Cecelia Yin v. State of California Daryll Tsujihara Linda Nicholson Robert Catale and Tony Sunseri

specially concurring:

I certainly agree that the State did not violate Yin’s Fourth Amendment rights by requiring her to undergo an independent medical examination. I would raise a flag of caution, however, about the court’s expansive statement that all medical examinations im *874 plicate the Fourth Amendment, whether or not the examination entails any particularly intrusive procedures.

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated-” U.S. Const. amend IV. Before we apply the reasonableness standard, the event at issue must constitute a “search” or a “seizure.” The Supreme Court unquestionably has deemed certain “medical” procedures searches. A “compelled intrusio[n] into the body for blood” is a search. Schmerber v. California, 384 U.S. 757, 767-68 , 86 S.Ct. 1826, 1833-35 , 16 L.Ed.2d 908 (1966). A breathalyzer test, “which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis,” is a search. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616-17 , 109 S.Ct. 1402, 1412-13 , 103 L.Ed.2d 639…

Opinion by Judge REINHARDT; Special Concurrence by Judge O’SCANNLAIN.

The question before us is whether the state may compel an employee with a prolonged and egregious history of absenteeism and a record of on-the-job illnesses to undergo a fitness-for-duty medical examination. California’s civil service statute specifically authorizes such tests, as does the employee’s *867 union contract. The employee claims that requiring her to submit to an unwanted medical examination would violate both the American with Disabilities Act (the ADA), 42 U.S.C. § 12101 et seq. and the Fourth Amendment. We disagree on both counts.

Background

The plaintiff, Cecelia Yin, works as a tax auditor for the State of California Employment Development Department. For five years before the commencement of this action, Yin used sick leave, vacation time in lieu of sick leave, and dock time in lieu of sick leave at rates far in excess of the average for tax auditors. The record shows the following: In 1989 and 1990, due to illness Yin missed approximately two and one half times as much work as the average auditor. In 1991, she missed about 20% more work, and in 1992 and 1998 respectively, she missed five…

95 F.3d 864 65 USLW 2222 , 5 A.D. Cases 1487 , 18 A.D.D. 100, 8 NDLR P 332 , 96 Cal. Daily Op. Serv. 6798 , 96 Daily Journal D.A.R. 11 ,090 Cecelia YIN, Plaintiff-Appellant, v. STATE OF CALIFORNIA; Daryll Tsujihara; Linda Nicholson; Robert Catale; and Tony Sunseri, Defendants-Appellees. No. 94-17057. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 13, 1996. Decided Sept. 11, 1996. Donna Timmerman, San Jose, California, for plaintiff-appellant. Angela Botelho, Deputy Attorney General, San Francisco, California, for defendants-appellees. Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. CV-94-20116-JW. Before: REINHARDT, THOMPSON, and O'SCANNLAIN, Circuit Judges. Opinion by Judge REINHARDT; Special Concurrence by Judge O'SCANNLAIN. REINHARDT, Circuit Judge: 1 The question before us is whether the state may compel an employee with a prolonged and egregious history of absenteeism and a record of on-the-job illnesses to undergo a fitness-for-duty medical examination. California's civil service statute specifically authorizes such tests, as does the employee's union contract. The…