Allen v. City of Marietta, Civ. A. No. C83-1878A.

• Decision Date: 04 January 1985
• Docket Number: Civ. A. No. C83-1878A.
• Citation: 601 F. Supp. 482
• Parties: Barry ALLEN, Andrew Despain, Michael McQuillen, John Towns, Stanley Almon, and Jay Jenkins v. CITY OF MARIETTA, Jack Crane, Individually and in his Official Capacity as City Manager, Kemp Dickerson, Individually and in his official capacity as Superintendent of Electrical Distribution of the Board of Marietta Lights & Water, and Larry Thompson, Individually and in his official capacity as Personnel Manager of the City of Marietta, Gene Cantor, Individually and in his Official Capacity as Safety Officer for the Electrical Distribution of the Marietta Board of Lights and Water, Ruppert Ranes, Individually and in his official capacity as Assistant Chief of Police of the City of Marietta, and the Marietta Board of Lights and Water.
• Court: U.S. District Court — Northern District of Georgia

601 F. Supp. 482

Barry ALLEN, Andrew Despain, Michael McQuillen, John Towns, Stanley Almon, and Jay Jenkins v. CITY OF MARIETTA, Jack Crane, Individually and in his Official Capacity as City Manager, Kemp Dickerson, Individually and in his official capacity as Superintendent of Electrical Distribution of the Board of Marietta Lights & Water, and Larry Thompson, Individually and in his official capacity as Personnel Manager of the City of Marietta, Gene Cantor, Individually and in his Official Capacity as Safety Officer for the Electrical Distribution of the Marietta Board of Lights and Water, Ruppert Ranes, Individually and in his official capacity as Assistant Chief of Police of the City of Marietta, and the Marietta Board of Lights and Water.

Civ. A. No. C83-1878A.

United States District Court, N.D. Georgia, Atlanta Division.

January 4, 1985.

Ralph Goldberg, Atlanta, Ga., for plaintiffs.

Dennis J. Webb, Kent T. Stair, Dennis, Corry, Webb, Carlock & Williams, Atlanta, Ga., Lynn A. Downey, Joseph C. Parker, Downey, Cleveland, Moore & Parker, W.R. Robertson, III, Marietta, Ga., for defendants.

ORDER

FORRESTER, District Judge.

This action is before the court on plaintiffs' March 1, 1984 motion for partial summary judgment; the motion by all defendants except Dr. Williams for summary judgment or partial summary judgment; and plaintiffs' motion for leave to file an additional brief. The latter motion seeks leave to file a brief addressing the impact of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), on plaintiffs' claims. As plaintiffs' motion is unopposed by defendants and as the court believes that the additional brief will be helpful to resolution of the complex issues involved in this case, plaintiffs' motion for leave to file an additional brief is GRANTED. The brief filed on November 1, 1984 is hereby accepted as filed and will be considered by the court in this order.

The remaining two motions are not resolved so easily and require more extensive discussion.

I. FACTS.

Plaintiffs in this case are all former employees of either the Marietta Board of Lights and Water or of the City of Marietta. Plaintiffs contend they were employed by the City while defendants contend that plaintiffs were employed solely by the Board of Lights and Water. The Board is a corporate body created by state law and has the power to sue and be sued. Its membership consists of various top officials of the Marietta City Government. The precise relationship between the Board and the City has not been made clear to the court. The individual defendants are Jack Crane, Marietta City Manager and Manager of the Board of Lights and Water; Larry Thompson, Personnel Manager of the City of Marietta and the Board of Lights and Water; Kemp Dickerson and Gene Cantor, the Superintendent and Safety Officer of the Electrical Distribution Division of the Board of Lights and Water, respectively; and Rupert Raines, the Assistant Chief of Police of the City of Marietta.

The facts giving rise to plaintiffs' cause of action have not been made particularly clear to the court. As best as the court can determine from the voluminous pleadings in this case, the following facts appear to be uncontested. All of the plaintiffs worked in the Electrical Distribution Division of the Board of Lights and Water and worked around high voltage electric wires. Sometime in late 1980 or early 1981 defendant Crane, who was the City Manager of the City of Marietta and the manager of the Board of Lights and Water, began receiving reports from various sources of drug usage by employees of the Board. Crane formed the belief that such drug usage may have been responsible for what appeared to be a large number of injuries to Board employees. Crane formed the belief that, given the extremely hazardous nature of the work done by the employees, such drug usage on the job constituted a threat to the safety of the employees and the general public, and he commenced an undercover investigation to determine which employees were using drugs on the job. An undercover agent was planted in the Electrical Distribution Division but was quickly recognized by some of the employees as a narcotics agent and was allegedly threatened. Transcript of Proceedings before Marietta Pension Board at 43-44. That agent was replaced by a person named Keith Ranger. Ranger had apparently been an informer for the City on other occasions in the past. Ranger went to work in the Electrical Distribution Division and allegedly smoked marijuana with various employees on and off the job and gathered information about drug use in the division. He kept records of which employees he observed smoking marijuana and the dates on which he observed them. He submitted his reports to Kemp Dickerson, the Superintendent of Electrical Distribution. Dickerson allegedly noticed a correlation between the names turned in by Ranger and people who had had "unexplained" accidents.

Based upon the information he had been provided by Ranger, Dickerson, and Larry Thompson, the Personnel Manager, Crane eventually decided that he had sufficient evidence to terminate some sixteen employees for use of drugs on the job. These employees were called together on July 12, 1983 and given an opportunity to resign. When none of the employees volunteered to resign, Crane advised them that they would be fired unless they chose to take a urinalysis test. Defendants' July 26, 1984 Statement of Material Facts Not in Issue, ¶ 4. All six plaintiffs elected to take the urinalysis test. Each of the plaintiffs went into a bathroom stall and urinated into a glass jar. The jars were labeled and sent away for analysis. The test results were received two days later on July 14, and showed that each of the plaintiffs in this action tested positive for the presence of marijuana in their bodies. All six plaintiffs were fired, although the date on which they were fired is unclear.¹ Because of the confusion concerning the date of termination, it is somewhat unclear whether the test results were considered by Crane in deciding whether to terminate plaintiffs, or whether he terminated them based upon the information he had already received from Ranger.

On September 7, 1983 plaintiffs filed this lawsuit under 42 USC § 1983 for the deprivation of rights secured by the fourth and fourteenth amendments to the United States Constitution. Count I of plaintiffs' complaint asserts that the urinalysis test administered on July 12, 1983 was an unreasonable search and seizure in violation of the fourth amendment. Count II asserts that the firing of each plaintiff was arbitrary and capricious and denied each plaintiff his substantive due process rights under the fourteenth amendment. Count III appears to assert a claim for libel based on the fact that defendants publicized the fact that plaintiffs had been discharged for use of drugs on the job and did not give plaintiffs an opportunity to clear their names. Count III also appears to assert that the failure to provide a hearing to give the plaintiffs an opportunity to exonerate themselves constitutes a deprivation of procedural due process. Count IV asserts that plaintiffs were deprived of their property interest in their jobs without due process of law. Count V simply asserts a demand for a hearing. Count VI asserts a claim under Georgia law for violation of plaintiffs' right to privacy and right to be free of unreasonable searches and seizures. Count VII, added by amendment on January 25, 1984, asserts a claim that defendants deprived plaintiffs of their rights to equal protection under the law because "similarly situated employees who had smoked marijuana on the job or had been intoxicated on the job were not fired." Count VIII, added by amendment on June 25, 1984, asserts a claim that defendants deprived plaintiffs of their first amendment rights of free association by prohibiting current Board employees from associating with plaintiffs.

On September 19, 1983, the Board of Lights and Water passed a resolution establishing a formal grievance procedure for its employees. This grievance procedure provided a four-step appeal process starting with the supervisor or department head and culminating, for claims of improper termination, with an appeal to the Pension Board of the Board of Lights and Water ("Pension Board").² The new grievance procedure provided that the decision of the Pension Board should be binding on all parties. Exhibit C to Plaintiffs' Motion for Partial Summary Judgment filed March 1, 1984; Plaintiffs' Statement of Undisputed Material Facts Number Three; Defendants' Response to Plaintiffs' Statement of Undisputed Material Facts. Despite this provision, it appears that decisions of the Pension Board are appealable to the City Council.³

On October 10, 1983 plaintiffs requested through counsel a hearing before the Pension Board and requested that they be given a notice of the cause for their termination and a list of the witnesses who would testify against them at the hearing and a description of the nature of their expected testimony. On October 12, each of the plaintiffs was sent a copy of their notice of termination. The explanation for each termination was the same: "Under influence of drugs while on job." The notice of termination was printed on stationery bearing the letterhead of the City of Marietta and contained a line for the City Manager's approval. This line was initialed by John Crane, the City Manager. On October 12, 1983, each of the plaintiffs was also sent a list of sixteen witnesses who would testify at the hearing and a brief description of the nature of their testimony. Virtually all of the witnesses were expected to offer "testimony relative to drug use on the job." Several were expected to testify concerning plaintiffs' job performance, physical appearance, and past accidents.

On October 20, 1983 the Pension Board met to hear the appeal of the plaintiffs. With...