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Greer v. McCormick

United States District Court, E.D. Michigan, Southern Division

April 10, 2017

RALPH GREER, JR., Plaintiff,


          Paul D. Borman United States District Judge

         In this 42 U.S.C. § 1983 action, Plaintiff claims that his employer violated his Fourth Amendment right to be free from an unreasonable search and seizure when it suspended and terminated him from his employment for refusing to undergo a urine drug test that was ordered without reasonable suspicion that he had used drugs in violation of company policy. Defendants respond that they did have 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 and photographed a black male rolling a marijuana cigarette while sitting in a company-owned vehicle.

         On March 13, 2015, this Court denied Defendants' motion to dismiss, concluding that Plaintiff had adequately alleged a Fourth Amendment violation and that “it was clearly established in September, 2013, that an uncorroborated anonymous tip, even if purportedly backed up by undisclosed photographic evidence, relayed second hand by a news reporter with no first hand knowledge of the facts alleged by the tipster, did not provide individualized reasonable suspicion sufficient to require an employee to submit to a urine drug test.” Greer v. McCormick, No. 14-cv-13596, 2015 WL 1181675, at *10 (E.D. Mich. March 13, 2015) (emphasis in original.) See Wrightsell v. City of Chicago, 678 F.Supp. 727, 732 (N.D. Ill. 1988) (“Complaints regarding the reasonableness of a urinalysis drug test ordinarily cannot be dismissed on a motion under Fed.R.Civ.P. 12(b)(6).”).

         Discovery is complete and Defendants now seek summary judgment based upon qualified immunity (ECF No. 27) and Plaintiff seeks a partial summary judgment finding on the issue of liability (ECF No. 29). The parties filed Responses (ECF Nos. 32, 33) and Defendants filed a Reply (ECF No. 34). Defendants also filed a Notice of Supplemental Authority on March 28, 2017 (ECF No. 37), to which Plaintiff responded (ECF No. 38). The Court held a hearing on the cross-motions on December 21, 2016. Following the hearing, the parties engaged in settlement discussions that were unsuccessful in resolving the case.

         For the reasons that follow, the Court GRANTS IN PART Plaintiff's motion for partial summary judgment as to liability and DENIES Defendants' motion for summary judgment.

         I. BACKGROUND

         A. Plaintiff's Version of Events

         The Plaintiff, Ralph Greer, began work with the Detroit Department of Water and Sewage (“DWSD”) in October, 2000, and ultimately transferred to his position as a construction inspector. (ECF No. 29, Pl.'s Mot. Ex. 1, April 8, 2016 Deposition of Ralph Greer 6:17-7:4.) The DWSD is not a Defendant. The Defendants are employees of the DWSD who are sued only in their individual capacities: Susan McCormick, who was the Director of DWSD (Pl.'s Mot. Ex. 11, April 18, 2016 Deposition of Susan McCormick 5:16-66:7); Barnett Jones, who was the Chief Security and Integrity Officer for the DWSD (Pl.'s Mot. Ex. 5, March 23, 2016 Deposition of W. Barnett Jones 5:2-7); Wesley Slaughter, who was a Security Officer assigned to Special Investigations for the DWSD (Pl.'s Mot. Ex. 6, March 23, 2016 Deposition of Wesley Slaughter 6:17-24); Thomas Dotson, who was a Construction Inspector/Supervisor for the DWSD (ECF No. 27, Defs.' Mot. Ex. 5, March 23, 2016 Deposition of Thomas Dotson 3:13-18); and Donovan Walton, who was the Manager of the DWSD Maintenance and Repair Division and who was the supervisor of Plaintiff's direct supervisor, Thomas Dotson (Pl.'s Mot. Ex. 8, March 23, 2016 Deposition of Donovan Walton).

         Throughout his employment with DWSD, Greer worked as a Construction Inspector and drove a DWSD panel truck to various sites to oversee the construction and repair work that private contractors performed for the DWSD. (Greer Dep. 16:19-17:8, 18:17-19.) On the date of the incident that is the subject of this litigation, Greer was assigned to a job in suburban Wyandotte and was driving a “very dark blue” Ford F335 Cargo Van with a vehicle number - 381188 - stenciled on both sides of the truck. (Greer Dep. 12:10-13:23, 15:4-18:9.) Plaintiff submitted a declaration in which he confirms that he was assigned to a job in Wyandotte on the dates in question in this case, that on those days he was driving a dark blue DWSD van and that “at no time on those days did [he] drive a DWSD van on or near Hunt Street in Detroit or on or near any street in the vicinity of Eastern Market in Detroit.” (ECF No. 33, Pl.'s Resp. Ex. 15, August 24, 2016 Declaration of Ralph Greer ¶¶ 9-11.) Plaintiff's direct supervisor at the time was Thomas Dotson. (Greer Dep. 19:21-22.)

         According to Plaintiff, he was sitting in his office at approximately 7:30 a.m. on September 10 or 11, 2013, when Mr. Walton, Mr. Dotson's supervisor, told Plaintiff that security wanted to see Plaintiff downtown. (Greer Dep. 21:3-5.) Plaintiff did not inquire why but told Walton that he would stop by security when he left the office for his daily assignment. (Greer Dep. 21:6-8, 24:13-25:14.) About 30-45 minutes later, before Plaintiff left the office for his daily assignment, Walton returned and said that security called back and wanted Plaintiff to go to the clinic for a drug test. (Greer Dep. 25:15-26:7.) Plaintiff asked Walton why, and Walton stated that he did not know, he was just doing what security asked him to do. (Greer Dep. 26:15-18.) At this point, Plaintiff asked to speak with his union representative, Juanita Sanders, who was already out in the field and had to be called back to the office to meet with Plaintiff. (Greer Dep. 26:19-27:11.) When Sanders arrived, she and Plaintiff met privately in a conference room at the DWSD offices. (Greer Dep. 27:10-18.) Plaintiff asked Sanders why he had to go for a drug test, and she asked him if he had been involved in an accident with a company vehicle or if someone had claimed that he appeared to be under the influence of some type of controlled substance, to which Plaintiff responded that no, neither of those things had occurred. (Greer Dep. 27:22-28.) Sanders told Plaintiff that he did not need to go to the clinic because DWSD needed a reason to send him for a drug test and they had not given him such a reason. (Greer Dep. 28:4-7.) Sanders then had a conversation with Walton outside of Plaintiff's hearing. (Greer Dep. 29:2-5.) Walton then left Plaintiff and Sanders in the conference room to wait, stating that security would make a decision. Walton returned less than an hour later with the 29-day suspension pending discharge paperwork, which Plaintiff signed. (Greer Dep. 29:6-30:10.) Walton made no further statements to Plaintiff or to Sanders and Plaintiff got in his personal car and drove home. (Greer Dep. 30:11-17, 31:22-32:3.) Plaintiff denies that he smoked marijuana either on September 10th or 11th, 2013 and denies that he ever smoked marijuana in a DWSD vehicle when he was on duty. (Greer Dep. 32:4-14.)

         The Notice of Suspension was issued on Wednesday, September 11, 2013, by Plaintiff's direct supervisor, Thomas Dotson and by Mr. Dotson's supervisor, Donovan Walton. (Pl.'s Mot. Ex. 9, Sept. 11, 2013 Notice of Suspension.) The Notice of Suspension informed Plaintiff that he was being suspended immediately for a period of twenty-nine (29) days, with a recommendation for discharge following the suspension period. (Id.) The reason given for the suspension was as follows:

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).

(Pl.'s Mot. Ex. 9, Notice of Suspension.)

         Greer filed a grievance against his suspension, which was denied by the DWSD on September 27, 2013. (ECF No. 29, Pl.'s Mot. Ex. 13, Sept. 27, 2013 Grievance Denial Letter from DWSD Manager Terri Tabor Conerway.) The Letter stated in part:

A thorough review and discussion revealed that the Department received a complaint regarding Mr. Greer. Consequently, Assistant Superintendent of Water Systems Maintenance and Construction, Donovan Walton directed Mr. Greer to submit to a drug and alcohol screen. The grievant informed Mr. Walton that he was unable to submit to a screen and requested Union representation before the conversation could proceed. The grievant had an opportunity to confirm that he was not in possession or under the influence of any intoxicating or impairing substance during work hours or while on DWSD property. When given the directive to undergo a drug and alcohol screen, Mr. Greer refused. The Department views this as a refusal to follow a directive. This refusal is considered as a positive test result by default. It is Management's position that based on these findings, the aforementioned grievance is denied.

(Pl.'s Mot. Ex. 13, Sept. 27, 2013 Correspondence from Terri Conerway to Juanita Sanders.)

         On October 7, 2013, the DWSD served Plaintiff with a Notice of Discharge, signed by Susan McCormick, the Director of DWSD. (Pl.'s Mot. Ex. 12.) The reason given for the discharge was as follows:

         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). (Pl.'s Mot. Ex. 13, Notice of Discharge.) Ms. McCormick subsequently confirmed that Plaintiff's refusal to take a drug test was “a significant factor” in the decision to terminate. (Pl.'s Mot. Ex. 11. McCormick Dep. 28:6-12.)

         Plaintiff's discharge went to arbitration. On July 25, 2014, an arbitrator appointed under the contract between the Union 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. (Pl.'s Mot. Ex. 14, Arbitration 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. (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. (Opinion and Award 9-10.) As a result of the Arbitration Award, Greer was reinstated as a Construction Inspector on September 8, 2014. (Greer Dep. 37:1-5.) Greer lost wages and benefits for a period of twelve months, form September 11, 2013 to September 11, 2014. (Greer Dep. 37:5-7.) As a result of his discharge, Plaintiff was forced to move in with his mother and his brother-in-law, and lost the health insurance under which he and his son had been covered at the DWSD. (Greer Dep. 38:8-40:6.)

         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. (Pl.'s Mot. Ex. 14, Arbitrator's Opinion and Award 3-4.)

         B. DWSD's Version of the Facts

         1. What DWSD claims it knew on the morning of September 11, 2013, when it ordered Greer to undergo a urine drug test and suspended him pending termination for refusing to take the test.

         a. William Wolfson - General Counsel and Chief Compliance Officer

         Between 8:00 and 9:00 a.m. on the morning of September 10, 2013, Wolfson, DWSD's Chief Compliance Officer and General Counsel, received a call from DWSD public affairs director Mary Alfonso. (Wolfson Dep. 22:17-25, 25:20-21.) Ms. Alfonso, who passed away before this litigation was filed, allegedly informed Mr. Wolfson that she had just received a call from a Channel 4 Reporter, Kevin Dietz. Dietz was investigating concerns regarding issues of running water in vacant buildings in the City of Detroit, and was preparing to run a story on the issue. Dietz had been in contact with the DWSD at least as early as August, 2013, regarding the vacant building running water concerns. (Wolfson Dep. 20:12-21:9, 21:3-8, 22:25-23:21; Barnett Dep. 12:24-13:4.)

         During the early morning call on September 10, 2013, Dietz also reportedly informed Ms. Alfonso, again according to Mr. Wolfson, that Dietz “had a videotape of a DWSD employee smoking a joint in a DWSD vehicle.” (Wolfson Dep. 24:3-24:6.) Wolfson asked Ms. Alfonso if she had seen the videotape, which she had not, and she informed Wolfson that Dietz was “likely to run a story and certainly wanted to know what, if any, response the department would have.” (Wolfson Dep. 24:7-19.) Wolfson instructed Ms. Alfonso to attempt to identify the vehicle, check the provisions in the employee's contract regarding drug testing and, if appropriate under the contract, get him tested. (Wolfson Dep. 24:21-25:2.) Ms. Alfonso indicated to Mr. Wolfson that she was concerned because Dietz indicated that he was not prepared to produce the videotape at that point. (Wolfson Dep. 26:24-27:12.)

         Following the call from Ms. Alfonso, Wolfson believes that he would have contacted Mr. Barnett, the DWSD Director of Security and Integrity and asked Barnett to “touch base” with Ms. Alfonso and “see what identifying information, in fact, she had received, and then take a look and see if there were other things that would help us determine the veracity of the information that had been received.” (Wolfson Dep. 30:11-31:1.) Wolfson has no specific recollection of having made the call to Barnett but believes that he would have done so and would have probably pointed out that “if the contract allowed for testing, we should consider testing from a public safety point of view.” (Wolfson Dep. 30:17-31:4.) No one at DWSD checked further with Mr. Wolfson prior to suspending Plaintiff the next morning, with a recommendation of discharge, for refusing to take the drug test. Nor did Mr. Wolfson not instruct anyone at DWSD to, nor did he himself, consider the constitutional limitations on ordering Plaintiff to undergo a drug test based on the information that was then available to the DWSD. (Wolfson Dep. 33:9-34:7.)

         b. Barnett Jones - Chief of Security and Integrity

         Mr. Jones recalls that Ms. Alfonso contacted him and said that she had just received a phone call from Mr. Dietz, and that Dietz had indicated that he had received information, a phone call and a video from, Jones believed, a retired or an off-duty Detroit police officer who was in a park somewhere and indicated to Dietz that he had observed a male who was driving a DWSD vehicle who appeared to take a baggie from either under the seat or between the seats and, Jones believed, proceed to roll a marijuana cigarette and proceed to smoke it. (Jones Dep. 13:5-14:5.) Mr. Jones asked Ms. Alfonso if she had a vehicle number from the truck and inquired whether Ms. Alfonso had a copy of the video. Ms. Alfonso did give Jones the vehicle identification number but responded that Dietz refused to give DWSD the video but threatened to do his own investigation into the matter and to “put it on the news” if DWSD didn't do an investigation. (Jones Dep. 14:6-15.) Mr. Jones recalled specifically that Ms. Alfonso told him that Mr. Dietz told her that the alleged police officer was in a park somewhere in the City of Detroit. (Jones Dep. 15:16-23.) Jones received no information from Ms. Alfonso regarding exactly where or when this alleged rolling of the joint had occurred other than that it was a DWSD vehicle in a park somewhere. (Jones Dep. 16:3-16.) Jones could not recall whether he was informed of the race or gender of the driver of the DWSD vehicle. (Jones Dep. 16:17-24.) Jones does recall that he “wanted to get his hands on the video, ” but that Alfonso told him that Dietz was not going to give it to him. (Jones Dep. 17:3-11.)

         Jones then assigned the matter to a DWSD investigator, Wesley Slaughter, either by phone or by directly walking down to Slaughter's office. (Jones Dep. 17:15-22.) Jones recalls that he said to Slaughter exactly what Alfonso had said to him:

I've just been advised by Mary Alfonso that we have a report from Kevin Dietz that an off-duty officer has recorded one of - possibly one of our employees in a park with - smoking marijuana or indicated that he observed him roll the marijuana cigarette and smoked the marijuana, that he was on duty in our vehicle and here's the vehicle identification number can you check it out.

(Jones Dep. 17:25-18:7.) Slaughter called Jones back shortly thereafter and informed him that the vehicle was operational, that he knew who the driver was and that he was with the driver's field supervisor, Doc Walton, who was going to call in the driver of that vehicle and, pursuant to policy, ask him to take a drug test. (Jones Dep. 18:8-19:25.)

         At the time that Jones gave the assignment to Slaughter to investigate, Jones did not know where or when the alleged undisclosed video had been taken or by whom and did not know where the vehicle in question had been assigned, or would likely have been located, the morning of September 10, 2013. (Jones Dep. 20:14-21:18.) In fact, as discussed infra, Plaintiff was assigned to a project in suburban Wyandotte on September 10, 2013, and was not assigned to any job duties in downtown Detroit.

         The next contact that Jones had regarding this issue was later that day, around 5:00 or 5:30 p.m., when Slaughter called Jones back to report that Walton “had asked Mr. Greer to go to the clinic and Mr. Greer had refused to go to the clinic and that they were following the policy which was he was being suspended pending termination.” (Jones Dep. 22:4-15.) Slaughter testified that Walton reported that he had asked Plaintiff to go to the clinic and “invoked the policy which was refusal to go to the clinic for a urine sample when asked by your supervisor meant that you were suspended pending termination.” (Jones Dep. 23:9-14.)

         No one asked Mr. Jones whether the suspension to Plaintiff should be issued - he was simply informed that it had been done. (Jones Dep. 23:15-23.) Jones's only other recollection regarding this issue was that he continued to ask for the video and Ms. Alfonso continued to reiterate that Dietz was not going to produce the video. Jones testified:

A: I asked her for the video.
Q: All right. And what, if anything, did she say in response?
A: “He's not giving us the video.” And I told her that I would like to have it for the record.
Q: All right. And why did you want it for the record?
A: As a police officer you like to have all of your - all of any particular evidence. I knew that there had been an investigation done by one of my people, that the call had come in indicating that there was possible video, and that I would have liked to have that in the record, in the file because it completes the file.

(Jones Dep. 25:3-15.) In fact, however, Mr. Jones could not specifically recall whether Ms. Alfonso had represented that Mr. Dietz told her that there was video or whether it was still photographs, concluding that he “thought” is was videos “but it could be videos or photos. I'm not sure.” (Jones Dep. 38:7-38:9.) Mr. Jones was never informed by anyone at DWSD that they actually viewed the video or photographs. (Jones Dep. 39:21-40:7.)

         Mr. Jones testified that he was aware of the need for reasonable suspicion to order such a test, but that no one asked his opinion, as a police officer, whether in his view there was reasonable suspicion to require Plaintiff to be tested. (Jones Dep. 28:14-21, 32:17-21.) As a retired police officer of some 40 years, Mr. Jones had great familiarity with the concept of “reasonable suspicion, ” and believed it was “more than a hunch, ” “as in stop and frisk, ” and “intuitive information that you are able to perceive with your senses.” (Jones Dep. 33:19-35:3.) Mr. Jones was aware that the information he received from Ms. Alfonso, i.e. that Dietz told her that an anonymous source had told him that there was a video, had been double hearsay. (Jones Dep. 29:2-30:4.) Mr. Jones also indicated that he is obligated to investigate even hearsay tips and that is what he did here by assigning Slaughter to investigate. (Jones Dep. 30:3-8.) Mr. Jones testified that the DWSD gets calls from contractors who are unhappy with inspectors like Mr. Greer looking over their work. Mr. Jones acknowledged that, at the time the test was ordered, no one at DWSD knew the identity of the tipster, knew whether or not he was being truthful or whether he had a motive to be less than truthful. (Jones Dep. 30:14-31:21.) In fact, no one knew anything about the tipster other than Dietz's alleged representation (which Dietz actually denies having said, see infra) that the anonymous tipster was perhaps a retired police officer. Mr. Jones confirmed that the only information he received “as to what might or might not be reasonable suspicion is entirely what Ms. Alfonso told [him] that Mr. Dietz told her based on what this person told Mr. Dietz.” (Jones Dep. 35:10-16.) Jones did not make any notes on Ms. Alfonso's call - after he received the call he walked down and gave the information and assignment to Slaughter. (Jones Dep. 39:14-20.) Mr. Jones believed they had reasonable suspicion here based upon the information he received in the phone call from Alfonso:

I believe even though we had hearsay information we had cause and effect to investigate. The officer did go out and investigate. He did put together the fact that the person operating the vehicle at the time was Mr. Greer. He eliminated all the other drivers; and that he had asked Mr. Greer with his supervisor there, he had made the supervisor aware of what the complaint was and the supervisor I believe asked Mr Greer pursuant to our policy to take a urine test.

(Jones Dep. 43:21-44:23.) At the time that Jones reached this conclusion, he did not know that Mr. Greer had a prior drug test issue. (Jones Dep. 45:22-46:2.)

         Under the DWSD policy, the driver of the vehicle would have the right to refuse. (Dotson Dep. 19:22-25.) Also at the time the DWSD procedure for determining who would make the decision to require an employee to undergo a drug test “would have been a combination. If there was an investigation that tipped the box of reasonable suspicion that would have been - information would have been given to the supervisor, and the supervisor would have had the responsibility to ask the employee to go for a drug test.” (Jones Dep. 11:22-12:5.) One of Jones's investigative officers would call the supervisor to “make him aware that there was a need for the supervisor to read the report or partake in the information that the investigation would reveal.” (Jones Dep. 12:6-12.) The supervisor would ultimately be responsible for making the call to send someone for a drug test. (Jones Dep. 12:13-18.)

         c. Wesley Slaughter - Investigator

         Slaughter, who received the assignment from Jones to investigate the anonymous tip regarding someone allegedly rolling a marijuana cigarette in a DWSD vehicle, understood the DWSD drug policy to dictate that “if a supervisor had reasonable suspicion that an employee may be under the influence of alcohol or illegal drugs that they could be asked to go to the clinic for testing.” Slaughter understood that the if an employee turns down a request based on reasonable suspicion, the penalty is a 29-day suspension and then termination. Slaughter had never been involved in a reasonable suspicion investigation before the incident with Plaintiff. (Slaughter Dep. 7:12-8:5.)

         Mr. Slaughter was contacted by Mr. Jones in person and told that Ms. Alfonso, who was the public relations person for DWSD at the time, had received information from Mr. Dietz that an off-duty or a retired police officer had observed one of our persons or employees using drugs while he was sitting in a DWSD vehicle. (Slaughter Dep. 9:7-10:24.) Jones told Slaughter it was a male, did not tell him the race, did not describe the individual, did not tell Slaughter that there was a video and did not tell Slaughter anything about when or where this incident allegedly occurred. (Slaughter Dep. 10:24-12:3.) Jones verbally gave Slaughter the vehicle identification number and asked Slaughter to find out who was driving the vehicle. (Slaughter Dep. 12:7-19.) Jones told Slaughter that he wanted the information as quickly as possible because Dietz wanted to run a story on the incident and the department did not want to suffer the negative publicity. (Slaughter Dep. 13:1-10.)

         After speaking with Jones, Slaughter went down the hall and spoke directly with Ms. Alfonso, who told him that Kevin Dietz had relayed information that a DWSD employee, a black male, was observed possibly using or rolling up a marijuana cigarette while sitting in his vehicle and that Dietz had still photos of this while it was happening. Alfonso verbally repeated the vehicle number to Slaughter. (Slaughter Dep. 14:8-16.) Slaughter was not informed where the incident had occurred or where the photographs had been taken but Alfonso did give a date when this supposedly occurred, information that Slaughter needed to line up who was driving the vehicle with that number that day, and informed Slaughter that it was allegedly a black male driving the van. (Slaughter Dep. 15:3-16:8.) Neither Jones nor Alfonso mentioned or discussed with Slaughter the issue of a drug test. (Slaughter Dep. 16:16-19.)

         After receiving the vehicle number verbally from Alfonso and confirming that it had been in operation on the date question, Slaughter called Donovan Walton, who was in charge of the crew to which that vehicle was assigned, and asked Walton to identify which employee had that vehicle on the date that Alfonso had given Walton. Walton called Slaughter back about an hour later and informed him that Plaintiff was assigned to the vehicle that day. (Slaughter Dep. 16:23-17:15.) Slaughter then reviewed the video logs that monitor company vehicles entering and exiting the facility and confirmed that it was Greer who did swipe in and out that day. (Slaughter Dep. 17:16-24.)

         Jones told Slaughter, as Alfonso had told Jones, that this was going to go on the news and that it was important: “It was conveyed to me by the Chief that we wanted to be ahead of this story before Mr. Dietz put out whatever he was going to do.” (Slaughter Dep. 19:17-19.) Although Slaughter did determine that Plaintiff was assigned to the vehicle that matched the number he was verbally given by Alfonso, Slaughter did not know whether that vehicle was at the location where this incident allegedly occurred and did not know the time that the incident allegedly occurred. (Slaughter Dep. 19:20-20:4.) Slaughter compiled his report regarding the identity of the individual who was assigned to the vehicle matching the number he was given and the next he knew of the situation a meeting took place the next day with himself, Plaintiff, Plaintiff's union representative and Mr. Walton. (Slaughter Dep. 21:9-22:2.)

         Slaughter could not recall who initially suggested the drug test but Slaughter recommended that a drug test should be required and he told Mr. Walton that a drug test should be done. (Slaughter Dep. 22:10-24.) Slaughter testified that it was up to Walton to determine whether or not to follow Slaughter's recommendation and require Plaintiff to undergo the drug test because Walton, as Plaintiff's supervisor, had the final call on how to discipline the Plaintiff. (Slaughter Dep. 23:3-11.) Ultimately, after Slaughter explained to the Plaintiff and the union representative what the charges were, and after conferring privately with his union representative, Plaintiff refused to submit to the test. (Slaughter Dep. 25:1-26:2.)

         Slaughter testified that no one asked his opinion on whether there was reasonable suspicion to test the Plaintiff but he believed that, based solely on what Alfonso reported to Jones and to Slaughter about what Dietz told Alfonso, i.e. that an anonymous source had allegedly observed a black male in a DWSD vehicle bearing a certain number roll a marijuana cigarette, Slaughter believed that there was reasonable suspicion to test Plaintiff after they determined that the vehicle identification number they received verbally from Dietz matched the vehicle assigned to Plaintiff that and that Plaintiff drove that day. Nothing further was learned before Plaintiff was required to submit to a urine drug test. (Slaughter Dep. 27:4-28:2.) Slaughter prepared his report on September 10, 2013 and gave it to Jones. His report did not note the date on which these recorded events allegedly occurred, ...

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