Allen v. Schiff , 586 F. App'x 759 ( 2014 )

13-3647-cv
Allen v. Schiff
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 9th day of October, two thousand fourteen.
PRESENT: PIERRE N. LEVAL,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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LILLIAN ALLEN,
Plaintiff-Appellant,
v.
13-3647-cv
MICHAEL SCHIFF, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS SULLIVAN
COUNTY SHERIFF, SULLIVAN COUNTY, A
MUNICIPAL ENTITY,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:
COLLEEN M. MEENAN, Meenan &
Associates, LLC, New York, New York.
FOR DEFENDANTS-APPELLEES:
CHERYL A. McCAUSLAND, Office of the
County Attorney County of Sullivan,
Monticello, New York.
Appeal from the United States District Court for the Southern District of New York
(Briccetti, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Lillian Allen appeals from the district court's judgment
entered August 29, 2013, in favor of defendants-appellees the County of Sullivan and its
Sheriff, Michael Schiff. By memorandum decision entered December 7, 2012, the
district court granted defendants' summary judgment motion in part, dismissing certain
claims but permitting Allen to proceed with, inter alia, her Fourth Amendment claim.
Thereafter, Allen moved for reconsideration, arguing that the district court should have
granted summary judgment in her favor on the Fourth Amendment claim. By
memorandum decision entered January 15, 2013, the district court denied Allen's
motion for reconsideration. Finally, the district court conducted a bench trial with
respect to Allen's remaining claim under the Fourth Amendment, and it rendered
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findings of fact and conclusions of law from the bench on August 29, 2013, holding the
defendants not liable.
On appeal, Allen argues that the district court erred as a matter of law in
failing to find that her employer's drug testing procedure violated the Fourth
Amendment. Specifically, she contends that the district court erred in holding that, for
purposes of the Fourth Amendment, she had a "substantially diminished" expectation
of privacy, the intrusiveness of the search was "mitigated," and the government had a
compelling interest sufficient to justify the observed drug test to which she was
subjected. App. 11, 23-25. We assume the parties' familiarity with the facts, procedural
history, and issues on appeal, which we reference only as necessary to explain our
decision.
Allen was a corrections officer employed by the County at the Sullivan
County Jail. She was responsible for interdicting contraband, including illegal drugs,
and at times she was required to carry a firearm. On June 26, 2007, the County
administered a random urine drug test, and she tested positive. She subsequently
admitted to smoking marijuana the day before the drug test and on other occasions.
With the assistance of her union, Allen grieved the matter. After grievance
proceedings, an arbitration, and state court litigation, the County terminated her
employment.
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With respect to the reasonableness of the drug test conducted on June 26,
2007, the district court concluded, in its findings of fact and conclusions of law, that: (1)
Allen had a "substantially diminished expectation of privacy" because of her
responsibilities as a corrections officer and because she was on notice, pursuant to the
terms of the applicable collective bargaining agreement, that she was subject to random
drug tests; (2) the drug test "was intrusive but not inappropriately so"; and (3) the
County "had a compelling interest in effecting the search as it was carried out in this
case." App. 184-86, 188.
When "special needs" other than crime detection or ordinary evidence-
gathering are alleged in justification of a Fourth Amendment intrusion, courts assess the
constitutionality of the challenged conduct by weighing the government conduct in
light of the special need and against the privacy interest advanced. Cassidy v. Chertoff,
471 F.3d 67, 75 (2d Cir. 2006); see also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53
(1995). The analysis requires an examination of three factors: "(1) the nature of the
privacy interest involved; (2) the character and degree of the governmental intrusion;
and (3) the nature and immediacy of the government's needs, and the efficacy of its
policy in addressing those needs." Cassidy, 471 F.3d at 75. We review a district court's
factual findings for clear error "but we review de novo a district court's application of the
facts to draw conclusions of law." United States v. Aumais, 656 F.3d 147, 154 (2d Cir.
2011) (internal quotation marks omitted).
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Allen's privacy interests were indeed "substantially diminished" because
she was tasked with interdicting drugs and carrying firearms and was on notice that she
could be tested at any time. See, e.g., Vernonia, 515 U.S. at 657 (finding that student-
athletes who were provided with communal locker rooms and voluntarily participated
in school sports had a diminished expectation of privacy); Nat'l Treasury Emps. Union v.
Von Raab, 489 U.S. 656, 672 (1989) (holding that U.S. Customs Service agents required to
interdict drugs and carry firearms had a diminished expectation of privacy). The test
collector, in obtaining Allen's urine sample, "took substantial measures to minimize the
intrusion of privacy" by conducting the test at a secluded location, closing all adjacent
doors, blocking the windows, leaving the bathroom door open only 6-12 inches,
standing outside the bathroom stall, and focusing her attention on Allen's hand and cup
to avoid viewing her genitalia. Finally, the government had a compelling interest "in
insuring that correction officers charged with interdicting drugs and carrying firearms
were not using drugs," and in insuring the drug test's accuracy by observing the test
collection. Sp. App. 190-91. In balancing the "plaintiff's substantially reduced
expectation of privacy, the test's mitigated intrusion upon plaintiff's expectation of
privacy, and the government's compelling interest in conducting the test and insuring
[its] integrity," the district court properly found that the special needs of employing
drug-free correctional officers was reasonable under the Fourth Amendment. Sp. App.
190-91.
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Finally, Allen contends we should overturn the post-trial judgment in the
defendants' favor on the ground that the district court ought to have entered summary
judgment in her favor because it was "undisputed" on the summary judgment record
that the test collector had "direct observation" of her when she gave the urine sample.
Absent extraordinary circumstances, which are not present here, a court of appeals will
not revisit the propriety of a denial of summary judgment after a full trial on the merits.
Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 130 (2d Cir. 1999). "Once trial began, the
summary judgment motion [ ] effectively became moot." Id. (internal quotation marks
omitted). Because the evidence at trial sustained the trial court's findings, we will not
revisit the question whether the trial court ought to have found otherwise at the
summary judgment stage.
We have considered Allen's remaining arguments and conclude they are
without merit. For the foregoing reasons, we AFFIRM the judgment of the district
court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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