Garrett v. Clarke

• Citation: 552 F.Supp.3d 539
• Decision Date: 04 August 2021
• Docket Number: Civil Action No. 3:19cv835
• Parties: Jacoby L. GARRETT, Plaintiff, v. Harold W. CLARKE, individually and in his official capacity as Director of the Virginia Department of Corrections, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

552 F.Supp.3d 539

Jacoby L. GARRETT, Plaintiff,

v.Harold W. CLARKE, individually and in his official capacity as Director of the Virginia Department of Corrections, et al., Defendants.

Civil Action No. 3:19cv835

United States District Court, E.D. Virginia, Richmond Division.

Signed August 4, 2021

Robert Jackson Allen, ThorsenAllen, LLP, Richmond, VA, for Plaintiff.

Ronald Nicholas Regnery, Ryan Spreague Hardy, Kati Kitts Dean, Office of the Attorney General, Richmond, VA, for Defendants.

MEMORANDUM OPINION

Robert E. Payne, Senior United States District Judge

This matter is before the Court on THE INDIVIDUAL DEFENDANTS’ RULE 12(B) (6) MOTION TO DISMISS, WITH PREJUDICE, COUNT I (IN FULL) AND II (IN REGARD TO DEFENDANT STRETCHER) OF THE PLAINTIFF'S AMENDED COMPLAINT (ECF No. 28) ("INDIVIDUAL DEFENDANTS’ 12(B) (6) MOTION") and DEFENDANTS’ RULE 12(B) (1) MOTION TO DISMISS, WITH PREJUDICE, PLAINTIFF'S AMENDED COMPLAINT (ECF No. 30) ("ALL DEFENDANTS’ 12(B) (1) MOTION"). In ALL DEFENDANTS’ 12(B) (1) MOTION, the Court is asked to dismiss: (1) all Counts under the Colorado River abstention doctrine;¹ (2) Count I on the basis of Eleventh Amendment immunity; and (3) Count III on the basis that the Court lacks an independent basis for subject-matter jurisdiction. In the INDIVIDUAL DEFENDANTS’ 12(B) (6) MOTION, the Court is asked to dismiss: (1) Count I on the basis of qualified immunity; and (2) Count II as to Defendant Felicia V. Stretcher for failure to state a claim under the Ex parte Young doctrine.² For the reasons set forth below, ALL DEFENDANTS’ 12(B) (1) MOTION (ECF No. 30) will be denied, except as to Count III, and the INDIVIDUAL DEFENDANTS’ 12(B) (6) MOTION (ECF No. 28) will be denied.

BACKGROUND

This case arises from the termination of Jacoby L. Garrett's employment at the Virginia Department of Corrections ("VDOC") pursuant to VDOC's random drug testing policy. Garrett worked for VDOC as a Telecommunications Network Coordinator from December 27, 2016 to July 17, 2018. Am. Compl. ¶¶ 7, 90, ECF No. 27. As is the rule, the facts are recited as alleged and must be presumed to be true. Favorable inferences go to Garrett, as the non-moving party.

As a Telecommunications Network Coordinator, Garrett's duties and responsibilities included: "directing and managing IT projects involving Cisco call manager express/Unity express, video streaming and conferencing, voice communications including voicemail and wireless, data connections, troubleshooting cellphones, managing the DOC cell phone database, setting up desk telephones, and related IT and networking tasks." Id. ¶ 39. In fact, it is alleged that Garrett spent most of his time assisting other VDOC employees with their mobile devices. Id. He worked primarily at VDOC headquarters, where no inmates are confined. Id. ¶ 40. Garrett did not carry a firearm at work, hold a commercial driver's license, transport offenders, or in any other manner confine, monitor, or oversee inmates. Id. ¶¶ 41-45. Garrett, however, encountered inmates who worked at VDOC headquarters and when his work took him to correctional facilities. Id. ¶ 42. Those encounters are alleged to be "casual," id., but the Amended Complaint does not define what "casual" means.

While Garrett was employed by VDOC, VDOC Operating Procedure 135.4, Alcohol and Other Drug Testing ("OP 135.4"), mandated that "[a]ll wage, full and part time salaried employees ... are to random drug testing." Id. ¶ 54; Am. Compl. Ex. C, at 9, ECF No. 27-3 ("OP 135.4"). OP 135.4 also specifies that failure to report for random drug testing is grounds for termination. Am. Compl. ¶ 56, ECF No. 27; OP 135.4 at 6, ECF No. 27-3.

Just before 2:00 p.m. on June 28, 2018, Shenda Allen, a VDOC personnel assistant, notified Garrett that he had been selected for random drug testing. Am. Compl. ¶ 74, ECF No. 27. At the time, Garrett was in the human resources department and agreed to take the test, so he waited in an empty office while Allen retrieved testing supplies. Id. ¶ 74-75. While waiting for Allen to return, Garrett received a telephone call advising that someone (who Garrett understood to be his manager) was looking for him. Id. ¶ 76. When Garrett next saw Allen, he told her that his manager was looking for him. Id. ¶ 77. Allen told Garrett, "I'll get you next time," and Garrett returned to his department. Id. ¶¶ 77-78.

Neither Allen nor anyone else asked Garrett again that day to take a drug test, and Allen did not tell Garrett or anyone else that he had refused a drug test. Id. ¶¶ 79, 81. The next day, Garrett left for a preapproved vacation scheduled to last a week. Id. ¶ 83.

On June 29, Allen reported that Garrett had refused a drug test. Id. ¶ 84. The same day, Richard A. Davis, then VDOC's Chief Information Officer, stated, based on Allen's report, that Garrett would be terminated for refusing a drug test. Id. ¶ 85. In addition, Felicia V. Stretcher, VDOC's Information Technology Administration and Operations Manager, wrote in an email, "Garrett's failure to submit to the test is a direct violation of the DOC policy." Id. ¶ 86. Stretcher placed Garrett on pre-disciplinary leave effective July 6 or July 9, 2018 for "a potential violation of OP 135.4."³ Id. ¶ 87; Pl.’s Supp. Submission Opp. Def.’s Mot. Dismiss Ex. A, ECF No. 56-1. Garrett was subsequently informed that his employment was terminated effective July 17, 2018. Am. Compl. ¶ 90, ECF No. 27.

After Garrett was terminated, he filed an administrative dismissal grievance. Id. ¶ 91. A grievance hearing was held on October 10, 2018. Id. ¶ 92. The hearing officer upheld Garrett's termination on the basis that Garrett's refusal to submit to a drug test was a valid basis for removal under OP 135.4.⁴ Id. ¶ 96; Am. Compl. Ex. E at 6, ECF No. 27-5.

Garrett subsequently appealed the hearing officer's decision to the Circuit Court of the City of Richmond. Am. Compl. ¶ 98, ECF No. 27; Mem. Law Supp. Defs.’ Rule 12(b) (1) Mot. Dismiss Ex. A, ECF No. 31-1. In that appeal, Garrett, for the first time, raised a Fourth Amendment claim: "that the random drug test that he allegedly refused to take, and which formed the basis of his termination, violates [his] right to be free from unlawful searches and seizures." Am. Compl. Ex. F at 3, ECF No. 27-6 ("First Circuit Court Decision"). "Specifically, [Garrett] argue[d] that his job with VDOC was not a ‘safety-sensitive’ position that qualifies as an exception to the warrant requirement of the Fourth Amendment." Id.

On April 5, 2019, the Circuit Court found that it had the authority to hear this newly raised argument but remanded the matter to the hearing officer for factual development and a ruling on the Fourth Amendment argument. Am. Compl. ¶ 99, ECF No. 27; First Circuit Court Decision at 9, ECF No. 27-6 ("The matter is remanded to the Hearing Officer to determine whether Grievant's employment with the Virginia Department of Corrections was a ‘safety-sensitive job’ that qualifies as an exception to the warrant requirement of the Fourth Amendment.").

The parties then appeared before the hearing officer on February 18, 2020. Am. Compl. ¶ 104, ECF No. 27. On August 7, 2020, the hearing officer issued a decision in favor of Garrett, finding that VDOC's attempt to randomly drug test Garrett violated the Fourth Amendment because Garrett was not employed in a safety-sensitive position and thus VDOC's need to drug test Garrett was not substantial enough to outweigh his privacy interest. Pl. Status Report Ex. 1 at 11-13, ECF No. 46-1 ("Second Hearing Officer Decision"). The hearing officer ordered that Garrett be reinstated with back pay and benefits. Pl. Status Report at 1, ECF No. 46; see also Second Hearing Officer Decision at 13, ECF No. 46-1.

On August 24, 2020, VDOC requested an administrative review of this decision by the Office of Employment Dispute Resolution ("EDR") in the Virginia Department of Human Resources Management. Joint Status Report at 1-2, Sept. 1, 2020, ECF No. 47; see also Joint Status Report Ex. A, ECF No. 47-1. EDR declined to disturb the hearing officer's decision. Joint Status Report at 1, Oct. 30, 2020, ECF No. 49; Joint Status Report Ex. A, at 1, ECF No. 49-1. VDOC then appealed decision to the Circuit Court of the City of Richmond. Joint Status Report at 1-2, Oct. 30, 2020, ECF No. 49. On April 8, 2021, the Circuit Court of the City of Richmond also affirmed the hearing officer's decision on Fourth Amendment grounds, holding that VDOC did not have a special need to test Garrett based on an interest in protecting either public safety or VDOC's classified and/or sensitive data. Pl.’s Rebuttal Br. Ex. A, at 4-8, ECF No. 63-1. The matter is currently pending before the Virginia Court of Appeals. Defs.’ Status Report at 2, May 25, 2021, ECF No. 66.

Garrett filed this action in November 2019 against Harold W. Clarke (VDOC Director), Richard A. Davis (VDOC Chief Information Officer), Felicia V. Stretcher (VDOC Information Technology Administration and Operation Manager), and the VDOC. Garrett alleges that OP 135.4 "violated [his] Fourth Amendment rights by ing him to random and suspicionless alcohol and drugs tests, with termination as the penalty for refusal, when he did not work in a safety-sensitive position." Am. Compl. ¶ 110, ECF No. 27. Garrett argues that, under Supreme Court and Fourth Circuit precedent, only government employees who work in safety-sensitive positions can be constitutionally ed to random, suspicionless drug testing. Id. ¶ 27. Specifically, Garrett brings three claims for relief: Count I, brought against Defendants Clarke, Davis, and Stretcher in their individual capacities by way of 42 U.S.C. § 1983,⁵ seeks compensatory damages, punitive damages, declaratory and injunctive relief, other equitable relief, and reasonable attorneys’ fees and costs; Count II, brought against Defendants Clarke and Stretcher in their official capacities by way of 42 U.S.C. § 1983 and the Ex parte Young doctrine, seeks declaratory and...