                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             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Precedential or Non-Precedential: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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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 by-
product 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.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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