Brotherton v. Hill et al

Filing 46

ORDER granting 36 Motion for Summary Judgment. Signed by Judge D. P. Marshall Jr. on 9/4/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
THOMAS BROTHERTON

v.

PLAINTIFF

No. 4:12-cv-534-DPM

JAY HILL, Individually and in His
Official Capacity; and DAVID
DONHAM, Individually and in His
Official Capacity

DEFENDANTS

ORDER
1. Brotherton worked as a boiler operator at the Arkansas Health
Center, a nursing facility of the Arkansas Department of Human Services.
The parties agree his job was a dangerous one. Brotherton maintained boilers
that held hot water ranging from 110 degrees to 1,400 degrees. If improperly
maintained, boilers can explode, causing great harm to people and property.
Human error is the culprit in most explosions. Boiler operators such as
Brotherton are, under the Center's policy, subject to random drug testing and,
like all Center employees, subject to drug testing based on reasonable
suspicion.
In November 2011, maintenance supervisor Tracy Jackson found a
cigarette lighter next to an aluminum pie pan in the men's restroom used by
Brotherton and other maintenance personnel. Burnt brown residue was in the

pan. Jackson informed safety officer Donham, a former narcotics officer with
many years' experience in law enforcement. Donham suspected drug use and
he called director Jay Hill. Donham then had Brotherton, and all the other
maintenance folks on the job, gather in a conference room. From there, safety
officers carted van-loads of workers across campus to the drug-testing facility.
Nobody was watching Brotherton fill the testing cup. He did, however, have
to leave the door open and facility personnel were in the next room.
The Center's policy on point is appended.

The Center prohibits

employees from using controlled substances on duty.

When the

circumstances provide reasonable cause, the Center may require its
employees to submit to urinalysis. An employee with a positive test result
faces suspension, drug counseling, termination, or some combination of this
discipline. The policy requires confidentiality about the testing results, with
disclosure only to those who need the information for official business duties
or as required by law.
2. The Fourth Amendment's familiar guarantee is that no person may
be subjected to unreasonable searches and seizures. The parties recognize,
and the Court agrees, that the Supreme Court's construction of the

2

Amendment in the context of public workers involved in dangerous activities
applies here. Skinner v. Railway Labor Executives' Association, 489 U.S. 602,624
(1989). The Center had a compelling interest in ensuring that Brotherton
performed his safety-sensitive duties with a clear mind. Ibid. Weighed
against that interest, the intrusion into Brotherton's legitimate expectation of
privacy was minimal. Rushton v. Nebraska Public Power District, 844 F.2d 562,
566 (8th Cir. 1988) (RichardS. Arnold, J.).
Brotherton was detained about fifty-five minutes for the test. He was
off duty forty-five of those minutes. In other words, the Center kept him at
work almost an hour late. This delay caused him to miss a long-scheduled
appointment to have his damaged piano appraised. When Brotherton asked
to leave for that appointment, Donham treated him gruffly- he yelled, and
refused to allow Brotherton to go anywhere.

All this weighs in the

reasonableness balance. Skinner, 489 U.S. at 619. While the Court doesn't
condone Donham's incivility, it doesn't make this search unreasonable.
Brotherton got his piano appraised a few weeks later.
A number of non-maintenance personnel also used the maintenance
bathroom. That fact doesn't diminish the Center's interest in making sure that

3

none of the maintenance workers was using drugs on the job. And the
connection between this bathroom and those workers was not so attenuated
that it made their testing unreasonable in the circumstances. The Center
didn't give Brotherton's test results to law enforcement. One of Brotherton's
co-workers tested positive for methamphetamine; the Center didn't give his
results to law enforcement either. Compare Ferguson v. City of Charleston, 532
U.S. 67 (2001). The Center didn't test Brotherton even though his job wasn't
dangerous. Compare Harmon v. Thornburgh, 878 F.2d484 (D.C. Cir.1989). Bad
blood didn't lead the Center to target Brotherton for drug testing. Compare
Ford v. Dowd, 931 F. 2d 1286 (8th Cir. 1991). The brown stuff in the pie pan,

as Brotherton points out, eventually tested negative for any controlled
substance. That truth doesn't diminish the reasonableness of officer Donham's
suspicions.
The Court has considered the undisputed material facts and, where
there is some dispute, viewed the record in Brotherton's favor. Taylor v.
White, 321 F.3d 710, 715 (8th Cir. 2003). He suffered no Fourth Amendment

violation. Defendants' motion for summary judgment, NQ 36, is granted.

4

So Ordered.
{/

D.P. Marshall Jr.
United States District Judge

5

EMPLOYEE DRUG AND ALCOHOL PREVENTION POLICY

1087.0.0

All Department of Human; Services (DHS) employees are prohibited from using or
possessing controlled substances or alcohol while on duty or working with the
presence of alcohol or illegal drugs in the employee's body, or abusing legal drugs.
Abusing legal drugs includes using drugs prescribed for another person. Legal drugs
are defined as medications prescribed by a licensed physician or medical facility for
an employee or another person. Employees who engage in drug or alcohol abuse face
the risk of termination and the forfeiture of worker's compertsation medical and
indemnity benefits.

1087.1.0

Policy wiD be Strictly Applied

1087.1.1

This rule will be strictly applied according to its terms. No terms or conditions not
appearing under this policy apply. For example, no Administrative Review is
required to implement disciplinary action pursuant to this policy. This is a special
promulgated policy, not part ofDHS Policy #1085, Minimum Conduct Standards for
DHS Employees.

1087.1.2

Nothing in this rule abrogates the employment at will doctrine. Any departmental
error that is trivial or formal or merely academic and that does not prejudice the
substantive rights of an affected party and that in no way affected the final outcome
of the case will be deemed hannless error and will not be grounds for overturning the
agency decision.

1087.2.0

AD Employees are Subject to the Provisions of this PoUcy when Engaged in the
Following Activities:
•
•

When on DHS property at any time, including parking lots, whether leased or
owned by DHS.

•

When driving or riding as a passenger in a DHS vehicle.

•

1087.3.0

When conducting DHS business, whether on or offDHS propertjr.

When assigned to on-call status, required to remain available by telephone or
pocket pager, in order to be called in to work.

Information is Confidential

All data, information, and results related to employee drug and alcohol testing are confidential.
Disclosure of information will only be to those individuals whose official business duties
necessitate disclosure or as required by law.

1087.4.0

The Following Three Levels of Drug Testing will be Used

1087.4.1

Pre-Employment: All persons selected for new employment or a change of
employment within DHS must submit to a drug test as a precondition of
employment. All hiring decisions are contingent on the selectee passing the drug

Effective Date: September 6, 2002

Page 1 of7

DHS 155

test. This applies to current DHS employees applying for different positions as well
as external applicants.
1087.4.2

Reasonable Cause: All employees are subject to reasonable cause drug and alcohol
screening.

1087.4.3

Random: Employees in safety sensitive positiol\S or engaged in drug prevention
activities are also subject to random drug testing as a condition of employment.

1087.5.0

PRE-EMPLOYMENT DRUG TESTING PROCESS

1087.5.1

Vacancy announcements for positions for which drug or alcohol testing is required
will include notice of testing in the announcement. The Career Opportwlities
Bulletin and other job advertisements will include a statement advising applicants
that they will be required to submit to drug and alcohol testing after a conditional
offer of employment.

1087.5.2

All applicants selected for employinent (includes applicants for temporary,
emergency, and extra help positions), will also be notified in writing (DHS Form
1956, Pre-Employment Drug Testing Process Applicant Notice) at the time of
application or interview that an offer of employment is conditional upon passing a
pre-employment drug test. The written notification will inform applicants of the
consequences of: (a) failing to appear for testing or (b) a test indicating positive for
drugs or alcohol.

1087.5.3

Upon conditional selection of an individual for employment, the hiring official must
notify the selectee (via telephone and letter) that the selectee is conditionally selected
for employment contingent on he/she successfully passing a pre-employment drug
test, and provide instructions for taking the test.

1087.5.4

DHS will select the drug testing site and pay for the initial drug test.

1087.6.0

Drug Test Must be Performed Within 48 Hours

1087.6.1

Within 48 horirs of the initial notification the selectee must pick up a Chain of
Custody form, take the form to the testing location, and provide a sample for testing.

1087.6.2

Keeping in mind that some testing locations are closed on weekends and holidays,
the hiring official will not make the initial notification on the last workday before a
weekend, holiday, or scheduled time off.

1087.6.3

If extenuating circumstances beyond the selectee's control prevent the selectee from
providing a sample within 48 hours, the selectee must request an extension within 48
hours of the initial notification of selection. Scheduling or transportation problems
experienced by the selectee are not extenuating circumstances. The decision of
whether to grant the extension will be made by the hiring supervisor. The supervisor

Effective Date: September 6, 2002

Page 2 of7

DHS 156

must notify the selectee of the decision verbally within one working day, followed
by written notification.
I

1087.7.0

Two-Year Employment Ban

The following will result in the selectee (whether internal or external applicant) being banned
from applying for employment with DHS for two years:
•

If the drug test is not performed within 48 hours (unless an extension is granted).

•

If the drug test is positive. A test is considered to be positive if the test results indicate
that the sample has been tampered with in any way or that the selectee has attempted to
falsify the test results, including the use of masking agents or chemicals.

•

If the selectee fails to appear for drug testing without notifying the hiring official that
he/she is declining the position.

This ban applies to all drug tests, not pre-employment exclusively.

1087.8.0

Drug Test Results

1087.8.1

Drug test results are forwarded directly to the Policy and Administrative Program
Management Unit (PAPM). PAPM then notifies the hiring supervisor whether the
applicant is eligible or not eligible for hiring.

1087.8.2

If the results of the drug test are negative for controlled substances, the hiring
supervisor will notify the selectee of his or her final selection and ask the selectee to
complete the necessary documents for employment.

1087.8.3

If the results of the drug test are positive for controlled substances. the selectee will
be notified in ~ting of the results and will not be considered further for the
position. Internal applicants will be disciplined in accordance with this policy.
External applicants will not be eligible for employment with DHS until all of the
following conditions have been met:
A.

B.
C.

The selectee passes a new employee drug screening.

D.

1087.9.0

The &electee has successfully completed a ~upervised drug rehabilitation

program that has been approved by DHS.
A two-year waiting period has expired.
The selectee signs an agreement to allow random drug testing during his/her
first year of employment. DHS will pay for the drug tests. If the selectee is
hired for a safety sensitive or drug prevention position, the selectee must agree
to random drug screening throughout his/her employment with DHS.

If Selectee Disagrees with Findings

Effective Date: September 6, 2002

Page 3 of7

DHS 157

1087.9.1

If the selectee disagrees with the findings ·of the drug testing, the selectee may
arrange to have a portion of the original sample retested at a laboratory certified by
the National Institute of Drug Abuse. The selectee must arrange and pay for the
second test, The second test must be performed within five working days after
learning the results of the first test. If the second test is negative for the presence of
drugs or alcohol, the hiring supervisor may either accept the second result or have a
third test perfonned at the department's expense. The results of the third test will be
considered conclusive.

1087.9.2

No applicant will be placed on the payroll before successful completion ofthe preemployment drug screening, except as approved by the division director. Placement
of any applicant on the payroll will be conditional contingent on the applicant
successfully completing the pre-employment drug screening.
1087.10.0 REASONABLE CAUSE DRUG TESTING PROCESS
1087.10.1 DHS may require a blood test, urinalysis or other drug/alcohol .screening for
employees any time there is reasonable cause to suspect the employee has violated
the Substance Abuse Free Workplace Rules. Reasonable cause to suspect a violation
of the rules may be established by any of the following:

A.

Observed impairment of job performance.

B.

Uncharacteristic or erratic behavior.

C.

The employee's attendance changes, e.g., habitual absenteeism.

D.

Direct observation (by a manager, supervisor, or other DHS employee) of drug
or alcohol use or possession during working hours or while on DHS premises.

E.

A workplace accident or an accident involving a DHS vehicle when the
accident results in personal injury.

F.

Physical symptoms indicativ~ of drug or alcohOl use, For example, slurred
speech, tremars, drowsiness, pupils dilated or constrict~ irritability,
hyperactivity,-,gen~ motor impairment, disorientation, or the stneD of alcohol
on the breath.

G.

Arrest or conviction for a drug or alcohol related offense or the identification
of an employee a8 the subject of a criminal investigation into iUegal drug
possession, use, or trafficking.

H.

Evidence the employee has tampered with a previous drug or alcohol test.

I.

Evidence drugs have been tampered with or are missing from a unit or
designated area to which the employee has access.

J.

Any other facts or circumstances which would cause a reasonable person to
believe that the em,ployee is in possession of, or under the influence of drugs or
alcohol.

Effective Date: September 6, 2002

Page4 of7

DHS 158

1087.10.2 Upon establishing reasonable cause, the employee's supervisor will promptly detail
in writing the circumstances that fonned the basis of the determination that
reasonable suspicion existed to warrant the testing. A written record will be made of
the observation leading to a controlled substances reasonable suspicion test within
twenty-four (24) hours of the observed behavior. Original documetrtation will be
kept for at least one (1) year. A copy of the documentation will be given to the
employee upon request. The employee must be ordered to report for drug and
alcohol testing.

1087.11.0 RANDOM DRUG TESTING PROCESS
1087.11.1 Division and facility directors may identify those positioM within their divisions or
institutions that are ..~ety sensitive~• ot require integrity to a drug prev~ntioo job
mission. Safety sensitive position~ are those in which a drug or ·alcohol int~pahment
constitutes an immediate and direct threat to public health or safety. The positions
will be identified by position number.
1087.11.:2 As a condition of employment in safety sensitive or drug prevention positions,
employees agree to random drug testing. Employees in these positions will be
randomly selected at intervals determined by DRS. The contractor will generate a
list of names for the random drug testing. Once an employee is selected for testing,
the employee must report for drug testing procedures.
1087.11.3 If changes in the job duties associated with a position make the position safety
sensitive or require integrity to a dru~ prevention job mission, any employee holding
the position must agree to random drug testing as a condition of continued
employment.

1087.12.0 Random/Reasonable Cause Testing Compliance
1087.12.1 An employee selected under random or reasonable cause for drug or alcohol testing
must report to the designated testing site within four (4) hours of notification.
The employee is subject to random or reasonable cause testing only on scheduled
workdays.
1087.12.2 An employee failing to submit to testing within four hours of notification will be
terminated. If the employee tampers with the sample or in any way falsifies test
results, including the use of masking agents or chemicals, the employee will be
tenninated and will not be eligible for rehire.
1087.12.3 If the employee is to be tested at a location other than the employee's work site,
supervisors will be responsible for arranging transportation to the test site in cases of
reasonable cause testing.

1087.13.0 Failure to Provide Sample

Effective Date: September 6, 2002

Page 5 of7

DH S 159

- -- - - - - - -- - - -- ---- - - ··----- ·--··-

-

-

-·

Nonnal drug screening uses a urinalysis test. If the employee or applicant is unable
to provide a satnple when he or she reports to the sampling site, the person to be
te~ may opt t() pro¥i~e a blood sample or a hair sample. If blood or hair is
provided, the eost of teSting will. be at the employee or applicant's own expense.
Failure to provide a urine, blood, or hair sample will have the same consequences as
testing positive for drugs or alcohol.

1087.14.0 If Employee Di$agrees with Test Results

Jf an employee disagrees with the findings of the drug or alcohol test, the employee
may ~ge to have a portion of the original SIUtlple retested at a laboratory certified
by the National Institute ofDrug Abuse. The employee will arrange and pay for the
secQnd test. The second test must be performed within five working days of learning
the results of the first test. If the second test is negative for the presence of drugs or
alcohol, the supervisor may either accept the second test result or have a third test
performed at the department's expense. The result of the third test ~11 be considered
conclusive.

1087.15.0 Disciplinary Actions for Violations
The supervisor of an employee who tests positive for drugs or alcohol will be notified and the
employee must abide by the following tenns:
1087.15.1 First Offense
A.

Ten days suspension without pay. Disciplinary points will not be assigned for
drug or alcohol suspensions. Notice of Disciplinary Action (DHS-1173) is not
required.

B.

Sign and adhere to a DHS-1958 "Return to Work Agreement" to refrain from
all illegal drug use. Failure to sign or fulfill the terms of this agreement is a

second offense.
C.

Enroll in the State of Arkansas Employee Assistance Program (EAP), request
substance abuse services, and fully participate in all 9ffered services. Contact
the EAP before returning to work from the ten-day suspension. Failure to
complete any of the above is a second offense.

D.

Participating in mandatory EAP random interval drug screening for at least one
year. Failure to take these drug tests at the times determined by EAP is a
second offense. The employee will pay the cost of the drug tests.

E.

Obtaining EAP Certification that the employee has successfully completed a
substance abuse program designated by EAP. EAP notification of program
non-compliance is a second offense.

Effective Date: September 6, 2002

Page 6of7

DHS 160

1087.15.2 Second Offense
A.

Second offense includes the failure to meet any conditio* imposed as a result
of a first offense.

B.

Any employee committing a second offense under this policy will be
itnmediately tenninated. A terminated employee forfeits eligibility for
workman's compensation, and medical and indemnity benefits.

C.

Terminated employees will be eligible for re-employment consideration only
after all of the following conditions are met:
•

The applicant has successfully completed a supervised drug rehabilitation
program approved by DHS.

• · A two-year waiting period has expired.
•

The applicant passes a new employee drug screening.

•

The applicant signs an agreement to allow random drug testing during the
:first year of employment at the department's expense.

1087.16.0 Employee Assistance Program
1087.16.1 EAP is an established program capable of providing problem assessment, short-term
counseling, referrals to other providers, follow-up services, and education and

training.
1087.16.2 If an employee in the course of employment voluntarily enters EAP or an approved
treatment program requesting services related to substance abuse, DHS has the
option of not requiring follow-up testing. If follow-up testing is required, it must be
conducted at least onoo a year for a two-year period after completion of the program.
Advance notice of a follow-up test will not be given to the employee to be tested.
1087.16.3 DHS will not discharge, di~cipline or discriminate against an employee solely upon
the employee's voluntarily seeking trea~ent for a drug-related or alcohol-related
problem. entering an employee assistance program for drug-related or alcoholrelated problems or entering a drug or alcohol rehabilitation program, if the
employee has not previously tested positive for drug or alcohol use.

1087.17.0 Department Contact
Office of Finance and Administration
Human Resources/Support Services Section
Policy and Administrative Program Management
P.O. Box 1437/Slot WG3
Little Rock, AR 72203-1437
Telephone: [phone]
Replacement Notation: This policy replaces DHS Policy 1087 dated December 10, 1999.
Effective Date: September 6, 2002

Page 7 of7

DHS 16 1