

monitor for plaintiff Wilcher when she expressed discomfort

with her first female monitor. Thus, although wefind

SODAT's intrusion of the female firefighters' privacy to be

significant, we nevertheless agree with the defendants that

SODAT has carried out its testing procedure in an

appropriate and professional manner.

C. The Governmental Concern

The third and final component of the "reasonableness"

test under the Fourth Amendment is the government's

_________________________________________________________________

6. We note that our conclusion might differ had the district court

accepted the firefighters' testimony that SODAT's monitors looked over

firefighters' shoulders as they provided their urine specimens. Similarly,

we would be much more concerned with a procedure's intrusion on

privacy if it required the monitor to stand in front of the firefighter,

or if

it demanded the direct observation of the firefighter's genitalia.

16

interest, which must be compelling. With regard to this

prong, the Supreme Court has observed:

It is a mistake . . . to think that the phrase `compelling

state interest,' in the Fourth Amendment context,

describes a fixed, minimum quantum of governmental

concern, so that one can dispose of a case by

answering in isolation the question: Is there a

compelling state interest here? Rather, the phrase

describes an interest which appears important enough

to justify the particular search at hand, in light of

other factors which show the search to be relatively

intrusive upon a genuine expectation of privacy.

Vernonia, 115 S.Ct. at 2394-95. Thus, "compelling interest"

does not have the same meaning in this context as it does

in other areas of constitutional law. Moreover, the fact that

there exists a less intrusive method of achieving the

government's goal is not relevant to the Court's

reasonableness analysis under the Fourth Amendment.

Vernonia, 115 S.Ct. at 2396. See also Skinner, 489 U.S. at

629 n.9; Illinois v. Lafayette, 462 U.S. 640, 647 (1983).

In this case, we do not review the constitutionality of

drug-testing per se, but rather, the procedure by which

firefighters are tested. According to the City and to SODAT,

visual observation is necessary to prevent cheating. At trial,

the defendants' expert, Dr. Closson, testified that visual

monitoring is necessary to catch employees who attempt to

fool the test by substituting someone else's urine or adding

a chemical adulterant to their own urine.

On appeal, the plaintiffs argue that cheating can be

detected by testing the urine's temperature since

substitutes make the specimen colder than it should be.

According to Dr. Closson, a forensic toxicologist, cheaters

still can avoid detection by warming substitute urine

through a heating pack hidden on their body, or by keeping

the urine close to their body so that it takes on the body's

temperature. Closson further maintained that direct

observation was the most accurate collection method for

ensuring the integrity of a urine sample. Finally, Closson

testified that direct observation procedures are used by the

New York City Police Department, the New York City

17

Department of Corrections, and several other New York

agencies.

Like the district court, we find the defendants' expert

testimony persuasive. Cheating is a significant concern. The

City understandably wishes to take as many steps as

possible to eliminate potential violations of the drug testing

program. The plaintiffs argue that the cheating described

by Dr. Closson is unlikely, as Wilmington firefighters do not

receive notice that they are to be tested until the day of the

test, and they remain in the company of a superior officer

from the moment they are notified of the test until the time

that they actually provide their urine specimen. Although

this argument is strong, it does not prove that the

incidences of cheating, described by Dr. Closson, are

impossible or even implausible. Although such cheating

calls for fairly sophisticated equipment, it is possible for a

firefighter with a drug problem to carry a catheter or an

artificial bladder taped to his body on the days following

drug use, just in case he is tested on that day. Indeed, Dr.

Closson stated that cheating has been known to take place

within the New York agencies, which use the direct

observation method.

Under Supreme Court jurisprudence, the City of

Wilmington need not wait for a cheating problem to develop

in order to justify its use of direct observation. In Von Raab,

for example, Justice Scalia noted that the Supreme Court

upheld random mandatory drug testing of customs officials,

even though there existed no evidence of a history of drug

abuse among those government employees. See Von Raab,

489 U.S. at 679 (Scalia, dissenting). Moreover, the fact that

there exists a less intrusive method of achieving the

government's goal is not relevant to the Court's Fourth

Amendment analysis. Skinner, 489 U.S. at 629 n.9; Illinois

v. Lafayette, 462 U.S. 640, 647 (1983).

Finally, we do not agree with the plaintiffs' argument that

SODAT renders its direct observation procedure ineffective

(and thereby unnecessary) by directing monitors not to look

at the firefighters' genitals. Certainly, the mere presence of

a monitor in the room where the firefighter is urinating

deters a would-be-cheater from substituting or adulterating

his own urine sample. Thus, we must agree with the

18

district court that the direct observation procedure serves

the government's interest of preventing cheating on drug

tests.

Because we find that SODAT's direct observation method,

as described in the district court's findings of fact, meets

the three elements of the Fourth Amendment

reasonableness test, we hold that the plaintiffs' Fourth

Amendment rights have not been violated.7 The City's

significant interest in preserving the integrity of its

firefighters' drug tests outweighs their expectations of

privacy. With regard to the male firefighters, the conditions

created by SODAT do not differ significantly from the

conditions present in an ordinary public restroom. As for

the female firefighters, we note the district court's finding

that SODAT has taken several steps to minimize the

potentially intrusive effects of having a person present in

the same room during the collection of a femalefirefighter's

urine. So long as SODAT's monitors refrain from looking at

the firefighters' genitalia, its direct observation procedure

remains within the boundaries of a constitutional search.

Accordingly, the district court did not err when it ruled in

the defendants' favor on the issue of constitutionality under

the Fourth Amendment.8

IV. WAIVER OF JURY TRIAL

Two days into the trial, the plaintiffs brought to the

district court's attention our statement in Bolden v. SEPTA

that reasonableness under the Fourth Amendment was an

issue to be decided by the judge. See Bolden, 953 F.2d at

822. Based on its reading of Bolden, the district court, with

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7. We note that the D.C. Circuit has come to the opposite conclusion

with regard to this issue. See Piroglu v. T.R. Coleman, 25 F.3d 1098 (D.C.

Cir. 1994); National Treas. Employees v. Yeutter, 918 F.2d 968, 976 (D.C.

Cir. 1990). These cases, however, were decided prior to the Supreme

Court's decision in Vernonia.

8. Because we affirm the district court's disposition of plaintiffs'

Fourth

Amendment claim, we need not review either the district court's

determination that SODAT was not a state actor, or its conclusion that

the City defendants, as sued in their individual capacities, were entitled

to qualified immunity.

19

plaintiffs' agreement, dismissed the jury. Plaintiffs now

claim that this was error and that the district court violated

their right to a jury trial. We reject this argument as lacking

merit. Although plaintiffs had a right to a jury trial, they

waived that right when they acquiesced in the district

court's dismissal of the jury.

Rule 39(a) of the Federal Rules of Civil Procedure

states:

When trial by jury has been demanded as provided in

Rule 38, the action shall be designated upon the

docket as a jury action. The trial of all issues so

demanded shall be by jury unless (1) the parties or

their attorneys of record, by written stipulationfiled

with the court or by an oral stipulation made in open

court and entered in the record, consent to trial by the

court sitting without a jury or (2) the court upon motion

or its own initiative finds that a right of trial by jury of

some or all of those issues does not exist under the

Constitution or statutes of the United States.

Fed. R. Civ. P. 39(a) (emphasis added). This Court has

stated that once a party makes a timely demand for a jury

trial, that party subsequently waives that right when it

participates in a bench trial without objection. See Cooper

v. Loper, 923 F.2d 1045, 1049 (3d Cir. 1991). Numerous

courts have adopted this position. See generally 5 James

Wm. Moore et al., Moore's Federal Practice, P39.03 n.5-6

(2d ed. 1988) (consent can be inferred from conduct of

parties or counsel). See also Royal American Managers, Inc.

v. IRC Holding Corp., 885 F.2d 1011 (2d Cir. 1989) (plaintiff

waived right to jury trial in securities action by

participating in bench trial without objection); Pope v.

Savings Bank of Puget Sound, 850 F.2d 1345, 1355 (9th

Cir. 1988) (counsel's agreement with court's announced

intent to dismiss jury, as well as actual knowledge that jury

was being discharged, constituted waiver of jury trial right

under Rule 39(a)).

Based on these principles, we find that the plaintiffs

waived their jury trial right under Rule 39(a). On the third

day of trial, the plaintiffs' attorneys submitted a letter to

the district court notifying it that under Bolden the issue of

reasonableness under the Fourth Amendment was a legal

20

issue for the court. In response to this letter, the trial judge

stated his intention to dismiss the jurors because there

remained no liability questions for them to decide. The

plaintiffs' counsel objected to this course of action only

insofar as damages were concerned. The court agreed that,

should the plaintiffs prevail on any of the liability

questions, he would either recall the jury or assemble a

new one to hear evidence relating to damages.

Based on the dialogue between the district judge and the

plaintiffs' attorney, we conclude the plaintiffs waived their

jury trial right under Rule 39(a). The sole concern of the

plaintiffs' attorney was that the trial court preserve the

damages issue for a jury trial in the future. She did not

argue that the plaintiffs were entitled to a jury on the

invasion of privacy claims. Nor did she argue that the

plaintiffs were entitled to a jury verdict on the factual

aspects of their Fourth Amendment claim (such as whether

the SODAT employees actually looked at the firefighters'

genitals while they urinated). Hence, whatever rights the

plaintiffs had, their counsel waived when she explicitly

agreed with the district court's decision to dismiss the jury.9

V. FOURTH AMENDMENT "REASONABLENESS" VS. THE

STATE LAW "REASONABLE PERSON" STANDARD

Finally, we will reverse the district court's ruling insofar

_________________________________________________________________

9. Although the plaintiffs waived their jury trial rights, we nevertheless

note that the district court misapplied our statement in Bolden when it

concluded that there were no factual issues for the jury to decide. The

fact that reasonableness under the Fourth Amendment is a legal issue

does not make all issues under the Fourth Amendment legal in nature.

For example, in Dykes v. SEPTA, 68 F.3d 1564, 1568 (3d Cir. 1995),

we addressed a claim that SEPTA had violated its own drug-testing

policy by testing the plaintiff without reasonable suspicion. Reiterating

our statement in Bolden, we held that the specific question of whether

SEPTA had reasonable suspicion to test the plaintiff (i.e. evidence that

he might be using drugs) was factual. See 68 F.3d at 1567. Thus, our

statement in Bolden applied only to the ultimate determination of

whether SODAT's drug testing procedure qualified as "reasonable" under

the Fourth Amendment, not to any determination of the factual elements

of that procedure.

21

as it equated the Fourth Amendment "reasonableness"

standard with the much different common law "reasonable

person" standard. Invasion of privacy is a tort claim under

state law. Delaware adopted the Restatement of Tort's

definition of this claim in Barbieri v. News-Journal Co., 189

A.2d 773, 774 (Del. 1963). Under the Restatement,

plaintiffs can prove a common law invasion of privacy if

they show that defendants intentionally intruded on the

firefighters' physical solitude or private affairs or concerns

in such a manner that a reasonable person wouldfind

"highly offensive." (Restatement (Second) of Torts, S 652B

(1977)). See also Barker v. Huang, 610 A.2d 1341, 1350

(Del. 1992).

The district court concluded that since it had ruled

against plaintiffs on their constitutional claim, it could not

possibly find in their favor on their state law invasion of

privacy claim. "Even assuming that the monitors intruded

upon the firefighters' solitude, the Court has determined

that the collection procedures used by SODAT were

reasonable under constitutional principles." Wilcher, 924

F.Supp. at 619.

The district court's assumption that "reasonableness"

under the Fourth Amendment is analogous to a "reasonable

person" standard under state common law is erroneous. A

state may provide its citizens with greater protection of

their individual rights than does the federal constitution.

For example, in Kelley v. Schlumberger Technology Corp.,

849 F.2d 41 (1st Cir. 1988), the court struck down a drug

testing procedure because it violated the state constitution.

Moreover, it is beyond argument that a district court

cannot, a fortiori, apply a federal standard of law to a cause

of action grounded in the common law of the state in which

it sits. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78

(1938). Hence, the trial court incorrectly concluded, as a

matter of law, that a reasonable Delawarean could not find

the drug testing procedure "highly offensive," simply

because the test might have passed muster under the

Fourth Amendment.10 We will therefore remand this issue

_________________________________________________________________

10. The district court also dismissed the plaintiffs' invasion of privacy

claims because, "the `intrusion into physical solitude' claimed by the

22

to the district court to determine whether the "reasonable

person" standard under Delaware common law wouldfind

the practices employed by SODAT "highly offensive."11

VI. CONCLUSION

Based on the foregoing discussion, we will affirm the

district court's ruling on the plaintiffs' constitutional claim.

So long, at least, as the SODAT employees continue to

employ the safeguards discussed in Part III, their direct

observation method does not violate the Fourth

Amendment.

In addition, we will affirm the district court's dismissal of

the jury because the plaintiffs waived their jury trial right

when they acquiesced on the record to the dismissal.

Moreover, as we note in footnote 1, we will vacate the

district court's holding that SODAT's drug testing

procedure was permissible under the Collective Bargaining

Agreement. Finally, we will vacate the dismissal of the state

law invasion of privacy claim and remand this case to the

district court for reconsideration of the state law issues.

_________________________________________________________________

Plaintiffs resulting from the direct observation method was consented to

by written contract." Wilcher, 924 F.Supp. at 619. We find the court's

statement on this matter puzzling, as the court has cited no portion of

the Collective Bargaining Agreement in which the firefighters actually

consented to such a method of drug testing.

11. We know of no Delaware case that has discussed or been presented

with this issue. We do not predict at this juncture what the Delaware

Supreme Court would do if presented with this issue. Cf. Epstein Family

Partnership v. Kmart Corp., 13 F.3d 762, 765 (3d Cir. 1994) (if state

court has not ruled on issue, federal district court must predict how it

would decide issue). Moreover, the fact that direct observation method

passes muster under the Fourth Amendment certainly may be raised by

the City and SODAT in defense of the invasion of privacy claim. We

simply hold that a federal district court cannot presume that a state's

common law tort standard and a constitutional balancing test would

reach the same result when applied to the same set of facts. The

reasonableness of a procedure under the Fourth Amendment may be

relevant to the inquiry under state law, but it is not necessarily

dispositive of the state law claim.

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A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

24