United States District Court, D. Idaho
MEMORANDUM DECISION & ORDER
Lynn Winmill, U.S. District Court Judge.
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.
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
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.
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 and Human Resources Director Shannon Maza
met with Eastop regarding the arrest and to discuss a plan
for his sobriety. Id. at 43-44.
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.
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.
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.
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.
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.
Motion to Strike
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.”
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.
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.
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
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.
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.
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.
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).
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.
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).
TO STRIKE AND OBJECTIONS TO EXHIBITS
Eastop's Motion to Strike
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.
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
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).
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.
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.
Violation of the Protective Order
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.
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.
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.
Defendants' Objection to Exhibit M
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.
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
FOR SUMMARY JUDGMENT
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.
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.
Fourth Amendment Claim
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.
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).
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.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.
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
Eastop's signing of his employment contract, even if
predicated on Probation Terms,  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).
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.
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