Taylor-Failor v. County of Hawaii

Filing 14

ORDER GRANTING 2 MOTION FOR TEMPORARY RESTRAINING ORDER. Signed by JUDGE DERRICK K. WATSON on 3/13/2015. ~ The Court orders that the County of Hawaii shall allow Taylor-Failor to begin work as scheduled on Monday, March 16, 201 5 without submitting to a urinalysis. The Court's ruling is limited to the specific relief sought in Taylor-Failor's Motion for Temporary Restraining Order and does not apply to any other prospective employees or previous applicants for County employment. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Civil No. 15-00070 DKW-KSC

REBEKAH TAYLOR-FAILOR,
individually and on behalf of the Class of
Prospective Hawaii County employees
and the Class of Previous Applicants for
Hawaii County Employment,

ORDER GRANTING MOTION FOR
TEMPORARY RESTRAINING
ORDER

Plaintiff,
vs.
COUNTY OF HAWAII, a municipal
corporation,
Defendant.

ORDER GRANTING MOTION FOR
TEMPORARY RESTRAINING ORDER
INTRODUCTION
Rebekah Taylor-Failor seeks a temporary restraining order prohibiting the
County of Hawai‘i from requiring her to submit to a urinalysis before she begins
working for the County as a Legal Clerk II on March 16, 2015. Because the County
has failed to establish the requisite special need to conduct a suspicionless search of
Taylor-Failor, an applicant for what the County acknowledges is a
non-safety-sensitive position, the Court preliminarily concludes that: the urinalysis
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would violate Taylor-Failor’s Fourth Amendment rights; Taylor-Failor has
demonstrated a likelihood of irreparable harm without the relief requested; the
balance of equities tips in her favor; and the issuance of an injunction is in the public
interest. Accordingly, Taylor-Failor’s Motion for Temporary Restraining Order is
GRANTED.
BACKGROUND
Taylor-Failor applied for and was offered a Legal Clerk II position with the
County’s Office of the Prosecuting Attorney. After accepting the position, County
personnel informed her that she would need to undergo a medical examination prior
to her March 16, 2015 start date. As a result, on January 30, 2015, the County sent
Taylor-Failor a medical examination report to be completed by a physician and a
web link to the County’s Pre-Entry Medical Examination Guide. Declaration of
Tammylyn Kaniho ¶¶ 5-6; Declaration of Rebekah Taylor-Failor ¶¶ 4-5 & Exs. 2-3.
Taylor-Failor did not want to provide the detailed medical information
mandated by the County, but was “afraid that if [she] didn’t, [she] would lose the
job.” Taylor-Failor Decl. ¶ 7. Because she resided in Oregon at the time of her
hiring, Taylor-Failor went to her own physician to have the medical examination
conducted. On February 14, 2015, she emailed the medical examination report to
Tammylyn Kaniho, Private Secretary to the Prosecuting Attorney, who also serves
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as the designated Human Resources representative for the Office of the Prosecuting
Attorney. Taylor-Failor’s report, however, did not include any lab work or
urinalysis. Taylor-Failor Decl. ¶¶ 8-10; Kaniho Decl. ¶¶ 2-8. Accordingly,
Kaniho set up an appointment for Taylor-Failor with County physician Walter
Wang, M.D., for March 10, 2015 and instructed Taylor-Failor that she would need to
provide a urine sample at that time. Taylor-Failor Decl. ¶ 10; Kaniho Decl. ¶ 10.
Taylor-Failor moved from Oregon to Kailua-Kona on March 5, 2015 in order to take
the Legal Clerk II position. Taylor-Failor Decl. ¶ 12. According to Taylor-Failor,
the County “made it clear to me that the medical screening, and the urinalysis,
[would be] required before I [could] start my job.” Taylor-Failor Decl. ¶ 11.
The urinalysis does not test for “prescription or illegal drugs, or for alcohol.”
Declaration of Walter Wang ¶ 11. Instead, according to the County, the urinalysis
is intended to “test for protein, sugar, red and white blood cells, specific gravity,
nitrates, ketones, and bilirubin[,]” and “is medically reasonable and necessary in
order . . . to formulate an opinion as to an individual’s overall physical health.”
Wang Decl. ¶¶ 8-9. According to Dr. Wang, the “sole purpose of the test is to
provide the County with an accurate assessment of the pre-employment patients’
general health and ability to perform in the appropriate physical effort group.”
Wang Decl. ¶ 12.
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Gabriella Cabanas, a County Human Resources Manager, explains that
pre-entry medical examinations are required of all County applicants after a job
offer has been extended and accepted, but prior to entry into a civil service position.
“The purpose of the pre-entry medical examination is to review the applicant’s
medical history and current health to ensure that persons seeking civil service
employment meet the health and physical standards necessary to perform the
essential job duties of the position, without or without reasonable accommodation,
and without posing a direct threat to the health or safety of the person or others.”
Cabanas Decl. ¶ 6. According to Cabanas, if Taylor-Failor “refused to complete all
of the answers on the medical questionnaire and the County physician required this
information, the County would likely not hire [her].” Cabanas Decl. ¶ 14. On
March 9, 2015, Taylor-Failor filed the instant motion for temporary restraining order
seeking to begin work without submitting to the County’s urinalysis.
STANDARD OF REVIEW
The standard for issuing a temporary restraining order is identical to that for
issuing a preliminary injunction. See, e.g., Hawaii v. Gannett Pac. Corp., 99 F.
Supp. 2d 1241, 1247 (D. Haw.1999); cf. Stuhlbarg Int’l Sales Co. v. John D. Brush
& Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing that an analysis of a

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preliminary injunction is “substantially identical” to an analysis of a temporary
restraining order).
“A preliminary injunction is ‘an extraordinary and drastic remedy, one that
should not be granted unless the movant, by a clear showing, carries the burden of
persuasion.’” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam ) (citation omitted));
see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation
omitted) (“A preliminary injunction is an extraordinary remedy never awarded as a
matter of right.”).
A plaintiff seeking a preliminary injunction must show:
[1] that he is likely to succeed on the merits,
[2] that he is likely to suffer irreparable harm in the absence of
preliminary relief,
[3] that the balance of equities tips in his favor, and
[4] that an injunction is in the public interest.
Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1289 (9th Cir. 2013)
(quoting Winter, 555 U.S. at 20). “[I]f a plaintiff can only show that there are
‘serious questions going to the merits’—a lesser showing than likelihood of success
on the merits—then a preliminary injunction may still issue if the ‘balance of
hardships tips sharply in the plaintiff’s favor,’ and the other two Winter factors are
satisfied.” Id. at 1291 (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d
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1127, 1135 (9th Cir. 2011) (emphasis added by Shell Offshore)). “The elements . . .
must be balanced, so that a stronger showing of one element may offset a weaker
showing of another.” Lopez, 680 F.3d at 1072. Regardless of which standard
applies, the movant always “has the burden of proof on each element of the test.”
Maloney v. Ryan, 2013 WL 3945921, at *3 (D. Ariz. July 31, 2013); see Nance v.
Miser, 2012 WL 6674404, at *1 (D. Ariz. Dec. 20, 2012) (citing Envtl. Council of
Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000), citing in turn,
L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1203 (9th
Cir. 1980)).
DISCUSSION
I.

Likelihood of Success
The Court addresses Taylor-Failor’s 42 U.S.C. § 1983 Fourth Amendment

challenge to the County’s urinalysis requirement as applied to her – i.e., an
“as-applied” rather than a “facial” challenge to the County’s action. See Pl’s Reply
at 10 n.2; United States v. Salerno, 481 U.S. 739, 745 (1987) (A party asserting a
facial challenge must show that “no set of circumstances exists under which the
[policy] would be valid.”); Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir.
2011) (“A paradigmatic as-applied attack, by contrast, challenges only one of the
rules in a statute, a subset of the statute’s applications, or the application of the
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statute to a specific factual circumstance.”); Legal Aid Serv. of Oregon v. Legal
Services Corp., 608 F.3d 1084, 1096 (9th Cir. 2010) (“Facial and as-applied
challenges differ in the extent to which the invalidity of a statute need be
demonstrated.” (quotation omitted)).
There is no dispute that a medical examination – including urinalysis –
constitutes a “search” implicating the Fourth Amendment. Yin v. State of Cal., 95
F.3d 864, 870 (9th Cir. 1996) (“In today’s world, a medical examination that does
not include either a blood test or urinalysis would be unusual. Nonetheless, any
such medical examination would still implicate the Fourth Amendment.”); see also
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616-17 (1989)
(explaining that the collection and testing of urine is a search, which “intrudes upon
expectations of privacy that society has long recognized as reasonable”).
Accordingly, the Court must determine whether the County’s urinalysis mandate
“fit[s] within the closely guarded category of constitutionally permissible
suspicionless searches.” Chandler v. Miller, 520 U.S. 305, 309 (1997).
In order to pass constitutional muster, the County has the burden of
demonstrating a “special need” to conduct suspicionless searches of its prospective
employees. See Chandler, 520 U.S. at 318. Courts evaluate “special need” using
a two-step inquiry. First, courts examine whether the search serves a “special
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governmental need” beyond crime detection. Nat’l Treasury Employees Union v.
Von Raab, 489 U.S. 656, 665-66 (1989). Then, “[o]nly if the government is able to
make a showing of substantial special needs will the court thereafter ‘undertake a
context-specific inquiry, examining closely the competing private and public
interests advanced by the parties,’ to determine the reasonableness of the search.”
Lebron v. Sec’y, Fla. Dept. of Children & Families, 710 F.3d 1202, 1207 (11th Cir.
2013) (citing Chandler, 520 U.S. at 314); Von Raab, 489 U.S. at 665-66. The
“permissibility of a particular search is judged by balancing its intrusion on the
individual’s Fourth Amendment interests against its promotion of legitimate
governmental interests.” Skinner, 489 U.S. at 619 (citation omitted).
The County proffers the following explanation of its “special need” –
[its] interest in requiring prospective employees to undergo a
pre-employment medical exam is based on the need to determine
the prospective employee’s (1) health and physical ability to
carry out the essential job duties of their civil service position
(with or without reasonable accommodation) and (2) ability to
carry out the essential job duties without posing a direct threat to
the health or safety of the prospective employee and/or others. . .
. Thus the County has a legitimate need in requiring
prospective employees to undergo medical examinations (to
include urinalysis) as a means of determining whether a person is
medically able to perform the essential duties of the job that he or
she has been offered a position for.
County Opp. at 7.

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Taylor-Failor was hired for a “Legal Clerk II” position with the Office of the
Prosecuting Attorney. The Legal Clerk II job description sets forth the following
“duties of the position”:
1.

Logs and distributes incoming cases, correspondence and
documents after review and evaluation. Prepares cases
for review by attorneys. Files and maintains cases
according to established guidelines and follows through
on matters requiring attorney’s attention. Assembles
cases for attorneys in preparation for court calendars.
Coordinates schedules with courts, law-enforcement
agencies and other personnel and individuals. Enters,
updates and retrieves data from Prosecutor’s case tracking
system; conducts criminal history checks using the
Criminal Justice Information System and other criminal
justice databases. Reproduces documents and discovery
material, redacting specific information as necessary.

2.

Composes and types on a word processor in rough draft
and/or in final form, material involving a wide variety of
legal words and phrases, including correspondence,
complaints, warrants of arrest, motions, stipulations,
notices, declarations, and orders following legal
requirements and policy. Also types from rough drafts,
memoranda, petitions, briefs, and other legal documents
into proper final form verifying and checking data from
source documents. Issue subpoenas to civilian and
law-enforcement witnesses and cancel them as necessary.
Executes assignments in accordance with general
instructions and with minimum supervision.

3.

Answers telephone and takes/relays messages/calls and
responds to inquiries. Greets callers/visitors; provide
assistance and/or direct them to proper persons or agency.
Work closely with courts, law-enforcement agencies and
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other personnel. Supervises and may train Clerk IIIs, and
Clerk IIs, as well as temporary employees/volunteers.
Other related work as required.
Ex. 1 to Taylor-Failor Decl. (Position Description Form).
The “physical effort group” for the Legal Clerk II position is defined as
“light,” and “[p]ersons seeking appointment to positions in this class must meet the
health and physical condition standards deemed necessary and proper to perform the
essential functions of the job with or without reasonable accommodations.” Id.
The County makes no assertion that Taylor-Failor’s position as a Legal Clerk II is a
safety-sensitive job or one that requires a particular level of fitness. See Lanier v.
City of Woodburn, 518 F.3d 1147, 1151-52 (9th Cir. 2008) (“Jobs are considered
safety-sensitive if they involve work that may pose a great danger to the public, such
as the operation of railway cars; the armed interdiction of illegal drugs; work in a
nuclear power facility; work involving matters of national security; work involving
the operation of natural gas and liquified natural gas pipelines; work in the aviation
industry; and work involving the operation of dangerous instrumentalities, such as
trucks that weigh more than 26,000 pounds, that are used to transport hazardous
materials, or that carry more than fourteen passengers at a time[.]”) (citations
omitted).

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Although “the urinalyses conducted by County physicians are intended and
used to measure general overall health,” County Opp. at 7-8, the County fails to
articulate how such invasive tests are “directly related to the County’s interest in
ensuring that prospective employees are medically able to perform their essential job
duties.” Id. at 8. Put another way, the County has proffered no explanation as to
why it is entitled to search Taylor-Failor’s urine before she may begin employment
in her light duty, clerical, non-safety-sensitive position. The County’s desire to
measure a prospective employee’s general health is certainly a need (albeit a
paternalistic one). But equally certain, it is not a special need.
The County appears to believe it critical that its urinalysis will not include a
drug screen. County Opp. at 3-5. The right invaded, however, is no different,
regardless of the paces through which the County intends to put the urine it collects.
In fact, there are numerous other measurables that the County acknowledges it
wishes to study that are at least as invasive as a drug screen would be and that go
well beyond what is reasonable for a prospective employer to evaluate in the name
of “general overall health” of its Legal Clerk IIs.1 See Skinner, 489 U.S. at 617.
Indeed, if the County’s justification was to be given credence, it is difficult to

1

As but one example, it is difficult to discern how running screens that would reveal liver disease
relates to a person’s ability to operate a copier or word processor, answer the phone, or greet
visitors, functions expected of a Legal Clerk II.

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envision any Fourth Amendment challenge that the County would not be able to
overcome.
The County having failed to articulate a special need to subject Taylor-Failor
to mandatory urinalysis, the Court finds that Taylor-Failor is likely to succeed on her
as-applied challenge under the Fourth Amendment.2
II.

Irreparable Harm
In order to obtain preliminary relief, a plaintiff must establish that he or she is

facing imminent irreparable harm. Summers v. Earth Island Inst., 555 U.S. 488,
493 (2009) (“To seek injunctive relief, a plaintiff must show that he is under threat of
suffering injury in fact that is concrete and particularized; the threat must be actual
and imminent, not conjectural or hypothetical; it must be fairly traceable to the
challenged action of the defendant; and it must be likely that a favorable judicial
decision will prevent or redress the injury.” (citation and internal quotation marks
omitted)). “[A]n alleged constitutional infringement will often alone constitute
irreparable harm.” Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir.
1997) (citation and quotation marks omitted); see also Nelson v. NASA, 530 F.3d
865, 882 (9th Cir. 2008) (“Unlike monetary injuries, constitutional violations cannot

2

For this reason, the Court does not address the merits of Taylor-Failor’s other claims under
federal and state law at this preliminary stage, nor does the Court find it necessary to reach the
second prong of the special needs inquiry, involving the balancing of private and public interests.

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be adequately remedied through damages and therefore generally constitute
irreparable harm.”), reversed on other grounds, 131 S.Ct. 746 (2011).
Taylor-Failor faces the imminent threat of being required to submit to
urinalysis in order to begin work on her scheduled start date of March 16, 2015.
The County candidly admits that her failure to do so will likely result in the loss of
the employment opportunity that she relocated from Oregon to Kailua-Kona in order
to secure. The Court preliminarily concludes that the urinalysis would violate
Taylor-Failor’s Fourth Amendment rights. Consequently, she has met her burden
of demonstrating a likelihood of irreparable harm without the relief requested.
III.

Remaining Factors
“To determine which way the balance of the hardships tips, a court must

identify the possible harm caused by the preliminary injunction against the
possibility of the harm caused by not issuing it.” Univ. of Hawai‘i Prof’l Assembly
v. Cayetano, 183 F.3d 1096, 1108 (9th Cir. 1999). Without a temporary restraining
order, Taylor-Failor will suffer constitutional violations or the loss of her
employment, which outweighs the harm to the County if preliminary relief is
granted. Even the County does not contest this factor.
With respect to the public interest inquiry, the Court primarily considers the
impact on non-parties rather than parties. Am. Promotional Events, Inc.-Nw. v. City
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& Cnty. of Honolulu, 796 F.Supp.2d 1261, 1284–85 (D. Haw. 2011). While the
public has a legitimate interest in civil service employment requirements, the public
has a stronger interest in ensuring that the County enforces its employment
requirements in a constitutional manner. Employment requirements cannot stand
where they violate rights of a constitutional dimension. Once again, the County
does not contest this factor either.
For purposes of the instant motion, Taylor-Failor sufficiently demonstrates
that the balance of hardships tips in her favor and that a temporary restraining order
is in the public interest.
IV.

Posting of Security Not Required
“Rule 65(c) invests the district court ‘with discretion as to the amount of

security required, if any.’” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir.
2003) (quoting Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999)).
Taylor-Failor asks that no security be required upon issuance of this temporary
restraining order. The County has not opposed the request. A district court may
dispense with the filing of a bond when it concludes there is no realistic likelihood of
harm to the defendant from enjoining its conduct. See id. Under the
circumstances, because this is such a case, and because the rights implicated are
constitutional and involve the public interest, the Court finds that no security is
14

required. See Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th Cir.
2005) (recognizing that no bond or a nominal bond may be appropriate in cases
involving the public interest); Booth v. McManaman, 830 F. Supp. 2d 1037, 1045
(D. Haw. 2011) (“In the present case, there is no realistic likelihood that Defendant
will be harmed by an order requiring compliance with federal laws that [Department
of Human Services, State of Hawai] is already obligated to follow. Further,
Plaintiffs are individuals of limited financial means and there is a significant public
interest underlying this action. In light of these circumstances, the Court exercises
its discretion to waive the bond requirement under Rule 65(c).”).
CONCLUSION
On the basis of the foregoing, Plaintiff Taylor-Failor’s Motion for Temporary
Restraining Order is HEREBY GRANTED. The Court orders that the County of
Hawaii shall allow Taylor-Failor to begin work as scheduled on Monday, March 16,
2015 without submitting to a urinalysis. The Court’s ruling is limited to the
specific relief sought in Taylor-Failor’s Motion for Temporary Restraining Order,

15

and does not apply to any other prospective employees or previous applicants for
County employment.
IT IS SO ORDERED.
DATED: March 13, 2015 at Honolulu, Hawai‘i.

Rebekah Taylor-Failor v. County of Hawaii; Civil No. 15-00070 DKW-KSC;
ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING
ORDER

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