Opinion
No. COA01-118
Filed 7 May 2002
1. Administrative Law — scope of review — State personnel just cause dismissal case
The trial court exercised the appropriate scope of review in a State personnel just cause dismissal case and the State Personnel Commission properly required petitioner state employees to prove the absence of substantial evidence of reasonable cause for their termination.
2. Public Officers and Employees — judicial review of agency decision — state employees' failure to submit to drug testing — reasonable cause
The trial court did not err by reversing the State Personnel Commission's (SPC) decision to dismiss petitioner state employees from their jobs for alleged reasonable cause based on their refusal to submit to a blood test for drugs in violation of the Department of Health and Human Services Directive 47, because the employer hospital did not have reasonable cause to request a drug test of petitioners based on the facts that: (1) although a coworker suspected a straw containing white residue that she saw in the chart room was used by petitioners for drug use, the coworker observed no erratic behavior by petitioners and she did not believe that either petitioner appeared to be under the influence of any substances; (2) searches revealed no substances on either petitioner, but did reveal a straw on one of the petitioners, which the coworker indicated was not the straw she saw earlier in the chart room; (3) other information relied upon by SPC, such as the suggestion that one petitioner instigated a telephone call to draw the coworker out of the chart room, was not discovered until later; (4) the coworker could not identify the power residue on the straw that she saw and she was not able to articulate any other basis for her suspicion; and (5) no other coworker had similar suspicions, and the strip searches of petitioners revealed nothing improper or illegal.
3. Constitutional Law — Fourth Amendment — unreasonable searches — drug testing of state employees
The Department of Health and Human Services had no basis to terminate petitioner state employees from employment for refusing to comply with the Department's request for petitioners to submit to drug testing, because: (1)the Department had no reasonable cause to request drug tests of petitioners; and (2) a person may not be discharged for refusing to waive a right which the Constitution guarantees to him, including the Fourth Amendment Right to be free from unreasonable searches.
4. Administrative Law — whole record test — findings of fact — reasonable cause — drug testing of state employees
The whole record test reveals that the evidence did not support the State Personnel Commission's findings of fact that John Umstead Hospital had reasonable cause to request that petitioner state employees submit to drug testing, because: (1) a coworker's testimony reveals the absence of any specific objective and articulable facts and reasonable inferences drawn to show reasonable cause under Department of Health and Human Services Directive 47 or the Fourth Amendment of the United States Constitution; and (2) petitioners carried their burden of proving that their employer did not have reasonable cause to request that petitioners should submit to drug testing.
Judge TYSON dissenting.
Appeal by respondent from an order entered 24 October 2000 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 28 November 2001.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for respondent-appellant.
Grafstein Walczyk, P.L.L.C., by Lisa Grafstein and Konrad Schoen, for petitioner-appellees.
Respondent, the Department of Health and Human Resources ("the Department"), appeals an Order entered 24 October 2000 by Judge Abraham Penn Jones in the superior court which reversed and remanded the decision of the State Personnel Commission ("SPC"). For the reasons discussed herein, we affirm the superior court's order.
We begin with a brief summary of the pertinent facts. Petitioners Yolandra Best ("Ms. Best") and Roy Hudson ("Mr. Hudson") were employed by respondent-appellant Department of Health and Human Services at John Umstead Hospital ("JUH") beginning 4 March 1987 and 15 October 1992, respectively. Both worked as Health Care Technicians at JUH until they were discharged from their jobs on 19 February 1997. On Saturday, 15 February 1997, petitioners were on the job at JUH.
Ms. Amanda Blanks, a Rehabilitation Therapy Coordinator at JUH, was also at work that day, even though it was her scheduled day off. She initiated the chain of events which has culminated in these proceedings.
According to Ms. Blanks, on 15 February 1997, at around 9:30 a.m., she went through the nurses' workstation to the "chart room." As she entered the chart room, she "ran into or saw Mr. Hudson initially, and Mr. Coles, who was also the healthcare tech on the ward, sitting at the counter." Ms. Blanks testified that "a few minutes later I saw Yolandra Best come out [of the chart room]." In the chart room, Ms. Blanks noticed on the counter "a set of keys, pack of cigarettes, and a straw about three to four inches long," with a "white residue in one end of it." Shortly thereafter, Ms. Blanks left the chart room to take a telephone call at the nurses' station. While she was "in the process of getting off the phone," Mr. Hudson "walked back into the nurse's station," asked where his keys were, stepped in to the chart room, and immediately exited the chart room with "a set of keys and the pack of cigarettes that had been laying on the counter." When Ms. Blanks re-entered the chart room, she noticed "that the keys, the cigarettes, and the straw that [she] had seen earlier were all missing." She "look[ed] around" for these items, but could not find them. On direct-examination Ms. Blanks testified that she did not see anyone else enter the chart room during that time, however, on cross-examination she admitted that she was not facing the chart room during the entire telephone conversation and may not have seen everyone in the area. Based on these observations, Ms. Blanks reported to her supervisor, Ms. Jo Schuchardt, that she suspected Mr. Hudson and Ms. Best of using the straw with illegal drugs.
Later that morning, Ms. Schuchardt informed Ms. Blanks that Dr. Patricia Christian (director of JUH), Mr. Sandy Brock (director of human resources at JUH), and Officer Pendleton (Butner Public Safety) were on their way to JUH. Officer Pendleton arrived first; when he did, Ms. Blanks related to him what she had seen and what she suspected. She gave Mr. Brock the same report when he arrived. Officer Pendleton waited for Ms. Best and Mr. Hudson, who had gone to lunch. When they returned, Officer Pendleton identified himself to them and asked Mr. Hudson to empty his pockets and show him the contents. Mr. Hudson complied; upon seeing a yellow straw from Mr. Hudson's front right pocket, Officer Pendleton "seized [the straw]. I picked it up. I looked at it, observed a white powdery substance inside the straw, and I seized it." Officer Pendleton and Ms. Blanks both testified that the straw seized had a bend in it and was not the one Ms. Blanks saw in the chart room. Officer Pendleton submitted the straw from Mr. Hudson's pocket to the SBI lab for analysis, which later revealed no controlled substance on the straw.
Officer Pendleton testified that he "frisked [Mr. Hudson] around his waist band and pulled his pant legs up and looked around the cuff of his shoes, and that was it. . . ." Mr. Hudson, however, testified that as part of the search Officer Pendleton's "hands were down right far into my underclothes. He was going into my genital area. . . . Then he checked my socks and my shoes. . . . Then he told me to stand at the front of the truck facing the building, and he was going to search my truck. He asked me to unlock my truck." Mr. Hudson complied with all of these requests. At the conclusion of the search, Officer Pendleton told Mr. Hudson, "[t]hey're going to ask you to take a drug screen."
While Officer Pendleton was searching Mr. Hudson and his truck, Ms. Blanks and Ms. Schuchardt conducted a strip search of Ms. Best in a ladies' restroom. Ms. Best removed all of her outer garments while standing in the open portion of the restroom in front of Ms. Blanks and Ms. Schuchardt. Ms. Best testified in response to direct examination:
Q. How did they search you?
A. She told me to take off my sweater. I did.
THE COURT: Who told you to take it off? Who told you to take off your sweater?
A. Jo asked me to take off my sweater, and I did. Then she asked me to undo my blouse; I did. She asked me to undo my bra; I did.
Q. As you undid each article of clothing what did you do with them?
A. I opened them up. My blouse was buttoned in the front, and I opened it up and picked up the back part of the blouse. I did the same thing with my bra and opened it up and took to the back.
Q. And then what?
A. I had to pull down my pants and my pantyhose.
Ms. Best was visibly upset and crying during and after the search, in which no drugs or paraphernalia were found. Neither Ms. Blanks, Ms. Schuchardt, Mr. Brock, nor Officer Pendleton saw any evidence of abnormal or erratic behavior, nor did any of them see any indication that either petitioner was impaired. Mr. Hudson also described what sort of activities usually took place in the chart room and how straws were normally found in the chart room:
Q: Tell us — we've heard a lot about the chart room. Can you describe, briefly, the dimensions of it and generally what it's used for?
A: Yes. It's a room that's probably about 5 by 9 or so. It has charts in there. It has equipment that's used for drawing blood. It has some manuals in there for that. I know that because they generally pertain to me because I (inaudible) that board. It has patients' charts, patient belongings, and food items and staff belongings. It's normally an all-purpose.
Q: People keep their stuff in there? Their food in there?
A: At times, yes.
Q: Did anybody ever mix medications in there?
A: Yes, it has been used for that.
Q: Okay. Did you all ever use straws to mix medications?
A: Yes. I did not, but I have others do so, yes.
After completing both searches, Mr. Brock, Ms. Blanks, and Ms. Schuchardt met with Ms. Best and Mr. Hudson in Ms. Schuchardt's office. During the meeting, Mr. Hudson asked Ms. Schuchardt for a copy of the Department of Human Resources workplace drug policy, Directive No. 47 ("Directive 47"). Ms. Schuchardt told Mr. Hudson that she did not know where a copy of the policy was located, and neither Mr. Hudson nor Ms. Best saw Directive 47 at any time on 15 February 1997. Mr. Brock testified that he left the room to call Dr. Christian, that he told her about the straw Ms. Blanks saw, and that the one seized was not the same one as seen in the chart room, but they agreed they had "reasonable cause" to request a drug test of petitioners. Mr. Brock informed Ms. Best and Mr. Hudson that under the policy, they were expected to take a drug screening test and that "failure to comply with the requested drug screen could lead to a dismissal." The policy also required that petitioners be advised of "the basis for reasonable cause;" Mr. Brock testified that to comply, he told petitioners only about the straw that Ms. Blanks had seen.
Ms. Best and Mr. Hudson left the room after signing forms indicating that they did not consent to a drug test. Ms. Best explained: "I thought it (the drug test) couldn't have been [fair] because what they were doing to me wasn't fair." Mr. Hudson explained during his testimony that he did not consent to the drug test because, "I did not understand what was going on. I did not know why this was happening to me, and I was actually — I was afraid of them at that time. . . . and I just said no." After petitioners refused to consent to the drug tests, "[t]hey told us (Mr. Hudson and Ms. Best) to go home."
Petitioners made appointments with Butner Creedmoor Family Medicine for drug screening tests on Tuesday morning, 18 February 1997, three days after the incident at JUH. Both tested negative and brought their test results with them to their pre-dismissal conferences on that same day. Mr. Hudson and Ms. Best were dismissed, effective 20 February 1997, for refusing to submit to a blood test for drugs in violation of DHR Directive 47.
The Department has established a multi-step appeal procedure for a terminated employee. "Step 1" requires the employee to file a grievance with his/her immediate supervisor. At "Step 2" and "Step 3," the employee files an "Employee Grievance Filing Form" with a specific authorized person in the Unit Personnel Office; at "Step 3," the Department provides a hearing. Petitioners Hudson and Best appealed their dismissal by following these procedures. Their "Step 3" hearing was held 14 May 1997 before Ann Stone, a Department hearing officer. Ms. Stone issued a recommended decision in favor of petitioners. By letters dated 17 June 1997, H. David Bruton, M.D., Secretary of the Department, informed petitioners that he did not adopt the recommended decision. Instead, he concluded there was "reasonable cause to test [petitioners] for drugs on the morning of February 15, 1997, and that Hospital management's instruction to [petitioners] to take a drug test was reasonable under the circumstances."
In July 1997, Ms. Best and Mr. Hudson filed "Petition[s] For A Contested Case Hearing" with the Office of Administrative Hearings, challenging their dismissals from JUH. Petitioners' cases were heard together on 19-20 March 1998 before Administrative Law Judge Sammie Chess, Jr. ("ALJ"), who issued a recommended decision on 13 August 1998. The ALJ proposed extensive findings of fact and concluded as law, inter alia, that "[t]he request that Petitioners immediately submit to drug screens was not reasonable under the circumstances;" that "Petitioners' refusals of the drug screens were reasonable refusals under the circumstances;" and that "Petitioners made reasonable efforts to comply with Respondent's request [for a drug screen]." He finally concluded that "Respondent had no just cause to discharge Petitioners for failing to submit to drug screens that were ordered in violation of the Fourth Amendment prohibition against unreasonable searches," and recommended that "both Petitioners be reinstated with back pay and benefits from the date of termination, and attorneys fees."
The Department disagreed with the ALJ's recommended decision, and submitted a "Proposed Decision and Order" to the SPC. The SPC considered the case on 10 December 1998 and declined to adopt the ALJ's recommended decision, but instead adopted some of the recommended findings and conclusions, and changed many. In part, the SPC concluded that the Department did have reasonable cause to request a drug test and that, "Petitioners blatantly refused to comply with the reasonable request of the Respondent and therefore engaged in insubordination and personal misconduct. Petitioners were not entitled to unilaterally determine which of the Respondent's directives they would comply with, when, and on what terms." The SPC also concluded that "Respondent had just cause to discharge Petitioners for failing to submit to drug screens." The SPC finally ordered that "Respondent's disciplinary action with regard to the Petitioners' employment be affirmed and the Commission hereby finds that the Petitioners failed to meet their burden of proof showing that the Respondent lacked just cause for their dismissals for personal misconduct."
Petitioners filed a joint "Petition for Judicial Review" of the SPC's order in Superior Court alleging that a number of the SPC's findings of fact and the decision to reverse the recommendations of the ALJ were "not supported by the record, and [were] arbitrary and capricious." Petitioners also alleged that the SPC's conclusions of law and decision were "affected by errors of law." Both sides filed extensive briefs with the Superior Court, addressing the facts, the law, and the applicable standards of review.
On 9 December 1999, Superior Court Judge Abraham Penn Jones heard argument on the Petition for Judicial Review and, on 24 October 2000, issued an Order reversing the decision of the SPC. The court "reviewed the conclusions of law and statements of law contained in the Decision and Order de novo, and determined that the Commission's decision was affected by errors of law." The superior court also reviewed de novo the pertinent constitutional issues, specifically Fourth Amendment search and seizure implications, and concluded that the SPC's decision was affected by errors of law. Next, the superior court "employed the `whole record' test in reviewing Petitioners' contention that the [SPC's] decision was not supported by substantial evidence in the record, and determined that the [SPC's] decision was not supported by substantial evidence in the record." "The Court employed the `whole record' test in reviewing the Petitioners' contention that the [SPC's] decision was arbitrary and capricious, and determined that the [SPC's] decision was arbitrary and capricious." The superior court ordered "that the Decision and Order of the [SPC] is reversed and this matter is remanded to the [SPC] for further proceedings consistent with this Order."
On 16 November 2000, the Department appealed to this Court, alleging that (1) the SPC's decision was not affected by errors of law, and (2) the SPC's decision and order was supported by substantial evidence in the record. We affirm the superior court.
Before reaching the Department's assignments of error, we address the standard of review this Court applies in cases governed by the Administrative Procedure Act ("APA"). See N.C. Gen. Stat. §§ 150B-1 to -52 (1999). On review, we are required to "examine the trial court's order for error[s] of law" by "(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly." Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994); see also Act-up Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997). "[T]he proper manner of review depends upon the particular issues presented on appeal." Id. at 674, 443 S.E.2d at 118 (citing In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993)). If the petitioner alleges that the agency's decision was based on an error of law, then the superior court applies de novo review. See id. De novo review requires the court "to consider a question anew, as if not considered or decided by the agency." Id. If the petitioner alleges either that the agency's decision was not supported by the evidence, or that the agency's decision was arbitrary and capricious, then the superior court applies the "whole record" test. See id.; see also N.C. Gen. Stat. § 150B-51(b) (1999). "The `whole record' test requires the reviewing court to examine all competent evidence (the `whole record') in order to determine whether the agency decision is supported by `substantial evidence.'" Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118 (quoting Rector v. N.C. Sheriffs' Educ. and Training Standards Comm., 103 N.C. App. 527, 532, 406 S.E.2d 613, 616 (1991)).
[W]hile [t]he nature of the contended error dictates the applicable scope of review, this rule should not be interpreted to mean the manner of . . . review is governed merely by the label an appellant places upon an assignment of error; rather, [the court] first determine[s] the actual nature of the contended error, then proceed[s] with an application of the proper scope of review.
In re Appeal of Willis, 129 N.C. App. 499, 501, 500 S.E.2d 723, 725-26 (1998) (citing Utilities Comm. v. Oil Co., 302 N.C. 14, 21, 273 S.E.2d 232, 236 (1981); Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118) (internal quotations omitted)).
Accordingly, the first question we reach is "whether the trial court exercised the appropriate scope of review." See Act-up, 345 N.C. at 706, 483 S.E.2d at 392. We noted in Willis, 129 N.C. App. at 503, 500 S.E.2d at 726-27, and Hedgepeth v. N.C. Div. of Servs. for the Blind, 142 N.C. App. 338, 348, 543 S.E.2d 169, 175 (2001), that in reviewing a decision from an agency, a superior court's order must: (1) set out the appropriate standards of review, and(2) "delineate which standard the court utilized in resolving each separate issue raised by the parties." Without these two necessary steps, "this Court is unable to make the requisite threshold determination that the trial court `exercised the appropriate scope of review.'" See Hedgepeth, 142 N.C. App. at 348, 543 S.E.2d at 175 (quoting Willis, 129 N.C. App. at 503, 500 S.E.2d at 726-27). Here, there are multiple issues on appeal, some requiring de novo review and others requiring the "whole record" test. See McCrary, 112 N.C. App. at 165, 435 S.E.2d at 363 ("A reviewing court may even utilize more than one standard of review if the nature of the issues raised so requires." (emphasis omitted)). The superior court properly set out the appropriate standards of review and delineated which standard of review it was applying to each error alleged. See Gray v. North Carolina Dept. of Environment, Health, and Natural Services, ___ N.C. App. ___, 560 S.E.2d 394 (2002); Act-up, 345 N.C. at 706, 483 S.E.2d at 392.
At the heart of the Department's arguments on appeal lies the issue of whether JUH had reasonable cause to request that petitioners submit to drug tests. In its Decision and Order, the SPC concluded that it did; the superior court concluded that it did not. If JUH did not have reasonable cause, the petitioners were entitled to refuse to submit to the drug tests. As a direct result of their refusal to submit to the drug test, the Department fired petitioners. The SPC determined that "Respondent had just cause to discharge Petitioners for failing to submit to drug screens." The superior court reversed the termination. Consequently, the ultimate determination of whether the Department was justified in dismissing petitioners from their jobs stems from the determination of reasonable cause. We review the burden of proof of reasonable cause, and then address the law defining reasonable cause.
The SPC concluded that "[t]he burden of proof lies on the Petitioners to prove the Respondent lacked just cause for their dismissals. Petitioners did not meet their burden of proof." The Petitioners must prove that there was not "substantial evidence in the findings of fact which would support these conclusions." Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 503-04, 397 S.E.2d 350, 354 (1990), disc. rev. denied, 328 N.C. 98, 402 S.E.2d 430 (1991); see also Employment Security Comm. v. Peace, 128 N.C. App. 1, 12, 493 S.E.2d 466, 473 (1997) (noting that in "just cause" dismissal cases, an employee might have the burden of proving a negative), aff'd in part, 349 N.C. 315, 507 S.E.2d 272 (1998). While we recognize that proving a negative may be difficult, the Supreme Court has approved placing this burden of proof on the employee in State personnel "just cause" dismissal cases. See, e.g., Soles v. City of Raleigh Civil Service Comm., 345 N.C. 443, 448-50, 480 S.E.2d 685, 688-89 (1997); Peace v. Employment Sec. Comm'n, 349 N.C. 315, 507 S.E.2d 272 (1998). In Peace, a divided Court stated that placing the burden of proof on the employee does not violate due process because, "[t]he statutory protections afford a terminated State employee a comprehensive and effective deterrent against erroneous decisions. A terminated employee may avail himself not only of administrative review incorporating full discovery of information and an evidentiary hearing, but may also obtain judicial review of the final agency decision." 349 N.C. at 327, 507 S.E.2d at 280. Here, the SPC properly required the petitioners to prove the absence of substantial evidence of just cause for their termination.
The central issue in this case, therefore, is whether the Petitioners carried their burden of proving that there was not substantial evidence of reasonable cause to justify JUH's request that Petitioners submit to drug tests. The Department contends that the evidence established reasonable cause for it to request a drug test. The SPC agreed with the Department, but the superior court did not. The issue of "reasonable cause" is a legal issue and is subject to de novo review by this Court. For the reasons explained below, we conclude that JUH did not have reasonable cause to request a drug test of petitioners.
In 1989, the United State Supreme Court, in Skinner v. Railway Labor Exec. Assn., declared that urine tests on employees, for the purpose of indicating the use of controlled substances, are searches regulated by the Fourth Amendment of the United States Constitution. See Skinner, 489 U.S. 602, 617, 103 L.Ed.2d 639, 660 (1989). The Court in Skinner noted that the "Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable." Id. at 619, 103 L.Ed.2d at 661. Further, "[t]he essential purpose of the Fourth Amendment is to `impose a standard of reasonableness upon the exercise of discretion by government officials . . . in order to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Boesche v. Raleigh-Durham Airport Authority, 111 N.C. App. 149, 153, 432 S.E.2d 137, 140 (1993) (quoting Delaware v. Prouse, 440 U.S. 648, 653-54, 59 L.Ed.2d 660, 667 (1979); Camara v. Municipal Court, 387 U.S. 523, 528, 18 L.Ed.2d 930, 935 (1967)). What is "reasonable" depends on the privacy and governmental interests involved in the individual case. See Treasury Employees v. Von Raab, 489 U.S. 656, 671, 103 L.Ed.2d 685, 706 (1989) (noting that certain types of public employees, like Customs agents, have "diminish[ed] privacy expectations even with respect to such personal searches.").
The petitioners here are subject to a "drug-free workplace" policy as state employees. To implement this policy, JUH must comply with the minimum protections against unreasonable search and seizure provided by the Fourth Amendment to the United States Constitution. "Within our federal system the substantive rights provided by the Federal Constitution define only a minimum. State law may recognize liberty interests more extensive than those independently protected by the Federal Constitution." Mills v. Rogers, 457 U.S. 291, 300, 73 L.Ed.2d 16, 23 (1982) (citing Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 60 L.Ed.2d 668, 675 (1979); Oregon v. Hass, 420 U.S. 714, 719, 43 L.Ed.2d 570, 575 (1975)). "Moreover, a State may confer procedural protections of liberty interests that extend those minimally required by the Constitution of the United States." Id. at 300, 73 L.Ed.2d at 24 (emphasis omitted). The Department contends that JUH based its request that petitioners take a drug test on the "Alcohol and Drug Free Workplace Policy" (Directive 47) promulgated by the Department, which does comply with Fourth Amendment standards. Directive 47 states: "[w]hen management has reasonable cause to believe an employee is using or is under the influence of alcohol or a controlled substance in violation of this policy, the employee may be required to submit to a drug and/or alcohol test." (emphasis added). The policy further defines testing based on reasonable cause as follows:
testing based on a belief that an employee is using or has used alcohol or drugs in violation of the department's policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience. Among other things, such facts and inferences may be based on, but not limited to, one of the following:
[A.] Direct observation of abnormal conduct or erratic behavior by the employee which may render the employee unable to perform his/her duties or which may pose a threat to safety or health.
[B.] A report of observed alcohol or drug use provided by a reliable and credible source.
[C.] An on-the-job accident or occurrence where there is evidence to indicate the accident or occurrence, in whole or in part, may have been the result of the employee's use of a controlled substance or alcohol.
[D.] Evidence that an employee is involved in the use, possession, sale, solicitation, or transfer of drugs or alcohol while working or while on the employer's premises or operating the employer's vehicle, machinery, or equipment.
Directive 47 requires "specific objective and articulable facts and reasonable inferences" before requesting a drug test of an employee. The Federal Courts have approved a requirement of "reasonable suspicion." American Federation of Government Employees, AFL-CIO v. Roberts, 9 F.3d 1464, 1468 (9th Cir. 1993). The Court in Roberts noted that "`[a]lthough reasonable suspicion does not require certainty, mere `hunches' are not sufficient to meet this standard.'" Roberts, 9 F.3d at 1468 (quoting American Fed. of Gov't Employees, Local 2391 v. Martin, 969 F.2d 788, 790, n. 1 (9th Cir. 1992)). While reasonable cause is a less demanding standard than probable cause, it does require articulable suspicion based on reliable information. See Garrison v. Department of Justice, 72 F.3d 1566, 1569 (Fed. Cir. 1996), cert. denied, 519 U.S. 948, 136 L.Ed.2d 250 (1996). We conclude that JUH's application of "reasonable cause" here did not comply with even the minimum protections afforded by the Fourth Amendment of the United States Constitution.
We have carefully reviewed information known to JUH's officials when they requested the drug tests, to determine whether they had reasonable cause at the time under these standards. See id. at 1568. Information they learned after the fact may not form the basis for reasonable cause. See id. At the relevant time, Ms. Blanks suspected that petitioners had some involvement with illegal drug use, because she observed a "yellow straw about three to four inches long . . . and it had a white residue in one end of it" in the chart room. She believed that the straw was used by petitioners, but she observed no erratic behavior by petitioners and she did not believe that either petitioner appeared to be under the influence of any substances. Searches revealed no substances on either petitioner, but did reveal a straw on Mr. Hudson, which Ms. Blanks indicated was not the straw she saw earlier in the chart room. Other information purportedly relied on by SPC, such as the suggestion that Ms. Best instigated the telephone call to draw Ms. Blanks out of the chart room, was not discovered until later.
The superior court noted the following in its Order:
Commission Findings 91, 92, 93 and 94, that Respondent had objective and articulable grounds for requesting that Petitioners submit to drug testing, are not supported by substantial evidence. The record shows that Mr. Brock did not consult with Dr. Christian prior to requesting that the Petitioners submit to drug testing. (T.Vol.IIB, pp. 227, 237, 240.) The reasons for Dr. Christian requesting the drug tests put forth by the Respondent and adopted by the Commission were not matters known to Dr. Christian prior to Mr. Brock's request that the Petitioners submit to testing, but were reasons developed by the Respondent after the fact in order to justify the drug testing request. (T.Vol.IIA, pp. 159-66.) The record shows that the Respondent's request for drug testing relied on speculation that the straw contained contraband and that the Petitioners were responsible for the straw. Based on this Court's review of the whole record, the Commission's Findings 91, 92, 93 and 94 were not supported by substantial evidence.
We agree.
In sum, the whole record reveals that at the critical time, officials at JUH knew that Ms. Blanks was suspicious of a straw with a powder residue that she saw in the chart room, which she connected to petitioners, and which she believed could indicate some illegal drug activity. Ms. Blanks could not identify the powder residue, and was not able to articulate any other basis for her suspicion. No other JUH employee had similar suspicions and the strip searches of petitioners revealed nothing improper or illegal. Thus, we agree with the superior court that management at JUH had no "reasonable cause" to believe that either petitioner "[was] using or [was] under the influence of alcohol or a controlled substance." Directive 47.
As the officials at JUH had no reasonable cause to request drug tests of petitioners, the Department had no basis to terminate their employment for refusing to comply. See Gardner v. Broderick, 392 U.S. 273, 277, 20 L.Ed.2d 1082, 1086 (1968); Fleckenstein v. Dep't of the Army, 63 M.S.P.R. 470, 473-74 n. 3 (1994). A person may not be discharged "for refusing to waive a right which the Constitution guarantees to him." Gardner, 392 U.S. at 277, 20 L.Ed.2d at 1086. In Gardner, petitioner, a New York City police officer, was fired for refusing to waive his privilege against self-incrimination. See id. at 278, 20 L.Ed.2d at 1087. The United States Supreme Court held that discharging him "solely for his refusal to waive the immunity to which he is entitled" under the Constitution was improper. Id. Here, petitioners elected not to waive their Fourth Amendment rights and refused to take the drug test. Because there was no reasonable cause to request the test, petitioners were improperly fired for refusing to submit to the test.
Next, we address the Department's assertion that the SPC's Decision and Order was supported by substantial evidence in the record, and that the superior court's factual findings were not. Because this case turns on the issue of reasonable cause, we address only those findings of fact concerning whether JUH had reasonable cause prior to its request that petitioners submit to drug tests. We apply the "whole record" test to examine whether the SPC's findings of fact were supported by the evidence. See Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118.
A number of the SPC's findings address the evidence that it believed supported reasonable cause, including Findings of Fact numbers 9, 12, 13, 19, 20, 21, 32, 43, 69, 73, 74, 84, 85, 86, 91, 92, 93, and 94. After reviewing the whole record, we note that Ms. Blanks was the only witness presented who made pertinent observations that formed the stated basis of reasonable cause prior to JUH's request that petitioners submit to a drug test. Ms. Blanks testified that she saw petitioners in the chart room, but they left soon after she arrived. She saw a straw with powdery residue which disappeared when Mr. Hudson retrieved his keys and cigarettes. She clearly stated that the straw seized from Mr. Hudson was not the same straw.
These observations constituted the entire basis for Ms. Blanks' suspicion that petitioners were engaged in illegal drug activity. Ms. Blanks testified that Mr. Hudson appeared "laid back" during the meeting in Ms. Schuchardt's office, however, no other employees corroborated this observation or articulated any basis for suspicion of drug use by petitioners during the morning of 15 February 1997. In fact, Ms. Schuchardt, Mr. Hudson's supervisor, testified:
Q. Okay. At any point during the time that he was working for you, did you ever believe him to be impaired by drugs or alcohol while on duty?
A. No.
. . .
Q. Okay. And did [Ms. Blanks] tell you about seeing a straw in the room?
A. Yes.
Q. And at that point you didn't have any reason to believe that Mr. Hudson was impaired that day.
A. No.
Ms. Blanks testified during cross-examination as follows:
Q. So they [petitioners] were behaving normally in the [chart] room?
A. Yes, sir.
. . .
Q. Okay. Would there have been anything that you saw them doing that you thought that they should have been pulled off the ward? Were they dangerous?
A. No, sir.
Q. Were they doing anything that would have imperiled a patient?
A. Not that I observed.
Q. Okay. Did you actually see either of them using drugs?
A. No, sir.
Q. Were they involved in any sort of accident or occurrence during this time?
A. No, sir. Not of my awareness.
Q. Okay. Now, you didn't see anything that showed that they were involved in drugs. Did you see the straw in their hand?
A. No, sir.
Q. Did you see the straw in their possession?
A. No, sir.
Q. Did Mr. Hudson or Ms. Best come to you and say we've got some drugs, would you like to buy some?
A. No, sir.
Q. Okay. Did they say we've got some drugs, would you like to use them with us?
A. No, sir.
Q. Did you see them give anyone else any drugs or drug paraphernalia?
A. No, sir.
Q. Did you see them do it while they were operating a vehicle or equipment?
A. I didn't even observe that. Operating a vehicle or equipment.
Counsel for petitioners also questioned Ms. Blanks concerning her knowledge of drug paraphernalia and her ability to accurately identify it. When asked whether knowledge of drug paraphernalia was part of her job, Ms. Blanks responded:
A. I have training related to the drugs in the workplace policy, and as a supervisor of a staff who have CDL's that we've had some special training on. Substance abuse issues, plus patient programming. I watch t.v. and things that give me some general knowledge about dru[g] paraphernalia.
Q. And it was based on your feeling, though, that you determined that this was contraband?
A. Yes, ma'am.
She also testified:
Q. What sort of training have you had in the medical field?
A. Medical field?
Q. Yes.
A. None.
Q. You have no training in pharmacy or pharmacal — you have no training in drugs?
A. No, sir. I mean, in terms of the training and in terms of the policies and those — are you talking —
Q. If you have any familiarity at all with drugs?
A. I guess no is the answer. I don't know.
Q. If I were to put down on the table a thing of cocaine, a thing of saccharin, a thing of sugar, a thing of condensed milk — powder dry milk. Would you be able to tell us without absolute doubt which is which?
. . .
A. No, I guess not.
This testimony reveals the absence of any "specific objective and articulable facts and reasonable inferences drawn" to show reasonable cause under Directive 47 or the Fourth Amendment of the United States Constitution. We hold that petitioners carried their burden of proving that JUH did not have reasonable cause to request that they submit to drug testing. Without such "reasonable cause," the Department lacked just cause for terminating petitioners. We affirm the superior court's Order.
AFFIRMED.
Judge TIMMONS-GOODSON concurs.
Judge TYSON dissents.