Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

MEMORANDUM^* 

The Los Angeles City Fire Department enforces an employee body weight limitation program. The United Paramedics of Los Angeles ("UPLA"), a labor union, represents Emergency Medical Services employees subject to the Fire Department's weight program. UPLA and four members sued to invalidate the weight program as unconstitutional. The district court granted summary judgment to the City. UPLA and the four employees appeal.

I. EMS Employees' Fundamental Right to Privacy

UPLA does not assert a privacy right to control one's own body. Instead, UPLA asserts that constitutional privacy protects the collection and dissemination of data on EMS employees' body weight. In the wake of cases permitting urinalysis of employees for drug use despite federal constitutional privacy rights (see, e.g., Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989)), UPLA does not vigorously press this claim as a federal privacy right. The union does, however, assert the California constitution's privacy guarantee in a pendant state law claim. See Cal. Const. art. I, Sec. 1. The parties do not dispute that California's constitutional right of privacy is broader than the federal one.

UPLA characterizes EMS employees' weight as private medical information protected by the state constitution. See Cutter v. Brownbridge, 183 Cal. App. 3d 836, 842, 228 Cal. Rptr. 545, 549 (1986). Absent a compelling government interest, UPLA argues, the California constitution protects EMS employees' private medical information from disclosure and dissemination through the Fire Department's weight control program. See id. at 843, 228 Cal. Rptr. at 549.

As in federal privacy analysis, California courts evaluate an asserted state privacy right through examination of an employee's reasonable expectation of privacy. See Wilkinson v. Times Mirror Corp., 215 Cal. App. 3d 1034, 1046-47, 264 Cal. Rptr. 194, 202 (1989). Where an employee has little or no reasonable expectation of privacy, the California courts will not vindicate the asserted right. Id. Even where employees may reasonably expect privacy, moreover, California courts balance the asserted right to privacy against the rationale for intrusion on that privacy right. Id. at 1051-2; 264 Cal. Rptr. at 205-06.

In this case, we rely on several factors to hold that EMS employees have no reasonable expectation of privacy concerning their weight under these circumstances. First, as the district court reasoned, body weight is both public and generally obvious to anyone looking at an EMS employee. See Stackler v. Department of Motor Vehicles, 105 Cal. App. 3d 240, 246-47, 164 Cal. Rptr. 203, 206-07 (1980) (holding that publication of facial photographs on driver's licenses invades no reasonable expectation of privacy). Second, the close living quarters of EMS personnel while on duty undermines their assertion of a privacy expectation in their body weight. General assessments of EMS personnels' body weight are presumably available to all Fire Department employees with whom they closely work and live. Third, EMS employees must submit to biannual medical examinations, including weight assessment, in any event. All of these factors, undermine EMS employees' assertion of a reasonable expectation of privacy. We therefore hold that UPLA and the employees have failed to assert a privacy interest protected by the California constitution.

Even if we recognized EMS employees' privacy interest in data about their body weight, we would still have to balance any legitimate privacy interest against the Fire Department's asserted health and safety justification for the weight control program. See Wilkinson, 215 Cal. App. 3d at 1051-52, 264 Cal. Rptr. at 205-06. Indeed, neither party disputes the Fire Department's responsibility to assure employee health and fitness, even at the expense of privacy interests, where employee health and fitness bear on safety concerns. UPLA argues that the Fire Department failed to demonstrate a compelling relationship between its weight control program and safety. We conclude that the weight control program's intrusion upon EMS employees' asserted privacy interest in data about their body weight is, at most, minimal. Assuming arguendo that that privacy interest arises to state constitutional importance, the Fire Department has sufficiently justified the minimal intrusion.

We therefore affirm the district court's judgment on the privacy claim.

II. EMS Employees' Procedural Due Process Rights

UPLA contends that the weight control program and consequent discipline embody an unconstitutional "conclusive presumption" of EMS employee unfitness. As tenured Civil Service employees, EMS personnel hold a vested property interest in continued employment. See Sanchez v. City of Santa Ana, 915 F.2d 424, 428-29 (9th Cir. 1990). The City may not deprive EMS employees of this vested property interest without due process of law. Id. at 429-30.

UPLA argues that due process requires the Fire Department to determine each EMS employee's fitness individually before subjecting him or her to the punitive weight control program. Due process does not permit, UPLA argues, the Fire Department to rely on a conclusive presumption that an overweight EMS employees must be unfit and therefore subject to discipline.

The parties argue extensively in their briefs about the continued viability of "conclusive presumption analysis" in due process law. Suffice it to say here that we have rejected conclusive presumption analysis. See deLaurier v. San Diego Unified School Dist., 588 F.2d 674, 683 n. 16 (9th Cir. 1978) (declining to extend conclusive presumption analysis to case because Supreme Court itself had apparently abandoned the analysis).

Nonetheless, UPLA urges that subjecting EMS personnel to the weight control program without an individualized determination of unfitness violates due process. We construe this claim as an allegation that the weight control program violates EMS employees' procedural due process rights. EMS employees' vested property interests do not trigger strict scrutiny of the weight control program itself, of course. Instead, assertion of the EMS employees' property interests triggers inquiry into whether sufficient process protects EMS employees prior to deprivation of those property interests.

We note that EMS personnel do not face discharge or discipline without benefit of procedural remedies. EMS employees may grieve the imposition of discipline. They may also appeal any six-day suspension or more drastic discipline to the Civil Service Commission. Moreover, EMS employees may receive individualized evaluations under the weight control program by submitting their own medical evidence. Because EMS employees have procedural remedies available and because they may rebut any "presumptions" inherent in the program with their individual medical evidence, the Union and the employees have failed to show how the program violates their procedural due process rights.

We therefore affirm the district court's judgment on the due process claim.

III. EMS Employees and Equal Protection of the Law

UPLA contends that the weight control program denies EMS employees equal protection of the law because it classifies them in a program not bearing even a rational relationship to legitimate government interests. The City failed to demonstrate, UPLA contends, that the weight control program advances the health or safety of either employees or the public. Noting that, under equal protection analysis, a classification of the type involved here need only not be irrational, the district court upheld the validity of the program.

We affirm this conclusion. Application of the rational basis test requires a two-step analysis. Jackson Water Works, Inc. v. Public Util. Comm'n. of Cal., 793 F.2d 1090, 1094 (9th Cir. 1986), cert. denied, 479 U.S. 1102 (1987). First, we must determine whether the weight control program has a legitimate purpose. Id. The City's ostensible purpose of furthering employee and public health and safety is certainly legitimate.

Second, we must determine whether the program serves this purpose. Id. This determination does not depend on a "tight fitting relationship" between the program and its purpose. Id. (citation omitted). We need merely discern a "plausible," "arguable," or "conceivable" relationship between the program and its purpose. Id. (citation omitted). The general statistical evidence of increased risks of illness and injury associated with being overweight creates the necessary nexus between the weight control program and the purpose of health and safety.

UPLA argues finally that we should not pay to the weight control program the ordinary deference due to a legislative enactment. When evaluating a legislative enactment for a rational basis, courts must defer to legislative wisdom and expertise. See id. at 1094. No legislature, however, but rather Chief Manning alone promulgated the weight control program. UPLA urges we accord no deference to the Chief's administrative fiat.

We need not defer to a governmental entity, however, in order to perceive a rational relationship between the weight control program and a legitimate government purpose. Regardless of who proposed the program, it appears to us to be rationally related to health and safety. UPLA does not propose that administrative fiats require strict scrutiny. Reviewing for a rational relationship, and without paying anyone deference, we conclude that the weight control program passes constitutional scrutiny.

CONCLUSION

UPLA failed to assert a fundamental right infringed by the weight control program. Accordingly, we review the program under rational basis analysis. The Fire Department's concern for health and safety sufficiently justifies the program. Moreover, procedural due process sufficiently protects the EMS employees' property interests in their employment. Accordingly, the judgment of the district court is

AFFIRMED.