Beverly WILCHER; Sharon Smith; Michael Danylo; Cornelius Skinner, on behalf of themselves and all others similarly situated; The Wilmington Fire Fighters Association, Local 1590, Appellants, v. CITY OF WILMINGTON; James A. Sills, in his official capacity as Mayor of the City of Wilmington; James T. Wilmore, Sr., individually and in his official capacity as Chief of Fire for the City of Wilmington; Clifton E. Armstead, individually and in his official capacity as Deputy Chief of Fire for the City of Wilmington; S.A. Wayne Crosse, in his official capacity as Director of Personnel for the City of Wilmington; William J. Yanonis, individually and in his official capacity as Deputy Director of Personnel for the City of Wilmington, SODAT-Delaware, Inc., Third-Party Defendant.
No. 96-7276.
United States Court of Appeals, Third Circuit.
Decided March 17, 1998.
139 F.3d 366
CONCLUSION
The district court erred in excluding the opinion testimony of lay witnesses. A judgment as a matter of law must be reversed if the insufficiency of the evidence is attributable to the district court‘s evidentiary rulings.
The district court properly granted the motion for a new trial on liability, however, for a different reason than asserted by the district court. Expert testimony was not required to establish whether Captain Hearn was negligent in the disconnection of the Samson line; rather, this was only one of several theories alleged by Wilburn. The failure to utilize special verdicts regarding the basis for the jury‘s findings precludes us from determining whether this was the theory adopted by the jury in reaching its verdict. Similarly, several theories of unseaworthiness were alleged. Because at least one of the theories of unseaworthiness was beyond the common knowledge of the jury, the use of a general verdict makes it impossible for us to decide which theory of liability persuaded the jury. Accordingly, we must affirm the order granting a new trial.
The evidence was also sufficient to withstand a motion for a judgment as a matter of law on the question whether Wilburn‘s injuries limited his future earning capacity because of his fear of performing the duties of a barge captain on a coastwise voyage during a storm. We conclude, however, that the district court did not abuse its discretion in granting a motion for a new trial because the jury‘s award of one million dollars for lost future earnings far exceeded the difference between the pay of an AB tankerman and that of a barge captain.
The record also supports the district court‘s exercise of its discretion to grant a motion for a new trial regarding the award of one million dollars to compensate Wilburn for his physical and psychological injuries. This amount appears to be excessive in light of the fact that his physical injuries do not preclude him from performing his duties as an AB tankerman and his psychological condition has significantly improved.
Upon remand, the district court is directed to enter an order vacating the judgment as a matter of law on the issue of liability and the demand for damages for lost future earnings.
AFFIRMED in part, REVERSED in part, with directions.
Teresa C. Fariss (Argued), Young, Conaway, Stargatt & Taylor, Wilmington, DE, for Appellants.
John W. Morgan (Argued), City of Wilmington Law Department, Wilmington, DE, for Appellees.
Bruce C. Herron (Argued), Sawyer, Akin & Herron, Wilmington, DE, for Third-Party Defendant.
Before: BECKER, Chief Judge, and ROTH, Circuit Judges, and ORLOFSKY,1 District Judge.
ROTH, Circuit Judge:
In this appeal, we are asked to determine whether the City of Wilmington‘s method of testing firefighters for drug use violates their rights under the
Beverly Wilcher, Sharon Smith, Michael Danylo and Cornelius Skinner are Wilmington firefighters. Along with the Wilmington Fire Fighters Association (WFFA), they brought this class action on behalf of all firefighters in the city. The defendants are the City of Wilmington, Mayor Sills (in his official capacity), James T. Wilmore (individually and in his capacity as Fire Chief), Clifton Armstead (individually and in his official capacity as Deputy Fire Chief), Wayne Crosse (in his official capacity as Director of Personnel for Wilmington), and William Yanonis (individually and in his official capacity as Deputy Director of Personnel). In addition, the firefighters sued SODAT-Delaware, Inc., the drug testing company that performs the tests for the City of Wilmington. The firefighters sought injunctive relief and damages under
The district court granted summary judgment in favor of the individual defendants on the ground that they were entitled to qualified immunity and in favor of the SODAT defendants on the ground that SODAT was not a state actor. The district court then held a three-day trial. Two days into the trial, the plaintiffs apprised the district court of this Court‘s statement in Bolden v. SEPTA, 953 F.2d 807, 822-23 n. 23 (3d Cir.1991), that reasonableness under the
The firefighters have appealed on several grounds. First, they cite as error the district court‘s failure to enter an injunction permanently prohibiting the City from using the direct observation method in its urine collecting, despite the fact that during a pre-trial teleconference the City had tentatively agreed to such an arrangement. Second, they dispute the district court‘s conclusion that direct observation of urine collection is reasonable under the
We will reject all the plaintiffs’ grounds for appeal except for the fifth one. The district court did not abuse its discretion when it denied plaintiffs’ motion for injunctive relief, following the City‘s rejection of the tentative agreement. In addition, we agree with the district court that a drug testing monitor‘s presence in the same room with the firefighter during the collection of that firefighter‘s
However, despite our affirmance of the district court‘s constitutional analysis, we will remand this case for further proceedings because we believe the court erred in presuming the equivalence of the “reasonableness” inquiry under the
I. FACTS
In July 1990, the City and the Wilmington Fire Fighters Association (the firefighters’ union) agreed in a Collective Bargaining Agreement that firefighters would be subject to random drug testing through urinalysis in order to ensure that members of the Fire Department were drug free. Prior to January 1994, the City had employed a procedure whereby a randomly selected firefighter was notified he would be tested when he arrived at the station to begin his shift. A battalion chief would then stay with the firefighter and take him to Occupational Health Services at the Medical Center of Delaware (“Occupational Health“) where the test was performed. There, the battalion leader would conduct the firefighter to a “dry room” to produce the urine specimen. The sink in the dry room did not contain water and the toilet bowl contained blue dye to prevent cheating by dilution. The firefighters provided their urine specimens in private; no observer was present in the dry room. Occupational Health‘s method of collecting urine in this manner followed the guidelines of the National Institute of Drug Abuse.
In November 1993, in an attempt to reduce the cost of random drug testing, the City solicited bids from drug testing facilities. The City did not specifically request a procedure which included visual observation of urine collection. SODAT, a private drug-testing company in Delaware with a primary focus on outpatient drug-counseling, submitted a proposal under which fire-fighters would produce the urine sample “under the direct supervision of counselor/authorized personnel.” The City accepted SODAT‘S bid.
In January 1994, SODAT began drug testing the City‘s firefighters. The parties have given substantially different descriptions of how the SODAT employees carried out this procedure. The male firefighters, for example, claim that the SODAT monitor looked over the firefighter‘s shoulder at his genitals while he urinated. SODAT, on the other hand, claims that the monitors stood to the back or the right of the firefighters but did not directly observe their genitalia.
Although SODAT employees are directed to observe the urine collection process by looking in the firefighter‘s general direction as he or she commences urination, the monitors are neither directed nor expected to focus on the firefighter‘s genitals. At trial, the SODAT monitors maintained that they had acted within the company‘s guidelines.
After hearing this testimony, the district court accepted SODAT‘s portrayal of the monitoring process as accurate. “An examination of the SODAT testing program, both in terms of its design and intent, and more specifically in its execution, demonstrates that no element of the program was intended to invade the privacy of a firefighter in an overly intrusive manner.” Wilcher, 924 F.Supp. at 617. The district court further stated, “Although [the collection process] may have involved some observation of the genitalia area generally, this observation was only a byproduct of the general observation of the donor.” Id. at 618. In its earlier memorandum, the district court had also stated:
On the evidence submitted by the parties, the Court finds that the direct supervision procedure employed by SODAT did not in principal or in fact involve the direct observation of the genital area of the person providing the urine sample.... [SODAT‘s procedure] does not direct that the SO-
DAT employee undertake to observe the genital area of the individual providing the sample. It only requires supervision during the collection process.
Wilcher, 891 F.Supp. at 998. The district court further concluded, “The Court is convinced that the testimony concerning the position of the SODAT employee during the specimen collection is corroborated and demonstrates that genital observation was not the purpose nor the practice of the SODAT policy.” Id.
Soon after SODAT began testing firefighters, the Deputy Fire Chief was informed of the firefighters’ complaints about SODAT‘s testing method. The City did not, however, request that SODAT stop using the direct observation procedure. The firefighters’ union, the Wilmington Fire Fighters Association, filed a first step grievance with the City of Wilmington protesting the direct observation procedure. The Deputy Chief denied this grievance. The WFFA filed a second step grievance, which was denied on February 17, 1994. The WFFA then filed a Notice of Arbitration. The plaintiffs filed suit on March 18, 1994, against the City and the individual defendants. The City impleaded SODAT, and the plaintiffs amended their complaint to include SODAT as a defendant. In an Order and Stipulation filed on April 15, 1994, the parties agreed that the City should direct SODAT to refrain from using direct observation of urination while this case was pending.
The district court had jurisdiction over this case pursuant to
II. THE “TENTATIVE AGREEMENT”
Before we proceed with our analysis of the constitutional issue, we will address the plaintiffs’ contention that the district court erred in not permanently enjoining the City from using SODAT‘s direct observation method of drug testing. We find no such error.
On April 15, 1994, the parties filed a Stipulation and Order temporarily enjoining the City from further use of the direct observation method during the pendency of this case. On June 16, the parties participated with the district court in a teleconference, during which the City expressed its willingness to refrain permanently from using the direct observation method. At the end of the teleconference, SODAT‘s counsel stated that she would draft a stipulation and order to that effect and send it around to the other parties for their signature.
Despite this tentative agreement, the plaintiffs and the City of Wilmington were unable to arrive at an accord on the terms of the stipulation. The City therefore refused to sign it. The plaintiffs then filed a motion with the district court for an order permanently enjoining the City and SODAT from further use of the direct observation method of urine collection. The district court denied this motion without opinion on March 31, 1995. The plaintiffs argue that this denial was error, as the City defendants had reneged on their agreement in bad faith. The defendants reply that the oral agreement was only tentative.
As a general rule, we encourage attempts to settle disagreements outside the litigative context. A settlement agreement is a contract and is interpreted according to local law. See Pennwalt Corp. v. Plough, Inc., 676 F.2d 77, 79 (3d Cir.1982). A district court may enter injunctive relief on a party‘s behalf to enforce a settlement agreement when it determines that one of the parties has failed to perform its obligations. See Read v. Baker, 438 F.Supp. 732, 735 (D.Del.1977), citing Petty v. General Accident Fire & Life Assurance Corp., 365 F.2d 419, 421 (3d Cir.1966). The power to grant or deny an injunction, however, is firmly within the discretion of the district court. See Castrol, Inc. v. Pennzoil Co., 987 F.2d 939, 943 (3d Cir.1993).
According to the City, the district court did not abuse its discretion by denying the injunction because the parties had produced no more than a tentative agreement, unenforceable by law. We agree. Under Delaware law, the criteria for deciding whether a contract exists is the intention of the parties, evidenced by their objective con-
This is not a simple or mechanical test to apply. Negotiations typically proceed over time with agreements on some points being reached along the way towards a completed negotiation. It is when all of the terms that the parties themselves regard as important have been negotiated that a contract is formed.
Leeds, 521 A.2d at 1101 (emphasis added). The Chancellor further stated, “Until it is reasonable to conclude ... that all of the points that the parties themselves regard as essential have been expressly or ... implicitly resolved, the parties have not finished their negotiations and have not formed a contract.” Id., at 1102.
These basic principles of contract law lead us to conclude that the district court committed no abuse of discretion in denying injunctive relief. Although the parties agreed in principle at the pre-trial teleconference to a stipulation permanently halting the direct observation procedure, they did not discuss the details of the agreement. Thus, we cannot say that all the essential terms were resolved before or during the teleconference. The teleconference represented but one step of a complex negotiation between three parties (the firefighters, the City, and SODAT). The record indicates that the City made a good faith effort to work with the plaintiffs to draft a stipulation acceptable to everyone. Unfortunately, the parties never reached that stage. This failure, however, does not represent a breach of contract. Accordingly, we will affirm the district court‘s denial of the permanent injunction.
III. THE CONSTITUTIONALITY OF DIRECT OBSERVATION
The gravamen of the plaintiffs’ complaint is that the direct observation method of urine collection violates the firefighters’ right under the
The
[O]ur cases establish that where a Fourth Amendment intrusion serves special government needs, beyond the normal need for law enforcement, it is necessary to balance the individual‘s privacy expectations against the Government‘s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.
Von Raab, 489 U.S. at 665-66. See also Griffin v. Wisconsin, 483 U.S. 868, 873 (1987); New Jersey v. T.L.O., 469 U.S. 325, 340 (1985). Under the “special needs” analysis, the government need not show probable cause or even individualized suspicion for its search. Instead, it must
The firefighters do not dispute the reasonableness of compulsory drug testing per se. To the contrary, the firefighters have agreed to drug testing in their Collective Bargaining Agreement with the City. Rather, the plaintiffs challenge the City‘s method of testing, which entails visual observation of the firefighters as they provide their urine samples. This issue has been described as “distinct and clearly severable from those that govern reasonable suspicion testing generally“. National Treasury Employees Union v. Yeutter, 918 F.2d 968, 975 (D.C.Cir.1990). For this reason, we apply the
A. The Nature of the Firefighters’ Privacy Interest
“Reasonableness” entails a three pronged inquiry. First, a court examines the individual‘s privacy interest upon which the search at issue allegedly intrudes. See Vernonia, 515 U.S. at 653-55. This expectation of privacy must be legitimate as measured by objective standards. ” ‘The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as legitimate.’ ” Id.
The district court properly concluded that firefighters enjoy only a diminished expectation of privacy. “Because they are in a highly regulated industry, and because they had consented to random testing in their collective bargaining agreement, the firefighters had a reduced privacy interest.” Wilcher, 924 F.Supp. at 618. Plaintiffs now argue on appeal that the firefighting industry is not “highly regulated” and that the firefighters therefore did not have a diminished expectation of privacy.
Plaintiffs’ argument lacks merit. Even though extensive regulation of an industry may diminish an employee‘s expectation of privacy, see Policemen‘s Benevolent Ass‘n, Local 318 v. Township of Washington, 850 F.2d 133 (3d Cir.1988) (police department described as “highly regulated“); Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.1986) (upholding law requiring jockeys to submit to breathalyzer and random urinalysis testing), we have never held that regulation alone is the sole factor that determines the scope of an employee‘s expectation of privacy. It is also the safety concerns associated with a particular type of employment—especially those concerns that are well-known to prospective employees—which diminish an employee‘s expectation of privacy. Supreme Court precedent demonstrates this principle. In National Treasury Employees v. Von Raab, the Court held that a government employee‘s expectation of privacy depended in part on the nature of his employment and whether it posed an attendant threat to public safety. See 489 U.S. at 672. Upholding the drug testing of customs officials, the Court explained:
We think Customs employees who are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty likewise have a diminished expectation of privacy in re-
spect to the intrusions occasioned by a urine test. Unlike most private citizens or government employees in general, employees involved in drug interdiction reasonably should expect effective inquiry into their fitness and probity.... Because successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep ... personal information that bears directly on their fitness.
Id. (emphasis added). Customs officials enjoyed a reduced expectation of privacy because of the sensitive nature of their duties and of the information they received. We have held that railway employees also enjoy a diminished expectation of privacy because of the safety concerns associated with those who operate trains. See e.g. Transport Workers’ Union, Local 234 v. SEPTA, 884 F.2d 709, 712 (3d Cir.1988) (random testing of rail operators upheld because of “great human loss” they can cause prior to detection of drug problem).
Certainly, a firefighter with a drug problem poses as great a threat to public safety as does a customs official or a rail operator. A firefighter whose drug use is undetected is a source of danger both to his colleagues and to the community at large. In addition, the firefighter puts himself at great risk of harm. Since the perils associated with firefighting are well known, we have no trouble concluding that firefighters enjoy a diminished expectation of privacy. Our inquiry, however, does not end here, as we must balance the firefighters’ diminished interest with the character of the search at issue and with the concerns that have propelled that search.
B. The Character of the Search
The second factor we must consider is the character of the government‘s search and the extent to which it intrudes on the employee‘s privacy. The Supreme Court has held that the degree of intrusion “depends upon the manner in which production of the urine sample is monitored.” Vernonia, 515 U.S. at 658. Before we judge the intrusiveness of SODAT‘s drug testing method, however, we must first determine what that method actually entails.
At trial and on appeal, both the plaintiffs and the SODAT employees have presented highly divergent pictures of the urine collection process. The firefighters claim that monitors looked at their genitalia as they urinated. SODAT and its employees, on the other hand, steadfastly maintain that they did not focus on the firefighters’ genitalia during the urine collection process. Instead, they claim that they looked in the firefighters’ general direction to ensure that no tampering was taking place during the production of the urine specimen.
Based on the evidence before it, the trial court concluded that SODAT‘s drug testing procedure involved only the monitors’ direct observation of the urine collection process in general and not the intentional observation of the firefighters’ genitalia. Wilcher, 924 F.Supp. at 617-18. We accept as accurate the district court‘s finding of fact concerning the nature of the urine collection process employed by SODAT. Although the reasonableness of a search is a legal question, the particular character of that search is a factual matter. Cf. O‘Connor v. Ortega, 480 U.S. 709, 726-729 (1987) (factual dispute regarding character of search precluded lower court‘s grant of summary judgment on Fourth Amendment issue). As such, the trial judge‘s factual finding regarding the character of SODAT‘s drug testing procedure is reversible only if it is clearly erroneous. See Marco v. Accent Pub. Co., Inc., 969 F.2d 1547, 1548 (3d Cir.1992). In light of the nature of the testimony from the SODAT employees, which the trial judge chose to credit, we cannot say that the district court‘s finding was clearly erroneous.4 Consequently, we will adopt the district court‘s description of the SODAT procedure as one which entails only incidental observation of a firefighters’ genitals.
Having adopted the district court‘s description of the SODAT drug-testing procedure, we must concede that the direct ob-
The student to be tested completes a specimen control form which bears an assigned number.... The student then enters an empty locker room accompanied by an adult monitor of the same sex. Each boy selected produces a sample at a urinal, remaining fully clothed with his back to the monitor, who stands approximately 12 to 15 feet behind the student. Monitors may (though do not always) watch the student while he produces the sample, and they listen for normal sounds of urination. Girls produce samples in an enclosed bathroom stall, so that they can be heard but not observed.
Vernonia, 515 U.S. at 650. The Supreme Court concluded that this method of testing was not unreasonable under the
Relying on Vernonia, the district court stated, “The Court finds the SODAT collection method no more intrusive on the firefighters’ privacy than was the high school‘s drug testing program found to be constitutional in [Vernonia ]” Wilcher, 924 F.Supp. at 618. The district court further concluded,
“The presence of monitors in the bathrooms with firefighters is similar to the presence of the monitors in Vernonia, and even though the monitors may have stood closer than those in Vernonia, this close proximity was a result of the collection facilities, in this case a bathroom as opposed to a locker room, and not a more intrusive method.”
We agree with the district court insofar as its analogy to Vernonia applies to male firefighters. In a world where men frequently urinate at exposed urinals in public rest-rooms, it is difficult to characterize SODAT‘S procedure as a significant intrusion on the male firefighters’ privacy.5 Plaintiffs fail to demonstrate how the presence of a monitor in a boys locker room while a student athlete urinates differs significantly from the presence of a monitor in a bathroom while an adult firefighter urinates. Both monitors stand behind the individual providing the urine specimen. Similarly, as the district court found, both monitors observe only the collection process generally and not the particular individual‘s genitalia. The only difference is the distance between the monitor and the person producing the specimen. We cannot conclude that this difference by itself justifies a determination that SODAT procedure is unreasonable.6
We must admit that we are more cautious about the reasonableness of the direct observation method as it applies to female firefighters. We simply cannot characterize the presence of a monitor in a bathroom while a female urinates as an ordinary aspect of daily life. Indeed, Vernonia noted with approval the fact that female student athletes provided urine behind a stall as monitors stood outside listening. Vernonia, 515 U.S. at 657-58. Nevertheless, nothing in Vernonia suggests that the presence of a female monitor in a bathroom when an adult female firefighter provides a urine specimen
C. The Governmental Concern
The third and final component of the “reasonableness” test under the
It is a mistake ... to think that the phrase ‘compelling state interest,’ in the Fourth Amendment context, describes a fixed, minimum quantum of governmental concern, so that one can dispose of a case by answering in isolation the question: Is there a compelling state interest here? Rather, the phrase describes an interest which appears important enough to justify the particular search at hand, in light of other factors which show the search to be relatively intrusive upon a genuine expectation of privacy.
Vernonia, 515 U.S. at 661. Thus, “compelling interest” does not have the same meaning in this context as it does in other areas of constitutional law. Moreover, the fact that there exists a less intrusive method of achieving the government‘s goal is not relevant to the Court‘s reasonableness analysis under the
In this case, we do not review the constitutionality of drug-testing per se, but rather, the procedure by which firefighters are tested. According to the City and to SODAT, visual observation is necessary to prevent cheating. At trial, the defendants’ expert, Dr. Closson, testified that visual monitoring is necessary to catch employees who attempt to fool the test by substituting someone else‘s urine or adding a chemical adulterant to their own urine.
On appeal, the plaintiffs argue that cheating can be detected by testing the urine‘s temperature since substitutes make the specimen colder than it should be. According to Dr. Closson, a forensic toxicologist, cheaters still can avoid detection by warming substitute urine through a heating pack hidden on their body, or by keeping the urine close to their body so that it takes on the body‘s temperature. Closson further maintained that direct observation was the most accurate collection method for ensuring the integrity of a urine sample. Finally, Closson testified that direct observation procedures are used by the New York City Police Department, the New York City Department of Corrections, and several other New York agencies.
Like the district court, we find the defendants’ expert testimony persuasive. Cheating is a significant concern. The City understandably wishes to take as many steps as possible to eliminate potential violations of the drug testing program. The plaintiffs argue that the cheating described by Dr. Closson is unlikely, as Wilmington firefighters do not receive notice that they are to be tested until the day of the test, and they remain in the company of a superior officer from the moment they are notified of the test until the time that they actually provide their urine specimen. Although this argument is strong, it does not prove that the incidences of cheating, described by Dr. Closson, are impossible or even implausible. Although such cheating calls for fairly sophisticated equipment, it is possible for a firefighter with a drug problem to carry a catheter or an artificial bladder taped to his body on the
Under Supreme Court jurisprudence, the City of Wilmington need not wait for a cheating problem to develop in order to justify its use of direct observation. In Von Raab, for example, Justice Scalia noted that the Supreme Court upheld random mandatory drug testing of customs officials, even though there existed no evidence of a history of drug abuse among those government employees. See Von Raab, 489 U.S. at 679 (Scalia, J., dissenting). Moreover, the fact that there exists a less intrusive method of achieving the government‘s goal is not relevant to the Court‘s
Finally, we do not agree with the plaintiffs’ argument that SODAT renders its direct observation procedure ineffective (and thereby unnecessary) by directing monitors not to look at the firefighters’ genitals. Certainly, the mere presence of a monitor in the room where the firefighter is urinating deters a would-be-cheater from substituting or adulterating his own urine sample. Thus, we must agree with the district court that the direct observation procedure serves the government‘s interest of preventing cheating on drug tests.
Because we find that SODAT‘s direct observation method, as described in the district court‘s findings of fact, meets the three elements of the
IV. WAIVER OF JURY TRIAL
Two days into the trial, the plaintiffs brought to the district court‘s attention our statement in Bolden v. SEPTA that reasonableness under the
When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the
court upon motion or its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the United States.
Based on these principles, we find that the plaintiffs waived their jury trial right under
Based on the dialogue between the district judge and the plaintiffs’ attorney, we conclude the plaintiffs waived their jury trial right under
V. FOURTH AMENDMENT “REASONABLENESS” VS. THE STATE LAW “REASONABLE PERSON” STANDARD
Finally, we will reverse the district court‘s ruling insofar as it equated the
The district court‘s assumption that “reasonableness” under the
VI. CONCLUSION
Based on the foregoing discussion, we will affirm the district court‘s ruling on the plaintiffs’ constitutional claim. So long, at least, as the SODAT employees continue to employ the safeguards discussed in Part III, their direct observation method does not violate the
In addition, we will affirm the district court‘s dismissal of the jury because the plaintiffs waived their jury trial right when they acquiesced on the record to the dismissal. Moreover, as we note in footnote 1, we will vacate the district court‘s holding that SODAT‘s drug testing procedure was permissible under the Collective Bargaining Agreement. Finally, we will vacate the dismissal of the state law invasion of privacy claim and remand this case to the district court for reconsideration of the state law issues.
ROTH, Circuit Judge