Greer v. McCormick, Case No. 14-13596

RALPH GREER, JR., Plaintiff, v. SUSAN MCCORMICK, BARRETT JONES, WESLEY SLAUGHTER,THOMAS DOTSON, and DONOVAN WALTON, in their individual capacities, Defendants.

Case No. 14-13596

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 13, 2015

Paul D. Borman United States District Judge

R. Steven Whalen United States Magistrate Judge

OPINION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS (ECF NO. 3)

Before the Court is Defendants' Motion to Dismiss. (ECF No. 3.) Plaintiff filed a Response (ECF No. 5) and Defendants filed a Reply (ECF No. 7). The Court held a hearing on February 5, 2015. For the reasons that follow, the Court DENIES the motion to dismiss.

INTRODUCTION

In this 42 U.S.C. § 1983 action, Plaintiff claims that his employer ordered him to undergo a urine drug test without reasonable suspicion that he had used drugs on the job, in violation of his Fourth Amendment right to be free from an unreasonable search and seizure. Plaintiff further claims that Defendants violated his constitutional rights when they suspended and discharged him because he refused to submit to the requested urine drug test. Defendants respond that they did have a reasonable suspicion, based on a call to their public relations department from a news reporter who passed along an anonymous tip from someone who claimed to have seen an undescribed individualsmoking marijuana while sitting in a company-owned vehicle. Defendants seek dismissal of the case based upon qualified immunity. For the reasons that follow, the Court DENIES the motion to dismiss.

I. BACKGROUND

The Plaintiff, Ralph Greer, began work with the City of Detroit in October 2000, and was transferred to the Detroit Department of Water and Sewage ("DWSD"). The DWSD is not a Defendant. The Defendants are employees of the DWSD: Susan McCormick was the director, Barrett Jones was the director of security, Wesley Slaughter was a Lieutenant in the security services, Thomas Dotson was the Principal Construction Inspector, and Donovan Walton was an Assistant Superintendent. (Compl. ¶¶ 11-16.)¹ Throughout his employment with DWSD, Greer worked as a Construction Inspector and drove a DWSD panel truck to various sites where private contractors performed construction and repair work for the DWSD. Id. ¶¶ 17-18. As of September, 2013, when the incident that led to Plaintiff's termination occurred, DWSD had published rules requiring employees to take drug tests when they were involved in accidents or when they returned from absences beyond a specified length. DWSD did not have a published policy requiring employees to submit to drug tests under any other circumstances. Id. ¶¶ 19-20.

On September 9 and 10, 2013, Greer was assigned to inspect a DWSD project in Wyandotte where a contractor was repairing a large water main on Fort Street. Id. ¶ 21. At some point on September 10 or September 11, 2013, Kevin Dietz, a reporter for Channel 4, told the DWSD'sDirector of Public Relations that an unamed person claiming to be a retired Detroit police officer said that he had seen an un-described City employee smoking marijuana in a City vehicle bearing a number that corresponded to the number on the vehicle that had been assigned to Greer on those days. Dietz refused to provide the DWSD director or any other DWSD official the name of the alleged informant or any further detail about what this unknown informant allegedly told him. Id. ¶¶ 24-25. Dietz informed the DWSD director of public relations that if the DWSD did not "take care of its business" that the DWSD would see its business on the evening news. Following Dietz's threat, the DWSD director of public relations called Defendant Jones, chief of security, who in turn called Defendant Slaughter, a lieutenant in the security services. Defendant Slaughter determined that Greer had been assigned to the DWSD vehicle with the number that Dietz said the unidentified person had reportedly seen. Based on this information, Defendant Slaughter directed Defendant Walton to order Greer to immediately go to a clinic to submit to a urine drug test. Id. ¶¶ 26-29.

On the advice of his union representative, Greer refused to obey Walton's order to undergo the drug test on the basis that the City officials had no authority to order him to submit to that test. Defendants Dotson and Walton then handed Greer a Notice of Suspension informing him that he was suspended for 29 days with a recommendation for discharge on the following charge:

Possession, consumption, use of or being under the influence of alcoholic beverages, narcotics, habit-forming drugs, or any other potentially intoxicating or potentially impairing substance during working hours or on DWSD property (Employee refused to submit to a drug and alcohol screening).

Compl. ¶¶ 30-31. On October 7, 2013, Defendant McCormick signed a Notice of Discharge notifying Greer that the DWSD had concluded that he had used or possessed unlawful substances because he had refused to submit to the drug test that Slaughter and Walton had ordered. Id. ¶ 32.

Greer filed a grievance against his suspension and discharge through his union, the Association of Professional Construction Inspectors ("APCI"). Id. ¶ 33. On July 25, 2014, an arbitrator appointed under the contract between APCI and the DWSD rendered an Opinion and Award that held that the DWSD did not have "reasonable suspicion" for ordering the drug test and that the discharge of Greer violated the contractual prohibition of discipline without just cause. Id. ¶¶ 34-36; Ex. 3, Opinion and Award. The Arbitrator denied back pay because he concluded that under the collective bargaining contract Greer had a duty to obey the order to submit to the test even if the order was invalid and grieve it later. Id. ¶ 37; Opinion and Award 9-10. The Arbitrator specifically declared that he was not ruling on whether the order to submit to the test or the subsequent suspension and discharge for failing to take the test violated Greer's Fourth Amendment rights. Id. ¶ 38; Opinion and Award 9-10. As a result of the Arbitration Award, Greer was reinstated as a Construction Inspector on September 8, 2014. Compl. ¶ 39. Greer lost wages and benefits for the year from September 11, 2013 to September 8, 2014 and further alleges that he suffered emotional pain and suffering due to having to move in with family members, apply for public assistance and losing custody of his minor son due to his inability to keep his home. Id. ¶¶ 40-41. Greer now brings this action against the individual employees of the DWSD who ordered him to submit to the drug test and subsequently suspended and ultimately discharged him for failing to comply with that order. Greer claims that the Defendants lacked reasonable suspicion that he had engaged in illegal drug use while on the job and thus were without sufficient basis to order him to undergo a drug test. Defendants now move to dismiss the Complaint, arguing that it was not clearly established in September, 2013, that ordering an employee to undergo a drug test based on an anonymous tip, which was relayed second hand from a news reporter who had no firsthand knowledge of the facts alleged by the unidentified tipster, and who refused to identify his source, violated that employee's Fourth Amendment right to be free from an unreasonable search.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss under Rule 12(b)(6), a court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Directv Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). But the court "need not accept as true legal conclusions or unwarranted factual inferences." Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). "[L]egal conclusions masquerading as factual allegations will not suffice." Eidson v. State of Tenn. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007).

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . . ." Id. at 555 (internal citations omitted). Dismissal is appropriate if the plaintiff has failed to offer sufficient factual allegations that make the asserted claim plausible on its face. Id. at 570. The Supreme Court clarified the concept of "plausibilty" in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009):

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where acomplaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id., at 557 (brackets omitted).

Id. at 1948-50. A plaintiff's factual allegations, while "assumed to be true, must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief." LULAC v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (emphasis in original) (citing Twombly, 127 S.Ct. at 1965). Thus, "[t]o state a valid claim, a...