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Eastop v. Bennion

United States District Court, D. Idaho

November 4, 2019

CRAIG EASTOP, Plaintiff,
v.
SHAWN BENNION, ROB CLAYTON, KELLY GREEN, ELLEN MANDEVILLE, KEVIN GARRISON, all in their official Capacities as members of the BOARD OF TRUSTEES OF THE BLAINE COUNTY SCHOOL DISTRICT, and GWENCAROL HOLMES, in her official capacity as Superintendent, Defendants.

          MEMORANDUM DECISION & ORDER

          B. Lynn Winmill, U.S. District Court Judge.

         INTRODUCTION

         Before the Court are Plaintiff's Partial Motion for Summary Judgment (Dkt. 15), Defendants' Motion for Summary Judgment (Dkt. 17), Plaintiff's Motion to Strike Declaration of Jetta Hatch Mathews (Dkt. 22), and Defendants' Motion to Substitute Declarations and Briefing nunc pro tunc (Dkt. 24). The Court heard oral arguments on August 22, 2019 and took the motions under advisement. For the reasons explained, the Court will deny Plaintiff's motion for partial summary judgment, deny in part and grant in part Defedants' motion for summary judgment, deny Plaintiff's motion to strike, and deny Defendants' motion to substitute.

         BACKGROUND

         Plaintiff Craig Eastop filed a complaint for wrongful termination alleging violations of Idaho law, breach of contract, violation of the Rehabilitation Act, and constitutional violations. Due to the complexity of the claims and corresponding facts, specific facts will be discussed in the context of each claim, what follows is a general factual background.

         Craig Eastop was an elementary school teacher in the Blaine County School District from 2000 until he was terminated on November 17, 2017. Complaint ¶¶ 6, 7. Eastop taught elementary Physical Education from 2006 until 2017. Eastop Depo., Def.'s Ex. 20 at 27-28, Dkt. 17-3. During his employment Eastop received positive teaching evaluations and was regarded as a good teacher. Evaluation, Pl.'s Ex. C, Dkt. 15-6 at 7-14; Henson Depo., Def.'s Ex. 21 at 51, Dkt 17-3.

         Beginning in the fall of 2016 and continuing through spring of 2017 school district officials received reports of Eastop's inappropriate behavior and struggle with alcohol. In September, Principal Brad Henson received an email from a teacher regarding sexual comments Eastop made to her. Def.'s Ex. 3, Dkt. 29-4. Principal Henson sent Eastop an email addressing these comments and raising concerns about his alcohol use. Def.'s Ex. 4, Dkt. 29-4. In October, Eastop was arrested for driving under the influence, the charges were dismissed because he was below the legal limit. Eastop Depo. at 21-22, Dkt. 17-3. Superintendent John Blackman[1] and Human Resources Director Shannon Maza met with Eastop regarding the arrest and to discuss a plan for his sobriety. Id. at 43-44.

         In April, 2017, Principal Henson was contacted by PTA members regarding Eastop's behavior at a PTA fundraiser off school grounds, the PTA members reported that Eastop was noticeably altered and his thoughts were unconnected to the point that their children asked what was wrong. Pl.'s Ex. J, Dkt. 15-15. Principal Henson emailed Eastop and Maza about the report. Id. In late April, 2017, Eastop led a school assembly in Principal Henson's absence. Eastop had previously been hit in the face with a rock on the playground and described using the assembly as a teachable moment. Eastop Depo. at 61-64, Dkt. 17-3. Principal Henson received multiple reports about Eastop's behavior at the assembly. Henson Depo. at 20-23, Dkt. 17-3. Eastop's behavior was described as erratic and inappropriate. Cassalia Letter, Def.'s Ex. 9, Dkt. 29-4. On May 11, 2017 Principal Henson found Eastop with chewing tobacco in his lip in violation of the District's anti-tobacco policy. Compl. ¶ 13. On May 12, 2017 Principal Henson was called outside based on a report Eastop had been hit with another rock and was screaming at the students. Henson Depo. at 25, Dkt. 17-3. Henson found Eastop again had tobacco residue in his lip. Id. at 25-26. Following this incident, Henson and Maza met with Eastop and Joy Spencer, the teacher's union representative. Id. at 26. Henson and Maza discussed the concerns raised about Eastop's behavior at the assembly and Eastop's tobacco use. Id. When asked if he knew about the Tobacco Policy, Eastop said he knew about it and chose to violate it. Id.; Eastop Depo. at 31, Dkt. 17-3. Following the meeting Eastop was placed on administrative leave pending investigation of his behavior. Henson Depo. at 27; Def.'s Ex. 27, Dkt. 29-3. Henson subsequently searched Eastop's office and found a can of chewing tobacco. May 12, 2016 Meeting Notes, Pl.'s Ex. F, Dkt. 15-10 at 14. On May 23, 2017 a parent of a student communicated to Maza that Eastop had previously stopped by their house and seemed intoxicated. Def.'s Ex. 12, Dkt. 29-5. Eastop said he had a couple of beers but was not intoxicated. Eastop Depo. at 46, 120-21, Dkt. 17-3. During the investigation, Maza received reports from teachers that Eastop appeared to be under the influence at school. Maza Depo. at 41-43, Dkt. 17-4.

         On May 25, 2017 Superintendent GwenCarol Holmes recommended to the Board of Trustees that Eastop be placed on probation. Holmes Depo. at 7, Dkt. 17-3; Maza Depo. at 32, Dkt. 17-4. Maza had previously recommended termination to Holmes. Maza Depo. at 13-14, 32, Dkt. 17-4. Henson also felt that termination was appropriate. Henson Depo. at 32, Dkt. 17-3. The Board ultimately voted to begin termination proceedings. Bennion Depo. at 17-18, Dkt. 17-4. At some point between the May decision to begin termination proceedings and August 15, 2017 the Board changed its decision and instead placed Eastop on Probation. See Notice of Probation, Pl.'s Ex. F, Dkt. 15-10 at 15. The August 15 notice of probation included a Program for Supervision and Evaluation (“Probation Terms”) setting out Eastop's terms of probation. Id. at 16. The Probation Terms contained a requirement that Eastop submit to drug and alcohol testing at the discretion of “Mr. Henson or designee or any administrator from the District office.” Probation Notice, Def.'s Ex. 17, Dkt. 17-3 at 16. On August 22, 2017 Maza, Henson, Eastop, and Eastop's Union Representatives Linda Jones and Tryntje VanSlyke met to discuss the terms of probation and Eastop's employment. Maza Depo. at 53, Dkt. 17-4; Eastop Depo. at 83-85, Dkt. 17-3. At the meeting, Eastop signed his employment contract but refused to sign the Probation Terms, because he objected to the testing provision. Eastop Depo. at 84, 86-87, Dkt. 17-3; Maza Depo. at 53-54, Dkt. 17-4. Also, at the meeting, Jones raised concerns that the Board of Trustees may be biased against Eastop. Transcript, Pl.'s Ex. N, Dkt. 15-20 at 3.

         The Probation Terms were modified on August 23, 2017 to remove “or any administrator from the District office, ” but were otherwise unchanged. Compare Def.'s Ex. 17, Dkt. 17-3 at 16 with Pl.'s Ex. F, Dkt. 15-10 at 20. Henson and Maza both signed the Probation terms, but Eastop did not. Pl.'s Ex. F, Dkt. 15-10 at 20. On the August 23, at the direction of Superintendent Holmes, Maza asked Eastop to submit to drug and alcohol testing. Maza Depo. at 63, Dkt. 17-4. Maza did not suspect Eastop was under the influence of drugs or alcohol at that time, instead she described the test as a “baseline.” Id. at 64. Eastop refused to submit to testing. Id. at 65; Eastop Depo. at 93-94, Dkt. 17-3. Eastop was subsequently placed on administrative leave for violating the terms of his probation, specifically refusing to submit to drug and alcohol testing. Notice of Admin. Leave, Pl.'s Ex. G, Dkt. 15-12 at 41.

         On September 12, 2017 Board of Trustees Chairman, Shawn Bennion, notified Eastop that the Board had voted to begin termination proceedings and had scheduled a due process hearing. Notice of Due Process Hearing, Pl.'s Ex. H, Dkt. 15-13 at 10. The Due Process Hearing was held on October 25, 2017. Transcript, Def.'s Ex. 1, Dkt. 17-2. Marvin Smith presided as the hearing officer, the School District was represented by Scott Marotz of Anderson, Julian & Hull LLP, and Eastop was represented by Paul Stark of the Idaho Education Association. Id. at 1-2. At the beginning of the hearing Stark and Marotz conducted voir dire of the Board. Id. at 10. The Board members testified that there was no reason they could not have an open mind, hear evidence, and make a decision based on that evidence. Id. at 27-28. Following the hearing, the Board decided to terminate Eastop for his refusal to submit to testing as prescribed by the Probation Terms. Findings of Fact, Conclusions, and Decision, Pl.'s Ex. H, Dkt. 15-13 at 19.

         Eastop filed this action against the Board of Trustees, and each individual board member in their official capacities, and against GwenCarol Holmes in her official capacity. Compl. at 1. Eastop alleges violation of Idaho law, breach of contract, infliction of emotional distress, violations of the Rehabilitation Act, and violations of the Constitution, including an unreasonable search under the Fourth Amendment and violation of his procedural due process rights under the Fourteenth Amendment. Id. at 12-25. He seeks reinstatement as a teacher and damages. Id. at 26.

         LEGAL STANDARD

         1. Motion to Strike

         Federal Rule 56(c) governs the procedures that the parties must comply with to support or dispute a motion for summary judgment. See Fed.R.Civ.P. 56(c). Under Rule 56(c)(2), a party “may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Id. An affidavit is an acceptable form in which to present evidence in the summary judgment context. However, “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

         Rule 56 makes clear then that only admissible evidence may be considered in ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); see also Fed. R. Civ. P. 56(c). However, in determining admissibility for summary judgment purposes, it is the contents of the evidence rather than its form that must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the evidence could be presented in an admissible form at trial, those contents may be considered on summary judgment. Id.

         As to the parties filing motions to strike as a means of objecting to the evidence submitted in support of or against a pending motion for summary judgment, the Advisory Committee Notes to the most recent amendments to Rule 56 provide that a Rule 56(c)(2) objection “functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike.” Fed.R.Civ.P. 56 advisory committee's note (2010 Amendments). Motions to strike are limited to pleadings, which are defined by Federal Rule 7(a); affidavits and exhibits filed in support of, or in opposition to, a motion for summary judgment are not pleadings. See Albertson v. Fremont County, Idaho, 834 F.Supp.2d 1117, 1123 n.3 (D. Idaho 2011). Thus, the motion to strike filed in this case will be construed as objections to the materials filed by the opposing party.

         2. Summary Judgment

         Summary judgment is appropriate where a party can show that, as to any claim or defense, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). One of the principal purposes of the summary judgment “is to isolate and dispose of factually unsupported claims ....” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural shortcut, ” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact - a fact “that may affect the outcome of the case.” Id. at 248.

         The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

         The Court must be “guided by the substantive evidentiary standards that apply to the case.” Liberty Lobby, 477 U.S. at 255. If a claim requires clear and convincing evidence, the question on summary judgment is whether a reasonable jury could conclude that clear and convincing evidence supports the claim. Id.

         When cross-motions for summary judgment are filed, the Court must independently search the record for factual disputes. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The filing of cross-motions for summary judgment - where both parties essentially assert that there are no material factual disputes - does not vitiate the court's responsibility to determine whether disputes as to material fact are present. Id.

         The moving party bears the initial burden of demonstrating the absence of a genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).

         This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Deveraux, 263 F.3d at 1076. The non-moving party must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a genuine dispute of material fact exists. Celotex, 477 U.S. at 324.

         However, the Court is “not required to comb through the record to find some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quotation omitted). Instead, the “party opposing summary judgment must direct [the Court's] attention to specific triable facts.” Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).

         MOTION TO STRIKE AND OBJECTIONS TO EXHIBITS

         1. Eastop's Motion to Strike

         Eastop moves to strike the Declaration of Jetta Hatch Mathews in Support of Motion for Summary Judgment (Dkt. 17-2) and the corresponding exhibits attached thereto. Pl.'s Mot. Strike at 2, Dkt. 22. Estop argues that the declaration does not comply with Federal Rule of Civil Procedure 56(c)(4) because it is not based on personal knowledge and the exhibits are not properly authenticated. Id. at 2-3. Eastop also argues that many of the exhibits present inadmissible hearsay evidence. Id. at 3-4. Finally, Eastop argues that the Defendants violated the Court's protective order (Dkt. 13) for disclosing pages 45-46 of Maza's Deposition and Exhibit 18 which is a letter from Eastop's counselor regarding potential accommodations. Id. at 4-5; Pl.'s Reply 6-8, Dkt. 32.

         a. Authentication

         The declaration of Jetta Hatch Mathews in support of the Defendants' motion for summary judgment (Dkt. 17-2) included twenty-seven exhibits including depositions, letters to Eastop from the school district, and emails or notes relaying concerns about Eastop's behavior. Eastop argues that Mathews did not have personal knowledge of these exhibits and thus they were not properly authenticated. Pl.'s Mot. Strike at 3, Dkt. 22. Defendants submitted supplemental declarations with their response to Eastop's motion. Dkt. 29-1 (Declaration of Jetta Hatch Mathews), 29-3 (Declaration of GwenCarol Holmes), 29-4 (Declaration of Brad Henson), 29-5 (Declaration of Shannon Maza).

         Exhibits 1 (Due Process Hearing Transcript), 2 (Board of Trustees Finding of Fact and Conclusions of Law), 14 (May Notice of Due Process Hearing), 18 (Letter from Vegwert), 19 (September Notice of Due Process Hearing), 20-24 (Complete Deposition Transcripts), 26 (Master Agreement between Blaine County School District and Blaine County Education Association), and 27 (May Notice of Administrative Leave) are properly authenticated under Federal Rule of Evidence 901(b)(4). The defects in authentication of the remaining exhibits have been cured by the supplemental declarations filed with the Defendants' response. Fed.R.Evid. 901(b)(1).

         b. Hearsay

         Eastop objects to the following exhibits as inadmissible hearsay: 3 (Henson forward to Maza of Ellison email), 4 (Henson forward to Maza - email to Eastop re Ellison complaint), 5 (Eastop email exchange with Holmes re DUI), 6 (Notes of Oct 26 meeting between Maza, Blackman, and Eastop), 7 (Henson forward to Maza of email to Eastop re parent concerns), 8 (anonymous concerns re Eastop's slurred speech), 9 (statements from teachers re concerns about April 28 assembly), 10 (Henson forward to Maza of Slotten email re child concerns), 11 (statement from Ellison re Eastop's behavior), 12 (Parent concern re Eastop behavior), 14 (May 31 notice of due process hearing), 15 (Jones forward to VanSlyke of anonymous teacher complaint), 16 (email exchange between Jones and Maza re interactive process for Eastop). Mot. Strike at 4, Dkt. 22. Defendants argue that these exhibits are not offered for the truth of the matter asserted. Def.'s Resp. at 5, Dkt. 29. Instead, Defendants argue that exhibits 4, 7, 13, and 14 provide Eastop with notice that his conduct was inappropriate and needed corrected. Id. at 6. Defendants argue that exhibits 3, 8, 9, 10, 11, 12, and 15 are offered to show effect on the recipient and demonstrate that placing Eastop on probation was reasonable. Id.

         The Court has relied on Defendants' exhibits 3, 4, 9, 10, and 12 in forming its opinion. The Court finds that these exhibits are not hearsay because they are offered for the effect on the on the School District staff (Ex. 3, 9, 10, 12) or notice to Eastop regarding his behavior (Ex. 4). See United States v. Tamura, 694 F.2d 591, 598 (9th Cir. 1982). The claims presented in the exhibits regarding Eastop's behavior, whether or not true, ultimately go to whether Defendants were justified in imposing suspicionless testing. Accordingly, Eastop's objections to these exhibits are overruled. Eastop's remaining objections are overruled as moot.

         c. Violation of the Protective Order

         Eastop claims that defendants violated the Courts protective order by filing Exhibit 18 (letter from Eastop's therapist re accommodations) and Maza's full deposition, without moving to seal those documents. See Pl.'s Reply at 6-7, Dkt. 32. Eastop argues that Exhibit 18 is a medical record that was marked confidential when produced to Defendants after entry of the protective order. Defendants respond that Exhibit 18 is not a medical record and was produced before the protective order was filed and is thus not protected. Def.'s Resp. at 8-9.

         Page 46 of Maza's deposition refers to a District employee by name who was terminated for testing positive for alcohol. That employee is not involved in this litigation. The parties agreed during the deposition that that employee's information would remain confidential. Accordingly, the Court will order that Maza's Deposition Transcript (Dkt. 17-4, Dkt. 29-2) be sealed.

         Exhibit 18 is a letter from Eastop's therapist discussing possible accommodations. It relates to potential mental health diagnosis. The Court has not relied on this exhibit in reaching its decision, so to the extent it is objected to, that objection is moot. However, the Court will order that Defendants' Exhibit 18 (Dkt. 17-3, Dkt. 29-1) be sealed. Eastop's request for attorneys' fees related to the Motion to Strike is will be denied.

         2. Defendants' Objection to Exhibit M

         Defendants object to Plaintiff's Exhibit M (Dkt. 15-19) as inadmissible hearsay. Def.'s App'x, Dkt. 28-4. Exhibit M is a written note of a conversation between Linda Jones and HR Director Shannon Maza. Eastop argues that Jones' notes are admissible under Fed.R.Evid. 801(d)(2)(D) because Maza's statements are statements of a party opponent used against that party. Pl.'s Reply at 8-9, Dkt. 31. Eastop argues that Maza was employed by the School District, of which the Board of Trustees is the governing body, and as such she was acting as their agent. Defendants argue that Maza was no longer in her official capacity after the meeting ended so the last half of the notes are inadmissible. Def.'s App'x at 2, Dkt. 28-4.

         When considering objections to evidence, at the summary judgment stage, the Court need not decide whether the note itself is admissible, but whether the information contained in the note is admissible. Fraser, 342 F.3d at 1036-37. At trial Maza could be called to testify about statements she made to Jones and VanSlyke. Thus, the information contained in the Jones' note could be properly introduced at trial through Maza's testimony. Accordingly, the objection is overruled.

         MOTIONS FOR SUMMARY JUDGMENT

         Eastop filed a motion for partial summary judgment as to his state law claims, breach of contract claims, Fourth Amendment claims, due process claim, and rehabilitation act claims. Pl.'s Mot., Dkt. 15, 15-1. Defendants filed a motion for summary judgment as to all of Eastop's claims. Def.'s Mot., Dkt. 17, 19.

         1. Constitutional Claims

         Eastop alleges the Board of Trustees violated his constitutional rights by requiring him to submit to an unreasonable search and then, when he refused, terminating him. Compl. at 23-24. Eastop also alleges the Board violated his procedural due process rights, arguing that the Board members had unfairly prejudged or were biased against him. Id. at 22. Eastop seeks to vindicate these alleged violations through 42 U.S.C. § 1983.[2]

         a. Fourth Amendment Claim

         The Probation Terms required Eastop to submit to drug and alcohol testing at the discretion of Principal Henson or his designee. Pl.'s Ex. F, Dkt. 15-10 at 20. Eastop was asked to submit to drug and alcohol testing on August 23, 2017. Maza Depo. at 63, Dkt. 17-4. Eastop refused, and was ultimately terminated for this refusal because the Board found that it violated the terms of his probation. Findings of Fact, Conclusions, and Decision, Pl.'s Ex. H, Dkt. 15-13 at 19. Eastop argues that the search condition in the Probation Terms was unreasonable and thus his Fourth Amendment rights were violated when he was fired for refusing to submit to an unreasonable search. Pl.'s Mem. at 7, Dkt. 15-1.

         “[T]he Fourth Amendment protects individuals from unreasonable searches conducted by the Government, even when the Government acts as an employer....” National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). The Fourteenth Amendment extends the requirements of the Fourth Amendment to state officers, including public school officials. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995).

         It is not disputed that the urinalysis and breathalyzer tests that Eastop was asked to take are searches under the Fourth Amendment. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616-17 (1989). Defendants make a series of arguments to justify the inclusion of the testing provision in the Probation Terms.[3]Defendant's argue 1) that Eastop refused to test and thus has no legally actionable claim for violation of his Fourth Amendment Rights, 2) Eastop consented to testing by signing his employment contract, 3) Defendants had individualized suspicion to justify the testing provision, and 4) the search required under probation term was reasonable as a “special needs” search. Def.'s Mem. at 3-10, Dkt. 19.

         With regard to the Defendants' first argument, the Court is not persuaded that no search occurred because Eastop refused the requested test on August 23. Simply put, if an employee refuses to submit to an unreasonable search, and is fired for that refusal, his Fourth Amendment rights are violated. Jackson v. Gates, 975 F.2d 649, 653 (9th Cir. 1992).

         Similarly, Eastop's signing of his employment contract, even if predicated on Probation Terms, [4] did not constitute a waiver of his Fourth Amendment rights. It is well established that a search is reasonable when the subject voluntarily consents to the search. Birchfield v. North Dakota, 136 S.Ct. 2160, 2185 (2016). And, consent may be obtained when a person signs a contract giving his consent to future searches. United States v. Burrow, 696 Fed.Appx. 214, 216 (9th Cir. 2017). However, it is also well established that the State may not condition employment on a public employee's consent to an unreasonable search. O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 717 (1996); Delia v. City of Rialto, 621 F.3d 1069, 1078 n.5 (9th Cir. 2010), rev'd on other grounds Filarsky v. Delia, 566 U.S. 377 (2012).

         Ultimately, if the search is reasonable, the Plaintiff does not need to consent to it. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 651-52 (1995); Yin v. State of Cal., 95 F.3d 864, 872 n.19 (9th Cir. 1996). However, if the search is unreasonable, consent cannot cure the constitutional defect. Delia, 621 F.3d at 1078.

         The Court is also unpersuaded by the Defendants' third argument that they had individualized suspicion that Eastop “may have been under the influence at during [sic] school or school related activities in the past - and that such conduct was a current concern.” Def. Mem. at 7, Dkt. 19. It is true that the School District had a reasonable suspicion testing policy, under which Eastop could have been tested if the administration had a reasonable individualized suspicion that he was under the influence of drugs or alcohol at work. See Reasonable Suspicion Tests, Pl.'s Ex. F, Dkt. 15-12 at 31. However, Defendants never tested Eastop under this policy. Maza Depo. at 43-44, Dkt. 17-4. When Eastop was required to submit to drug and alcohol testing, the School District officials did not suspect that he was under the influence of drugs or alcohol at that time, but required the testing to establish a “baseline.” Maza Depo. at 63-4, Dkt. 17-4. Under these facts, Defendants cannot rely upon the School District's reasonable suspicion testing policy as justifying its demand that Eastop submit to testing.

         i. ...


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