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Jakubowicz v. Dittemore

September 12, 2006

CHESTER JAKUBOWICZ, DIANNA WALLEN, AND GLENDA WERLEY, PLAINTIFFS,
v.
RON DITTEMORE,*FN1 DIRECTOR OF MISSOURI DEPARTMENT OF MENTAL HEALTH, DEFENDANT.



The opinion of the court was delivered by: Nanette K. Laughrey United States District Judge

ORDER

Plaintiffs Chester Jakubowicz, Dianna Wallen and Glenda Werley seek a permanent injunction against Ron Dittemore ("Dittemore"), the current Director of the Missouri Department of Mental Health ("DMH"). Plaintiffs claim that DMH's random, suspicionless drug testing policy is unconstitutional on its face and as applied to them and should be permanently enjoined.

Because Dittemore has failed to show a "special need" to drug test the Plaintiffs, their request for a permanent injunction, as to them, is granted. The Court, however, will not strike down the policy as facially unconstitutional because Defendant has shown that there is a special need to drug test some employees of DMH.

I. Procedural Background

Prior to the scheduled date for trial, the parties notified the Court that they wished to submit their evidence to the Court in writing. Therefore, the record before the Court consists of the depositions of Felix T. Vincenz, the Director of Facility Operations for DMH, and Linda Roebuck, the Deputy Director of DMH, as well as certain stipulations between the parties. Plaintiffs have also submitted Exhibit A which is a memo, dated April 6, 2005, from Schuffman to all DMH employees notifying them of the random drug testing program and Exhibit B, which is DMH's protocol for the drug testing.

II. Evidence

DMH is a Missouri state agency that provides mental health services to thousands of Missouri residents. Plaintiff Chester Jakubowicz ("Jakubowicz") is a Psychiatric Assistant II for DMH at the Mid-Missouri Mental Health Center. Plaintiffs Glenda Werley ("Werley") and Dianna Wallen ("Wallen") are both Office Support Assistants at DMH's Southeast Missouri Mental Health Center.

Some of DMH's clients are treated on an out-patient basis and some are treated at in-patient facilities. There is no evidence that specifically describes either Mid-Mo Mental Health Center or Southeast Missouri Mental Health Center as residential or non-residential facilities. It is also not clear what population is served at Mid-Mo Mental Health Center and Southeast Missouri Mental Health Center, or the security level of those centers. Nor is there any evidence about the Plaintiffs' work environment at those facilities.

On April 6, 2005, Schuffman issued a letter to DMH employees notifying them about DMH's new drug testing plan. The letter states:

In order to provide a safe and secure living environment for the people we serve and for those whom we work with on a daily basis, the [DMH] is implementing random drug testing in May 2005. All employees will be subject to random selection for testing.

See Pl. Brief [Doc. # 50] at Ex. A ("Ex. A"). The letter further states that the purpose of the policy was not to "catch" employees but rather to "ensure a safe and secure environment for employees and [to ensure] that we are providing the best care possible to those we serve." Id.

Under the policy, ten percent of the employees at each DMH facility are randomly selected for testing. If a selected employee refuses to submit , or tests positive, the employee will be placed on administrative leave pending further review. See Pl. Brief [Doc. # 50] at Ex. B ("Ex. B").

In addition to random drug testing, DMH's drug policy requires that employees submit to drug testing "when there is a reasonable suspicion that an employee is using, possessing, or distributing controlled substances either on or off duty, or when there is reasonable suspicion that an employee is impaired by alcohol or drug use while on duty." Ex. B.

The Department uses polygraphs to deal with allegations of abuse and neglect of its patients only when there is a reasonable suspicion of wrongdoing. The Department proactively addresses employee alcohol problems, but only if manifested in the workplace, and addresses problems of family members bringing in drugs to secure facilities only if there is probable cause.

B. Reasons for the Drug Testing Policy

According to DMH, it developed its drug testing policy for two reasons: its belief that illicit drugs were being used by some DMH employees and its belief that each of its employees is a care giver and role model for clients of DMH and, therefore, must be drug free.

1. Drug Use Among DMH Employees

a. Linda Roebuck

Linda Roebuck ("Roebuck") is the Deputy Director of DMH and she has held that position since 2002. She began working for DMH in 1973 as a social worker.

Roebuck testified that she conducted a systemic review of Bellefontaine Habilitation Center in St. Louis, Marshall Habilitation Center in Marshall, and DMH's children's hospital in St. Louis after DMH clients were abused at those facilities. See Roebuck Dep. at p. 8, attached as Ex. 3 to Doc. # 51 ("Roebuck Dep."). It is the Court's understanding that these habilitation centers provide care to mentally retarded individuals, although this is not clear from the record. As part of her review, Roebuck allowed staff and family members of DMH clients to submit concerns to her confidentially. In her deposition, Roebuck states that at two habilitation centers:

Staff came in both sites in particular, particularly the Marshall site, both sites, staff asked me if we had drug -- random drug testing policies and strongly encouraged me that the [DMH] needed to implement such a policy.

And they didn't describe anybody or any situation, but they did talk about the fact that they believed there were issues in the facilities and they believed it was difficult for staff sometimes to report it for fear of retaliation from other staff.

Roebuck Dep. at p. 9. Roebuck learned specifically that unnamed staff, including administrators, had been observed with drugs at the Marshall facility, but she "didn't try to pin them down because I was not there to investigate." Id. at p. 13.

Roebuck testified that family members of DMH clients also reported concerns about drug usage at the habilitation centers. She stated:

Family members talked about the fact they felt there were concerns about potential drug use. And they also felt somewhat intimidated about reporting it because, again, their loved ones are going to be in the group homes, in the settings with very few staff, and there is kind of a natural tension, I think, about if they say so and so did something, how is everybody going to be treating their loved one and how are they going to be treated, so they were encouraging us to find ways that just didn't require individuals to report. I mean, they were all saying, you need the policy for individual reporting, but there are some factors out here that make it frightening for people to report. Id. at p. 9.

Roebuck testified that, as she was preparing to leave the Marshall facility, she found an anonymous note on the windshield of her vehicle. Roebuck stated that the letter "indicat[ed] concerns about drug use and other issues of abuse and neglect. There were specifics in that letter, so I turned that over to our investigation unit. So I definitely had the experience of the staff and the family members encouraging us to do random drug testing." Id. at 10.

Roebuck also testified that DMH had found illicit drugs at two of DMH's facilities. Id. at p. 11.*fn2 According to Roebuck, "I can't remember the specifics, but they were on the campus and we didn't know, you know, as tightly as we monitor who gets on and off these campuses, it pretty much had to be staff or clients somehow involved with this." Id.

Since implementation of the Policy, Roebuck has not received any further reports about drugs at DMH facilities. Roebuck Dep. at p. 21.

b. Dr. Felix Vincenz

Dr. Felix Vincenz ("Vincenz") is the Director of Facility Operations for DMH and he has worked for DMH since 1982. Vincenz testified that he had previously seen DMH employees ...


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