Everett v. Napper

• Decision Date: 17 April 1986
• Docket Number: Civ. No. C85-3154.
• Citation: 632 F. Supp. 1481
• Parties: Tommy L. EVERETT v. George NAPPER, et al.
• Court: U.S. District Court — Northern District of Georgia

632 F. Supp. 1481

Tommy L. EVERETT v. George NAPPER, et al.

Civ. No. C85-3154.

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

April 17, 1986.

Antonio L. Thomas, Donald M. Dotson, Thomas & Dotson, Atlanta, Ga., for plaintiff.

Marva Jones Brooks, W. Roy Mays, III, George R. Ference, Omni International, Atlanta, Ga., for defendant(s).

ORDER

ORINDA D. EVANS, District Judge.

This civil rights action arising from Plaintiff's termination as a firefighter with the City of Atlanta Bureau of Fire Services is before the court on Defendants' motion for summary judgment.

The following facts are undisputed. Plaintiff was a firefighter for the City of Atlanta Bureau of Fire Services. As a result of a previous narcotics investigation of another firefighter, James Hodges, the City of Atlanta's Department of Public Safety, Office of Profesional Standards, began its own administrative investigation into possible misconduct by fire bureau employees. As part of the Hodges investigation, the DeKalb County Narcotic Squad had conducted a surveillance of Hodges' home and had observed several employees of the Bureau of Fire Services going into that address. The DeKalb County Narcotics Squad videotaped persons entering and leaving Hodges' apartment, and representatives of the Atlanta Department of Public Safety were given an opportunity to review these videotapes. Plaintiff did not appear in any of the videotapes.

Hodges was subsequently interviewed by Sgt. C. Lathrop of the Office of Professional Standards. At this interview, Hodges identified a lengthy list of names of fire bureau personnel who purchased marijuana from him within the prior three months. Hodges stated to Defendant Lathrop that he had sold marijuana to Plaintiff within three months prior to that interview.

On the basis of Hodges' statement, Plaintiff was called into the Office of Professional Standards and interviewed by Lathrop on August 4, 1984. Lathrop informed Plaintiff that he was making an administrative investigation into apparent drug use and sales within the Department of Public Safety, but that there was no criminal investigation. Lathrop also informed Plaintiff of Commissioner Napper's memorandum of August 3, 1984, which stated that:

The Office of Professional Standards is presently investigating what is alleged to be wide spread use and trafficing of illegal drugs within the bureau.

Through this memorandum, I am directing all personnel to fully cooperate in this investigation. Cooperation includes, but is not limited to, appearing as directed, giving statements as required, submitting to polygraph examinations if requested and submitting to any drug screening tests deemed appropriate by the Office of Professional Standards.

Failure to comply with any part of this directive will be considered as disobeying a direct order from the Commissioner of Public Safety. Any employee disobeying this order will be immediately suspended and the appropriate charges will be preferred.

There is a dispute as to whether Plaintiff was actually shown Commissioner Napper's memorandum. In any case, Lathrop ordered Plaintiff to submit to a urinalysis test. Plaintiff refused, and signed a written statement that his refusal to cooperate was based on his "non-involvement pertaining to this particular investigation."

Plaintiff's refusal to cooperate in the investigation, and his failure to comply with Lathrop's order, resulted in his immediate suspension from his employment. Formal charges were also brought against Plaintiff for violating the work rules of the Department of Public Safety. Specifically, Plaintiff was charged with violating Rule 2.09, which requires that "employees of the department shall promptly obey all proper and lawful orders of supervisors and other employees assigned to act in a supervisory capacity," due to his refusal to obey Lathrop's order to take the urinalysis test. Plaintiff was further charged with violating Rule 1.03, which provides that "employees of the department shall be truthful, at all times, both in their spoken and written words," because he stated that he had told Captain Rosemond that he lost his identification, when Captain Rosemond had no recollection of any such statement. Plaintiff was also charged with violating Rule 2.33, which states that "every employee of the department shall familiarize herself/himself with and conform to rules, regulations, directives and standard operating procedures of the department," due to his refusal to cooperate in the investigation as required by Department of Public Safety General Order No. 83-4.¹

The Department notified Plaintiff that a hearing on the work rule violation charges would be held before the disciplinary hearing panel on September 12, 1984. A hearing was held, after having been continued, on October 3, 1984. Plaintiff appeared before the panel with counsel and participated in the hearing by questioning witnesses and presenting evidence. As a result of that hearing, the panel found that Plaintiff had violated the three work rules, and submitted their recommendations to Commissioner Napper. The Commissioner also concluded that Plaintiff had violated the three work rules and ordered that his employment be terminated.

Plaintiff appealed the order of discharge to the City of Atlanta Civil Service Board, and the Board gave Plaintiff a full hearing on December 13, 1984. Plaintiff appeared at this hearing with counsel and contested the charges. The Board concluded that Plaintiff had violated the Department's work rules and voted to dismiss him.

On June 3, 1985, Plaintiff filed this action seeking equitable relief and damages. Plaintiff alleges that Defendants' termination of his employment violated his Fourth and Fourteenth Amendment rights. Count One of Plaintiff's complaint alleges that the requirement that he undergo a urinalysis violated his Fourth Amendment right to be free from unreasonable search and seizure. Plaintiff contends that a urinalysis is a search which was imposed on him withut a warrant or any objective evidence linking him to drug usage. Count Two alleges that Defendants' order that Plaintiff undergo a urinalysis, and their termination of his employment upon his failure to undergo such a test, was arbitrary and capricious in violation of his Fourteenth Amendment procedural and substantive due process rights. Count Three also alleges that Defendants' order and disciplinary actions violated Plaintiff's substantive and procedural due process protections, as Defendants had no valid, previously promulgated policy requiring employees of the Bureau of Fire Services to take urinalysis tests. Counts Four and Five allege violations of Plaintiff's equal protection and due process rights. Plaintiff asserts that other employees who admitted to knowing Hodges were not required to take a urinalysis test and were not terminated from their employment. Count Six alleges a pendent state claim of invasion of privacy.

Defendant first argues that summary judgment on Plaintiff's Fourth Amendment claim is appropriate because although Plaintiff was ordered to submit to a urinalysis test, he did not actually take any such test. There was therefore no "search" within the meaning of the Fourth Amendment. The court agrees that there can be no Fourth Amendment violation when there has been no actual search. Summary judgment for Defendants is therefore granted on Count One.

Defendants next argue that Plaintiff received the procedural due process to which he was entitled before termination of his employment. Defendants point out that Plaintiff received notice that a hearing would be held to review the charges against him. Plaintiff then appeared at a full hearing before the Bureau of Fire Services disciplinary review panel, at which he was represented by counsel, presented evidence, and cross examined witnesses. He then appealed the panel's adverse decision to the Atlanta Civil Service Board, where he again was represented by counsel, presented evidence, and confronted the witnesses against him. Defendants contend that these procedures satisfied the essential elements of due process, which requires that an individual receive notice and opportunity to be heard before being deprived of a property interest. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Cleveland Board of Education v. Loudermill, ___ U.S. ___, ___, 105 S.Ct. 1487, 1495-96, 84 L.Ed.2d 494, 506 (1985).

Loudermill is the Supreme Court's most recent pronouncement on the requirements of due process in the context of public employment. The plaintiffs in that case were discharged as employees of public boards of education. Plaintiff Loudermill was informed of his termination by letter from the Cleveland Board of Education, but was not afforded an opportunity to respond to the charges forming the basis of his termination. The Court concluded that due process required only that a tenured public employee receive "oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story ... To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee." Id.

It is undisputed that the incident for which Plaintiff was ultimately discharged occurred on August 4, 1984. Plaintiff received notice on September 9, 1984 that a hearing would be held to review the charges against him on September 12, 1984. The formal hearing before the Bureau of Fire Services panel was actually held on October 3, 1984. After appealing the panel's decision to the City of Atlanta Civil Service Board, Plaintiff received another formal hearing on December 13, 1984. At both hearings, evidence was presented to support the written charges against Plaintiff. Plaintiff appeared with counsel, testified and presented evidence, and cross-examined witnesses. Under Loude...