Casados v. City and County of Denver

• Decision Date: 25 July 1996
• Docket Number: No. 95CA0702,95CA0702
• Citation: 924 P.2d 1192
• Parties: 11 IER Cases 1722 John T. CASADOS, Jerry Draper, and Augustine Villalobos, Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER; Federico Pena, in his official capacity as Mayor of the City and County of Denver; The Department of Public Works; and William Roberts, in his official capacity as Head of the City and County of Denver, Department of Public Works, Defendants-Appellees. . V
• Court: Colorado Court of Appeals

Page 1192

924 P.2d 1192

11 IER Cases 1722

John T. CASADOS, Jerry Draper, and Augustine Villalobos Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER; Federico Pena, in his official capacity as Mayor of the City and County of Denver The Department of Public Works; and William Roberts, in his official capacity as Head of the City and County of Denver, Department of Public Works, Defendants-Appellees.

No. 95CA0702.

Colorado Court of Appeals Div. V.

July 25, 1996.

Rehearing Denied Aug. 22, 1996.

John Mosby, Elisa Moran, Denver, for Plaintiffs-Appellants.

Daniel E. Muse, City Attorney, Darlene M. Ebert, Assistant City Attorney, Luis A. Corchado, Special Counsel, Denver, for Defendants-Appellees.

Opinion by Judge ROY.

In this action challenging the constitutionality of the City and County of Denver's mandatory drug testing program, plaintiffs, John Casados, Jerry Draper, and Augustine Villalobos, appeal the trial court's dismissal of their claims against defendants, the City and County of Denver (the City); Federico Pena, in his official capacity as mayor; and William Roberts, in his official capacity as head of the City's Department of Public Works. We affirm.

In 1988, Mayor Federico Pena issued Executive Order 94 (the Order) relating to mandatory drug testing of city employees. Under the terms of the Order, supervisors may require city employees to submit to blood or urine tests if the supervisors have reasonable suspicion that the employees are using illegal drugs or alcohol or are under the influence of drugs or alcohol. Also, if there has been a workplace accident that may have been caused by human error which could be drug or alcohol related, then supervisors may require employees involved in the accident to submit to testing even if they do not exhibit symptoms of being under the influence.

Employees who test positive or who refuse to be tested are subject to disciplinary action, including dismissal. Alternatively, employees who test positive may be evaluated for drug or alcohol abuse problems and ordered to undergo treatment.

A city employee who is disciplined or dismissed because of illegal drug use substantiated by a drug test pursuant to the Order may appeal the matter to the Denver Career Service Board (the Board). The Board is then required to appoint a hearings officer who is required to conduct a hearing, make findings, and impose sanctions, if appropriate. Denver City Charter § C5.25. If the hearings officer upholds the discipline, the employee may appeal that order to the Board, which is bound by the hearings officer's findings of fact. Denver Career Service Board Rule 19-10.

Plaintiffs are employees or former employees of the City who, for various reasons, were ordered to undergo drug and/or alcohol tests by their supervisors and, therefore, have been personally affected by the Order.

The appointing authority (department head) dismissed Casados and Draper for refusing to submit to a drug test based upon a supervisor's suspicion that they were under the influence of a drug or alcohol on the job. On appeal, the hearings officer found that the City did not have reasonable suspicion to order any testing of Casados and Draper. Casados was reinstated with back pay. However, the hearings officer upheld Draper's dismissal on other grounds.

With respect to plaintiff Villalobos, he was suspended for one day for an excessively long break. Villalobos was not required to submit to a test under the Order; he was, however, required to submit to a blood test because of other health-related matters, but the test was never conducted. The hearings officer upheld the suspension.

None of the three named plaintiffs now before us appealed any disciplinary action to the Board.

In February 1990, plaintiffs, along with one other city employee, filed this action individually and as representatives of a purported class of similarly situated persons challenging the Order as facially unconstitutional and requesting declaratory and injunctive relief barring its enforcement and damages. The proceeding was never certified as a class action, and the trial court dismissed plaintiffs' facial challenge to the constitutionality of the Order for failure to state a claim upon which relief could be granted.

On appeal, our supreme court in City & County of Denver v. Casados, 862 P.2d 908 (Colo.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1372, 128 L.Ed.2d 48 (1994), held that plaintiffs did not state a claim that the order was facially unconstitutional. The court further held that the City may test for on-duty drug or alcohol use or impairment by employees who are not in safety-sensitive positions so long as it has reasonable suspicion that they are under the influence of alcohol or drugs. The court remanded the matter to the trial court for further proceedings on an as-applied challenge to the constitutionality of the Order. Those challenges are the subject of this appeal.

After remand, plaintiffs filed, with leave of the trial court, a second amended complaint pursuant to 42 U.S.C. § 1983 (1994) alleging that the Order, as applied, violated the Fourth Amendment and the equal protection clause of the Fourteenth Amendment.

Defendants again moved to dismiss under C.R.C.P. 12(b), which motion was treated as a motion for summary judgment under C.R.C.P. 56 because supporting affidavits and documents were filed in support of the motion. C.R.C.P. 12(b).

As pertinent to this appeal, the trial court, citing City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988), and Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), dismissed plaintiffs Casados, Draper, and Villalobos' 42 U.S.C. § 1983 claims because the city officials who took or participated in any disciplinary action with respect to these plaintiffs were not capable of binding the City for 42 U.S.C. § 1983 purposes. The court held that the Board, pursuant to the Denver City Charter, makes final decisions relating to employment which are binding on the City for 42 U.S.C. § 1983 purposes. The trial court certified the order under C.R.C.P. 54 as to the dismissal of the claims by Casados, Draper, and Villalobos, and this appeal followed.

I.

Initially, we note that summary judgment is a drastic remedy and is never warranted except upon a clear showing that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Graven v. Vail Associates, Inc., 909 P.2d 514 (Colo.1995). A party moving for summary judgment has the initial burden of establishing that no genuine issue exists as to any material facts. Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo.1985). The party against whom summary judgment is sought is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo.1987).

II.

Plaintiffs first contend that the trial court erred in determining that the Board is the final policymaking authority for employment decisions relating to the Order. We find no merit in plaintiffs' contention.

A.

Under 42 U.S.C. § 1983, a municipality is not liable for the acts of any of its employees by application of the doctrine of respondeat superior. Rather, a municipality is liable when its employee or agent deprives a person of his constitutional rights in implementing or executing a policy. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Givan v. City of Colorado Springs, 876 P.2d 27 (Colo.App.1993), rev'd on other grounds, 897 P.2d 753 (Colo.1995).

Such a policy may be evidenced either by an express ordinance or other enactment adopted by the municipality's policymakers or by a widespread practice so permanent and well settled as to constitute a "custom or usage" having the force of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

Even in the absence of an express policy or a persistent practice, a single decision by one of the entity's policymakers in a particular instance may represent the establishment of a "policy" for that specific circumstance so as to render the municipality liable for that decision. Pembaur v. City of Cincinnati, supra.

In this latter instance, the decision must be one that is final. If the action is subject to further review, it is the action taken upon that review and not the initial decision which represents the official policy of the entity. City of St. Louis v. Praprotnik, supra; see County of Adams v. Hibbard, 918 P.2d 212 (Colo.1996); see generally M. Schwartz & J. Kirklin, Section 1983 Litigation § 7.7 (2d ed.1991).

A court should determine final policymaking authority based on state and local law. City of St. Louis v. Praprotnik, supra.

B.

Here, contrary to plaintiffs' assertion, the issue is not the Order itself, which our supreme court held to be constitutional, but whether the City had a policy of applying the Order in an unconstitutional manner.

The charter provision dealing with the Board, Denver City Charter § C5.25, states in relevant part:

The Career Service Board shall:

.......