Pierce v. Smith

Plaintiff-appellee Dr. Diane Pierce (Dr. Pierce) brought this suit against defendants-appellants Dr. David Smith (Dr. Smith) and Dr. Louis Binder (Dr. Binder), claiming that appellants violated her rights under the Fourth and Fourteenth Amendments when they, as officials of the state medical residency program in which she was enrolled, caused her to undergo a private urinalysis test for drugs and submit the test results to program officials, by informing her that she would be expelled from the program if she was not tested. The jury returned a verdict in favor of Dr. Pierce, awarding her compensatory and punitive damages. Dr. Smith and Dr. Binder appeal. We hold appellants are protected by qualified immunity and accordingly reverse.

Facts and Proceedings below

Dr. Pierce was a medical resident in the emergency medicine residency program at the Texas Tech University Health Science Center (TTUHSC) in El Paso, Texas, from 1988 to 1991. Texas Tech is a state institution. As part of her TTUHSC residency program, Dr. Pierce served a two-month rotation at St. Joseph’s Hospital in Phoenix, Arizona, during January and February of 1990, where she trained with the trauma team in emergency medicine.

On February 22,1990, a patient was admitted to the St. Joseph’s emergency room with head injuries sustained after smashing his head through the windshield of his car in an automobile accident. The patient, who was under the influence of alcohol and drugs, was extremely uncooperative and aggressive.

Dr. Dale Stannard, the attending physician on the emergency service that day, ordered that a CAT scan be performed to determine whether the patient had suffered any internal head injury. Hospital orderlies brought the patient to the CAT scan room and placed him on the scan table. As part of the trauma team, Dr. Pierce was called to the CAT scan room to see the patient. When she arrived, she noticed that the orderlies were having difficulty restraining the patient on the table. Dr. Pierce tried to help and as she leaned over the patient to tighten his restraints, he spat in her face. Dr. Pierce, in her words, “hard slapped” the patient at least two times on his face.

Dr. Pierce, the only physician present, left the room to wash off the saliva. When she returned, the nursing supervisor forcefully escorted her out of the room, telling her to stay away from the patient. Dr. Stannard, who was not present in the CAT scan room when the incident occurred, was told by the night supervisor that Dr. Pierce had “karate chopped” the patient. Later on, however, Dr. Stannard learned that Dr. Pierce had actually slapped the patient. He believed that there was no cause to discipline her.

The following day, Dr. Pierce was called in to see Dr. Raymond Shamos, the acting trauma director at St. Joseph’s. The administrators at St. Joseph’s were upset by the incident and wanted to promptly send Dr. Pierce back to TTUHSC in El Paso. Dr. Shamos, however, felt such steps were unnecessary and instead instructed Dr. Pierce to seek counseling with St. Joseph’s employee counseling administrator. She underwent counseling and was allowed to finish the remaining three days of her rotation at St. Joseph’s. The counselor recommended that on her return to El Paso Dr. Pierce “contact the University Psychiatric department to continue counseling sessions.”

Dr. Smith, the residency director at TTUHSC at the time, learned of the incident through Pat Jones, the emergency medicine department administrator, who told Dr. Smith that Dr. Pierce had “beat up a patient” at St. Joseph’s. Dr. Smith began his own investigation of the incident, which included talking with Dr. Brian Nelson, who was chairman of the faculty at TTUHSC, and Dr. Shamos. During Dr. Smith’s telephone conversation with Dr. Shamos, Dr. Smith was told that Dr. Pierce had karate chopped the patient in the neck. Later, Dr. Smith met with Dr. Binder, Associate Professor in the Department of Emergency Medicine at TTUHSC and Assistant Dean, to discuss the incident. Due to incorrect information received from St. Joseph’s, both Dr. Smith and *869Dr. Binder thought that Dr. Pierce had karate chopped a patient and had to be physically restrained from the patient. They discussed a number of possible explanations for Dr. Pierce’s surprising behavior, including drug use.

Upon Dr. Smith’s request, Dr. Pierce met with Dr. Smith in his office on February 28. At that meeting, Dr. Smith handed Dr. Pierce a letter and told her that she was being placed on probation, with pay, pending an investigation into the incident.

This was not the first time Dr. Pierce had been on probation in her TTUHSC residency. During the summer of 1989, she was placed on probation for, among other reasons, excessive tardiness, poor interpersonal relationship problems with the faculty and patients, and failing to carry an acceptable volume of patients. At that time (in 1989), there was some discussion among the faculty members that drug use might be the cause of Dr. Pierce’s behavior. When asked during 1989 by Dr. Nelson whether she was using drugs, Dr. Pierce replied that she was not. Dr. Pierce was eventually taken off this probation, and was not on probation when she slapped the patient at St. Joseph’s.

Dr. Smith also told Dr. Pierce in the February 28 meeting that she would have to undergo psychiatric evaluations. On March 2, Dr. Smith met with Dr. Pierce again, and told her that she would be required to undergo two psychiatric evaluations. One evaluation would be performed by a doctor selected by TTUHSC and the other evaluation by a doctor selected by Dr. Pierce.

On that same day, Dr. David Smith contacted Dr. Robert Smith about performing the evaluation on Dr. Pierce on behalf of TTUHSC. Dr. Robert Smith agreed to do so. Dr. David Smith understood that the evaluation would include a urine drug test.

Dr. David Smith met with Dr. Pierce for a third time on March 9. Dr. Pierce handed to Dr. Smith letters written by Dr. Stannard and Dr. Shamos on her behalf, describing their accounts of what had happened at St. Joseph’s and, specifically, correcting earlier stories that Dr. Pierce had karate chopped the patient and explaining that Dr. Pierce instead had slapped the patient three times on the face. Dr. Smith brought these letters to the attention of Dr. Binder and Dr. Nelson. However, the letters did not cause the doctors to rule out drug use as a possible explanation for Dr. Pierce’s conduct.

Dr. Pierce arrived at Dr. Robert Smith’s office on March 14 to undergo her psychiatric evaluation. At that time, she was informed by Dr. Robert Smith that he had scheduled a urinalysis drug test for their next appointment on March 17. Dr. Pierce objected to taking the drug test, and went to speak with Dr. David Smith, informing him of her objection to the urinalysis. Dr. David Smith told her that he would bring the matter of the urinalysis up with the faculty on March 20.1 Dr. Pierce met with Dr. Robert Smith on March 17, and she told him she would likely refuse to take the urinalysis test. Dr. Pierce next met with Dr. David Smith on March 19. Dr. Pierce testified that on this occasion Dr. David Smith told her “if I didn’t take the urinalysis test, I’d be dismissed” and “indicated that he had to be able to prove to Dr. Nelson [TTUHSC faculty chairman] and Dr. Glass [a faculty member] that I wasn’t using drags.” Dr.- Pierce did not indicate she would submit to urinalysis, but did not definitely say she would not.

Nothing in the record suggests that either Dr. David Smith or Dr. Binder, alone or in combination with each other, had or claimed to have the authority to actually dismiss Dr. Pierce. The only matter in the record speaking to this is the “Personnel Relations & Disciplinary Action” attachment to the TTUHSC Graduate Medical Education Program Agreement between TTUHSC and Dr. Pierce for the period July 1,1989, to June 30, 1990. This attachment provides that the Program Director has the authority to recommend dismissal to the dean of the Texas Tech medical school, “through” the TTUHSC dean, who in 1990 was Dr. Joseph Brown (to whom Dr. Binder reported), “for review and action.” It also provides that a resident has *870the right to appeal a dismissal, with attendant due process rights, and that compensation and benefits shall continue, and certifying boards and medical associations shall not be notified of the dismissal, during the appeal process.

Although she still would not commit to take Dr. Robert Smith’s urinalysis test, on March 23 Dr. Pierce decided to take, a urinalysis drug test at an independent laboratory, Pathlab. After receiving the results, which were negative, from the laboratory, Dr. Pierce hand-delivered the report to Dr. David Smith on March 30, which he accepted in place of the urinalysis which had been arranged for by Dr. Robert Smith. The evidence indicates, and there is no evidence to the contrary, that prior to receiving this report neither Dr. David Smith nor Dr. Binder nor anyone else at TTUHSC (nor Dr. Robert Smith) had any indication that Dr. Pierce intended to take (or had taken) a urinalysis drug test, independently or otherwise. On that same day, after reviewing the urinalysis report and the psychiatric evaluations of Dr. Robert Smith and Dr. Ann Salo,2 Dr. David Smith took Dr. Pierce off her probation.

There is evidence that at some point after Dr. David Smith first learned of the Phoenix incident and before March 20, but just when is totally unclear, Dr. Binder recommended to Dr. David Smith that Dr. Pierce undergo a drug test.

On February 24,1992, Pierce filed this suit against Dr. David Smith and Dr. Binder, seeking damages and declaratory relief pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 2201 and the Fourth and Fourteenth Amendments to the United States Constitution. Her claims included (1) taking of a property right without due process of law by virtue of the suspension from her residency program; (2) taking of a liberty interest by virtue of an unreasonable search of her person; (3) violation of her right to equal protection by virtue of her gender; and (4) intentional infliction of emotional distress. The complaint was later amended to add TTUHSC as a defendant, claiming that TTUHSC violated Dr. Pierce’s rights under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (Title IX).

All defendants moved for summary judgment. The court granted the defendants’ motion on all claims except the Fourth Amendment claim and the claim for intentional infliction of emotional distress. The court refused to dismiss the complaint on summary judgment against the individual defendants on the basis of qualified immunity.

The defendants then filed their answer, again raising the affirmative defense of qualified immunity as to the individual defendants. Two days later, the court permitted the defendants to supplement their earlier motion for summary judgment as to the remaining claims. The court granted the defendants’ motion on the intentional infliction of emotional distress claim, but denied summary judgment on the Fourth Amendment claim.

Over the defendants’ objections, the district court submitted a jury instruction stating that, before a government employer may compel an employee to undergo a drug test, the employer must have individualized suspicion that the employee was using drugs. The jury returned a verdict in favor of Dr. Pierce, awarding her $30,000 actual damages against Dr. Smith and Dr. Binder, jointly and severally; $10,000 punitive damages against Dr. Smith; and $10,000 punitive damages against Dr. Binder.

The district court overruled the defendants’ motions for judgment as a matter of law or for a new trial, and entered final judgment on the verdict. The court also awarded Dr. Pierce $31,153.41 in attorney’s fees and expenses and $2,770.82 court costs. Dr. Smith and Dr. Binder bring this appeal.3

Discussion

I. Qualified Immunity; Standards and Review

Appellants argue on appeal that, as government officials, they are entitled to *871qualified immunity.4

A state official exercising discretionary authority whose conduct deprives another of a right secured by federal constitutional or statutory law is nonetheless shielded from personal liability for damages under section 1983 by the doctrine of qualified immunity, unless at the time and under the circumstances of the challenged conduct all reasonable officials would have realized that it was proscribed by the federal law on which the suit is founded. See, e.g., Anderson v. Creighton, 483 U.S. 635, 637-642, 107 S.Ct. 3034, 3038-3040, 97 L.Ed.2d 523 (1987). In order for qualified immunity to be unavailable, at the time the challenged action occurred the federal law proscribing it must have been clearly established not only as an abstract matter but also “in a more particularized ... sense” such that “[t]he contours of the right” are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. 483 U.S. at 635, 107 S.Ct. at 3039. For example, where the complained of conduct is a law enforcement warrantless search of a residence, qualified immunity turns not only on whether it was then clearly established that such a search required probable cause and exigent circumstances, but also on whether it was then “clearly established that the circumstances with which” the officer “was confronted did not constitute probable cause and exigent circumstances.” Id. Qualified immunity protects “‘all but the plainly incompetent or those who knowingly violate the law.’ ” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)).5

The issue of whether and when a right is clearly established is typically treated as a question of law. Pfannstiel v. City of Manon, 918 F.2d 1178, 1183 (5th Cir.1990). Likewise, to the extent that the relevant discrete, historic facts are undisputed, as they essentially are here, the question of the objective reasonableness of the defendant’s conduct — ie., whether at the time and under the circumstances all reasonable officials would have realized the particular challenged conduct violated the constitutional provision sued.on — is also a question of law. Mangieri v. Clifton, 29 F.3d 1012, 1015-1016 (5th Cir.1994). See also Hunter at 226-29, 112 S.Ct. at 536-37 (whether under the circumstances a reasonable officer could believe probable cause for arrest existed, thus giving rise .to qualified immunity, is a question of law); Blackwell v. Barton, 34 F.3d 298, 305 (5th Cir.1994); United States v. Basey, 816 F.2d 980, 988 (5th Cir.1987) (reasonable suspicion).

Where, as here, a section 1983 defendant pleads qualified immunity and shows he is a governmental official whose position in*872volves the exercise of discretion, the plaintiff then has the burden “to rebut this defense by establishing that the official’s allegedly wrongful conduct violated clearly established law.” Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.1992). We do “not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs.” Id.

In Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), the Court stated that in a qualified immunity case, “the first inquiry” is whether the plaintiff has “failed to allege the violation of a clearly established constitutional right.” Id. at 231, 111 S.Ct. at 1793. Accordingly, as explained in Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 530 (5th Cir.1996):

“ ‘In assessing qualified immunity, we engage in a two-step analysis. First, we determine whether a plaintiff has alleged the violation of a clearly established constitutional right under the current state of the law.’ R.A.M. Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir.1995). ‘Second, if the plaintiff has alleged such a constitutional violation, we decide whether this defendant’s conduct was “objectively reasonable,” measured by reference to the law as clearly established at the time of the challenged conduct.’ Id. at 31 (internal citations omitted).”

The first step will generally involve analysis at a higher level of generality than the second, which focuses not only on the state of the law at the time of the complained of conduct, but also on the particulars' of the challenged conduct and/or of the factual setting in which it took place. Thus, for example, in an arrest case the first step may be satisfied by finding that the law is (and was) clearly established in requiring probable cause; at the second step, we assess whether the defendant, under the particular circumstances, could have reasonably concluded that probable cause was present. See, e.g., Hunter; Anderson; Blackwell. In none of these cases was there any relevant change in the law between the complained of conduct and the court’s decision; and, these decisions plainly authorized denial of relief on the basis of qualified immunity without ultimately determining whether a constitutional violation in fact occurred.6

II. Fourth Amendment

A. Search

The Fourth Amendment, applicable to the states by virtue of the Fourteenth Amendment, forbids governmental violation of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,.... ” The Supreme Court has held that this guarantee extends to searches and seizures not only by law enforcement authorities, but also by government officials who conduct various civil activities. See, e.g., O’Connor v. Ortega, 480 U.S. 709, 714, 107 S.Ct. 1492, 1496, 94 L.Ed.2d 714 (1987) (state hospital officials); New Jersey v. T.L.O., 469 U.S. 325, 334-38, 105 S.Ct. 733, 739-40, 83 L.Ed.2d 720 (1985) (school officials).

It is clear that, under certain circumstances, the collection and testing of urine by the government constitutes a search subject to Fourth Amendment constraints. Chandler v. Miller, — U.S. -, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997); Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616-20, 109 S.Ct. 1402, 1413-14, 103 L.Ed.2d 639 (1989); National Treasury Em*873ployees Union v. Von Raab, 489 U.S. 656, 664, 109 S.Ct. 1384, 1390, 103 L.Ed.2d 685 (1989); Aubrey v. School Bd. of Lafayette Parish, 92 F.3d 316, 318 (5th Cir.1996).7

B. Non-law enforcement standards generally; Individualized suspicion

As the Supreme Court said in Skinner, “to hold that the Fourth Amendment is applicable to” the instant drug test:

“is only to begin the inquiry into the standard governing such intrusions, [citations] For the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable, [citations] What is reasonable, of course, ‘depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.’ [citations] Thus, the permissibility of a particular practice ‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’ [citations]” Id. at 619, 109 S.Ct. at 1414.

“In most criminal cases” this balancing of interests is struck “in favor of the procedure described by the Warrant Clause of the Fourth Amendment.” Id. However, “where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement” a more particularized balancing is necessary to determine reasonableness and “neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” Von Raab at 665, 109 S.Ct. at 1390. As the Court recently said in Chandler, although Fourth Amendment reasonableness “ordinarily must be based on individualized suspicion of wrongdoing,” nevertheless “exceptions to the main rule are sometimes warranted based on ‘special needs, beyond the normal need for law enforcement’ [citing Skinner at 619, 109 S.Ct. at 1414]. When such ‘special needs’ — concerns other than crime detection — are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties.” Id. at -, 117 S.Ct. at 1297.8 Cf. Akhil R. Amar, Fourth Amendment First Principles, 107 Harv. L.Rev. 757, 784 n. 100 (1994) (“... individualized suspicion makes sense as a prerequisite for warrants, but it does not make sense as the test for all searching and seizing — outside the criminal context, for example”).

C. Special needs situations

“Special needs” for these purposes have been found in a variety of circumstances, including “[t]he Government’s interest in regulating the conduct of railroad employees to ensure safety ... its supervision of probationers or regulated industries, ... [and] its operation of a government office ... [or] school.” Skinner at 620, 109 S.Ct. at 1415. And in Von Raab such a “special need” was found respecting drug testing of Customs Service employees who would be required to either carry firearms or engage in drug interdiction, the Court observing “the Government’s need to discover such latent or hidden conditions, or to prevent their development, is sufficiently' compelling to justify the intru*874sion on privacy entailed by conducting such searches without any measure of individualized suspicion.” Id. at 668, 109 S.Ct. at 1392 (emphasis added). This was so despite the fact that there was “no perceived drug problem among Customs employees.” Id. at 673, 109 S.Ct. at 1395.

On the other hand, it is clear that where the “need” is in essence simply “symbolic” — the desire to “project” a public “image” — it is not a “special” need for these purposes. Chandler at -, 117 S.Ct. at 1305.

Plainly, this is a “special needs” case. It is clear that the instant challenged search was “not designed to serve the ordinary needs of law enforcement,” Von Raab at 666, 109 S.Ct. at 1391, and no law enforcement personnel were in any way involved. The present setting not only involves the practice of medicine, an endeavor subject to extensive governmental regulation, but also both a student-school and an employee-supervisor relationship. Dr. Pierce was undergoing training in the medical school’s emergency medicine residency program, and was in essence both a student and an employee providing professional services to the public. “In the case of searches conducted by a public employer, we must balance the invasion of the employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.” O’Connor at 719-20, 107 S.Ct. at 1499. What the Court said of the railroad employees in Skinner is true “in spades” as to Dr. Pierce, practicing and learning emergency medicine, namely that she “dischargefd] duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” Id. at 628, 109 S.Ct. at 1419.9 Likewise, “the substantial need of teachers and administrators for freedom to maintain order in the schools” is a special need such that “the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” T.L.O. at 341, 105 S.Ct at 742.

D. Privacy expectations; Obtrusiveness

Of course, the fact that “special needs” are present does not alone resolve the matter. The privacy interests of the party searched must also be weighed in the balance. “[W]hether a particular search meets the reasonableness standard is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Acton at -, 115 S.Ct. at 2390 (internal quotation marks omitted). This requires consideration of, inter alia, whether the individuals’ expectation of privacy is decreased and the relative obtrusiveness or otherwise of the search. Id. at -, 115 S.Ct. at 2396 (“Taking into account all the factors we have considered above — the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search ... ”). Dr. Pierce’s status as a student-employee in the emergency medicine residency program diminished her legitimate expectations of privacy vis-a-vis the search at issue. “The employee’s expectation of privacy must be assessed in the context of the employment relation.” O’Connor at 717, 107 S.Ct. at 1497. “[I]t is plain that certain forms of public employment may diminish privacy expectations even with respect to ... *875personal searches.” Von Raab at 671, 109 S.Ct. at 1394. And, as the Court said of Customs employees required to carry firearms or interdict illegal drugs, so also with those similarly situated to Dr. Pierce, “[b]e-eause successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep from the Service personal information that bears directly on their fitness.” Id. “Unlike most private citizens or governmental employees in general,” such employees “reasonably should expect effective inquiry into their fitness and probity.” Id.10

Moreover, the intrusiveness of the search here was entirely minimal. There is no evidence that anyone observed, listened to, or otherwise monitored the excretion of the urine sample. The record suggests that Dr. Pierce excreted the sample alone in a bathroom with the door closed. There is certainly nothing to the contrary, or even to suggest that anyone listened at the door.11 Moreover, Dr. Pierce took the urinalysis at Pathlab, an independent laboratory that she had hand picked herself,12 without Dr. Smith (or anyone else) being aware that she was going to undergo (or had undergone) such a test, much less at Pathlab, until she turned over the completely negative results to him. There is no evidence that she disclosed to Pathlab any personal medical information, such as what prescription medications she was using. Von Raab, 489 U.S. at 672 n. 2, 109 S.Ct. at 1394-95 n. 2. There is no evidence that the urinalysis was used to look for, or that its results reflected, anything other than the presence or absence of drugs, such as whether Dr. Pierce was “epileptic, pregnant, or diabetic.” Acton, 515 U.S. at -, 115 S.Ct. at 2393. The results of the test were negative for drugs, and thus, so far as the evidence shows, nothing else about Dr. Pierce was disclosed thereby. Moreover, had the results been positive, Dr. Pierce could have elected not to disclose them.

Finally, other circumstances of the test also point to nonintrusiveness. Dr. Pierce did not take the test until approximately nine days after Dr. Robert Smith had requested that she undergo a test as arranged for by him. This factor was deemed important in Wyman v. James, 400 U.S. 309, 313, 319, 91 S.Ct. 381, 384, 387, 27 L.Ed.2d 408 (1971) (six days advance notice of requested home visitation of AFDC welfare recipient factor in finding of Fourth Amendment reasonableness), which was cited with approval in this respect in Von Raab at 672 n. 2, 109 S.Ct. at 1394 n. 2. And, as noted, the test was not undertaken for law enforcement purposes, law enforcement personnel were not involved, and there was no threat of force and no potential criminal or civil penalty for refusing. All these factors were deemed important in Wyman v. James. Id. at 317-27, 91 S.Ct. at 386-90. Dr. Pierce was orally threatened by Dr. David Smith with dismissal from the residency program if she did not ultimately undergo a drug test arranged by Dr. Robert Smith. However, only the dean of the medical school had the authority to dismiss her (and any dismissal by the dean was subject to suspensive appeal); and, in any event, Dr. Pierce never underwent the test contemplated by the Drs. Smith. Dr. Pierce was never tested by anyone acting for any governmental agency or official; and, the wholly noninvasive private test she underwent was not one commanded, requested, or anticipated by any state actor.

All in all, the search here intruded only in the absolutely most minimal way on Dr. *876Pierce’s Fourth Amendment interests; certainly less so than did the searches in Acton, Von Raab, and Skinner. In Chandler, the Court observed that the Georgia testing “permits a candidate to provide the urine specimen in the office of his or her private physician; and the results of the test are given first to the candidate, who controls further dissemination of the report,” labeled this as “relatively noninvasive,” and stated “therefore, if the ‘special need’ showing had been made, the State could not be faulted for excessive intrusion.” Id. at -, 117 S.Ct. at 1303.13 Here, there is plainly no more intrusiveness than in Chandler, if, indeed, as much.

E. Absence of testing policy; Individualized suspicion

Dr. Pierce does not essentially challenge the foregoing analysis, nor does she contend that appellants were required to obtain a warrant or establish probable cause. Instead, she contends that, as it is undisputed that TTUHSC had no drug testing policy for its physicians or residents, the Fourth Amendment accordingly precluded appellants from telling her she would be dismissed if she did not undergo urinalysis arranged by Dr. Robert Smith, unless appellants had reasonable, individualized suspicion that she was using illicit drugs. The character of reasonable, individualized suspicion which Dr. Pierce contends is necessary appears to be essentially that required for a law enforcement Terry stop14 where the officer’s only concern respecting the person stopped is that he may then have drugs. Dr. Pierce further contends that there was no basis here for that character of suspicion.

However, we conclude that the clearly established law does not now, and did not in March 1990, categorically mandate that sort of reasonable, individualized suspicion for all non-law enforcement, minimally intrusive searches in special needs situations, whenever there was no pre-existing policy authorizing the search.

To begin with, neither the Supreme Court nor this Court has ever articulated such a categorical requirement. To the contrary, the Court has repeatedly stated: “the Fourth Amendment imposes no irreducible requirement of such suspicion,” Acton at -, 115 S.Ct. at 2391; “neither a warrant nor probable cause, nor, indeed, any measure of reasonable suspicion is an indispensable component of reasonableness in every circumstance,” Von Raab at 665, 109 S.Ct. at 1390; “We have made it clear, however, that a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable,” Skinner at 624, 109 S.Ct. at 1417; “the Fourth Amendment imposes no irreducible requirement of reasonable suspicion,” United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976). It is true, of course, that in each of these cases there was some sort of policy. However, in none of these cases did the Court condition its quoted statements with any sort of proviso, such as “so long as there was a general policy pursuant to which the search was conducted” or the like. To the contrary, as further elaborated below, these opinions indicate that whether individualized suspicion may be dispensed with depends on the particular context and a weighing of the inva-siveness of the search against the “special needs” presented. Indeed, in T.L.O. and also in O’Connor, in neither of which was the challenged search conducted pursuant to any general policy, the Court, although sustaining the search after finding reasonable suspicion, went on to expressly leave open whether such a finding was necessary to the search’s validity. Thus, in T.L.O. the Court stated:

‘We do not decide whether individualized suspicion is an essential element of the reasonableness