Gonzales v. City of San Antonio

• Decision Date: 12 June 2018
• Docket Number: 5-17-CV-00998-OLG-RBF
• Parties: RICKY GONZALES, Plaintiff, v. CITY OF SAN ANTONIO, Defendant.
• Court: U.S. District Court — Western District of Texas

RICKY GONZALES, Plaintiff, v. CITY OF SAN ANTONIO, Defendant.

5-17-CV-00998-OLG-RBF

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

June 12, 2018

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

To the Honorable Chief United States District Judge Orlando Garcia:

This Report and Recommendation concerns the Motion to Dismiss filed by Defendant City of San Antonio. Dkt. No. 6. All pretrial matters in this case were referred to the undersigned for disposition, pursuant to Western District of Texas Local Rules CV-72 and 1 to Appendix C. Dkt. No. 10. The Court has federal question jurisdiction over this § 1983 case pursuant 28 U.S.C. § 1331, and the undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below, it is recommended that Defendant's Motion to Dismiss, Dkt. No. 6, be GRANTED but that Plaintiff be permitted an opportunity to amend the complaint to cure the deficiencies outlined herein.

I. Factual and Procedural Background

This wrongful-termination action is brought by Plaintiff Ricky Gonzales, a former employee of the San Antonio Parks and Recreation Department, who was terminated after failing a post-accident drug test. As a Parks and Recreation employee, Gonzales would often drive one of the City's trucks while pulling an attached trailer. Compl. ¶ 9, 13. According to Gonzales, he was "one of the safest drivers and best to park the Defendant, City's truck while pulling a trailer." Id. ¶ 12. But on the afternoon of April 20, 2016, a fellow employee reported Gonzales for damaging another vehicle while parking in the City's yard. Id. ¶ 16. Gonzales's supervisor inspected both vehicles and trailers but found no visible damage. Id. Thereafter, Gonzales was permitted to leave for the afternoon without further incident. Id.

The following morning at approximately 7 am, Park Operations Supervisor Terry Trevino contacted Gonzales and informed him that he needed to take a drug test as a result of the previous day's incident. Id. ¶ 20. Initially, Gonzales refused. He maintained that the City's Drug Testing Policy required that all drug tests be administered on the same day of an accident. Id. ¶ 19, 20. But he relented and took the test after he was informed that further refusal would result in his termination. Id. According to Gonzales, he submitted to the test "under pressure" and because "he knew that he was 'clean.'" Id. ¶ 21. But Gonzales straightforwardly concedes that "[t]he results of the drug test came back positive for some drugs." Id. ¶ 22. And he does not dispute the testing procedures or take issue with the accuracy of the results; he instead contends only that the City knew he was taking prescribed pain medication after suffering on-the-job injuries. Id. ¶ 28. Gonzales offers no explanation for why his prescription for medication does not excuse his positive test result.

Citing the drug-test results, the City, on May 12, 2016, issued Gonzales a Notice of Final Termination. Id. ¶ 22. Gonzales appealed the termination decision. Id. ¶ 23. On July 28, 2016, the Civil Service Commission held a hearing on the appeal. Id. ¶ 24. During this hearing, Gonzales opposed his termination but only on the grounds that the City violated its own drug testing policy by requiring him to take a drug test the day after the alleged incident. Id. Inresponse, according to Gonzales, the Parks and Recreation Department argued that it has its own non-written policy, "which requires that a drug test be taken on every accident." Id. ¶ 25. On July 28, 2016, the Commission recommended that the City Manager sustain Gonzales's termination. Id. ¶ 26. On October 24, 2016, the City Manager accepted this recommendation, which according to Gonzales made his termination "final." Id. ¶ 27.

Gonzales initiated this § 1983 action on August 22, 2017, in Bexar County state court. He alleged that the City violated his substantive and procedural due process rights. Id. ¶ 30. Gonzales further alleged that the City violated his right to equal protection under the law "due to the dichotomy in the Defendant, City's application and enforcement of its Drug Testing Policy in regards to all of its departments." Id. ¶ 34. Finally, Gonzales alleged that the City violated his "right of liberty of gainful employment and free of defamation by government action and officials." Id. Gonzales seeks both reinstatement of his employment and damages in the form of back pay, mental anguish, reputational damages, and loss of benefits. Id. ¶¶ 35, 37. In the course of lodging these claims, Gonzales does not allege that the drug test results were in error or explain why his prescription does not excuse his positive test result.

The City removed the action to federal court and now moves to dismiss Gonzales's claims under Rule 12(b)(6). According to the City, Gonzales has failed to allege or identify any facts sufficient to impose municipal liability. The City further alleges that Gonzales has failed to identify how requiring a post-accident drug test was arbitrary or capricious or allege facts capable of showing that the policymaker acted with conscious indifference. Mot. at 6.

II. Legal Standards

In reviewing a motion to dismiss filed pursuant to Rule 12(b)(6), a court "accept[s] 'all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" New Orleans City v. Ambac Assur. Corp., 815 F.3d 196, 200 (5th Cir. 2016) (quoting In re KatrinaCanal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). But a court need not credit conclusory allegations or allegations that merely restate the legal elements of a claim. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (citing Iqbal, 556 U.S. at 678).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Although a complaint "does not need detailed factual allegations," the "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In other words, the allegations must show "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678.

III. Analysis

For the reasons discussed below, Gonzales has failed to sufficiently plead facts capable of showing that the City committed a constitutional violation and that a City policy was the moving force behind any alleged constitutional violation.

Alleged Constitutional Violations. As further explained shortly, the only conceivably viable alleged constitutional violation at issue here involves whether the City violated Gonzales's due process rights by testing him when it did. This claim involves only the timing of the test; Gonzales does not take issue with the test itself or its results. But before turning to this claim, Gonzales's remaining claims—and why they fail under Rule 12(b)(6)—warrant some discussion.

First to fail is Gonzales's claim that the City violated his right to equal protection under the law by applying its drug testing policies unequally between different departments. This claim can survive only if it is alleged that similarly situated employees are treated differently. SeeBryan v. City of Madison, Miss., 213 F.3d 267, 276 (5th Cir. 2000). Employees who are employed in different departments, however, are generally not similarly situated. See, e.g., Lee v. Kansas City South Railway Co., 574 F.3d 253, 259-60 (5th Cir. 2009) ("Employees with different supervisors, who work for different divisions of a company . . . generally will not be deemed similarly situated."); see also Integrity Collision Ctr. v. City of Fulshear, 837 F.3d 581, 587 (5th Cir. 2016) (noting that employment decisions "by their nature involve discretionary decisionmaking" and, hence, are not amenable to a so-called class-of-one equal protection claim). This claim, therefore, fails from the outset.

Next is Gonzales's defamation claim. Because he has not alleged that the City disseminated his drug-test results outside the proper chain of command or that the drug-test results were inaccurate, he has failed to state a claim upon which relief could be granted. See White v. Thomas, 660 F.2d 680, 684 (5th Cir. 1981) ("A constitutionally protected liberty interest is implicated only if an employee is discharged in a manner that creates a false and defamatory impression about him and thus stigmatizes him and forecloses him from other employment opportunities."); Johnson v. Martin, 943 F.2d 15, 17 (7th Cir. 1991) (affirming dismissal of plaintiff's claim that employer's placement of drug test results in his personnel file violated his liberty interest in his reputation where plaintiff conceded that the results had not been disseminated to any potential future employers). This claim, therefore, also fails as alleged.

In any event, Gonzales has abandoned these other claims (the non-due process claims). Gonzales argues in his Response only that the City violated his due process rights in connection with his employment. His failure to defend any other claims in response to the motion to dismiss effectively abandons those claims. See Black v. Panola Sch. Dist., 461 F.3d 584, 588 n. 1 (5thCir. 2006) (plaintiff abandoned claim alleged in complaint when she failed to defend claim in response to motion to dismiss).

Municipal Liability. Gonzales has not alleged sufficient facts to support a finding of municipal liability under any theory or claim. "[M]unicipal liability under section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of...