1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-17-1998

Wilcher v. Wilmington

Precedential or Non-Precedential:

Docket 96-7276

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Recommended Citation

"Wilcher v. Wilmington" (1998). 1998 Decisions. Paper 51.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/51
Filed March 17, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-7276 

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 Dir ector 

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 

On Appeal from the United States District Court 

for the District of Delaware 

(D.C. Civil Action No. 94-cv-00137) 
Argued January 28, 1997 

Before: BECKER, Chief Judge, and ROTH, Circuit Judges, 

and ORLOFSKY,1 District Judge 

(Opinion Filed March 17, 1998) 

 Teresa C. Fariss, Esq. (Argued) 

 Young, Conaway, Stargatt & Taylor 

 P.O. Box 391 

 Rodney Square North, 11th Floor 

 Wilmington, DE 19899-0391 

 Attorney for Appellants 

 John W. Morgan, Esq. (Argued) 

 City of Wilmington 

 Law Department 

 800 French Street, 9th Floor 

 Wilmington, DE 19801 

 Attorney for Appellees 

 Bruce C. Herron, Esq. (Argued) 

 Sawyer, Akin & Herron 

 1220 North Market Street 

 P.O. Box 25047, Suite 606 

 Wilmington, DE 19899 

 Attorney for Third-Party Defendant 

OPINION OF THE COURT 

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 Fourth Amendment. We 

will affirm the district court's conclusion that it does not. 

_________________________________________________________________ 

1. Honorable Stephen M. Orlofsky, United States District Court Judge for 

the District of New Jersey, sitting by designation.

 2 
Nevertheless, we will remand the case for reconsideration of 

the state law invasion of privacy claim. 

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 42 U.S.C. S 1983 and damages for"invasion 

of privacy" under the state's tort law. 

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 

Fourth Amendment was an issue of law. Concluding that 

there were no remaining factual issues for the jury to 

decide, the district court, with the plaintiffs' acquiescence, 

dismissed the jury. The court then decided against the 

plaintiffs on the merits of their Fourth Amendment claim. 

See Wilcher v. City of Wilmington, No. 94-137, slip. op. 

(D.Del. June 30, 1995). The district court also concluded 

that plaintiffs could not prevail on their state law invasion 

of privacy claim. The district court eventually elaborated on 

its findings in a memorandum opinion rejecting the 

plaintiffs' motion for reargument and for a new trial. See 

Wilcher v. City of Wilmington, 924 F.Supp. 613 (D.Del. 

1996). 

The firefighters have appealed on several grounds. First, 

they cite as error the district court's failure to enter an 

 3 
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 

Fourth Amendment. Third, they appeal the district court's 

determinations regarding qualified immunity and state 

action. Fourth, they urge that, in denying the plaintiffs a 

jury trial, the district court misapplied our decision in 

Bolden. Finally, the plaintiffs contend that the district court 

committed error when it presumed that the reasonableness 

standard under the Fourth Amendment of the Constitution 

was equivalent to the reasonable person standard under 

Delaware tort law.2 

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 thatfirefighter's urine 

does not, by itself, constitute an unreasonable search 

under the Fourth Amendment. As for the plaintiffs' jury 

trial right, we agree that the district court misread our 

decision in Bolden when it concluded that no factual 

_________________________________________________________________ 

2. The plaintiffs also contend that the district court should not have 

determined that SODAT's drug testing method was not in violation of the 

firefighters' Collective Bargaining Agreement with the City. See Wilcher, 

at 17-19 (June 30, 1996 Memorandum). According to the plaintiffs, this 

issue was moot by the close of the trial because the City had agreed at 

least temporarily to discontinue using the method. Because the City has 

explicitly reserved its right to use this procedure in the future, we do 

not 

agree that this issue is "moot." Moreover, the City has never conceded 

the impermissibility of SODAT's drug testing procedure under the 

Collective Bargaining Agreement with the firefighters. Nevertheless, we 

agree that this issue should not have been decided by the district court. 

The plaintiffs never raised the Collective Bargaining Agreement in the 

pleadings. Moreover, when the case was tried, plaintiffs had not yet 

exhausted their administrative remedies, such as arbitration. Therefore, 

the issue was not properly before the district court, and we will vacate 

the district court's ruling on it. 

 4 
determinations remained for the jury. Nevertheless, we will 

not reverse the district court's dismissal of the jury because 

the plaintiffs clearly acquiesced in this action and thereby 

waived their jury right under Rule 39(a) of the Federal 

Rules of Civil Procedure. 

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 Fourth Amendment and the "reasonable person" 

standard under the common law in an invasion of privacy 

claim. 

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- 

 5 
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 SODAT employee undertake to 

 observe the genital area of the individual providing the 

 sample. It only requires supervision during the 

 collection process. 

 6 
Wilcher, slip. op. at 11. 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 28 U.S.C. SS 1331 and 1343. We now have

jurisdiction under 28 U.S.C. S 1291. 

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, 

 7 
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 Co., 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 

conduct and manifestations. See Industrial America, Inc. v. 

Fulton Indus., Inc., 285 A.2d 412, 415 (Del. 1971). The 

parties' subjective intent is irrelevant. Id. Rather, the 

court's inquiry is "whether a reasonable man would, based 

upon the `objective manifestation of assent' and all of the 

surrounding circumstances, conclude that the parties 

intended to be bound by contract." Leeds v. First Allied 

 8 
Connecticut Corp., 521 A.2d 1095, 1101 (Del.Ch. 1986). As 

Chancellor Allen has noted, 

 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 Fourth Amendment, as 

incorporated by the Fourteenth Amendment, to be free from 

unreasonable searches and seizures. The district court held 

that the direct observation method, as executed by SODAT, 

 9 
did not constitute an "unreasonable" search. Because the 

reasonableness of a search under the Fourth Amendment is 

an issue of law, we exercise plenary review. See Bolden, 953 

F.2d at 822-23 n.23; Dykes v. SEPTA, 68 F.3d 1564, 1568 

(3d Cir. 1995). 

The Fourth Amendment guarantees the "right of the 

people to be secure in their persons . . . against 

unreasonable searches and seizures." U.S. Const. Amend. 

IV. It is well established that the government's collection 

and testing of an employee's urine constitutes a "search" 

under the Fourth Amendment. Skinner v. Railway Labor 

Executives' Assn., 489 U.S. 602, 617; Treasury Employees 

v. Von Raab, 489 U.S. 656, 665 (1989). Ordinarily, the 

Constitution requires the government to obtain a warrant 

supported by probable cause to search a person or his 

property. There are, however, several well-established 

exceptions to the warrant and probable cause 

requirements. The Supreme Court has explained: 

 [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 Rabb, 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 

prove that its search meets a general test of 

"reasonableness." Under this standard, the constitutionality 

of a particular search " `is judged by balancing its intrusion 

on the individual's Fourth Amendment interests against its 

promotion of legitimate governmental interests.' " Skinner, 

489 U.S. at 619 (quoting Delaware v. Prouse, 440 U.S. 648, 

654 (1979)). In particular, the Supreme Court's 

jurisprudence directs us to consider three factors when 

judging the constitutionality of employee drug tests: (1) the 

nature of the privacy interest upon which the search 

intrudes; (2) the extent to which the search intrudes on the 

 10 
employee's privacy; and (3) the nature and immediacy of 

the governmental concern at issue, and the efficacy of the 

means employed by the government for meeting that 

concern. Vernonia School Dist. 47J v. Acton, 115 S.Ct. 2386 

(1995). 

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 Fourth Amendment's 

reasonableness test solely to the direct observation method 

utilized by SODAT and not to the broader issue of 

compulsory drug testing. See id.3 

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, 115 

S.Ct. at 2391 (1995). 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 

_________________________________________________________________ 

3. Because it is the method of testing, rather than the fact of testing, 

which is at issue, we do not find that appellants' post-argument citation 

to Chandler v. Miller, 117 S.Ct. 1295 (1997), is helpful to our 

considerations here. 

 11 
"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 breathalyser 

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 respect 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 

 12 
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, 115 S.Ct. at 2393. 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 

 13 
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 (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 observation method represents a significant intrusion 

on the privacy of any government employee. Urination has 

been regarded traditionally by our society as a matter 

"shielded by great privacy." Skinner, 489 U.S. at 626; 109 

S.Ct. at 1418. Few cases have dealt with the issue of the 

specific method used by the government to test its 

employees for drugs. In Vernonia School District 47J v. 

Acton, the Supreme Court upheld the constitutionality of a 

mandatory random drug testing program that a school

district employed to reduce drug use among its student 

athletes. The Court described the Vernonia drug testing 

procedure in the following manner: 

 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, 

_________________________________________________________________ 

4. In addition, we note the concession of plaintiffs' attorney at oral 

argument that she was not seeking reversal of the trial court's factual 

findings. 

 14 
 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, 115 S.Ct. at 2389. The Supreme Court concluded 

that this method of testing was not unreasonable under the 

Fourth Amendment. "Under such conditions, the privacy 

interests compromised by the process of obtaining the urine 

sample are in our view negligible." Vernonia, 115 S.Ct. at 

2393. 

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." Wilcher, 984 F.Supp. at 619. 

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 restrooms, 

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 

_________________________________________________________________ 

5. See also Dimeo v. Griffin, 943 F.2d 679, 682 (7th Cir. 1991) (noting 

that "[u]rination is generally a private activity in our culture, though, 

for 

most men, not highly private.") 

 15 
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, 115 S.Ct. at 2393. 

Nevertheless, nothing in Vernonia suggests that the

presence of a female monitor in a bathroom when an adult 

female firefighter provides a urine specimen is per se 

unconstitutional under the Fourth Amendment. Moreover, 

the facts of this case suggest that SODAT took substantial 

measures to minimize the intrusion of privacy to female 

firefighters caused by the direct observation procedure. The 

district court found that the female monitors stood to the 

side of the female firefighters and that the monitors did not 

look at the firefighters' genitalia as they urinated, but 

rather in their general direction. Wilcher, 924 F.Supp. at 

617-18. Finally, SODAT provided a nurse-practitioner as a 

monitor for plaintiff Wilcher when she expressed discomfort 

with her first female monitor. Thus, although wefind 

SODAT's intrusion of the female firefighters' privacy to be 

significant, we nevertheless agree with the defendants that 

SODAT has carried out its testing procedure in an 

appropriate and professional manner. 

C. The Governmental Concern 

The third and final component of the "reasonableness" 

test under the Fourth Amendment is the government's

_________________________________________________________________ 

6. We note that our conclusion might differ had the district court 

accepted the firefighters' testimony that SODAT's monitors looked over 

firefighters' shoulders as they provided their urine specimens. Similarly, 

we would be much more concerned with a procedure's intrusion on 

privacy if it required the monitor to stand in front of the firefighter, 

or if 

it demanded the direct observation of the firefighter's genitalia. 

 16 
interest, which must be compelling. With regard to this 

prong, the Supreme Court has observed: 

 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, 115 S.Ct. at 2394-95. 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 Fourth Amendment.

Vernonia, 115 S.Ct. at 2396. See also Skinner, 489 U.S. at 

629 n.9; Illinois v. Lafayette, 462 U.S. 640, 647 (1983). 

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 

 17 
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 days following 

drug use, just in case he is tested on that day. Indeed, Dr. 

Closson stated that cheating has been known to take place 

within the New York agencies, which use the direct 

observation method. 

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, dissenting). Moreover, the fact that 

there exists a less intrusive method of achieving the 

government's goal is not relevant to the Court's Fourth 

Amendment analysis. Skinner, 489 U.S. at 629 n.9; Illinois 

v. Lafayette, 462 U.S. 640, 647 (1983). 

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 

 18 
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 Fourth Amendment 

reasonableness test, we hold that the plaintiffs' Fourth 

Amendment rights have not been violated.7 The City's 

significant interest in preserving the integrity of its 

firefighters' drug tests outweighs their expectations of 

privacy. With regard to the male firefighters, the conditions 

created by SODAT do not differ significantly from the 

conditions present in an ordinary public restroom. As for 

the female firefighters, we note the district court's finding 

that SODAT has taken several steps to minimize the 

potentially intrusive effects of having a person present in 

the same room during the collection of a femalefirefighter's 

urine. So long as SODAT's monitors refrain from looking at 

the firefighters' genitalia, its direct observation procedure 

remains within the boundaries of a constitutional search. 

Accordingly, the district court did not err when it ruled in 

the defendants' favor on the issue of constitutionality under 

the Fourth Amendment.8 

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 Fourth Amendment was an 

issue to be decided by the judge. See Bolden, 953 F.2d at 

822. Based on its reading of Bolden, the district court, with 

_________________________________________________________________ 

7. We note that the D.C. Circuit has come to the opposite conclusion 

with regard to this issue. See Piroglu v. T.R. Coleman, 25 F.3d 1098 (D.C. 

Cir. 1994); National Treas. Employees v. Yeutter, 918 F.2d 968, 976 (D.C. 

Cir. 1990). These cases, however, were decided prior to the Supreme 

Court's decision in Vernonia. 

8. Because we affirm the district court's disposition of plaintiffs' 

Fourth 

Amendment claim, we need not review either the district court's 

determination that SODAT was not a state actor, or its conclusion that 

the City defendants, as sued in their individual capacities, were entitled 

to qualified immunity. 

 19 
plaintiffs' agreement, dismissed the jury. Plaintiffs now 

claim that this was error and that the district court violated 

their right to a jury trial. We reject this argument as lacking 

merit. Although plaintiffs had a right to a jury trial, they 

waived that right when they acquiesced in the district 

court's dismissal of the jury. 

 Rule 39(a) of the Federal Rules of Civil Procedure 

 states: 

 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 stipulationfiled 

 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. 

Fed. R. Civ. P. 39(a) (emphasis added). This Court has 

stated that once a party makes a timely demand for a jury 

trial, that party subsequently waives that right when it 

participates in a bench trial without objection. See Cooper 

v. Loper, 923 F.2d 1045, 1049 (3d Cir. 1991). Numerous 

courts have adopted this position. See generally 5 James 

Wm. Moore et al., Moore's Federal Practice, P39.03 n.5-6 

(2d ed. 1988) (consent can be inferred from conduct of 

parties or counsel). See also Royal American Managers, Inc. 

v. IRC Holding Corp., 885 F.2d 1011 (2d Cir. 1989) (plaintiff 

waived right to jury trial in securities action by 

participating in bench trial without objection); Pope v. 

Savings Bank of Puget Sound, 850 F.2d 1345, 1355 (9th 

Cir. 1988) (counsel's agreement with court's announced 

intent to dismiss jury, as well as actual knowledge that jury 

was being discharged, constituted waiver of jury trial right 

under Rule 39(a)). 

Based on these principles, we find that the plaintiffs 

waived their jury trial right under Rule 39(a). On the third 

day of trial, the plaintiffs' attorneys submitted a letter to 

the district court notifying it that under Bolden the issue of 

reasonableness under the Fourth Amendment was a legal 

 20 
issue for the court. In response to this letter, the trial judge 

stated his intention to dismiss the jurors because there 

remained no liability questions for them to decide. The 

plaintiffs' counsel objected to this course of action only 

insofar as damages were concerned. The court agreed that, 

should the plaintiffs prevail on any of the liability 

questions, he would either recall the jury or assemble a 

new one to hear evidence relating to damages. 

Based on the dialogue between the district judge and the 

plaintiffs' attorney, we conclude the plaintiffs waived their 

jury trial right under Rule 39(a). The sole concern of the 

plaintiffs' attorney was that the trial court preserve the 

damages issue for a jury trial in the future. She did not 

argue that the plaintiffs were entitled to a jury on the 

invasion of privacy claims. Nor did she argue that the 

plaintiffs were entitled to a jury verdict on the factual 

aspects of their Fourth Amendment claim (such as whether 

the SODAT employees actually looked at the firefighters' 

genitals while they urinated). Hence, whatever rights the 

plaintiffs had, their counsel waived when she explicitly 

agreed with the district court's decision to dismiss the jury.9 

V. FOURTH AMENDMENT "REASONABLENESS" VS. THE 

 STATE LAW "REASONABLE PERSON" STANDARD 

Finally, we will reverse the district court's ruling insofar 

_________________________________________________________________ 

9. Although the plaintiffs waived their jury trial rights, we nevertheless 

note that the district court misapplied our statement in Bolden when it 

concluded that there were no factual issues for the jury to decide. The 

fact that reasonableness under the Fourth Amendment is a legal issue 

does not make all issues under the Fourth Amendment legal in nature. 

For example, in Dykes v. SEPTA, 68 F.3d 1564, 1568 (3d Cir. 1995), 

we addressed a claim that SEPTA had violated its own drug-testing 

policy by testing the plaintiff without reasonable suspicion. Reiterating 

our statement in Bolden, we held that the specific question of whether 

SEPTA had reasonable suspicion to test the plaintiff (i.e. evidence that 

he might be using drugs) was factual. See 68 F.3d at 1567. Thus, our 

statement in Bolden applied only to the ultimate determination of 

whether SODAT's drug testing procedure qualified as "reasonable" under 

the Fourth Amendment, not to any determination of the factual elements 

of that procedure. 

 21 
as it equated the Fourth Amendment "reasonableness"

standard with the much different common law "reasonable 

person" standard. Invasion of privacy is a tort claim under 

state law. Delaware adopted the Restatement of Tort's 

definition of this claim in Barbieri v. News-Journal Co., 189 

A.2d 773, 774 (Del. 1963). Under the Restatement, 

plaintiffs can prove a common law invasion of privacy if 

they show that defendants intentionally intruded on the 

firefighters' physical solitude or private affairs or concerns 

in such a manner that a reasonable person wouldfind

"highly offensive." (Restatement (Second) of Torts, S 652B 

(1977)). See also Barker v. Huang, 610 A.2d 1341, 1350 

(Del. 1992). 

The district court concluded that since it had ruled 

against plaintiffs on their constitutional claim, it could not 

possibly find in their favor on their state law invasion of 

privacy claim. "Even assuming that the monitors intruded 

upon the firefighters' solitude, the Court has determined 

that the collection procedures used by SODAT were 

reasonable under constitutional principles." Wilcher, 924 

F.Supp. at 619. 

The district court's assumption that "reasonableness" 

under the Fourth Amendment is analogous to a "reasonable 

person" standard under state common law is erroneous. A 

state may provide its citizens with greater protection of 

their individual rights than does the federal constitution. 

For example, in Kelley v. Schlumberger Technology Corp., 

849 F.2d 41 (1st Cir. 1988), the court struck down a drug 

testing procedure because it violated the state constitution. 

Moreover, it is beyond argument that a district court 

cannot, a fortiori, apply a federal standard of law to a cause 

of action grounded in the common law of the state in which 

it sits. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 

(1938). Hence, the trial court incorrectly concluded, as a 

matter of law, that a reasonable Delawarean could not find 

the drug testing procedure "highly offensive," simply 

because the test might have passed muster under the

Fourth Amendment.10 We will therefore remand this issue 

_________________________________________________________________ 

10. The district court also dismissed the plaintiffs' invasion of privacy 

claims because, "the `intrusion into physical solitude' claimed by the 

 22 
to the district court to determine whether the "reasonable 

person" standard under Delaware common law wouldfind 

the practices employed by SODAT "highly offensive."11 

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 Fourth 

Amendment. 

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. 

_________________________________________________________________ 

Plaintiffs resulting from the direct observation method was consented to 

by written contract." Wilcher, 924 F.Supp. at 619. We find the court's 

statement on this matter puzzling, as the court has cited no portion of 

the Collective Bargaining Agreement in which the firefighters actually 

consented to such a method of drug testing. 

11. We know of no Delaware case that has discussed or been presented 

with this issue. We do not predict at this juncture what the Delaware 

Supreme Court would do if presented with this issue. Cf. Epstein Family 

Partnership v. Kmart Corp., 13 F.3d 762, 765 (3d Cir. 1994) (if state 

court has not ruled on issue, federal district court must predict how it 

would decide issue). Moreover, the fact that direct observation method 

passes muster under the Fourth Amendment certainly may be raised by 

the City and SODAT in defense of the invasion of privacy claim. We 

simply hold that a federal district court cannot presume that a state's 

common law tort standard and a constitutional balancing test would 

reach the same result when applied to the same set of facts. The 

reasonableness of a procedure under the Fourth Amendment may be 

relevant to the inquiry under state law, but it is not necessarily 

dispositive of the state law claim. 

 23 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 24