United States District Court, D. Hawaii
REBEKAH TAYLOR-FAILOR, individually and on behalf of the Class of Prospective Hawaii County employees and the Class of Previous Applicants for Hawaii County Employment, Plaintiff,
COUNTY OF HAWAII, a municipal corporation, Defendant
For Rebekah Taylor-Failor, individually and on behalf of the Class of Prospective Hawaii County Employees and the Class of Previous Applicants for Hawaii County Employment, Plaintiff: Daniel M. Gluck, Lois K. Perrin, LEAD ATTORNEYS, American Civil Liberties Union Hawaii, Honolulu, HI.
For County of Hawaii, a municipal corporation, Defendant: Jennifer D. K. Ng, LEAD ATTORNEY, County of Hawaii, Office of the Corporation Counsel, Hilo, HI; Laureen L. Martin, Office of the Corporation Counsel-Big Island, Hilo, HI.
ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER
Derrick K. Watson, United States District Judge.
Rebekah Taylor-Failor seeks a temporary restraining order prohibiting the County of Hawai'i from requiring her to submit to a urinalysis before she begins working for the County as a Legal Clerk II on March 16, 2015. Because the County has failed to establish the requisite special need to conduct a suspicionless search of Taylor-Failor, an applicant for what the County acknowledges is a non-safety-sensitive position, the Court preliminarily concludes that: the urinalysis would violate Taylor-Failor's Fourth Amendment rights; Taylor-Failor has demonstrated a likelihood of irreparable harm without the relief requested; the balance of equities tips in her favor; and the issuance of an injunction is in the public interest. Accordingly, Taylor-Failor's Motion for Temporary Restraining Order is GRANTED.
Taylor-Failor applied for and was offered a Legal Clerk II position with the County's Office of the Prosecuting Attorney. After accepting the position, County personnel informed her that she would need to undergo a medical examination prior to her March 16, 2015 start date. As a result, on January 30, 2015, the County sent Taylor-Failor a medical examination report to be completed by a physician and a web link to the County's Pre-Entry Medical Examination Guide. Declaration of Tammylyn Kaniho ¶ ¶ 5-6; Declaration of Rebekah Taylor-Failor ¶ ¶ 4-5 & Exs. 2-3.
Taylor-Failor did not want to provide the detailed medical information mandated by the County, but was " afraid that if [she] didn't, [she] would lose the job." Taylor-Failor Decl. ¶ 7. Because she resided in Oregon at the time of her hiring, Taylor-Failor went to her own physician to have the medical examination conducted. On February 14, 2015, she emailed the medical examination report to Tammylyn Kaniho, Private Secretary to the Prosecuting Attorney, who also serves as the designated Human Resources representative for the Office of the Prosecuting Attorney. Taylor-Failor's report, however, did not include any lab work or urinalysis. Taylor-Failor Decl. ¶ ¶ 8-10; Kaniho Decl. ¶ ¶ 2-8. Accordingly, Kaniho set up an appointment for Taylor-Failor with County physician Walter Wang, M.D., for March 10, 2015 and instructed Taylor-Failor that she would need to provide a urine sample at that time. Taylor-Failor Decl.
¶ 10; Kaniho Decl. ¶ 10. Taylor-Failor moved from Oregon to Kailua-Kona on March 5, 2015 in order to take the Legal Clerk II position. Taylor-Failor Decl. ¶ 12. According to Taylor-Failor, the County " made it clear to me that the medical screening, and the urinalysis, [would be] required before I [could] start my job." Taylor-Failor Decl. ¶ 11.
The urinalysis does not test for " prescription or illegal drugs, or for alcohol." Declaration of Walter Wang ¶ 11. Instead, according to the County, the urinalysis is intended to " test for protein, sugar, red and white blood cells, specific gravity, nitrates, ketones, and bilirubin[,]" and " is medically reasonable and necessary in order . . . to formulate an opinion as to an individual's overall physical health." Wang Decl. ¶ ¶ 8-9. According to Dr. Wang, the " sole purpose of the test is to provide the County with an accurate assessment of the pre-employment patients' general health and ability to perform in the appropriate physical effort group." Wang Decl. ¶ 12.
Gabriella Cabanas, a County Human Resources Manager, explains that pre-entry medical examinations are required of all County applicants after a job offer has been extended and accepted, but prior to entry into a civil service position. " The purpose of the pre-entry medical examination is to review the applicant's medical history and current health to ensure that persons seeking civil service employment meet the health and physical standards necessary to perform the essential job duties of the position, without or without reasonable accommodation, and without posing a direct threat to the health or safety of the person or others." Cabanas Decl. ¶ 6. According to Cabanas, if Taylor-Failor " refused to complete all of the answers on the medical questionnaire and the County physician required this information, the County would likely not hire [her]." Cabanas Decl. ¶ 14. On March 9, 2015, Taylor-Failor filed the instant motion for temporary restraining order seeking to begin work without submitting to the County's urinalysis.
STANDARD OF REVIEW
The standard for issuing a temporary restraining order is identical to that for issuing a preliminary injunction. See, e.g., Hawaii v. Gannett Pac. Corp., 99 F.Supp.2d 1241, 1247 (D. Haw.1999); cf. Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing that an analysis of a preliminary injunction is " substantially identical" to an analysis of a temporary restraining order).
" A preliminary injunction is 'an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'" Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam ) (citation omitted)); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted) ...