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FELICIANO, et al., Plaintiffs,
vs.
CITY OF CLEVELAND, et al., Defendants. GREATHOUSE, et al., Plaintiffs, vs. CITY OF CLEVELAND, et al., Defendants.
 
Case:
Case No. C85-3356, Case No. C86-4373
 
Location:
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION
 
Date:
November 26, 1991, Filed
 
Attorneys:
For plaintiffs: Edward A. Icove, 216-241-5735, Lustig, Icove & Lustig, 615 Leader Bldg., Cleveland, OH 44114.
For defendants: Barbara R. Marburger, Esq., 216-664-2805, City of Cleveland, Department of Law, City Hall, 601 Lakeside Avenue, Room 106, Cleveland, OH 44114, 216-664-2000. Irving Berger, 216-664-2807, City Hall, 601 Lakeside Avenue, Room 106, Cleveland, OH 44114.
 
Court:
ALDRICH
 
Author:
The Hon. Justice Ann Aldrich
 

In October of 1985, plaintiffs Raul Feliciano, Jr., Richard Rojas, Valeria Greathouse, Robert Beavers, Richard Zappala, and Darryl Hood (collectively referred to hereinafter as "the Recruits") were members of the cadet recruit class of the City of Cleveland Police Department. A surprise urinalysis drug test was administered to the entire cadet class during the last week of training, and this test indicated the presence of marijuana or other controlled substances in the urine of twelve cadet class members, including the Recruits. The Recruits resigned from the cadet class. Feliciano and Rojas filed a complaint, and Greathouse, Beavers, Zappala and Hood separately filed another. The Recruits named as defendants the City of Cleveland ("City") as well as several City police officers and other City government employees ("individual defendants").

The two cases were consolidated into this action. The Recruits' lawsuits claim that the defendants violated 42 U.S.C. SEC. 1983 when, under color of state law, the defendants conducted an unconstitutional drug test. Specifically, the Recruits allege that the drug testing violated their right to be secure from unreasonable search and seizure under the fourth and fourteenth amendments, and violated their rights to equal protection and due process of law under the fourteenth amendment.

The City filed a motion for summary judgment on the merits. This motion was superseded by the City's supplemental motion for summary judgment, which was joined by the individual defendants. The Recruits moved for partial summary judgment on their fourth amendment claims, and both sides agreed in 1986 to postpone discovery until the Court could rule on the fourth amendment claims alone. In Feliciano v. City of Cleveland, 661 F. Supp. 578 (N.D.Ohio 1987) ("Feliciano I"), this Court granted the Recruits' motion for partial summary judgment and denied the City's motion for summary judgment on the fourth amendment claims. In addition, the individual defendants' supplemental motion for dismissal based on qualified immunity was granted with respect to the fourth amendment claims, and deferred with respect to the Recruits' other claims.

In Feliciano I, this Court was "convinced that the reasonable individualized suspicion standard" applied to the Recruits. Id. at 596. This Court believed that defendants had to suspect each cadet individually of illicit drug use before "searching" them with a drug test; mere suspicion that some unidentified cadet class member or members had used illicit drugs was not enough to justify a search of the entire cadet class. Thereafter, however, the Supreme Court held that the individualized suspicion standard did not apply in factually similar cases. In Skinner v. Railway Labor Executive's Association, 109 S. Ct. 1402, 1422 (1989), the Supreme Court held that the importance of ensuring safe railroad transportation made it "reasonable to conduct [urinalysis drug] tests in the absence of a warrant or reasonable suspicion that any particular [railway worker] may be impaired." In a companion case, National Treasury Employees Union v. Von Raab, 109 S. Ct 1384, 1392 (1989), the Supreme Court held that the government may "conduct . . . suspicionless searches . . . of employees engaged directly in drug interdiction, and of those who otherwise are required to carry firearms." In light of these holdings, this Court vacated Feliciano I.

Since Feliciano I, all parties have conducted and finished discovery concerning the Recruits' equal protection and due process claims. The Recruits have moved for partial summary judgment on these claims, and the City and individual defendants had earlier moved for summary judgment on all claims. Thus, this Court must now rule on cross-motions for summary judgment on all claims.

Several years have passed since the Recruits' claims were filed. During that time a good deal of case law addressing urinalysis testing has developed, which must be considered in ruling on the pending motions. For the reasons stated below, the Court now grants defendants' motion for summary judgment on all claims.

I. FACTS

During the week of October 7, 1985, then Chief of Police Hanton received a tip that current members of the police academy were known to use narcotics. Deposition of William T. Hanton ("Hanton dep.") at 4-5. Because no names of implicated cadets were mentioned, Hanton decided that the entire cadet class should be tested for drug abuse. Hanton testimony before Civil Service Commission ("Hanton CSC") at 36-37. A testing plan was developed by Hanton and the medical bureau, Hanton Dep. at 8-9, and Hanton decided to conduct the first surprise drug test of police cadets in Cleveland. Hanton CSC at 38. When Hanton made his decision with respect to testing, he had no reasonable suspicion of drug use by any particular member of the class. Id. at 37; Answer, 57. The decision to conduct the drug test was made by Hanton alone, without input from superior governmental officials. Hanton dep. at 9-10; deposition of Reginald Turner, Jr. at 9.

During the morning of Monday, October 21, 1985, all cadets were required to produce urine samples. Answer, 57. At that time, the cadets were beginning their final week of training, and they had already satisfactorily passed a physical examination. Answer, 16. The cadets were directed to go to a restroom, with the male cadets going to the men's restroom and the female cadets going to the women's restroom. The cadets were escorted from their classroom, one row at a time. Sgt. Bratz informed them that they were undergoing additional medical screening. Deposition of Raul Feliciano, Jr. ("Feliciano dep.") at 18-20. The persons administering the test carried firearms, which was unusual at the academy. Feliciano affidavit of November 12, 1986, at 53; Rojas affidavit of November 12, 1986, at 15. The cadets were provided containers labeled with their names and badge numbers and instructed to produce a urine sample. Id. at 21-22; deposition of Richard Rojas ("Rojas dep.") at 16. A superior officer allegedly proclaimed, "We want to see what you have been doing this weekend," and "Everybody pees." Deposition of Richard Zappala ("Zappala dep.") at 36. Feliciano proceeded to produce a sample in a toilet stall. Feliciano dep. at 25. Because all stalls were occupied when Rojas reached the restroom, he was forced to produce his sample in the open at a urinal, where he was watched by Sgt. Bratz and another person. Rojas dep. at 16. Beavers was instructed that he had to produce a urine sample in front of Sgt. Bratz, while standing in the middle of the restroom away from the stalls and urinals. After he was unable to urinate while being watched, Sgt. Bratz allegedly told Beavers, "if you don't piss in the bottle now, you will be terminated for being -- for not following a direct order." Deposition of Robert Beavers ("Beavers dep.") at 18-19. Eventually, Beavers was permitted to urinate at a urinal but not in a stall. Valeria Greathouse produced her urine sample in a stall while being carefully watched by an unidentified female police officer. Deposition of Valeria Greathouse ("Greathouse dep.)" at 19-20.

Once a sample was obtained, it was returned to a box with other samples. Feliciano dep. at 25; Rojas dep. at 17. The cadets gathered in a lounge until everyone had produced a sample. Rojas dep. at 18. Sgt. Bratz entered the lounge and indicated that he did not know what was happening with respect to the sample collection. When everyone had finished, the cadets returned to the classroom. Id.

The cadets' urine samples were sent to Smith Kline Miles Laboratory in Beachwood, Ohio, where they were screened for the most commonly abused drugs, including marijuana and cocaine. Karin Rash testimony before Civil Service commission ("Rash CSC") at 7. Smith Kline subjected each urine sample to two tests: a thin layer chromatography ("TLC") test and an enzyme immunoassay ("EMIT") test. Deposition of Karin Rash ("Rash dep.") at 5-11, 16-19. Those samples that tested positive under either of these tests were confirmed with a radioactive immunoassay ("RIA") test. The samples provided by the Recruits tested positive for marijuana. Rash CSC at 12. The Recruits' samples were all retested the next day, with the same results. Rash CSC at 13. All the samples were also retested later in Smith Kline's St. Louis office, using a gas chromatography/mass spectrometry ("GC/MS") test, for reconfirmation purposes. Rash dep. at 16-19. The GC/MS test again indicated the presence of metabolized marijuana in the urine of each of the Recruits.

On October 22, 1985, those cadets who had tested positive were all separately interviewed by a panel of three officers. Feliciano dep. at 26; Rojas dep. At 19. Each was told that traces of marijuana had been found in his or her urine. Feliciano testimony before Civil Service Commission ("Feliciano CSC"), at 131-32; Rojas testimony before Civil Service Commission ("Rojas CSC"), at 6. The Recruits all maintained that they had not recently smoked marijuana; some claimed that they had been present at parties the prior weekend at which marijuana had been smoked by others, but that they had not smoked it themselves; others stated that they had smoked marijuana but not in the recent past. Feliciano dep. at 27-28; Rojas dep. at 20-21. The three-officer panel informed the Recruits that they had the options of resigning or facing probable termination by Safety Director Turner the next day. Feliciano CSC at 34; Rojas CSC at 6, 14-15. None of the Recruits resigned at that time.

After roll-call the next day, October 23, 1985, several cadets were separated from those in the classroom. At about 2:30 p.m., Chief of Police Hanton, accompanied by other officers, told these cadets that at 4:00 p.m. they would be terminated for violating their probation period. Rojas CSC at 7-8; Hanton CSC at 3-7. After Hanton and the other officers left, Sgt. James presented the Recruits with previously prepared letters of resignation, which he indicated could be submitted by the Recruits in lieu of termination. Rojas CSC at 8; Feliciano CSC at 29. The Recruits all signed these resignation letters. Rojas CSC at 9; Feliciano CSC at 29.

Several of those cadets who had resigned later wrote letters of appeal to the Civil Service Commission ("CSC"), each alleging that their resignation had been coerced and requesting a hearing. Letter from Raul Feliciano to CSC; CSC minutes from Dec. 16, 1985 ("CSC minutes") at 5. Initially, the CSC answered that no hearing would be held. CSC minutes at 5; letter dated Nov. 6, 1985, from CSC to Raul Feliciano. Later, however, because of the number of cadets who claimed coercion, the CSC notified these cadets that a hearing would be held to determine the voluntariness of the resignations. Id.; letter dated Dec. 9, 1985 from CSC to Raul Feliciano. A hearing was held on Dec. 16, 1985, at which the only cadets in attendance were Zappala, Feliciano, and Rojas. Pursuant to the hearing, the CSC determined that Zappala's, Feliciano's, and Rojas's resignations were voluntary and not coerced. CSC minutes from Jan. 3, 1986.

II. STANDARDS FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) governs summary judgment motions and provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law

The nature of materials properly presented in a summary judgment pleading is set forth in Federal Rule of Civil Procedure 56(e):

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein . . . The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

In reviewing summary judgment motions, this Court must view the evidence in the light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); White v. Turfway Park Racing Assn., Inc., 909 F.2d 941, 943-44 (6th Cir. 1990). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252.

III. QUALIFIED IMMUNITY OF THE INDIVIDUAL DEFENDANTS

On January 22, 1986, the individual defendants moved for dismissal or summary judgment on the ground of qualified immunity. That motion was denied by this Court on April 11, 1986, and an interlocutory appeal was taken. A year later, the Sixth Circuit reversed this Court's decision. After making clear that the individual defendants' qualified immunity appeal implicated only the Recruits' fourth amendment claims, the court concluded:

our determination does not affect in any way the right of the plaintiffs to pursue the remainder of their claims against these defendants or against the City of Cleveland. We only hold that the trial judge was obliged to determine upon the motion made by the [individual] defendants that they were immune from personal liability in damages for any claim of violation of fourth amendment rights arising from the mandated urine testing.

Feliciano v. City of Cleveland, No. 86-3436, slip op. at 3 (6th Cir. April 10, 1987). Thus, to the extent that the individual defendants' supplemental motion for dismissal or summary judgment, filed on April 16, 1987, requests that this Court dismiss the fourth amendment claims against the individual defendants as mandated by the Sixth Circuit, that motion is granted.

The supplemental motion also requests that judgment be entered for the individual defendants on the remaining claims of the Recruits' complaint, or that these claims against them be dismissed. The Recruits have objected to the motion on procedural grounds. This Court is unpersuaded by the Recruits' procedural arguments. As discussed below, however, the Court finds invalid the Recruits' claims that the individual defendants violated the Recruits' rights under the fourteenth amendment. Therefore, the Court grants summary judgment for the individual defendants on the remaining claims of the Recruits' complaint.

IV. FOURTH AMENDMENT ANALYSIS

The fourth amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The fourth amendment is applied to the states and their subdivisions through the fourteenth amendment, Mapp v. Ohio, 367 U.S. 643 (1961), and it restricts the activities of civilian authorities as well as law enforcement officers. New Jersey v. T.L.O., 469 U.S. 325, 335-37 (1985). Thus, the conduct of governmental employers is governed by the fourth amendment. O'Connor v. Ortega, 480 U.S. 709, 715 (1987) (plurality opinion).

The fourth amendment does not restrict all searches and seizures by government, but it does prohibit all unreasonable searches and seizures. Accordingly, the analysis of an alleged fourth amendment violation proceeds in two steps. First, the Court must determine whether the government's conduct constitutes a search or seizure by infringing a legitimate expectation of privacy. Second, if a search or seizure is indicated, the Court must determine whether the search or seizure was reasonable. Id. If a search or seizure was authorized by legitimately given consent, however, it is wholly valid. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) (citing Katz v. United States, 389 U.S. 347, 358 (1967), and Vale v. Louisiana, 399 U.S. 30, 35 (1970)).

A. Reasonableness of the search

As applied to this case, fourth amendment analysis makes it clear that the government's actions in conducting urinalyses of the Recruits did constitute a search. "Where the Government requires its employees to produce urine samples to be analyzed for evidence of illegal drug use, the collection and subsequent chemical analysis of such samples are searches that must meet the reasonableness requirement of the Fourth Amendment." National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384, 1397 (1989). Therefore, the issue here is whether the urinalysis search conducted was reasonable.

To determine whether a urinalysis testing program is reasonable requires use of a balancing test weighing "the public interest in the . . . testing program against the privacy concerns implicated by the" urinalysis. Id. On one side of the scales are the government's "compelling interests in preventing illicit drug use and in preserving the lives of the citizenry," Id.; on the other side are the substantial privacy concerns implicit in "the intrusiveness of the collection process," Skinner v. Railway Labor Executives Ass'n, 109 S. Ct. 1402, 1418 (1989), and in the physiological revelations that chemical analysis of urine can provide. The Supreme Court weighed these concerns in Von Raab to determine whether urinalysis testing of Customs Service officials was constitutional, and held that "while reasonable tests to elicit [drug use] information doubtless infringe some privacy expectations, we do not believe these expectations outweigh the Government's compelling interests." Therefore, the Supreme Court ruled "that the suspicionless testing of employees who apply for promotion to positions directly involving the interdiction of illegal drugs, or to positions which require the incumbent to carry a firearm, is reasonable." Von Raab, 109 S. Ct. at 1397.

Skinner and Von Raab speak directly to the instant case. When the Recruits were subjected to urinalysis testing they were just a few days away from graduation, at which time they would receive firearms and begin patrolling city streets and enforcing drug laws. If "the Customs Service is our Nation's first line of defense against [the importation of illicit drugs,] one of the greatest problems affecting the health and welfare of our nation," id. at 1392, then city police forces are our Nation's first line of defense against the distribution and use of those drugs. Thus, there is no question that the City had a compelling interest in ensuring that the Recruits were "sympathetic to their mission of interdicting narcotics," were "physically fit with unimpeachable integrity and judgment," and were less likely to "suffer from impaired perception and judgment . . . [at times when] they [would] need to employ deadly force." Id. at 1393.

Against these compelling governmental interests must be weighed the privacy interests of the Recruits. These privacy interests are substantial. "Chemical analysis of urine . . . can reveal a host of private medical facts about an employee, including whether she is epileptic, pregnant, or diabetic," Skinner 109 S. Ct. at 1413, as well as whether she is using oral contraceptives, United Steel Workers of America v. U.S.S., No. 89-1546, 1989 U.S. Dist.3246, at *8 (E.D. Penn. March 29, 1989). Moreover, the act of urination itself is highly personal. "'There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without observation; indeed, its performance in public is generally prohibited by law as well as social custom.'" Skinner, 109 S. Ct. at 1413 (quoting National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (5th Cir. 1987), affirmed in part and vacated in part, 109 S. Ct. 1384 (1989)).

It must be recognized, however, that the Recruits' "expectations of privacy . . . are diminished by reason of their participation in an (occupation) that is regulated pervasively," Id. at 1418, and "that certain forms of public employment may diminish privacy expectations even with respect to such personal searches." Von Raab, 109 S. Ct. at 1393. During their training, the Recruits had been provided with the Cleveland Division of Police Manual of Rules and Regulations. This manual outlined extensive limitations on the Recruits, including rules concerning prohibited conduct, required "military courtesy," the wearing of uniforms, personal appearance and grooming standards, and the use of profanity. Before entering the police academy, the Recruits had to undergo extensive screening, including medical and physical testing and psychological examination. Counsel for the City is probably accurate when it says that "no Cleveland employee has a lower expectation of privacy than a Cleveland police officer in her probationary period." Defendants' brief filed Sept. 14, 1990, at 7. Given the Recruits' overall diminished expectation of privacy, it is fair to say that they also have a "diminished expectation of privacy in respect to the intrusions occasioned by a urine test." Von Raab, 109 S. Ct. at 1394.

If the balancing test to determine whether the Recruits' urine testing was constitutional were to stop here, this Court's task would be simple. The Recruits' diminished expectations of privacy, measured against the government's established compelling interests, would clearly call for a finding that the circumstances surrounding the Recruits' urinalyses suffered no fourth amendment defect. However, in Skinner and Von Raab the Supreme Court weighed another important factor before reaching its conclusions. The Supreme Court carefully premised its Skinner and Von Raab decisions on the existence of specific procedures surrounding the collection and analysis of the urine samples, procedures that "significantly minimize the program's intrusion on privacy interests." Id. at 1394 n.2. The Skinner court was careful to state that its holding was reached "in light of the limited discretion exercised by the . . . employers under the (urine test) regulations." Skinner, 109 S. Ct. at 1422.

Von Raab and Skinner were quite specific in their descriptions of the regulations which surrounded the challenged urine tests. For example, Von Raab identified these procedures which, because they were in place, secured the constitutionality of the Customs Service's urine testing programs:

Only employees who have tentatively been accepted for promotion or transfer to one of the three categories of covered positions are tested, and applicants know at the outset that a drug test is a requirement of those positions. Employees are also notified in advance of the scheduled sample collection, thus reducing to a minimum any "unsettling show of authority" . . . that may be associated with unexpected intrusions on privacy. . . . There is no direct observation of the act of urination, as the employee may provide a specimen in the privacy of a stall.

Further, urine samples may be examined only for the specified drugs. The use of samples to test for any other substances is prohibited. . . . And, as the court of appeals noted, the combination of the EMIT and GC/MS tests required by the Service is highly accurate, assuming proper storage, handling, and measurement techniques. . . . Finally, an employee need not disclose personal medical information to the Government unless his test result is positive, and even then any such information is reported to a licensed physician. Taken together, these procedures significantly minimize the intrusiveness of the Service's drug screening program.

Von Raab 109 S. Ct. at 1394 n.2 (citations omitted). In addition, the Von Raab Court found it noteworthy that test results could not be turned over to a criminal prosecutor without the employee's written consent. Id. at 1389.

Similarly, in Skinner the Supreme Court discussed specific procedures surrounding the urine testing which contributed to its finding that the search was reasonable. Chemical analysis of the urine was initially done via immunoassay and then confirmed by gas chromatography/mass spectrometry, an especially accurate method. Skinner, 109 S. Ct. at 1409, n.3. Employers were required to "notify employees of the results of the tests and afford them an opportunity to respond in writing before preparation of any final investigative report." Id. at 1409. If urine test results were to be used in a disciplinary proceeding, "the employee must be given the opportunity to provide a blood sample for analysis at an independent medical facility." Id. at 1410. As for initial collection of the urine, the regulations do not require that samples be furnished under the direct supervision of a monitor, despite the desirability of such a procedure to ensure the integrity of the sample. . . . The sample is also collected in a medical environment, by personnel unrelated to the . . . employer, and is thus not unlike similar procedures encountered often in the context of a regular physical examination.

Id. at 1418 (citations omitted). The Supreme Court further noted that the tests were of a "standardized nature", that "minimal discretion was vested in those charged with administering the program," and that "both the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined narrowly and specifically in the regulations that authorize them, and doubtless are well known to covered employees." Id. at 1415-16.

The procedures surrounding the drug testing of the Recruits stand in stark contrast to those outlined in Skinner and Von Raab. The City's decision to undertake drug testing of the police cadets was made only several days before it was done. Because the group drug test was the first of its kind ever conducted by the City, no written procedures or regulations were created or contemplated beforehand. n1 The test was a complete surprise to the Recruits. During the test, several of the Recruits were directly observed during urination. The personnel collecting the urine samples were the Recruits' superior officers, not unknown medical workers. The test was given in common bathroom areas. Greathouse tells that she was forced to urinate in an open stall while another police officer stooped to watch her urinate. Beavers suggests that certain male cadets were specifically singled out to urinate under direct observation, in an open area away from urinals or stalls, while other male cadets were allowed to urinate unobserved. Chief of Police Hanton stated that "if criminal information had come forth from any of the recruits as to where they were buying the illegal substance they were ultimately found to be using, it might have ended in a criminal investigation on the other end of it." Deposition of William Hanton at 16-17. Such an investigation could easily have resulted in the filing of criminal charges against the Recruits for illegal drug possession or distribution.

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n1 The City Civil Service Commission had published a Manual of Medical Standards and Prerequisites for Police And Fire Service Applicants ("Manual"), which stated that applicants to the police force would receive a complete physical examination, including "complete urinalysis." Applicants could be rejected if the urinalysis (or any other physical test) revealed "the repeated use of any drug or chemical substance, including marijuana, with such frequency that it appears that the examine has accepted the use of or reliance on these substances as part of his pattern of behavior," although "cases indicating use of marijuana (not habitual use) or experimental or casual use of other drugs . .. may be waived by competent authority . . . providing there is evidence of current drug abstinence." See Shield Club City of Cleveland, 647 F. Supp. 274 (N.D. Ohio 1986) (discussing the drug testing provisions in the Manual and finding that they were not racially discriminatory).

The City claims that the group drug test at issue was merely a "final phase" of medical examination and that it followed established procedures as provided in the Manual. The Manual, however, provides for no real procedures except to authorize that urinalysis may be performed. Furthermore, to the extent that the Manual implies the existence of procedures surrounding urinalysis, the overwhelming suggestion is that any urinalysis would be performed in connection with a full individual medical examination under the auspices of a doctor -not an informal, unannounced group gathering for urine collection. The Court does not believe that the surprise drug test of the cadets, as conducted, was ever truly construed by the City as falling within the procedures set forth in the Manual, and Chief Hanton admitted as much when he agreed that he had no "planned procedure to carry out the drug testing" in writing or otherwise. Hanton dep. at 18.

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Even the written procedures of the Smith Kline laboratory, which conducted the actual chemical analysis of the Recruits' urine, may have been deficient. The urine tests in both Von Raab and Skinner involved chemical analysis via immunoassay confirmed by gas chromatography/mass spectrometry ("GC/MS"). This fact is significant because GC/MS is a highly accurate confirmatory test, whereas enzyme immunoassay ("EMIT") and radio immunoassay ("RIA") tests can produce a high amount of false positives. Skinner, 109 S. Ct. at 1409 n.3; K. Zeese, Drug Testing Legal Manual, SEC. 2.02([1][a] (1988) (immunoassay tests produce "false positive problems of up to 10 percent of urine specimens under some conditions"). Not only are EMIT and RIA tests relatively less accurate than GC/MS, "they are highly cross-reactive," meaning that a false positive on an EMIT test will often produce a false positive on an RIA test as well. K. Zeese, supra, at SEC. 2.02[1]. For this reason, "it is essential that positive [immunoassay] test results be confirmed by an alternative . . . testing technique." Id. The Federal Drug Administration urges that GC/MS be used as a confirmatory test. Id. at SEC. 2.01[1]. Among other federal executive agencies, the United States Department of Transportation and the United States Department of Health and Human Services accept only GC/MS results as a confirmatory test. 49 C.F.R. SEC. 40.29(f) (Oct. 1, 1990); American Fed'n of Gov't Employees v. Skinner, 885 F.2d 884, 887-88 (D.C. Cir. 1989) (citing Health and Human Services Regulation SEC. 2(4)(e)-(f) (Apr. 11, 1988), cert. denied, 110 S. Ct. 1960 (1990).

Unlike Skinner and Von Raab, however, where the GC/MS test was used as the confirmatory test, two immunoassay tests were used in this case. The Smith Kline testing laboratory first used the EMIT test, and then confirmed any positive results with the RIA test. As a result of positive readings on these tests alone, the Recruits were asked to choose immediately between resignation or termination. Oddly, a GC/MS test was performed on the Recruits' urine samples, but not until one week after the Recruits had resigned. It is unclear whether the GC/MS test was performed at the request of the City or was done for internal laboratory purposes. Rash Dep. at 59-68. The GC/MS test confirmed the EMIT/RIA positive readings for all the Recruits.

To summarize, the City provided no notice to the cadets that drug testing would or could occur; directly observed some of the recruits during urination; did not conduct the test in a medical environment; had superior officers, instead of medical personnel (who were in the same building), conduct the observations and collections; had no written procedures governing the scope of the analysis of the urine; had no written procedures governing whether criminal prosecutions would or could result; used chemical testing procedures which, though accurate in this case, are widely regarded as incomplete; and generally gave unabridged discretion to those charged with administering the program.

It is at this point that the balancing test in this case becomes difficult. The Supreme Court recognized that established procedures surrounding urinalysis testing were important, and set them out in detail, precisely because employees subject to testing have been accorded only diminished expectations of privacy. Without detailed procedures, employers could, in their discretion, invade the privacy of their employees without restriction. The regulations surrounding urinalysis drug testing are in a very real sense a last line of defense, safeguarding the limited privacy left to these employees. Absent this procedural protection, an employee's "diminished expectations of privacy," Skinner, 489 U.S. at 628, can quickly be reduced to "no expectations of privacy." Police officers do not forfeit their fourth amendment rights "merely because they work for the government instead of a private employer." O'Connor v. Ortega, 480 U.S. 709, 717 (1987).

Nonetheless, the procedures identified in the Skinner and Von Raab cases are certainly not requirements. For example, although Von Raab identified the absence of visual observation of urination as a factor in determining the reasonableness of a urinalysis search, the drug test procedures in Skinner allowed visual observation, Skinner 109 S. Ct. at 1418, and drug testing programs with procedures entailing visual observation have since been upheld. Strawder v. City of Chicago, No. 87-C-5012, 1989 U.S. Dist12541, at *17- *19 (E.D.Ill. Oct. 19, 1989). Likewise, the Skinner regulations did not actually forbid turning urinalysis test results over to prosecutorial authorities, although no testing program has been challenged for doing so. Furthermore, the failure of a program to use medical personnel in medical surroundings during the urine collection process has been held not to constitute an unreasonable search of safety-sensitive transportation employees. Id; Burka v. New York City Transit Authority, 739 F. Supp. 814, 831 (S.D.N.Y. 1990). Thus, the failure of the City to follow particular procedures does not automatically make its drug testing of the Recruits unconstitutional. Instead, the Court must return to its balancing test. The Court must weigh not only the government's compelling interests and the employees' substantial privacy interests, but also the adequacy of the government's procedures to protect their employees' privacy interests.

This Court agrees that "a particularly strong governmental interest in testing without suspicion, and lower than normal privacy interest, are the two most important [factors in its balancing test]. Also relevant, but clearly less significant in the Court's view, are the procedural safeguards which the testing program under scrutiny erects in order to minimize its intrusiveness." Strawder, 1989 U.S. Dist.12541, at *11. The Court also notes that precedent is unclear on what effect . . . aberrations from the factual circumstances present in Skinner and Von Raab should have on the evaluation of the reasonableness of the search. The D.C. Circuit recently observed that the use of the Supreme Court drug testing cases as a tool for determining whether the balance of private and government interests satisfies the Fourth Amendment "presents a delicate task." [Harmon v. Thornburgh, 878 F.2d 484, 488 (D.C. Cir.1989), cert. denied, 110 S. Ct. 865 (1990).]

"The [Supreme] Court did not . . . indicate whether it deemed the [Von Raab] case a close one, in the sense that minor variations in the facts would have tipped the balance in the other direction. Nor did it indicate which (if any) of the relevant factors would be essential to a constitutional testing plan." Id. at 488-89.

Burka v. Newark City Transit Authority, 739 F. Supp. 814, 831 (S.D.N.Y. 1990).

That this balancing test is a delicate task, however, does not mean that conscientious deliberation cannot make the answer clear. Careful reflection has convinced this Court that the search undertaken by the City was unconstitutional. It is not the lack of a specific directive governing visual inspection of urination, or the absence of a precise regulation establishing the location of urine collection, that concerns this Court. Rather, it is the entire lack of established guidelines governing virtually every aspect of the drug testing program which tips the balance in favor of the Recruits.

The Von Raab Court notes that the written Customs Service procedures prevent "the grave potential for 'arbitrary and oppressive interference with the privacy and personal security of individuals.'" Von Raab, 109 S. Ct. at 1394 n.2 (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976)). Established procedures give employees advance knowledge of the possibility of urine testing, which "reduces to a minimum any 'unsettling show of authority.'" Id. (quoting Delaware v. Prouse, 440 U.S. 648, 657 (1979). Indeed, the presence of any rational regulations, if followed, is likely to limit the discretion of a governmental employer sufficiently to minimize the intrusiveness of the testing program and to protect the employees' already limited privacy interests.

The nearly complete lack of regulations in this case, however, did lead to abuse of discretion, unsettling shows of authority, and excessive, arbitrary and oppressive invasion of privacy. The Recruits were not allowed to urinate alone, but were ordered to urinate in groups. At the discretion of certain police officers, some Recruits were singled out and told to stand in the middle of the communal bathroom for observation while urinating; others were left to urinate unobserved. Those Recruits who were singled out were forced to bare their genitalia not merely to unknown medical personnel, but to their superior officers. One Recruit, temporarily unable to produce a sample, was ordered to urinate under direct observation or face immediate termination. Even those Recruits who were not singled out were met with offensive and flippant remarks, such as "Everybody pees" and "We want to see what you have been doing this weekend." Such conduct is arbitrary; it is indiscreet; it is unsettling.

"In order to survive the required Fourth Amendment balancing, it [is] imperative that sufficient safeguards be incorporated to protect 'against abuse of official discretion in deciding whom and how to search.'" Tanks v. Greater Cleveland Regional Transit Authority, 739 F. Supp. 1113, 1123 (N.D. Ohio 1990) (Krenzler, J.) (quoting Transport Workers' Union, Local 234 v. SEPTA, 863 F.2d 1110, 1121 (3d Cir. 1988)), aff'd, 930 F.2d 475 (6th Cir. 1991). Sufficient safeguards were not present in this case. Apart from possible technical deficiencies in the urinalysis itself, this Court is convinced that, even though it may be that "no Cleveland employee has a lower expectation of privacy than a Cleveland police officer in her probationary period," the search conducted by the City was not reasonable. The Court finds that the urinalysis of governmental employees as actually conducted by the City in this case offends the constitution. n2

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n2 The drug test in question in Burka v. New York Transit Authority, 739 F. Supp 814 (S.D.N.Y. 1990), also suffered lack of procedures to protect the employees' privacy. The Burka court noted that the defendant's drug test procedures gave no notice to at least some of the employees, allowed urine collection to take place in an unprofessional, non-medical environment, and used chemical analysis techniques of questionable validity. Id. at 830-31. The Burka court upheld this search as to safety-sensitive employees. Id. at 831-32. The Burka court, however, was not presented with facts, as here, that defendants invaded the employees' privacy with virtually unbridled discretion.

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B. Consent

The Court's fourth amendment analysis, however, does not end with a finding that the drug testing of the Recruits as performed by the City was unconstitutional. Even if the urinalysis was an unreasonable search, the Recruits cannot claim that their fourth amendment rights were violated if they consented to the search. The City claims that the Recruits did, indeed, consent. The City first argues that since public employment is voluntary, the Recruits consented to urinalysis by implication when they sought a job with the Cleveland Police Department. Second, the City submits that the Recruits explicitly gave their actual consent to urinalysis. These arguments are dealt with separately.

1. Implied Consent

It is hornbook law that public employment cannot be conditioned upon waiver of constitutional rights, Pickering v. Board of Education, 391 U.S. 563, 568 (1968), and several courts have held in the context of urinalysis that a public employer cannot force consent to an unreasonable search as a condition of employment. See, e.g., Ford v. Dowd, 931 F.2d 1286, 1294 (8th Cir. 1991); National Fed'n of Fed. Employees v. Weinberger, 818 F.2d 935, 943 (D.C. Cir.1987);McDonell v. Hunter, 809 F.2d 1302, 1310 (8th Cir. 1987). Since this Court has held that the urinalysis conducted in this case was unreasonable, it must also conclude that the City could not require urinalysis for drug testing as a condition of continued employment of the Recruits during their probationary period.

The City relies upon Wyman v. James, 400 U.S. 309 (1971), in support of its implied consent argument. Wyman involved a constitutional challenge to mandatory home visits by caseworkers to recipients of Aid to Families with Dependent Children. The Court held that "we are not concerned here with any search by the New York social service agency in the Fourth Amendment meaning of that term." Id. at 317. It relied upon the home visit requirement in the statute and regulations; the rehabilitative and investigative (although non-criminal) nature of the visit; and the argument that the visit was not forced or compelled, since the aid would merely cease if entry was refused. Id. Although Wyman supports the City's claim, it is simply irreconcilable with Pickering and its progeny. Many courts have distinguished Wyman as inapplicable; perhaps the most reasonable way to understand it is as limited to its factual situation. See Zweibon v. Mitchell, 516 F.2d 594, 633 n.94 (D.C.Cir.1975), cert. denied, 425 U.S. 944 (1976). This Court is unaware of any decision relying upon Wyman in the drug testing context, and it refuses to do so. See Von Raab, 109 S. Ct. at 1394 n.2; Fowler v. New York City Dept. of Sanitation, 704 F. Supp. 1264, 1271 n.5 (S.D.N.Y. 1989) (distinguishing Wyman in the context of drug testing).

The City also argues that its implied consent theory is supported by a balance of employee and employer interests under Pickering. Such a balancing has been performed in this Court's discussion of whether the urinalysis conducted by the City in this case was an unreasonable search. Indeed, the implied consent argument is another way of interjecting employer interests that argue for limiting the scope of the fourth amendment in the context of drug testing of public employees. That issue has already been resolved and need not be reconsidered under the rubric of "consent."

2. Actual consent

The City also relies upon the Recruits' deposition testimony to argue that even if the fourth amendment would otherwise be violated, the Recruits explicitly consented to urinalysis. The Recruits respond that any "consent" was not "voluntary." The Supreme Court probed the concept of the voluntaries of consent to a search in Schneckloth v. Bustamonte, 412 U.S. 218 (1973). It noted that "voluntaries" could not be defined literally, or as "but-for" causation, but should be understood as "an accommodation of the complex of values implicated in police [investigations]." Id. at 224. The Court held:

When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntaries is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

Id. at 248-49 (footnote omitted). Factors to be evaluated include the youth of a suspect, lack of education, low intelligence, lack of legal advice about constitutional rights, the length and prolonged nature of an investigative encounter, and the use of physical punishment. Id. at 226. Threats perceived by an accused because of social discrepancies such as race or sex are also relevant, and the knowledge of the right to refuse consent is highly relevant, although not controlling. United States v. Mendenhall, 446 U.S. 544, 558-59 (1980).

In this action under 42 U.S.C. Sec. 1983 for a fourth amendment violation, defendants bear the burden of demonstrating the Recruits' voluntary relinquishment of their constitutional rights, in the face of a presumption against such a waiver. Tarter v. Raybuck, 742 F.2d 977, 980 (6th Cir. 1984), cert. denied, 470 U.S. 1051 (1985). Voluntaries is an issue of fact, to be decided by the Court. United States v. Scott, 578 F.2d 1186, 1189 (6th Cir.1978), cert. denied, 439 U.S. 870 (1978). Consent must be proved by clear and positive testimony, and it must be unequivocal, specific, and intelligently given, uncontaminated by any duress and coercion. United States v. Williams, 754 F.2d 672, 674 (6th Cir. 1985).

In its argument that the Recruits actually consented to urinalysis, the City relies heavily on two factors: first, that the Recruits had taken a course on constitutional law as part of their academy training and had learned that they had a right to refuse such a search; and second, that the Recruits testified at deposition that they had consented to the urinalysis. The Court is not persuaded by either of these two contentions. As to the Recruits' education in constitutional law, it took the Supreme Court's rulings in Von Raab and Skinner to clarify the legitimacy of this type of urinalysis search. The Recruits cannot have known whether they had a right to refuse the drug test, especially since the presence of adequate procedural safeguards would have secured the constitutionality of the search. As to the deposition testimony of the Recruits suggesting actual consent, the City relies specifically on the following statements of cadets Feliciano and Rojas (similar testimony was also elicited from most of the other Recruits):

Q Now, if it had been announced in advance, either in the room that you were in or when you first came into the restroom, that the purpose of checking the sample was to test it for the presence of illegal drugs, or other illegal substances, would you have been reluctant or unwilling to voluntarily produce the sample?

A I don't think we had a choice.

MR. BERGER: Would you please read the question again.

A No.

Q Was it true that you were willing to take a polygraph test and a blood test?

A That's correct.

Q Were you willing to do that throughout the time that you were at the Academy as a police trainee?

A Yes, I was.

Q Were you also willing to take urine testing during that entire time as well?

A Yes, I was.

Feliciano dep. at 26, 34.

Q At the time that you produced the sample of urine, did you have any reason, whatsoever, to believe that there would be any evidence of marijuana use, or the use of any other illegal substance, in your urine?

A No, because -- well, I had a prescription. Other than that, no.

Q Did you have any reason to believe that there would be any evidence of marijuana use in your urine at the time you produced the sample?

A No.

Q Now, if you had been told, prior to giving the sample, that the purpose of testing it was to find if there was any evidence of the use of marijuana or any other illegal substance in your urine, would you have refused to give the sample?

A No.

Q Now, Mr. Rojas, did you indicate at the Civil Service Commission hearing that you were prepared to take polygraph and blood tests?

A Yes, I did.

Q Was that true?

A Yes, it was.

Q Were you willing to do that throughout the time you were at the Academy as a police trainee?

A Yes, I was.

Q And was the same true for urine testing, that you were willing to undergo that throughout the time that you were at the Academy for police training?

A Yes.

Rojas dep. at 18-19, 23-24.

Both Feliciano and Rojas qualified their deposition testimony by affidavits further explaining their answers. Feliciano's affidavit indicates that he believed his employment would be terminated if he did not produce a urine sample; that he would not have submitted it if he had known that drug testing is unreliable or that compulsory urinalysis of government employees is unconstitutional; and that he responded to the question about urine testing with the understanding that it implied that he would not be discharged based on its results. Rojas's affidavit is substantially similar.

On this evidence, this Court must find that the Recruits' fourth amendment rights were not knowingly and freely waived. Feliciano and Rojas clearly indicate they believed that producing the urine sample was necessary to retain their jobs, which vitiates any "consent." See Ford v. Dowd, 931 F.2d 1286, 1294 (8th Cir.1991) ("a Government employer cannot require that an employee consent to an unreasonable drug search at the risk of the employee's losing his or her job"). Just as importantly, the Recruits could not be expected to know that they were waiving constitutional rights, given the developing fourth amendment jurisprudence with respect to drug testing. Notably, the individual defendants have been granted qualified immunity because they could not know that their actions were unconstitutional; it is astounding that the City submits that the Recruits could voluntarily waive rights which were unknown to its own supervisory personnel. Finally, the Recruits' post-deposition explanations of their testimony are entirely credible when the specific questions relied upon by the City are read in the context of the parallel questions about polygraph and blood tests.

The responses of the Recruits upon which the City relies are not the sort of "clear and positive" statements that a defendant must adduce to meet its burden on consent, and thus overcome the presumption against waiver. If the City really believed that the Recruits' consents to the drug tests were unqualified, it would have been simple to ask a few additional questions of the deponents to establish the waiver and assure that its burden was amply satisfied. Instead, the City offers only these few answers to leading questions and maintains that its burden has been met, despite all of the Recruits' evidence negating voluntaries. This Court must hold that the City has failed to prove that the Recruits' production of urine samples was voluntary under all of the circumstances. See also American Federation of Government Employees v. Weinberger, 651 F. Supp. 726, 736 (S.D.Ga. 1986); Bostic v. McClendon, 650 F. Supp. 245, 249 (N.D.Ga. 1986).

In its attempt to pin the Recruits down to their unqualified deposition answers, the City relies on Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987) where the Second Circuit held that the evidence showed that the plaintiff had unequivocally consented to urinalysis. In Mack, the waiver form signed by [the employee] provided that:

I have been advised that I am under no obligation to provide a urine sample in connection with this administrative inquiry and I have further been advised that any information I supply would not be used against me in any criminal proceeding. Therefore I voluntarily submit to providing a urine specimen. . . .At his deposition [the employee] was asked if the government forced him to provide a urine sample. He replied: No. I was totally cooperative at that point and happy to provide any information they wanted.

Id. When the employee answered a summary judgment motion with an affidavit indicating that he submitted to the test because of fear of losing his job and coercion, the court held that this affidavit contradicted his deposition testimony and should be disregarded, and that summary judgment should be granted against him on his fourth amendment claim because of consent. Id. at 124-25.

It is the rule in the Sixth Circuit, as well, that "[a] party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony." Reid v. Sears, Roebuck and Co., 790 F.2d 453, 460 (6th Cir. 1986) (citing Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir. 1984)). Affidavits that explain deposition testimony, however, do not necessarily contradict that testimony. See Bender v. Southland Corp., 749 F.2d 1205, 1211 (6th Cir. 1984) (accepting affidavits explaining previous deposition testimony after a motion of summary judgment had been made). In this case, the Recruits' affidavits qualify and explain their depositions, rather than contradict them. Moreover, the evidence of consent is entirely distinguishable from that in Mack. The quality of the Recruits' responses were unlike Mack's expository answer to his deposition question, and the Recruits neither signed a waiver form nor were advised that they were not required to give a urine sample. Because Mack is in apposite to this case, this Court must find for the Recruits on the issue of consent.

C. Liability of the City

Having determined that the Recruits did suffer a violation of their fourth amendment rights, the Court must next determine the appropriate measure of damages under 42 U.S.C. SEC. 1983. This is an issue that was not fully briefed by the parties. It has been clearly established that recovery of damages under 42 U.S.C. SEC. 1983 is limited to compensation for actual injuries suffered. Actual injuries include financial loss and emotional and psychological harm. See Memphis Community School District v. Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978); Stewart v. Furton, 774 F.2d 706, 710 (6th Cir.1985) (damages from constitutional torts lie for harm to intangible, dignitary interests). Although the Recruits suffered no financial loss through having to undergo the unconstitutional urinalysis search, their deposition testimony indicates that some of them suffered tortious assaults to their dignity. The Court does not doubt that the City's unsettling invasion of the Recruits' privacy is a tort for which the law normally provides damages.

In researching the issue of damages, however, the Court finds an issue not addressed by either party. That is the issue of whether in this case the City can be held liable under SEC. 1983. The Supreme Court has held that a local government may not be sued under Sec. 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under SEC. 1983.

Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694 (1978). Whether the Recruits can collect damages from the City, therefore, depends on whether the City acted pursuant to official policy.

Obviously, actions taken by a municipality's legislative body constitute official policies. Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). Likewise, "official policy exists when there are actions by municipal agencies or boards that exercise authority delegated by the municipal body." E. Chemerinsky, Federal Jurisdiction 392 (1989) (citing Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978)). Finally, it is also true that "actions by those with final authority for making a decision in the municipality constitute official policy for purposes of Sec.1983." Id. at 393 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986)).

There is no evidence that the City's legislative body authorized the drug testing of the police cadets in question, nor that the municipal body delegated such authority to a municipal agency or board. It is possible, however, that official policy was created when a City employee, with final authority on the matter, decided to conduct the drug tests. In explaining when an individual governmental employee's action creates official governmental policy, the Supreme Court noted that a government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government's authorized decision makers, it surely represents an act of official governmental "policy" as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is taken only once or to be taken repeatedly.

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (footnotes omitted). Thus, merely because the City had only conducted the drug test once, for the first time, and without written procedures to follow, does not mean that the drug test was not "official policy." Rather, the illegal search of the Recruits, undertaken as a part of the drug test, was official policy if the decision to conduct the drug test as it was conducted was made by a properly authorized official. On this subject, the Supreme Court continued:

Municipal liability attaches only where the decision maker possesses final authority with respect to the action ordered. . . . Authority to make municipal policy may be granted directly by a legislative enactment or be delegated by an official who possesses such authority, and of course, whether an official had final policy making authority is a question of state law. . . . We hold that municipal authority attaches where -- and only where -- a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing a final policy with respect to the subject matter in question.

Id. at 481-84 (footnotes omitted). Whether liability will attach to the city, then, depends finally on whether Ohio law granted final policy making authority to the individuals who chose the particular course of action taken during the drug test. According to the deposition testimony of two of the individual defendants, Chief of Police Hanton and Safety Director Turner, the decision to test the Recruits for drug use through urinalysis was made by Chief Hanton. The means of collecting the urine samples and the laboratory used to analyze those samples were chosen by Chief Hanton and several officers who reported to him. Safety Director Turner was not made aware that the urine test would be undertaken until after it had been completed, and therefore took no part in determining the details of how the test would be conducted. If any individual can be identified as the one who chose the particular course of action taken during the drug testing, it is Chief Hanton. Thus, only if Chief Hanton had final policy making authority pursuant to state law, or was properly delegated that authority by the entity who first held it under state law, can the City be found liable for damages under Pembaur. See Bey v. Saginaw County, 649 F. Supp. 62, 64 (E.D.Mich. 1986).

Several provisions of City law discuss the roles of the Director of Public Safety and the Chief of Police, and their relationship to each other. The City Charter first affirms that the Chief of Police is subordinate to a department director:

The Chief of Police shall have exclusive control of the stationing and transfer of patrolmen and other officers and employees constituting the Police Force, under such rules and regulations as may be established by the Mayor or by the director of the department to whom the said Chief of Police may be immediately responsible.

Cleveland, Ohio, Charter SEC. 116 (1951). A municipal ordinance then makes clear to which department director the Chief of Police is responsible:

There is established a Division of Police in the Department of Public Safety, to be administered and controlled by a Chief of Police, subject to the provisions of the Charter and ordinances of the City, and to the direction of the Director of Public Safety. . . . All members of the Division shall be appointed by the Director of Public Safety, unless otherwise provided in the Charter.

Cleveland, Ohio, Code SEC. 135.09(a) (1988) (emphasis added). As for the Director of Public Safety, City ordinances note that "the Director shall be the executive head of the police and fire forces of the City under the direction of the Mayor and he shall be the appointing authority thereof." Id. at SEC. 135.01 (1942).

Under City law, then, the decisions of Police Chief Hanton were always subject to review by Safety Director Turner. Hanton had broad authority to deploy his forces as he saw fit, but Safety Director Turner had exclusive authority to decide who would be appointed to the police force in the first place. As "appointing authority" over the division of police, Safety Director Turner had complete control over the hiring, firing, and discipline of all police officers. Turner may have left to Hanton's discretion certain decisions concerning police force personnel, but that is not tantamount to delegation to Hanton of final policy making authority. See Pembaur v. City of Cincinnati, 475 U.S. 469, 483 n.12 (1986) (distinguishing delegation of authority from giving another the power to use discretion).

It was Turner who signed the termination letters to the Recruits because it was Turner, not Hanton, who had the authority to discharge police cadets and officers. See Cleveland, Ohio, Code SEC. 135.36 (1977) (every police officer shall submit to biannual medical examinations and "the Director of Public Safety shall take appropriate action in cases of physical or mental disability or impairment, as is within his authority and according to lawful duty."). Hanton merely recommended to Turner that the Recruits be discharged, based on the positive drug test results. Turner could have decided that the drug test results were meaningless, appointed the Recruits to the police force, and ordered that the police department waste no more money on drug testing. Conversely, Turner could have decided that the test results were invaluable, terminated the Recruits immediately, and ordered that future cadets be tested for drugs once each week. In any event, it is clear that it was Turner who had final authority to decide whether drug tests should or should not be conducted. Police Chief Hanton did not have final policy making authority, because any decision he made to terminate a Recruit based on drug test results would have been appealable to Turner. See Etheridge v. City of Brentwood, Tenn., 887 F.2d 1086 (6th Cir. 1989) (unpublished opinion) (1989 U.S. App 15843) (holding that police chief lacked final authority on personnel matters because his decisions were appealable to city manager).

The issue of damages, and the related issue of whether the City can be held liable for those damages, did not receive the full adversarial briefing so necessary to our system of justice. Nonetheless, in examining the details of this case, the Court finds that the individual who had final policy making authority was not the individual who chose the particular course of action taken during the drug tests. Accordingly, the actions that Chief Hanton and other individual defendants took during the drug test cannot be attributed to an official policy of the City. See Tarantino v. State of North Carolina, 639 F. Supp. 661, 670-71 (W.D.N.C. 1986), rev'd on other grounds, 825 F.2d 772 (4th Cir.1987), cert. denied, 489 U.S. 1010 (1989) (holding that a municipality could not be held liable absent official policy). Therefore, the Court holds that the Recruits cannot collect damages from the City for the invasion of privacy they suffered during the unconstitutional search.

In summary, the Court finds that the drug testing as actually conducted by the City, and by the individual defendants, violated the Recruits' right to be free from unconstitutional search and seizure, and that the Recruits did not consent to being searched. The Court further finds that the individual defendants are not liable for damages because they enjoy qualified immunity, and the City is not liable for damages because it was not acting pursuant to official policy.

V. FOURTEENTH AMENDMENT ANALYSIS

The fourteenth amendment to the United States Constitution provides that local governments shall not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, SEC. 1. The Recruits claim that the City and the individual defendants twice denied the Recruits due process: first, the Recruits were denied substantive due process when the defendants failed to employ accurate chemical testing of the Recruits' urine samples; and second, the Recruits were denied procedural due process when the defendants failed to provide a hearing before terminating the Recruits. The Recruits also claim that the City and the individual defendants denied the Recruits equal protection of the law because the Recruits were treated differently from other city employees who were similarly situated.

In reference to these claims, the Recruits insist that the defendants should not be permitted to advance in their defense any evidence that the Recruits ingested illegal drugs. The Recruits point out that this evidence was obtained through an unconstitutional search, and argue that the evidence must therefore be disregarded by the Court pursuant to the exclusionary rule set out in Mapp v. Ohio, 367 U.S. 643 (1961), and its progeny. If the Court accepts this argument, any consideration by the defendants of the results of the Recruits' drug tests, and therefore any decision by the defendants to discipline the Recruits based on positive test results, would be improper.

The Court, however, does not agree that the evidence of the Recruits' positive drug test results must now be excluded from consideration because the urinalysis, as conducted, was unconstitutional. As directed by the Sixth Circuit, this Court has granted summary judgment to the individual defendants with respect to the Recruits' fourth amendment claims because the drug testing met the objective reasonableness standard required for qualified immunity. Feliciano v. City of Cleveland, No. 86-3436, slip op. at 3 (6th Cir. April 10, 1987) ("defendants could not reasonably have known that such conduct was so violative as to deprive them of immunity"). The same objective reasonableness standard also determines whether the "good faith exception" to the exclusionary rule should be applied. Malley v. Briggs, 475 U.S. 335, 344-45 (1986) (citing United States v. Leon, 486 U.S. 897, 923 (1984)). Consistency therefore demands that the good faith exception to the exclusionary rule be applied in this case. Evidence of the Recruits' drug test results is properly considered as the Court addresses the Recruits' fourteenth amendment claims.

A. Due Process Claims

There are two separate guarantees encompassed in the fourteenth amendment's prohibition against governmental actions that "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, SEC. 1. These guarantees are commonly referred to as the right to procedural substantive process and the right to procedural due process. "The categories of substance and procedure are distinct." Cleveland Bd. of Education v. Loudermill, 470 U.S. 532 (1985).

The right to substantive due process serves to restrict "certain arbitrary, wrongful actions 'regardless of the fairness of the procedures used to employ them.'" Zinermon v. Burch, 110 S. Ct. 975, 983 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). It is a guarantee that governmental actions will be found unconstitutional unless they are reasonably related to a legitimate end of government. Exxon Corp. v. Governor of Maryland, 98 S. Ct.2207, 2213 (1978). The right to procedural due process guarantees that fair procedures will be provided by the government before divesting an individual of a fundamental right. Thus, any "deprivation of life, liberty, or property [must] 'be preceded by notice and [an] opportunity for hearing appropriate to the nature of the case.'" Loudermill, 470 U.S. at 542 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)).

The Recruits maintain that their rights to both substantive and procedural due process were violated. They claim that the defendants denied them substantive due process by conducting a urine test which produced results so arbitrary and unreliable as to be unconstitutional. Next, the Recruits claim they were denied procedural due process because the defendants, prior to terminating the Recruits, provided the Recruits with neither adequate notice nor an adequate hearing. For the reasons set out below, the Court grants summary judgment to the defendants on both of these claims.

1. Substantive Due Process

In bringing their substantive due process claim, the Recruits focus on the scientific procedures surrounding the urinalysis. This is in contrast to the Recruits' fourth amendment claim, where the Recruits rightly contend that the sum of procedures put in place to circumscribe official discretion and to protect their privacy during urine collection was grossly inadequate. The Recruits claim here only that the analytical technique employed to detect the presence of drug metabolites in their urine samples produced arbitrary and capricious results, resulting in deprivation of a substantive aspect of their liberty. n3

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n3 The Recruits' briefs can also be construed to raise a claim that the analytical technique employed to detect the presence of drug metabolites in their urine samples violated their right to procedural due process. Simply, the Court does not find the procedures used by the defendants to be constitutionally inadequate. See discussion of the highly accurate GC/MS test, which was used in this case, infra; cf. Burka v. Newark City Transit Authority, 739 F. Supp. 814, 836-38 (S.D.N.Y. 1990).

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In various briefs submitted to the Court, the Recruits go into great detail concerning the reliability of the chemical tests used by Smith Kline, the laboratory that the defendants hired to conduct the urinalysis. The Recruits also present a complete overview of existing federal agency regulations, case law, and treatises on the topic of drug urinalysis, all of which make clear that the tests used by Smith Kline in this case are now regarded either as suspect or incomplete. The Court agrees with the Recruits that the urinalysis conducted in this case was technically deficient.

The test for whether a substantive due process claim is valid, however, is not whether a governmental procedure suffers from some technical deficiency. The test in this case is whether the urinalysis as conducted bears a reasonable relation to the City's legitimate purpose of ridding itself of police cadets who abuse illegal drugs. n4 Only if the drug test procedures are "irrational," Exxon Corp. v. Governor of Maryland, 98 S. Ct. 2207, 2213 (1978), or produce results that "'offend those canons of decency and fairness which express notions of justice of English-speaking peoples,'" Rochin v. California, 342 U.S. 165, 169 (1952) (quoting Malinski v. People of State of New York, 324 U.S. 401, 416-17 (1945)), do the Recruits succeed on their substantive due process claim. "Only when a law is a totally arbitrary deprivation of liberty will it violate the substantive due process guarantee." Woods v. Holy Cross Hospital, 591 F.2d 1164, 1176 (5th Cir. 1979) (quoting an earlier version of 2 J. Nowak, R. Rotunda & J. Young, Treatise on Constitutional Law, 59 (1986)).

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n4 The Supreme Court has outlined a two-tiered approach to examination of substantive due process claims. One standard requires only that state law bear "a rational relationship to permissible state objectives." Moore v. City of East Cleveland, 431 U.S. 494, 498 (1977). "Regulations imposing a burden on [fundamental rights, however,] may be justified only be compelling state interests, and must be narrowly drawn to express only those interests." Carey v. Population Services Int'l, 431 U.S. 678, 686 (1977). Because the Recruits do not point to any fundamental right to privacy infringed upon by the City's drug test, the City need only meet the first of these standards.

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Clearly, the procedure used by Smith Kline to analyze the Recruits' urine samples was far from totally arbitrary; rather, it appears to have been totally accurate. Based on an EMIT test and a RIA test, Smith Kline reported to the defendants that the Recruits had ingested illegal drugs. Given these test results alone, the defendants moved to discharge the Recruits. As noted, the Court recognizes that the combined results of the EMIT and RIA tests are now regarded as an insufficiently accurate indicator of drug use. But Smith Kline later conducted a GC/MS test on the Recruits' urine, apparently for internal quality control checking purposes. The GC/MS test, which the Recruits admit is highly accurate, completely confirmed Smith Kline's earlier analysis.

While today's scientific protocol may demand use of the GC/MS test as a confirmatory procedure before drug test results are announced, the defendants' not having done so does not rise to the level of denial of substantive due process. The chemical urinalysis conducted by the defendants did not produce capricious results and did not by itself lead to unfair treatment of the Recruits. Rather, the urinalysis was rational, accurate, and fair. Therefore, the defendants' motion for summary judgment on the claim that the defendants violated the Recruits substantive due process rights is granted, and the Recruits' converse motion is denied.

2. Procedural Due Process

The Recruits' right to procedural due process is a guarantee that certain procedures will be followed before their life, liberty, or property is taken from them. The Recruits claim that defendants deprived them of both liberty interests and property interests without following constitutionally adequate procedures.

a. Liberty Interests

The Recruits complain that the defendants deprived them of their liberty by publicly and falsely impugning the Recruits' moral characters. "When a state fires an employee for stated reasons likely to make him unemployable in the future, by marking him as one who lost his job because of dishonesty or other job-related moral turpitude, the consequences are so nearly those of formally excluding him from his occupation that the law treats the state's action the same way, and insists that due process be provided." Lawson v. Sheriff of Tippecanoe County, Ind., 725 F.2d 1136, 1139 (1984); see also Bishop v. Wood, 426 U.S. 341 (1976) (liberty interest exists in being free from stigmatization by governmental disciplinary action). Specifically, due process requires the state to give an employee notice and an opportunity to be heard before the termination, so that the employee has an opportunity to refute the charge and to clear his name. See Codd v. Velger, 429 U.S. 624, 627-28 (1977); Board of Regents v. Roth, 408 U.S. 564, 573-74 (1972); Wisconsin v. Constantineau,408 U.S. 433, 437 (1971).

There are several elements necessary to an employee's claim that the state has deprived him of his liberty to pursue the career of his choice. First, there must be a dispute between the employer and the employee concerning the truth of the employer's statements. Codd v. Velger, 429 U.S. 624 (1977). Second, "there is no deprivation of liberty if the employee is not fired." Lawson v. Sheriff of Tippecanoe County, Ind., 725 F.2d 1136, 1139 (1984) (citing Paul v. Davis, 424 U.S. 693, 710 (1976)). Third, there must be some defamatory statement made by a state official in connection with the termination. Paul v. Davis, 424 U.S. 693, 710 (1976). And fourth, the employee must have been given either no opportunity to refute the charge and clear his name, or an inadequate opportunity. Board of Regents v. Roth, 408 U.S. 564, 573 n.12 (1972).

As to at least some of the Recruits, there is a dispute as to whether they actually smoked marijuana. n5 Most of the Recruits claim that any marijuana detected in their urine was the result of "passive inhalation," or inhaling stray marijuana smoke that was generated only by others. But the Recruits have not shown the Court that they were fired, nor that a defamatory statement was made by a government official, nor that they were afforded inadequate hearings to clear their names.

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n5 Feliciano, however, admitted to using marijuana while a police cadet. Feliciano dep. at 27.

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After the drug test results were announced, the Recruits were given a clear choice by the defendants: they could either resign, or they could be terminated. The Recruits were urged not to suffer termination but to resign instead, since resignation "is a much-used, face saving device designed to avoid the stigma of being fired." Giglio v. Dunn, 732 F.2d 1133 (2d Cir. 1984), cert. denied, 469 U.S. 932 (1984). The Recruits agreed to sign resignation forms. Now, however, the Recruits state that they resigned involuntarily because they were under duress when they were given their choice to resign or be terminated. As one court explains, a resignation is involuntary and therefore ineffective when it is the product of the appointing authority's wrongful coercion. Thus, where an employer induces the resignation as the only alternative to a removal based upon unfounded charges of misconduct, the resignation should be regarded as ineffective to deny the employee his appeal. Under these circumstances, there has not been a resignation but, rather, a removal, the merits of which the employee should be permitted to contest. This differs from a situation where an employee is permitted to resign as an alternative to being removed on charges which are meritorious; in such an event, as there is no coercion, the resignation is voluntary.

Kinney v. Dept. of Admin. Services, 469 N.E.2d 1007, 1010 (Ohio Ct. App. 1984). Here, the charges against the Recruits were meritorious -- the highly accurate GC/MS test, although performed after the Recruits were asked to resign, confirmed that the Recruits ingested marijuana at levels above that which passive inhalation allows. Furthermore, when the Recruits were given a choice between accepting termination letters or signing resignation forms, the defendants explained that the Recruits could fight the defendants' decision by challenging their termination, or instead accept the defendants' decision and simply resign. The Court finds, from reading the transcripts of the Recruits' interviews, that this choice was presented clearly. Furthermore, the Court notes that at the Recruits' request, the Civil Service Commission held a hearing to determine the voluntaries of the Recruits' resignations. At this hearing, the Recruits were given an opportunity to respond to evidence and call and cross-examine witnesses. The Commission found that the Recruits' resignations were voluntary. Absent special circumstances n6 not present in this case, this Court finds it appropriate to rely on the Commission's finding. See University of Tennessee v. Elliot, 478 U.S. 788, 799 (1986).

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n6 "Special circumstances" might be, for example, that the decision makers at the administrative hearing were not impartial. The Recruits appear to raise this claim when they state that "the Commission is a part of the City of Cleveland, who is a Defendant in this case. . . . There is little question that the hearing was a sham." Plaintiffs' brief dated Aug. 20, 1986, at 5. Simply because the Civil Service Commission is a "part of" the City, however, does not mean that the Commission has "the kind of personal or financial stake in the decision that might create a conflict of interest, and there is nothing in the record to support charges of personal animosity." Hortonville Joint School District No. 1 v. Hortonville Education Ass'n, 426 U.S. 482, 492 (1976). The Court does not believe that the preclusive effect of the Commission's finding can be ignored by virtue of any special circumstances.

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Nor does the Court credit the Recruits' contention that the defendants actually published a defamatory statement concerning the Recruits. First, the GC/MS test results apparently indicate that any statement made by the defendants that the Recruits abused illegal drugs was true. Second, although the defendants released word to the press that some cadets had tested positive for drugs and would not graduate, the defendants did not mention any of the Recruits' names. Individual Recruits were not named in any news reports until Rojas spoke to the press to assert his innocence; even then, other Recruits who asked not to be identified were kept anonymous. The defendants apparently tried to avoid naming names. Feliciano's name, for example, was not published in the press until he filed this lawsuit. The Court does not believe, therefore, that the defendants published a defamatory statement about any of the Recruits. n7

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n7 The Court also notes that probationary employees are less likely to be stigmatized than are permanent employees. See Burka v. New York Transit Authority, 739 F. Supp. 814, 835 (S.D.N.Y. 1990) (holding that, given Transit Authority policy, "marijuana test results only foreclosed the future job opportunities of permanent employees[, not probationary employees,] and only that subclass had a liberty interest in reputation at stake").

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Finally, the Court notes that the Recruits were given a chance to respond to the defendants' contentions before being asked to resign, and were later given a Civil Service Commission hearing where they were permitted to challenge the test results. Due process requires only that predetermination hearings "be an initial check against mistaken decisions -- essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 545-46 (1985). Before they were asked to resign, the Recruits were notified of their urinalysis results and were given an opportunity to respond. Those who provided reasonable explanations (for example, drug prescriptions validly authorized by medical doctors) were allowed to continue as employees. The Court believes this predetermination hearing was constitutionally adequate. Post-termination hearings generally call for full administrative or judicial review. As mentioned earlier, a full administrative hearing was afforded to the Recruits by the Civil Service Commission. The Commission found that the Recruits "voluntarily signed written resignations instead of accepting their termination letters," that the defendants neither "promised or threatened anything to the [Recruits] in order to get them to resign," and that the urinalysis tests provided "a valid basis for determining illegal drug use." This Court finds that the post-termination hearing provided by the Civil Service Commission was constitutionally adequate.

In summary, the Recruits fail to prove elements necessary to their claim that the defendants denied them procedural due process. The Court finds that the defendants did not unconstitutionally deprive the Recruits of their liberty interests, and accordingly the Court grants defendants' motion for summary judgment. The Recruits' converse motion for summary judgment is denied.

b. Property Interests

In regard to the defendants' alleged unconstitutional deprivation of the Recruits' property interests, the Recruits direct the Court's attention to Cleveland Bd. of Education v. Loudermill, 470 U.S. 532 (1985). Loudermill reaffirms the proposition that public employees who can be discharged only for cause have a constitutionally protected property interest in continued employment. Loudermill further holds that due process requirements are met if: 1) prior to the discharge of such an employee, he is given some kind of minimal opportunity to respond to the stated reasons for termination; and 2) after the termination, the employee is given a fair and adequate hearing. Loudermill, 470 U.S. at 542-47. The Recruits complain that they were deprived of procedural due process because they were discharged from employment but were given neither an adequate predetermination hearing nor a fair post-termination hearing.

The defendants respond by claiming first that Loudermill has no application to this case. Loudermill specifically "considered what predetermination process must be accorded a public employee who can be discharged only for cause." Id. at 535. Defendants distinguish Loudermill by insisting that: 1) the Recruits had no constitutionally protected property interest in continued employment because the Recruits were on probationary status, so that the "for cause" standard does not apply; and 2) the Recruits were not discharged; they voluntarily resigned. The defendants also insist that even if the instant case cannot be distinguished from Loudermill, predetermination and post-termination hearings were given to the Recruits sufficient to meet due process requirements.

As previously discussed, the Court agrees with the defendants that the Recruits voluntarily resigned, and also believes that the predetermination and post-termination hearings given to the Recruits were constitutionally adequate. However, the Court need examine only the defendants' threshold contention that because the Recruits were on probationary status, they had no constitutionally protected property interest in continued employment. If the defendants are correct, the Recruits' procedural due process claim fails because their "federal constitutional claim depends on their having had a property right in continued employment." n8 Id. at 538 (footnote and citations omitted). To determine whether the Recruits had a valid property interest in continued employment, the Court must examine state law: "Property interests are not created by the Constitution, 'they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" Id. (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).

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n8 Of course, the due process clause also protects interests of life and liberty. The Recruits' contention that they were unconstitutionally deprived of liberty, however, has already been discussed supra.

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When the parties originally briefed this case to the Court, Loudermill was new law. Because at that time Ohio courts had not decided the question of whether probationary employees had a property interest in continued employment, the Recruits and the defendants each constructed excellent and thorough arguments on this point. Since that time, however, Ohio courts have clearly held that the rights of probationary employees are more limited than those of regular employers:

In Loudermill, . . . the United States Supreme Court held that R.C. 124.34 creates a property interest in continued employment for classified civil servants. The court stated that a deprivation of such a constitutionally protected right may be accomplished only pursuant to constitutionally adequate procedures. Thus, an individual must be given an opportunity for a hearing before being deprived of any significant property interest. . . .

The [Loudermill] court further added:

"The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." . . .

Clearly, the instant matter does not present a similar situation. [Plaintiff], as a probationary employee, did not have a legitimate claim of entitlement to continued employment since his appointment was not final until satisfactory completion of the probationary period. . . . Therefore, a probationary employee is not entitled to a hearing before reduction or removal since such an employee does not have a constitutionally protected property interest which would require the safeguards of procedural due process. [Plaintiff's] reliance on Loudermill . . . in order to require a due process hearing prior to his reduction, is not well-taken.

Taylor v. City of Middletown, 568 N.E.2d 745, 749 (Ohio App. 1989) (emphasis in original) (citations omitted). Although Taylor refers to a promotional appointee, Ohio courts have held similarly for original appointees: n9 "a probationary employee [does] not possess a property interest in continued employment so as to come within the protection of the Fourteenth Amendment of the United States Constitution." Jacomin v. City of Cleveland, No. 59250, 1990 Ohio App. 4521, at *9-10 (Ohio Ct. App. Oct. 18, 1990).

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n9 A promotional appointee is an employee who has been promoted but whose promotion is not absolute until successful completion of a probationary period. Failure of the employee to complete this probationary period results in a "reduction," or demotion back to pre-promotion status. An original appointee, on the other hand, is an employee who has been provisionally hired. If the probationary period is not successfully completed, an original appointee is "removed," meaning employment is discontinued entirely. See generally Taylor v. City of Middletown, 568 N.E.2d 745 (Ohio Ct. App. 1989). The Recruits are original appointees.

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The Recruits admit that they were probationary employees. Ohio courts have held that probationary employees have no constitutionally protected property interest in continued employment. For this reason, the Court grants defendants' motion for summary judgment on the Recruits' claim that the defendants violated the Recruits procedural due process rights. The Recruits' opposing motion for summary judgment is denied.

B. Equal Protection Claims

The equal protection clause of the fourteenth amendment "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Governmental action that employs a classification calling for disparate treatment of similarly situated persons must be examined for constitutional deficiency. Depending on the type of governmental action at issue, however, an equal protection claim is subject to one of two distinct tests. n10 If "the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class," then "equal protection analysis requires strict scrutiny." Massachusetts Bd. Of Retirement v. Murgia, 427 U.S. 307, 312 (1976) (footnotes omitted). On the other hand, if the governmental action employs a classification that does not reach a fundamental right or a suspect class, the action "is presumed to be valid and will be sustained if the classification drawn . . . is rationally related to a legitimate state interest." City of Cleburne, Texas, 473 U.S. at 440.

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n10 A third test, used to review the constitutionality of quasi-suspect classifications such as gender, is not pertinent to this case.

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In their pleadings, the Recruits identify six separate classifications that the defendants allegedly employed to unconstitutionally treat the Recruits differently from other City employees. The Recruits allege that the defendants: (1) ordered urine testing of the police cadets, but not of two firefighters who were undergoing training in the police academy at the same time; (2) ordered urine testing of the police cadets, but not of fully appointed police officers; (3) constructively discharged the Recruits, but only suspended two police cadets who had committed disciplinary infractions not involving illegal drug use; (4) allowed other cadets to provide additional explanation for their positive drug test results, but did not allow the Recruits to do so; (5) allowed police officers with drug abuse problems to avoid disciplinary action by seeking help from an "employee assistance unit," but did not give the Recruits the same opportunity; and (6) conducted the urine testing in such a way that the results were racially discriminatory.

The last of these six classifications must pass the strict scrutiny test, since ancestral, racial, and alienage-based classifications are "constitutionally suspect and subject to the most rigid scrutiny." McLaughlin v. State of Florida, 379 U.S. 184, 192 (1964) (citations and quotations omitted); see Massachusetts Bd. of Retirement, 427 U.S. at 312 n.4. In their sixth claim, the Recruits essentially allege that melanin, which is found in higher concentrations in the skin of individuals with african and hispanic ancestry, causes urine tests to falsely register the presence of drugs. However, the Recruits' sixth claim has already been adversely ruled upon in Shield Club v. City of Cleveland, 647 F. Supp. 274 (N.D. Ohio 1986). The plaintiff class in Shield Club, which included the Recruits, "failed to prove their claim that the mandatory urine tests have had an adverse discriminatory impact upon minority cadets." Id. at 287. Shield Club clearly makes res judicata the Recruits' equal protection claim based on racial discrimination. The Recruits apparently recognize the res judicata effect of Shield Club, since they did not pursue their racial discrimination equal protection claim in later briefs to this Court.

The other five classifications outlined by the Recruits do not make distinctions that touch members of a suspect class, so they need merely meet the rational basis standard to pass constitutional muster. Under the rational basis test, governmental action is not unconstitutional unless "the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [governmental] actions were irrational." Vance v. Bradley, 440 U.S. 93, 97 (1979). Applying this test, the Court finds that none of the remaining five classifications allegedly used by the defendants violates the Recruits' right to equal protection.

First, the Recruits claim that testing the urine of only the police cadets, but not of two firefighters who were undergoing training in the police academy at the same time, had no rational basis. The Recruits note that the drug tests were purportedly done to ensure the fitness of any City employee who carried firearms, and that upon graduation both the cadets and the firefighters would be allowed to carry firearms. The Recruits claim that testing only the cadets for drug use is therefore irrational. However, Chief of Police Hanton had been informed that the police cadets, not the firefighters, were abusing drugs. Furthermore, Hanton's objective was to avoid "putting recruits on the streets with hand weapons who were using illegal substances." While Hanton had nearly complete discretion concerning the hiring and deployment of police cadets, Hanton had no control over the hiring and deployment of firefighters. Whether the firefighters were allowed on the streets with hand weapons was entirely up to the Fire Chief. Thus, it was certainly not irrational for Hanton to test only his own cadets. It might have been wise for Hanton to also test the firefighters, and perhaps to inform the Fire Chief of his findings. But wisdom is not the test for an equal protection claim; the test is merely rationality. Hanton's decision to test the police cadets but not the firefighters was rational, so the Recruits' claim must be dismissed.

The Recruits next maintain that there was no rational basis behind ordering urine testing of the police cadets, but not of police officers. As noted before, however, Chief of Police Hanton had been informed specifically that his police cadets, not his police officers, were abusing illegal drugs. It is not irrational to test only those about whom suspicions have been explicitly raised. Furthermore, the Recruits were in the unique position of being days away from graduation and receiving firearms for the first time. As such, the Recruits were especially appropriate subjects of a test the object of which was to prevent the appointment of weapons-carrying police officers who abused drugs. That Hanton did not test police officers who had already been appointed does not make his actions irrational, nor does it deny the Recruits equal protection of the law.

The City clearly had a rational basis for differentiating between police cadets who had used illegal drugs and police cadets who had committed disciplinary infractions not involving illegal drug use. Giving a weapon to a police cadet who abuses drugs is quite different from giving a weapon to police cadet who had failed to appear for academy training for three days. It seems quite rational to this Court to seek the resignation of the first cadet while merely suspending the second. Moreover, the disciplinary infractions of these two cadets are so different in nature that the two cadets cannot even be said to be similarly situated. Dissimilar treatment, therefore, was not unconstitutional.

The Recruits also claim that the defendants allowed some cadets to provide additional explanation for their positive drug test results, but did not allow the Recruits to do so. In making this claim, however, the Recruits ignore vital facts. All those cadets whose drug test results were positive were asked if they could explain why their urinalysis had revealed the presence of drug use. Several cadets claimed that the only drugs their urinalyses could have detected were validly prescribed. These cadets were given an opportunity to provide "additional explanation" by being allowed to produce copies of their drug prescriptions. Subsequent testing confirmed that the prescribed drugs had in fact caused the positive test results for these cadets. In contrast, the Recruits were not offered a chance to provide "additional explanation" of their positive test results simply because they had provided no reason for the defendants to do so. n11 None of the Recruits claimed to be using prescription drugs, even when asked. It is clearly rational for the defendants to treat differently cadets who claimed they had passively inhaled marijuana from cadets who claimed they had used prescription drugs. This claim must also be dismissed.

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n11 Some of the Recruits claimed that their positive test results occurred through passive marijuana smoke inhalation and insist that they should have gotten an equal chance to explain their test results. Given that the test was designed not to register passive marijuana smoke inhalation, however, defendants' decision to allow "additional explanation" only from those cadets who claimed prescription drug use was rational.

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Finally, the Recruits argue that there was no rational basis for allowing police officers with drug abuse problems to avoid disciplinary action by seeking help from the "employee assistance unit," and not allowing police cadets with drug abuse problems the same opportunity. This argument is unavailing. The employee assistance unit was established to "assist police officers with problems that are affecting their daily lives and which are beginning to manifest themselves in declining job performance." General Police Order 24-49 at 1. The police department correctly recognizes that police officers are "in one of the most demanding professions imaginable," and that police work "creates Stress of an [sic] unique nature." Id. It seems quite reasonable that the police department would desire to make the assistance of a special unit available only to veteran officers who have experienced this "unique stress" during the course of duty, but not to cadets, whose experience had been limited to the classroom. The resources of the employee assistance unit are doubtless limited; conserving those resources for officers who have actually suffered through anxious circumstances on the streets of Cleveland is not irrational.

In summary, the Court finds that any classifications allegedly used by the defendants to treat the Recruits differently did not violate the Recruits' constitutional rights to equal protection. The drug testing as performed by the City and the individual defendants was a rational means to serve the legitimate goal of denying final appointment to police cadets who had used illegal drugs. Therefore, the Court grants the defendants motion for summary judgment on the Recruit's equal protection claims, and the Recruits' opposing motion for summary judgment is denied.

VI. CONCLUSION

This Court was presented with motions for summary judgment on all claims by both the Recruits and the defendants. The Court finds that the Recruits' right to be secure from unconstitutional search and seizure was denied, but further finds that neither the individual defendants nor the City can be held liable for damages. The Court also finds that the Recruits' rights to due process and equal protection were not denied. Accordingly, the Court denies summary judgment to the Recruits on all claims, grants summary judgment to the individual defendants on the Recruits' fourth amendment claim based on the individual defendants' qualified immunity, and grants summary judgment to the defendants on all other counts.

The Court has filed its memorandum and order granting summary judgment to the defendants on all claims. Therefore,

IT IS ORDERED that defendants' motions for summary judgment are granted, and final judgment is entered in favor of the defendants.