CASE SUMMARIES

March 2008

GOVERNMENT MUST ATTEMPT TO NOTIFY OWNER OF
VEHICLE PARKED IN VIOLATION OF A VALID "PNO"
CERTIFICATE BEFORE IT CAN BE TOWED AND IMPOUNDED

Mary Clement v. City of Glendale, Officer J. Young, an individual, et al, (2008) 518 F.3d 1090

Virginia Clement lived in a residential hotel and parked her 1981 Cadillac in the hotel’s parking lot. The car had not been driven in seven years and Clement did not keep the car’s registration current, but did dutifully complete an alternate form of vehicle registration, and had the hotel’s permission to park there and the car was in its proper space. Without so much as a letter, a knock on the door, a note on her windshield, or even a parking ticket, the Glendale police towed and impounded Clement’s car. They left no clue to where it had gone. Only later did Clement discover that it had been towed for allegedly violating California vehicle registration laws.

The process started when Glendale police officer Young, on a routine patrol, noticed expired registration stickers on the car. He ran the plates and learned that Clement had filed a “planned non-operation” (PNO) certificate with the state DMV. Officer Young ordered Clement’s car towed because he believed the car was parked in a public lot in violation of the statute.

After discovering what happened to her car, Clement sued. Among other claims, she brought a civil rights action under 42 U.S.C. §1983 against Officer Young and against the company that executed the tow, claiming that they violated her constitutional right to due process by impounding her car without giving her advance notice, and that they had unconstitutionally seized her car. The district court granted summary judgment to defendants on all of her claims.

In a prior unpublished appeal, the Ninth Circuit  reversed the district court’s grant of summary judgment on her due process claim. On remand, the district court determined that Clement’s constitutional right to due process required the police to try to notify her before impounding her car. The district court, nevertheless, granted summary judgment to Officer Young on the basis of qualified immunity, and to the towing company based on a “good faith” defense.

The United States Court of Appeals, Ninth Circuit, held that the government must attempt to notify the owner of a vehicle, parked in violation of a valid PNO certificate, before the government may tow and impound it. The Ninth Circuit stated that imposition of the burdens and costs attached to the removal and impoundment of a vehicle cannot be justified as a means of deterring illegal parking. The punishment, the Court noted, for illegal parking is a fine, which is normally imposed by affixing a ticket to the windshield.

“A ticket can also serve as notice of the illegality and a warning that the car will be towed if not moved or properly registered. The costs and burdens on the car owner associated  with a tow can only be justified by conditions that make a tow necessary and appropriate, such as that the car is parked in the path of traffic, blocking a driveway, obstructing a fire lane or appears abandoned. A tow may also be appropriate where there are no current registration stickers and police can’t be sure that the owner won’t move or hide the vehicle, rather than pay the fine for illegal parking.”

The Court pointed out that Officer Young knew Clement had a valid PNO certificate, which meant the DMV had a current address for her and could have figured out the address where the vehicle was registered was the very hotel in whose parking lot the car was parked.

However, the Court concluded that Officer Young did not violate Clement’s clearly established right by calling for her car to be towed and was entitled to qualified immunity from civil liability. The constitutional requirement at issue—that pre-towing notice be given before a car with a valid PNO certificate may be removed from a parking lot matching the owner’s address—was not clearly established at the time of Officer Young’s actions.

Rosetta Surrell v. California Water Service Co. (2008) 518 F.3d 1097

Surrell, an African-American woman, began employment as a customer-service representative
in the company’s Stockton District in January 1997. At all times during her employment with Cal Water, she was a member of the Utility Workers Union of American AFL-CIO, which had a
collective-bargaining agreement with Cal Water. Under this agreement, vacant or newly created positions were open for bid by current employees and filled based on seniority. But temporary jobs that would not last longer than 120 days were filled at management’s discretion, without regard to seniority. The agreement also provided that Cal Water could submit employees to drug testing if they appeared impaired. In 1998, Surrell bid on and received,  based on her seniority at Cal Water, a higher-level customer-service position.

In April 2001, Surrell was in a car accident. She was taking Vicodin at this time. Cal Water granted her a leave of absence. She had expected to return to work by July 1, 2001, but the pain
persisted, and Cal Water granted her further medical leave through the rest of the year.  In early 2002, when Surrell was still on medical leave, Cox, Surrell’s supervisor, announced that she was going to retire, creating an opening for the Office Manager position. This vacancy was posted
within the company in February 2002, and several Cal Water employees applied. After the top two candidates declined to accept an offer for the position, Cal Water looked for outside applicants.  Surrell requested and was allowed to be included in the process.

On April 4, 2002, while her application for Office Manager was pending, Surrell returned to work. Her doctor had provided a letter stating that she was able to do a full workload without restrictions, but she was still taking numerous prescription drugs as needed for her injuries.
Also in April 2002, Surrell requested but was denied training for the Head Cashier position, which was to be available for five days in June 2002 while the Head Cashier was on vacation.

In July 2002, Cal Water chose not to promote Surrell to the Office Manager position. Instead, Cal Water hired Regina Coe, a younger, white, female applicant. Coe was a trained accountant with a B.S. in Business Administration and had five years of management and accounting experience.
On August 22, 2002, supervisors, including Cox, observed Surrell at work and agreed that she appeared to be impaired and that her speech was slurred. Surrell had taken some of her prescription drugs, including Fiorinal, the night before, and admitted that her speech was slurred at work. Cal Water ordered her to submit to a drug test. The test showed the presence of Surrell’s prescribed medication for her back injuries, as well as the presence of cannabinoids (chemical compounds present in marijuana).

Accordingly, under the collective bargaining agreement, Cal Water offered Surrell two choices: Either be discharged or enter a drug-rehabilitation program.  Surrell chose to enter the rehabilitation program and returned to work in early October 2002.  Tragically, Surrell’s son was murdered in December 2002. She took some time off and believed that she was ready to work again at the end of January 2003. During this period, she received some Demerol injections, was taking Valium each night to go to sleep, and was also taking Soma and Zanaflex. She returned to work on January 29, 2003. When coworkers asked her about her son, she started crying, shaking, and suffered a migraine headache. She had taken Valium the night before and then took a Vicodin at work. Observing Surrell in what appeared to them to be an impaired state, Surrell’s supervisors had Surrell drug tested again. The test returned positive and Cal Water then placed her on administrative leave with full salary for approximately the next 10 months.

On July 9, 2003, Surrell filed a discrimination charge with the California Department of Fair Employment and Housing, alleging various discrimination claims against Cal Water, and was provided with a right-to-sue letter and advised she could also obtain a federal right-to-sue letter from the Equal Employment Opportunity Commission.

On December 9, 2003, Surrell informed Cal Water that she was unable to return to work due to her medical condition. She concluded that she was too emotionally scarred at that time and would not have been able to function. Surrell remained employed but on an unpaid leave of absence during which she received health benefits.

On July 6, 2004, Surrell filed suit in California state court against Cal Water and Cox, alleging numerous federal and state employment-discrimination claims based on race, sex, and age. The case was  removed to federal court, where  the district court granted summary judgment to Cal Water and Cox on all claims.  The United States Court of Appeals for the Ninth Circuit affirmed the district courts grant of summary judgment for Cal Water and Cox.

The Ninth Circuit, addressing Surrell’s contention that Cal Water discriminated against her based on her race when they promoted Regina Coe to Office Manager, noted that Cal Water’s articulated reason for promoting Coe was not pretexual. Coe was a trained accountant and received a bachelor-of-science degree in business administration from California State University in 2000. She had five years of management and accounting experience, and she worked for approximately one year as a City Administrator. Coe also had experience with labor relations and demonstrated strong communication skills. She was ranked first by all interview panel members.

Regarding Surrell’s contention that Cal Water retaliated against her by drug testing her after she filed her union grievance, the Ninth Circuit found that Cal Water presented a legitimate, non-retaliatory reason for conducting the drug tests.  Surrell, the Court noted, had appeared to be in an impaired state. The test results showed the presence of both prescription medications and illegal cannabinoids in her system. Following her return to work after completing the drug-treatment program, several supervisors again observed her to be impaired, and she again tested positive for a number of substances.

The Ninth Circuit found no merit in Surrell’s other claims and, addressing her claim of failure to accommodate her disability, noted that every time that Surrell claimed she was unable to work, Cal Water provided her with a leave of absence. Further, Surrell admitted that she did not know of any other accommodation that Cal Water could have provided for her claimed physical disability.

PREEMPLOYMENT DRUG TESTING POLICY UNCONSTITUTIONAL
AS APPLIED TO SPECIFIC JOB CATEGORIES

Janet Lynn Lanier v. City of Woodburn (2008) 518 F.3d 1147

In February of 2004, Lanier applied to be a page at Woodburn’s public library. Pages perform tasks such as retrieving books from the book drop and returning them to the shelves. Occasionally, they may staff the desk in the youth services area, where materials for children and teenagers are housed. Woodburn gave Lanier a conditional offer of employment, subject to successful completion of a background check and pre-employment drug and alcohol screening.

The policy was adopted, according to the City, because some department heads, based on their experience with employees who had been under the influence at work, believed that the use of drugs or alcohol had a negative impact on job performance and thought that all prospective
employees should be subject to screening to deter such use. In addition, the Manual provides for an “extensive” pre-employment investigation of an applicant’s employment and criminal history for positions identified as “security sensitive.” “Security sensitive” positions include “[a]ny position that is responsible for the supervision or control of juveniles (all positions in the Recreation and Parks Department Pool and Recreation Divisions and in the Library).”

Lanier wanted to accept the page position, but declined to be tested. Woodburn rescinded the offer. Lanier then brought this action, alleging violation of her rights under the Fourth Amendment to the United States Constitution and under Article I, Section 9 of
the Oregon Constitution.

The district court granted summary judgment in favor of Lanier. It also entered a declaratory judgment which states that the City’s policy is unconstitutional “to the extent the policy is warrantless, suspicionless, and is unsupported by a special need that outweighs reasonable expectations of privacy.”

The United States Court of Appeals, Ninth Circuit, agreed that Woodburn’s policy was unconstitutional, as applied, because the City failed to demonstrate a special need to screen a prospective page for drugs, and affirmed on that basis. The Ninth Circuit stated: “There is no question that Woodburn’s drug screening policy effects a search within the meaning of the Fourth Amendment. . . . .”

Woodburn argued that it had a substantial and important interest in screening library pages for three reasons: drug abuse is one of the most serious problems confronting society today; drug use has an adverse impact on job performance; and children must be protected from those who use drugs or could influence children to use them. The Court noted that there was no doubt these problems are worthy of concern but there is scant, if any, indication that, on account of them, the City has “special needs” of sufficient weight to justify an exception to the Fourth Amendment’s
requirement of individualized suspicion.

The Ninth Circuit concluded, “Woodburn submits that all library positions are “safety sensitive”
because Appendix B to its Policy and Procedures Manual says so. However, the Manual does not define “safety-sensitive,” nor is there any evidence that, regardless of how conceived, a page position is safety-sensitive. As we have explained, it does not appear to be in the same sense
that, for instance, a teaching position was thought to be safety-sensitive in Knox County."

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, Ry. Labor, 489 U.S. at 628-29; the armed interdiction of illegal drugs, Nat’l Treasury Employees Union v. Von Raba, 489 U.S. 656, 677-78 (1989); work in a nuclear power facility, IBEW, Local 1245 v. United States NRC, 966 F.2d 521, 525- 26 (9th Cir. 1992); work involving matters of national security, AFGE Local 1533 v. Cheney, 944 F.2d 503, 506 (9th Cir. 1991); work involving the operation of natural gas and liquefied natural gas pipelines, IBEW, Local 1245 v. Skinner, 913 F.2d 1454, 1461-63 (9th Cir. 1990); work in the aviation industry, Bluestein v. Skinner, 908 F.2d 451, 456 (9th Cir.1990); 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, Int’l Bhd. of Teamsters, 932 F.2d at 1295. The work of a page, so far as the record discloses, entails nothing of this order of magnitude. We conclude that Woodburn has not articulated any special need to screen Lanier without suspicion.”