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Macklin v. City of Santa Cruz2/5/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Richard H. Macklin was employed as a recycling center mechanic for defendant City of Santa Cruz (the City). After the City terminated Macklin's employment when he tested positive on a drug test, he brought an action for damages against the City. The jury found in favor of Macklin and awarded him damages in the amount of $60,000. In its appeal the City contends that it did not breach the implied covenant of good faith and fair dealing as a matter of law in failing to inform Macklin that he was required to participate in drug testing for two years. The City also contends that there is insufficient evidence to support the finding that it breached the covenant of good faith and fair dealing by refusing to provide a retest of his urine sample or by failing to consider his explanation of the test results. We agree and reverse the judgment.
Statement of Facts
On July 15, 1991, Macklin began working for the City as a recycling center mechanic at the landfill. Pursuant to his job classification, Macklin was required to possess a Class B motor vehicle license in order to operate commercial vehicles. Macklin was occasionally required to operate a "roll-off truck," which was used to move large dumpsters containing debris. However, Macklin's primary responsibility was maintaining, repairing, and servicing the recycling center equipment, including balers, multiple conveyors, grabbers, forklifts, and loaders. He would also operate the heavy equipment in order to be able to repair it.
During Macklin's employment with the City, he received positive job evaluations and regular pay increases. He had no history of disciplinary problems.
In February 1994, the Department of Transportation (DOT) issued regulations implementing the Omnibus Transportation Employee Testing Act of 1991. The purpose of the regulations was to promote transportation industry safety and public safety by requiring employers to test safety sensitive employees for drug and alcohol use. Beginning on January 1, 1995, the regulations were in effect for those agencies with 50 or more covered employees. Pursuant to these regulations, the City adopted a program of random drug testing for employees in designated "safety sensitive" positions in 1995. This policy was set forth in the City's "Policy on Drug and Alcohol Pursuant to the Department of Transportation Regulations," designated as Administrative Procedure Order II-43 (APO).
As an employee in a designated safety sensitive position, Macklin was required to submit to random alcohol and drug testing. The City gave Macklin a copy of the APO, and he executed a "Certification of Notice of Policy on Alcohol and Controlled Substances Testing," acknowledging his receipt of the APO on February 1, 1995. The City gave Macklin another copy of the APO, and he acknowledged that he received it on January 22, 1996.
When Macklin received the APO, he was aware that he was subject to random testing in accordance with the terms of the APO. He also understood that he would face disciplinary action if he received a positive drug test, and that, if he tested positive, his continued employment with the City would be subject to a "Last Chance Agreement" (the Agreement) pursuant to the APO. Though Macklin knew that he was subject to random drug testing, he continued to use marijuana four to five times
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