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DONALD P. JEVIC, Plaintiff,
vs.
THE COCA COLA BOTTLING COMPANY OF NEW YORK, INC., Defendant
 
Case:
Civil Action No. 89-4431
 
Location:
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
 
Date:
June 6, 1990
 
Attorneys:
Lee M. Grayson, Esq., JACK N. FROST, ESQ., Plainfield, New Jersey, Counsels for Plaintiff.
Robert L. Boston, Esq., SCHMELTZER, APTAKER & SHEPPARD, P.C., Washington, DC, 0Counsels for Defendant.
Robin B. Horn, Esq., SAIBER, SCHLESINGER, SATZ & GOLDSTEIN, Newark, New Jersey, Counsels for Defendant.
 
Court:
Nicholas H. Politan, United States District Court.
 
Author:
The Hon. Justice Politan
 

This case presents the timely issue of whether a private employer's pre-employment drug testing policy violates either civil or Constitutional law. Because Court finds nothing offensive in the subject procedure, either to the law or principles of public policy, it will grant defendant's summary judgment motion. Court notes that illegal drugs exact an enormous toll on the health and continued economic vitality of this nation. The Government has in fact declared a war on drugs and is vigorously prosecuting all drug offensives. Court does not accept plaintiff's invitation to shield their use by creating amorphous legal rights. On the contrary, it sanctions the efforts of the private sector to combat drug use through policies which reasonably balance the interest of the employer and country with the legitimate privacy concerns of the prospective employee. Defendant's mandatory test policy strikes such a balance. As such, plaintiff's arguments are wholly unpersuasive,

Plaintiff, Donald P. Jevic, instituted this action in the Superior Court of New Jersey, Middlesex County, Law Division, alleging that defendant, Coca-Cola Bottling Co. ("Coke"), committed a variety of tortious acts when they revoked an employment offer after plaintiff failed a mandatory pre-employment drug test. Defendant removed the action to this Court and filed a summary judgment motion. Court heard argument on February 26, 1990 and reserved decision to permit plaintiff to conduct discovery concerning the chain of custody of plaintiff's urine specimen. Plaintiff was also given the opportunity to file any supplemental affidavit or briefs with reference to this discovery. Plaintiff failed to file any such information.

The facts of this case are straightforward. In July of 1988 plaintiff interviewed with Coke for the position of District Sales Manager. As part of its application process Coke requires all prospective employees to take a drug test. Coke will not hire anyone who either refuses to take the test or who tests positive for drugs. Coke explained this policy to Jevic during his interview on July 29, 1988. On the same day he filled out an employment application, listing his address as 2658 Wildberry Court, Edison, New Jersey, and signed a "Pre-Employment Statement." This statement provided in part:

As a condition of employment, I consent to take a pre-employment physical examination, if required, I also agree to take future physical examinations as required by the company. I also agree to submit to a pre-employment drug test for the purposes of determining the presence of narcotics, marijuana, and/or other illegal substances. I understand that refusal or failure to submit to such testing, falsification of a test, or a positive finding on a test will remove me from consideration for employment.

The document also provided that plaintiff was an at will employee who could be removed "with or without cause at the option of the company " Plaintiff does not contest signing this document.

During the interview Mr. Frank Madia, Territorial Development Manager for Coke, conditionally offered plaintiff the position. Coke confirmed the offer in writing later that day. The confirmation letter expressly stated that Jevic had to sign the letter and return it to Coke.

After signing the Pre-Employment Statement Jevic went to the Redi-Med Medical Center. At Redi-Med he signed a second statement authorizing, the performance of the drug test and release of the results to Coke. Redi-Med procured a urine sample from Jevic and sent it to MetPath Laboratories for analysis. *fn1 Metpath tested Jevic's urine sample twice. The first test, an enzyme-multiplied immunoassay technique, indicated the presence of marijuana. This result was confirmed using a more sophisticated gas chromatography/mass spectrometry ("GC/MS") technique. On August 2, 1988 MetPath informed Redi-Med of the positive results. The following day Coke informed Jevic that he had failed the test and that his conditional employment offer was revoked. Jevic, however, maintained that the test was erroneous as he had not smoked marijuana in over a year. To buttress this argument he took an independent drug test and informed Coke of the negative results on August 10, 1988. He then requested that he be permitted to take a second drug test at Redi-Med. Defendant rejected this offer and plaintiff instituted this action approximately a year later.

The standards governing summary judgment under Rule 56 have been exhaustively detailed in the trilogy of Supreme Court cases, Celotex Corp. v. Cateret, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Ele. Indus. Co. v. Zenith Radio Co., 475 U.S. 574 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue far trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Summary judgment may thus be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to the party's case for which that party will bear the burden of proof at trial.

In resisting a summary judgment it is insufficient to merely allege that factual issues are in dispute. Rather, the non-moving party must demonstrate with legally cognizable evidence that the factual issues are material. Jersey Central Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109 (3rd Cir. 1985), cert. denied, 475 U.S. 1013 (1986). An issue of fact cannot be created in a brief but again, must be demonstrated with legal evidence. Id. at 1109-10. Summary judgment is appropriate in this case because the plaintiff has failed to demonstrate that any genuine issue of fact prevents judgment as a matter of law.

Plaintiff's Complaint contains seven counts ranging from invasion of privacy and breach of contract to violations of public policy. Court will address each count individually.

Count One alleges that Coke breached an express or implied contract with Jevic by not hiring him and by failing to give him a second drug test. Summary judgment is appropriate on this allegation for a variety of reasons. First, the uncontested facts demonstrate that plaintiff never had an express or implied contract with Coke. Rather, he had a conditional of far which became absolute only "upon performance of the prescribed condition." Duff v. Trenton Beverage Co., 4 N.J. 595, 605 (1950). Plaintiff failed to satisfy the express condition of the offer and no contractual relation with Coke ever arose,

It is also clear that Jevic never formally accepted Coke's offer prior to its revocation. The confirmatory letter mailed to Jevic on July 29, 1988 expressly provided that in order to accept the offer Jevic had to sign the second page of the letter. Jevic alleges that he followed this directive and returned the signed letter to Coke on August 4, 1988. It is uncontested, however, that Coke revoked its offer on the prior day, August 3, 1988. Jevic's signature on this document after the offer was revoked did not, therefore, serve to revive it. *fn2

Summary judgment on Count One is appropriate for another reason. The Pre-Employment Statement signed by Jevic clearly indicated that the application was not an employment contract and, more importantly, that if hired, Jevic could be terminated "at any time" with or without cause. Plaintiff's reliance on Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284 (1985) is thus entirely misplaced. In Woolley, the New Jersey Supreme Court held that a clear and prominent disclaimer, an implied promise in an employee manual that an employee will only be terminated for cause was enforceable against the employer. The present case is distinguished in two significant ways. First, there is no employee manual creating any implied contractual obligations. More importantly, the Pre-Employment Statement constitutes a clear and prominent disclaimer indicating that Jevic could be fired for any reason. See Radwan v. Beecham Laboratories, 850 F.2d 147, 150 (3rd Cir. 1988). There is, therefore, no merit to Jevic's assertion of breach of an implied contract.

The Second Count of plaintiff's Complaint alleges that "plaintiff relied on defendant's representations to his detriment. The defendant never informed the plaintiff prior to issuing him the letters of July 22, 1988 and July 29, 1988, of any drug testing precondition." Similarly, plaintiff alleges in the Seventh Count that "Plaintiff relied on defendant's promises or employment which induced the plaintiff to terminate his present employment and to accept the position offered to him in New Jersey." There is no conceptual difference between these allegations and Court will, therefore, adjudicate each as a unified claim based on equitable or promissory estoppel.

The doctrine of promissory estoppel is based on the notion that a party who induces reasonable action in reliance on a promise is bound by the promise "if injustice can be avoided only by enforcement of the promise." Friedman v. Tappan Development Corp., 22 N.J. 523, 538 (1956) (quoting, Restatement, Contracts, SEC. 90.). In an appropriate case, promissory estoppel serves as a basis for enforcing a contract without consideration. Such a contract is distinguished from an ordinary contract in that the detriment suffered by the promisee is the consequence of reliance on the promise rather than the result of the parties bargain. In New Jersey four separate elements must be established to prove a prima facie case of promissory estoppel: (1) a clear and definite promise by the promisor; (2) the promise must be made with the expectation that the promisee will rely thereon; (3) the promisee must in fact reasonably rely on the promise; and (4) detriment of a definite and substantial nature must be incurred in reliance on the promise. The Malaker Corp. v. First Jersey National Bank, 163 N.J. Super 463, 479 (App. Div. 1978).

The doctrine of equitable estoppel is distinguished by the fact that the promisor has made a representation to the promisee that is false. That party is thereafter barred, through equity, from denying the false statement. To state a cause of action based on equitable estoppel a party must demonstrate:

Conduct amounting to a misrepresentation or concealment of material facts, known to the party allegedly estopped and unknown to the party claiming estoppel, done with the intention or expectation that it will be acted upon by the other party and on which the other party does in fact rely in such a manner as to change his position for the worse gives rise to an equitable estoppel.

Carlsen v. Masters, Mates & Pilots Pension Plan Trust, 80 N.J. 334, 339 (1979). The burden of proof is on the party asserting the estoppel, Miller v.Miller, 97 N.J 154, 163 (1984). There is no merit to plaintiff's allegation under either theory.

Equitable estoppel is inappropriate because there is nothing in the record to indicate that Coke either misrepresented the nature of its employment offer or concealed its drug test policy from Jevic. Although Jevic argues in his brief that he had a firm unconditional offer prior to July 29, 1988, there is no legally admissible evidence presented to support this allegation. Jevic's affidavit simply states that "Towards late July I was verbally offered the position by William Signor and Frank Madia. I orally accepted Coca-Cola's offer. At the time I accepted the offer, there was no mention of my having to take and pass a drug test." There are a variety of problems with this assertion. First, Jevic does not state when in July Madia orally extended the unconditional offer of employment. Jevic's failure to specify exactly, or approximately, when this offer was made is significant because both Madia and Signor agree that they orally offered Jevic the job in late July. Jevic's affidavit does not, therefore, raise any factual issues.

Jevic's assertion that Coke concealed its drug test policy is also unpersuasive in light of the uncontroverted fact that he signed the Pre-Employment Statement at the meeting with Signor and Madia in late July. Court rejects the notion that this statement was an unenforceable contract of adhesion. As such, Jevic is bound by its terms and can not rely on vague assertions of a prior oral agreement. Even if such an agreement existed, it was replaced, and can not be contradicted by, its later written memorialization.

Plaintiff's reliance on letter written by Wayne Vogel is similarly unpersuasive and does not establish that a contractual relation arose prior to July 29, 1988. The letter from Wayne Vogel, a "key account executive," simply states "To whom it may concern; This is acknowledgement that Don Jevic will be employed by the Coca-Cola Bottling company of New York starting August 8, 1988." What is most significant about the latter is not that Vogel was friend of Jevic and had recommended him to Coke, but that Vogel had absolutely no power to hire Jevic or in any way bind Coke. The letter does not, therefore, establish that any offer of employment was made to Jevic prior to July 29, 1988. Why Vogel wrote this letter is unclear, but not relevant to the disposition of this case. Moreover, even if Vogel had the authority to bind Coke this letter would not establish that Jevic's offer was unconditional. Vogel could have sent this letter fully expecting Jevic to pass the routine pre-employment test procedures only to be rudely surprised. In such a case, the letter would not have altered the express terms of Jevic's employment offer or Coke's right to fire him with or without cause.

Jevic's assertion of promissory estoppel is equally unpersuasive. It is black letter law that to prove his prima facie case Jevic must demonstrate that whatever action he took in reliance on Coke's "promise" was reasonable. He cannot meet this burden for two reasons. First, Coke never made an absolute promise to Jevic. Rather, they made a conditional or modified promise that created an obligation to perform only after performance of the condition. It was, therefore, unreasonable for Jevic to rely to his detriment on this offer prior to his satisfaction of the condition. This fact is heightened by his own admission of prior marijuana use. Further, even if reliance on the conditional offer was reasonable, the record does not establish that Jevic took detrimental action specifically in reliance on Coke's alleged oral offer. Jevic asserts by affidavit that "I lived and worked in Maryland while interviewing with Coca-Cola. They sent me my employment confirmation letter." Jevic does not state that he moved to New Jersey in reliance on Coke unconditional offer of employment or that he would not have moved to New Jersey absent such an offer. *fn3 His assertion that "I gave notice to my former employer and put security deposit on an apartment in New Jersey" is also insufficient. It simply does not establish that Jevic took this action in reliance on any representations made by Coke.

Finally, equitable and promissory estoppel should only be applied in the rare case where it is the only method of avoiding injustice. This is not such a case. Plaintiff has presented no evidence contradicting the scientific accuracy or reliability of the procedures and tests used by Redi-Med or Metpath. Although he was given, at his request, the opportunity to depose any individual concerning the chain of custody of the urine specimen, he has not done so. The certification of plaintiff's expert, Dr. Brian Pape, also does not demonstrate the inaccuracy of Redi-Med's procedures or raise any factual issues concerning whether the specimen tested was plaintiffs. Dr. Pape simply opines that the urine specimen could have been retested at MetPath or transferred to another laboratory for confirmation. Court accepts this statement as entirely accurate and finds it legally irrelevant whether the urine specimen could have been retested. Dr. Pape also certifies that he could not determine the technical accuracy of the tests or the chain of custody of the specimen without additional information. Again, Court does not question the accuracy or truth of this statement but notes that it relates more significantly to the issue of plaintiff's prosecution of this action than to the resolution of the legal questions raised. The factual record presented by the defendant is thus entirely uncontradicted and equity does not, therefore, balance in the plaintiff's favor.

Plaintiff's Third Count alleges that defendant "negligently failed to perform another drug test on plaintiff to rule out a false-positive." There is no merit to this allegation. The essence or a cause of action in negligence is the breach of a legal duty. Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39 N.J. 382, 393 (1963). That legal duty may be defined by statute or the common law. In certain case the duty may also be found in fundamental concepts of decency and fair play. While there are numerous constitutional and statutory enactments which circumscribe private employer's treatment of employees and prospective applicants, these provisions do not define Coke's relation to Jevic with respect to drug testing. Nor is there a common law doctrine proscribing what duty a prospective employer owes to prospective employee's in terms of drug testing procedures. It is, therefore, appropriate to address this issue by first analyzing what duty Coke would have owed Jevic if he were hired.

If hired Jevic would have been an at will employee. He thus could have been fired with or without cause so long as his termination did not offend public policy. Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980); Erickson v. Marsh & McLennan Co., 1990 WL 9492, Feb. 5, 1990 (S.Ct. N.J.). The pre-employment statement expressly delineates this relation and, moreover, specifically states that Jevic could be fired on the basis of a single positive drug test. There is nothing to suggest that these terms or employment were unconscionable or violative of public policy. Logic thus demands that whatever limited rights Jevic had as a prospective employee could not have been any greater than the rights he would have had if hired. While defendant surely could have tested Jevic a second time there is a significant distinction between what one may do and what the law requires one to do. If hired Jevic could have been terminated after a single positive drug test. Coke thus had no legal obligation, in the pre-employment setting, to test Jevic a second time. *fn4

Nevertheless, Court declines to accept defendants assertion that Coke had no legal obligation to assure that the employment decision was not based on an erroneous false positive test. Coke has a definite obligation, as a matter of public policy, to insure that its drug testing procedures are scientifically sound. This duty is consistent with the concept of an at will employee. An at will employee fired on the basis of a false positive, procured through second rate or negligent test procedures, would surely have a cause of action based on public policy for wrongful termination. Similarly, Coke's limited duty to a prospective employee should extend only to insuring that any drug tests are reliable in design and application. A contrary holding would invite the use of suspect procedures and techniques which could easily be skewed to mask other impermissible hiring policies. The evidence is clear, however, that Coke did use the most advanced and accurate scientific procedures available. See National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384, 1394 n.2 (1989); Skinner v. Railway Labor Executives Ass'n, 109 S.Ct. 1402, 1409 n.3 (1989); In re Carberry, 114 N.J. 574, 587 (1989). Coke thus fulfilled its limited duty to plaintiff.

Plaintiff's Fourth Count alleges that "defendant violated public policy in the wrongful termination of plaintiff's employment." There are a variety of problems with this allegation. First, as stated, no employment relationship ever arose between Coke and Jevic. More importantly, plaintiff has not identified a legitimate public policy offended by a private employer not hiring an individual who tested positive for drug use.

Plaintiff first posits that in order to engage in drug testing the defendant must demonstrate reasonable individualized suspicion. This argument confuses the issues and burdens of proof. Coke is not a state actor and as such its actions are not limited by the Fourth Amendment. See Skinner v. Railway Labor Executives Ass'n., 109 S .Ct. 1402, 1411 (1989) ("Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative ."). Plaintiff's reliance on Fr. Order of Police v. City of Newark, 216 N.J. Super 461 (App. Div. 1987), is thus entirely inapposite. It is also not the defendant's burden to demonstrate that its actions were consistent with public policy. On the contrary, in an employment at will situation the plaintiff has the express burden of identifying "a specific expression of public policy" which is offended by his termination. Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980).

Plaintiff suggests that public policy is offended because "[g]iven the grossly unequal bargaining positions of the defendant's behemoth corporation and plaintiff, Mr. Jevic clearly had no realist choice but to take the drug test." Again, this argument skews the issues. Mr. Jevic had numerous choices which he exercised. His freedom was in no way constrained and there is nothing in the record to suggest that he was coerced or hoodwinked into taking this drug test. Exercising his right of choice Jevic took the drug test. Based on the scientific evidence presented, the test revealed that he also made other choices which he now regrets and thus asks Court to correct. But just as Court cannot constrain Jevic's freedom to take the test, it can do nothing to erase his own personal decisions relating to drug use.

Plaintiff's public policy argument is also logically flawed in that it attempts to establish legal criteria based on size. This is clearly untenable. Coke's freedom to regulate its own work force and to hire and fire whomever it pleases should not be constrained, merely because it is a "behemoth", any more so than the freedom of the local grocer to hire and fire whomever he or she pleases. La lege e equale per tuti, the big and the small. Basic laws of contract require that neither groups freedom be constrained to protect an individual's alleged right to shield his own illegal conduct. So long as the employment decision is not based on an impermissible criteria, the Constitution and basic principles of fairness are not offended. Drug use is clearly not such a category.

Finally, plaintiff is allegation is deficient because Coke's drug testing procedure is in no way offensive to public policy. In fact, it is a manifestation of the overwhelming public understanding of the plague of drugs on the United States and the need to rid all work places of their influence. The use of marijuana and other illegal narcotics exacts an enormous toll on this country in terms of business productivity and public health costs. Their use deprives the employee of the ability to function at peak efficiency and thus deprives the employer of part of what he bargained for. We should not seek to shield their use by creating amorphous legal rights but should rather sanction policies which reasonably balance the interest of the citizen with that of the country and the employer. In this case Coke's policy in was reasonable in design and scope. Plaintiff's argument is thus entirely unpersuasive.

Plaintiff's Fifth Count alleges that Coke's hiring policy is "arbitrary and capricious." There is simply no such cause of action and Court declines to create one. Moreover, Coke's hiring policy is in no way arbitrary. It is uniformly applied and directed toward the laudable objective of eliminating drugs from the work place. It does not, therefore, violate the theoretical parameters of this cause of action.

Plaintiff vaguely alleges in the Sixth count that "defendant's actions were an invasion of plaintiff's privacy." He does not specify whether this claim is founded in the colon law of tort or the Constitution. Court is thus constrained to address this allegation under both concepts. New Jersey recognizes four related invasion of privacy torts; (1) unreasonable intrusion upon seclusion; (2) appropriation of another's name or likeness; (3) unreasonable publicity given to one's private life; and (4) false light invasion of privacy. Tellado v. Time-Life Books, Inc., 643 F. Supp 904, 907 (D.N.J. 1986). Three of these causes require publication. See N.O.C., Inc. v Schaefer, 197 N.J. Super 249, 259 (Law Div. 1984). Plaintiff has not alleged publication and Court will, therefore, construe Jevic's claim as a cause of action for intrusion upon seclusion.

New Jersey follows the Second Restatement's definition or this tort which provides: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person." Restatement (Second) of Torts SEC. 652B; N.O.C., Inc. Schaefer, 197 N.J. Super. 249, 254 (Law Div. 1984). Although the Restatement does not specifically define "intrusion" it is well accepted that the essence of any tort, civil or constitutional, is that if be offensive and committed against ones will. Thus to intrude, in the tort context, one must act without permission. See O'Donnell v. U.S., 891 F.2d 1079, 1083 (3d Cir. 1989) ("The comments and illustrations to Section 652B disclose that an "intrusion upon seclusion" claim usually involves a defendant who does not believe that he has either the necessary personal permission or legal authority to commit the intrusive act.").

The essential flaw of Jevic's allegation is that he consented to take the drug test on two occasions. First, when he signed the Pre-Employment Statement and later, when he signed the waiver at the medical center. Assuming arguendo that an individual has a legitimate privacy interest in shielding his or her participation in a criminalized activity from a prospective employer, that interest is not violated, creating tort liability, if the individual voluntarily consents to its discovery. That is, one cannot intrude when one has permission. A man who deliberately walks into a police station and confesses to a crime cannot be heard to claim that his Fifth Amendment rights were violated. Similarly, Jevic, having consented to the drug test has no more standing to assert a violation of privacy than had he lit a marijuana cigarette during his interview. While the latter action may have led to criminal liability, it would have effected his relation to Coke in the same way; that is, he would have voluntarily revealed his drug use. *fn5

There is also no merit to the allegation that Coke's drug testing policy invaded plaintiff's constitutional right to privacy. Although not specifically delineated in the Constitution, Court has interpreted this guarantee to protect those rights "fundamental" or "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319 (1937). Court has limited the area protected to certain highly personal activities related to marriage, reproduction, sexual activity and education. Paul v. Davis, 424 U.S. 693 (1976). There is simply no merit to the suggestion that drug use is within this limited scope of protection.

More importantly for the adjudication of this matter, a citizen's Constitutional right to privacy has always been interpreted to limit governmental intrusion into one's personal affairs. Generally, the private actor is not constrained to the same Constitutional extent as the state actor but is rather subject to statutory regulation circumscribing its actions. However, neither Congress, nor the State of New Jersey, had viewed drug testing as such an invidious intrusion into one's affairs as to justify either criminal or civil statutory regulation. Plaintiff's claim thus exists in a vacuum without foundation in civil, criminal or Constitutional law.

Court does not argue with the proposition that a urine test is, in some ways, an intrusive and offensive act. Urination is one of the most private acts a human can engage in. "It is generally forbidden in public, eschewed as a matter of conversation, and performed in places designed to preserve this tradition of personal seclusion." Skinner v. Railway Labor Executives' Ass'n., 109 S.Ct. 1402, 1428 (1989) (Brennan, J. Dissent). Nevertheless, these facts alone do not establish that requesting the performance of the act, as a contractual condition precedent, is ipso facto violative of civil or constitutional law. There are many acts that are in some ways offensive but can, under certain circumstances, be asked, and under other more compelling circumstances, coerced. See Schmerber v. California, 384 U.S. 757 (1966) ("The integrity of an individual's person is a cherished value of our society the Constitution does not forbid the state's minor intrusions into an individual's body under stringently limited conditions . . . ."); United states v. Crowder, 543 F.2d 312 (D.C. Cir. 1976), cert. denied, 429 U.S. 1062 (1977) (Fourth Amendment not violated when trial court, over defendant's objections, ordered surgical removal of bullet.). Although these cases all concerned state action, they illustrate the point that the intrusion Jevic authorized was not as profound as he suggests.

Moreover, the offensive nature of the requested act was negated not only by Jevic's voluntary cooperation, but by the simple fact that he did not have to take the test. If he felt the test was intrusive, degrading or in any way humiliating his ever present option was to walk away. The Court recognizes that Jevic wanted the job and that he was in a catch-22 situation. If he declined to participate he would not be hired. If he participated he ran the risk of detection and again, not being hired. But the catch-22 was merely persuasive, not coercive. The balancing of interests was for Jevic not Court. Defendant's motion is GRANTED in its entirety.

 
Notes:

*fn1 Jevic does not complain that his privacy was invaded during the procurement of the sample.

*fn2 It is also entirely unclear whether Jevic could have signed the letter on August 3. The envelope plaintiff presents as proof that Coke mailed the confirmation to Maryland has a Greenwich, Connecticut postmark of August 2 and a United States Postal sticker forwarding the letter from Maryland to Edison, New Jersey. The postal sticker is dated August 5 indicating that the letter was still in the possession of the Postal Service when Jevic alleges that he signed it.

*fn3 Jevic grew up in New Jersey, spent the majority of his life New Jersey and presently resides here.

*fn4 It is also entirely unclear what a second drug test would have revealed concerning Jevic's use of drugs prior to the July 29 test. If the test were negative, as Jevic claims his independently procured test was, such a fact would only demonstrate that Jevic did not use drugs for a number of days prior to this later test. Imposing such a legal obligation on a private employer would thus nullify the importance of the drug testing procedure.

*fn5 Jevic also asserts that "defendant's intrusion went way beyond that contemplated by the plaintiff" because "almost everything about a person's life can be revealed through urine testing." For this proposition the plaintiff cites a book authored by the late Abbie Hoffman. While Court expresses no opinion on the political theories of Mr. Hoffman, it notes that his works have no precedential value in a court of law. Moreover, plaintiff's argument is entirely inconsistent in that he consented to provide a urine specimen to be tested for the single purpose of determining whether he used drugs. There is nothing in the record to indicate that Coke looked for, or discovered, anything other than the presence of marijuana in plaintiff's urine. Coke's "intrusion", therefore, extended only to the extent Jevic expressly authorized.