2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-16-2001

Kerns v. Chalfont-New Britain

Precedential or Non-Precedential:

Docket 00-1391

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Recommended Citation

"Kerns v. Chalfont-New Britain" (2001). 2001 Decisions. Paper 181.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/181
Filed August 3, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 00-1391 

GREGORY KERNS, 

 Appellant 

v. 

CHALFONT-NEW BRITAIN TOWNSHIP 

JOINT SEWAGE AUTHORITY 

Appeal from the United States District Court 

For the Eastern District of Pennsylvania 

D.C. No.: 99-cv-01596 

District Judge: Honorable John P. Fullam 

Argued: April 3, 2001 

Before: SCIRICA, ROSENN and GIBSON,* 

Circuit Judges. 

(Filed August 3, 2001) 

 Randal S. White (Argued) 

 Fox, Rothschild, O'Brien & Frankel 

 102 North Main Street 

 P.O. Box 1589 

 Doylestown, PA 18901-0700 

 Counsel for Appellant 

_________________________________________________________________ 

* Judge John R. Gibson, United States Court of Appeals for the Eighth 

Circuit, sitting by designation. 
 Daniel J. Divis (Argued) 

 Gerolamo, McNulty, Divis & Lewbart 

 225 South 15th Street 

 The Lewis Tower Building, 

 Suite 1600 

 Philadelphia, PA 19102 

 Counsel for Appellee 

OPINION OF THE COURT 

ROSENN, Circuit Judge. 

This appeal challenges the unwritten policy of a state 

regulated Sewage Authority to subject its superintendent to 

urinalysis drug testing. Gregory Kerns, the plaintiff, sought 

employment in 1997 as the superintendent of a wastewater treatment facility operated and maintained by the 

Chalfont-New Britain Township Joint Sewage Authority 

("the Authority"). During his interview, the Authority 

informed Kerns that he would be required to undergo and 

pass a drug screening urinalysis as a condition of 

employment. He agreed and was permitted to make his own 

arrangements for the testing. He failed. He requested and 

the Authority granted another opportunity for testing and 

this time he passed. About 60 days later, the Authority 

asked Kerns to undergo another urinanalysis. He expressed 

no objection, provided a urine sample, and tested positive 

for marijuana. Kerns, still on probationary status, was 

discharged. 

Kerns filed an action in the United States District Court 

for the Eastern District of Pennsylvania under 42 U.S.C. 

S 1983, seeking reinstatement, declaratory judgment, and 

damages. He alleged that the Authority violated his Fourth 

Amendment right to be free from unreasonable searches 

when it required him to submit to and pass a drug test as 

a condition of employment. The District Court granted 

summary judgment in favor of the Authority, holding that 

Kerns' legitimate expectations of privacy were lessened by 

the "disastrous consequences" that can occur when 

mistakes are made in the operation of a sewage treatment 

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plant. The Court also held that Kerns had consented to the 

drug tests, thereby rendering them constitutionally

permissible. Kerns timely appealed. We affirm. 

I. 

The Authority is a municipal agency authorized, 

organized and existing pursuant to the Pennsylvania

Municipal Authorities Act of 1945, 53 P.S. S 3.91 et seq. In 

May 1997, Kerns applied to the Authority for the position of 

plant superintendent. The plant superintendent supervises 

approximately 15 employees and reports to the Executive 

Director, who in turn reports to the Authority's Board of 

Directors. 

Wastewater treatment plants in Pennsylvania are highly 

regulated and the Authority maintains that they can cause 

disaster to the local waterways and, consequently, to the 

health and safety of the local people and others 

downstream. We note that Pennsylvania has had a centurylong interest in the cleanliness of its streams, waters and 

lakes. At the turn of the twentieth century, Pennsylvania 

embarked upon a program of preventing the pollution of its 

waters. See Act of 1905, P.L. 260, entitled"An Act to 

preserve the purity of the waters of the state for the 

protection of the public health." 

Consistent with this concern for unpolluted streams, 

Pennsylvania enacted further legislation from time to time. 

In 1937, the State enacted its Clear Streams Law which 

included prohibitions against industrial, as well as human 

waste. 1937 P.L. 1987, 35 P.S. S 691.1 et seq. It declared as 

state policy that 1) clean streams were "absolutely

essential" if Pennsylvania were to attract new industries 

and tourists; 2) that clean unpolluted waters was 

absolutely essential for the State's out of door recreational 

facilities in the decades ahead; 3) that the objective of the 

Act was not only to prevent further pollution of the waters 

of the Commonwealth but to reclaim every stream that is 

polluted to a clean and unpolluted condition; and 4) that 

achievement of the Act's objectives required "a 

comprehensive program of watershed management and 

control." 35 P.S. S 691.4. The Clean Stream Law is a 

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regulatory statute and, as subsequently amended, bars any 

person or municipality from discharging or permitting the 

discharge, directly or indirectly, into waters of the 

Commonwealth any sewage except as provided by the Act. 

Failure of a municipality to comply may result in the facility 

being declared a nuisance subject to severe civil penalties, 

and its officials subject to contempt. 

In 1965, the state enacted the Pennsylvania Sewage 

Facilities Act. As amended in 1974, the Act empowered the 

Department of Environmental Resources, inter alia, to 

adopt standards for maintenance of community sewage

disposal systems. See 35 P.S. S 750.3, historical and 

statutory notes. The Department also has the power to 

review the performance of local agencies in the 

administration of the Act, to order a local agency to 

undertake actions deemed necessary by the Department"to 

effectively administer this Act, to inspect regular reports, 

books and records of local agencies, to revoke or suspend 

the certification of sewage enforcement officers for cause, 

and to require at the Department's discretion a certified 

sewage enforcement officer whose performance has been 

evaluated." 35 P.S. S 750.10. 

With the State's strict laws pertaining to the operation of 

sewage treatment plants hovering over it, the Board, at the 

recommendation of its Personnel Committee, established an 

unwritten policy and practice that all new hires must 

submit to and pass a drug screening urinalysis as a

condition of employment.1 When Kerns interviewed for the 

position of plant superintendent, he was informed that he 

would have to pass a drug test to obtain the job. Kerns 

agreed to submit to such a test. 

A medical examiner performed the urinalysis on Kerns 

approximately two weeks after he began his employment. 

Kerns tested positive for marijuana use. When he found out 

about the positive test result, Kerns insisted that it was 

inaccurate and denied having used marijuana. After 

importuning by Kerns, the Authority's Board of Directors 

_________________________________________________________________ 

1. This policy is separate from the Authority's written policy mandating 

pre-employment and random drug testing for employees holding 

Commercial Drivers' Licenses. 

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agreed to permit him to submit to another drug test rather 

than terminate him. 

On June 27, 1997, Kerns reported to another medical

examiner for his second drug test. This time, the results 

were negative and the Authority allowed Kerns to continue 

his probationary employment.2 At that point, Kerns claims, 

he believed that he had successfully completed his preemployment drug testing and that he would not be 

subjected to further tests. (App. at 217-218). On the other 

hand, John Schmidt, the Executive Director, claims that he 

told David Cordell, the chairman of the Authority's

personnel committee, to inform Kerns that he would have 

to undergo a random drug test some time in the future. 

(App. at 383-384). Cordell never mentioned this to Kerns. 

(App. at 473). 

On September 2, 1997, Schmidt instructed Kerns to 

report for another drug test. (74A). Kerns was surprised, 

but did not object. Several days later, Kerns received a 

phone call from the laboratory that his urine sample had 

tested positive for marijuana. Kerns then informed Schmidt 

of the positive result. Later that day, at a meeting between 

Schmidt, Kerns and Cordell, Kerns pleaded for his job.3 

Kerns was told to go home and await further instructions. 

Later that day he received a phone call telling him not to 

come to work for a few days. On September 15, 1997, the 

Authority discharged Kerns because of his positive test 

result. Kerns then commenced this action under 42 U.S.C. 

S 1983. 

On appeal, Kerns's primary contention is that the drug 

testing severely impinged upon his legitimate privacy 

expectations, and that in the absence of a compelling need 

_________________________________________________________________ 

2. The Sewage Authority places all new hires on probation for the first 

six months of their employment, after which they are considered 

permanent employees. 

3. Kerns claims that he did not admit to smoking marijuana, but 

admitted that he had recently been exposed to second-hand smoke at a 

party where others were smoking marijuana. (App. at 235). Schmidt 

claims that Kerns admitted that he himself had smoked marijuana at 

that party. (App. at 392). 

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for the Authority's drug policy, the policy is constitutionally 

impermissible. 

II. 

It is settled law that the collection and analysis of a urine 

sample to test for drug use constitutes a search that is 

subject to the constraints of the Constitution's Fourth 

Amendment. See Skinner v. Railway Labor Executives'

Association, 489 U.S. 602, 617 (1989). However, it is also 

settled law that a search conducted with the free and 

voluntary consent of the person searched is constitutional. 

See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1972). 

In its alternative ground for granting summary judgment 

for the defendants, the District Court held, without much 

discussion, that Kerns consented to drug testing. (Op. at 4). 

We begin our analysis with this ground because if there 

was a valid basis for it, we need not evaluate the 

constitutionality of the Authority's drug testing policy. 

Whether a person consented to a search is a question of 

fact to be determined from the totality of the circumstances. 

See Schneckloth, 412 U.S. at 226. We review for clear error 

the District Court's factual finding that Kerns consented to 

the tests. When Kerns first interviewed for his position at 

the Authority, he was informed that he would have to take 

a drug test as a condition of employment. In response, 

Kerns replied, "I'm just fine. I have no problem." This 

statement is nearly identical to the language held to convey 

consent in Schneckloth, where a motorist said "sure, go 

ahead" when the police asked if they could search his car. 

See id. at 220. 

On May 28, 1997, the Sewage Authority extended a 

conditional offer of employment to Kerns. This offer was 

made by way of a letter from John Schmidt which stated 

"this offer is contingent upon successful completion of the 

pre-employment physical and drug test as we discussed." 

(A. 519). Kerns signed this letter, indicating that he 

accepted the offer and the terms contained therein.

The first urinalysis took place approximately two weeks 

after Kerns began his employment. Kerns voiced no 

objection to the test and, in fact, made all the arrangements 

 6 
for the test himself. Unfortunately, the test results were 

positive. Kerns insisted that the test was inaccurate and 

asked the Authority for permission to take a retest. 

Although the Authority would have been within its 

contractual rights to terminate Kerns at that point, it 

agreed to allow him to submit to another test. On June 27, 

1999, Kerns reported to a different medical examiner for his 

second drug test. This time Kerns passed, and was allowed 

to continue his probationary employment. 

The circumstances surrounding the first two tests 

demonstrate Kerns' voluntary consent. Kerns was told 

during the interview that he would be required to pass a 

drug test as a condition of employment. He stated that he 

had "no problem" with taking such a test and signed a 

contract acknowledging that his offer of employment was 

contingent on it. He then submitted to the test without 

objection. The second test was administered at Kerns' own 

request. Under these circumstances, we agree with the 

District Court that Kerns' consent to the searches was 

clear. 

Consent to the third and final test is less clear. 

Approximately two months after Kerns passed his second 

drug test, he was approached by John Schmidt, the 

executive director, who instructed him to produce another 

urine sample for analysis. Kerns, who believed that his 

drug testing obligations had been completed, was 

surprised, but submitted to the test without objection. It is 

the law of this circuit that "silent submission" to a drug test 

"on pain of dismissal from employment" does not constitute 

consent. Bolden v. SEPTA, 953 F.2d 807, 824 (3d Cir. 

1991). However, Kerns did more than silently submit. He 

had signed a document in which he agreed to 

"successful[ly] complet[e]" a pre-employment drug test as a 

condition of his employment. The conflicting results of 

Kerns' first two tests were inconclusive. Therefore, it was 

reasonable for the Authority to view Kerns' drug testing 

obligation as incomplete and to require that he successfully 

complete that obligation as he had contracted to do. 

Accordingly, we see no error, much less clear error, in the 

District Court's alternative conclusion that Kerns consented 

to all three drug tests. 

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The judgment of the District Court will be affirmed. Each 

side to bear its own costs. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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