Greer v. McCormick
| Decision Date | 10 April 2017 |
| Docket Number | Case No. 14-cv-13596 |
| Parties | RALPH GREER, JR., Plaintiff, v. SUSAN McCORMICK, BARRETT JONES, WESLEY SLAUGHTER, THOMAS DOTSON, and DONOVAN WALTON, in their individual capacities, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
OPINION AND ORDER (1) DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 27) AND (2) GRANTING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO LIABILITY (ECF NO. 29)
In this 42 U.S.C. § 1983 action, Plaintiff claims that his employer violated his Fourth Amendment right to be free from an unreasonable search and seizure when it suspended and terminated him from his employment for refusing to undergo a urine drug test that was ordered without reasonable suspicion that he had used drugs in violation of company policy. Defendants respond that they did have reasonable suspicion, based on a call to their public relations department from a news reporter who passed along an anonymous tip from someone who claimed to have seen and photographed a black male rolling a marijuana cigarette while sitting in a company-owned vehicle.
On March 13, 2015, this Court denied Defendants' motion to dismiss, concluding that Plaintiff had adequately alleged a Fourth Amendment violation and that "it was clearly established in September, 2013, that an uncorroborated anonymous tip, even if purportedly backed up by undisclosed photographic evidence, relayed second hand by a news reporter with no first hand knowledge of the facts alleged by the tipster, did not provide individualized reasonable suspicion sufficient to require an employee to submit to a urine drug test." Greer v. McCormick, No. 14-cv-13596, 2015 WL 1181675, at *10 (E.D. Mich. March 13, 2015) (emphasis in original.) See Wrightsell v. City of Chicago, 678 F. Supp. 727, 732 (N.D. Ill. 1988) ().
Discovery is complete and Defendants now seek summary judgment based upon qualified immunity (ECF No. 27) and Plaintiff seeks a partial summary judgment finding on the issue of liability (ECF No. 29). The parties filed Responses (ECF Nos. 32, 33) and Defendants filed a Reply (ECF No. 34). Defendants also filed a Notice of Supplemental Authority on March 28, 2017 (ECF No. 37), to which Plaintiff responded (ECF No. 38). The Court held a hearing on the cross-motions onDecember 21, 2016. Following the hearing, the parties engaged in settlement discussions that were unsuccessful in resolving the case.
For the reasons that follow, the Court GRANTS IN PART Plaintiff's motion for partial summary judgment as to liability and DENIES Defendants' motion for summary judgment.
The Plaintiff, Ralph Greer, began work with the Detroit Department of Water and Sewage ("DWSD") in October, 2000, and ultimately transferred to his position as a construction inspector. (ECF No. 29, Pl.'s Mot. Ex. 1, April 8, 2016 Deposition of Ralph Greer 6:17-7:4.) The DWSD is not a Defendant. The Defendants are employees of the DWSD who are sued only in their individual capacities: Susan McCormick, who was the Director of DWSD (Pl.'s Mot. Ex. 11, April 18, 2016 Deposition of Susan McCormick 5:16-66:7); Barnett Jones, who was the Chief Security and Integrity Officer for the DWSD (Pl.'s Mot. Ex. 5, March 23, 2016 Deposition of W. Barnett Jones 5:2-7); Wesley Slaughter, who was a Security Officer assigned to Special Investigations for the DWSD (Pl.'s Mot. Ex. 6, March 23, 2016 Deposition of Wesley Slaughter 6:17-24); Thomas Dotson, who was a Construction Inspector/Supervisor for the DWSD ; and Donovan Walton, who was the Manager of the DWSD Maintenance and Repair Division and who was the supervisor of Plaintiff's direct supervisor, Thomas Dotson (Pl.'s Mot. Ex. 8, March 23, 2016 Deposition of Donovan Walton).
Throughout his employment with DWSD, Greer worked as a Construction Inspector and drove a DWSD panel truck to various sites to oversee the construction and repair work that private contractors performed for the DWSD. (Greer Dep. 16:19-17:8, 18:17-19.) On the date of the incident that is the subject of this litigation, Greer was assigned to a job in suburban Wyandotte and was driving a "very dark blue" Ford F335 Cargo Van with a vehicle number - 381188 - stenciled on both sides of the truck. (Greer Dep. 12:10-13:23, 15:4-18:9.) Plaintiff submitted a declaration in which he confirms that he was assigned to a job in Wyandotte on the dates in question in this case, that on those days he was driving a dark blue DWSD van and that "at no time on those days did [he] drive a DWSD van on or near Hunt Street in Detroit or on or near any street in the vicinity of Eastern Market in Detroit." Plaintiff's direct supervisor at the time was Thomas Dotson. (Greer Dep. 19:21-22.)
According to Plaintiff, he was sitting in his office at approximately 7:30 a.m. on September 10 or 11, 2013, when Mr. Walton, Mr. Dotson's supervisor, toldPlaintiff that security wanted to see Plaintiff downtown. (Greer Dep. 21:3-5.) Plaintiff did not inquire why but told Walton that he would stop by security when he left the office for his daily assignment. (Greer Dep. 21:6-8, 24:13-25:14.) About 30-45 minutes later, before Plaintiff left the office for his daily assignment, Walton returned and said that security called back and wanted Plaintiff to go to the clinic for a drug test. (Greer Dep. 25:15-26:7.) Plaintiff asked Walton why, and Walton stated that he did not know, he was just doing what security asked him to do. (Greer Dep. 26:15-18.) At this point, Plaintiff asked to speak with his union representative, Juanita Sanders, who was already out in the field and had to be called back to the office to meet with Plaintiff. (Greer Dep. 26:19-27:11.) When Sanders arrived, she and Plaintiff met privately in a conference room at the DWSD offices. (Greer Dep. 27:10-18.) Plaintiff asked Sanders why he had to go for a drug test, and she asked him if he had been involved in an accident with a company vehicle or if someone had claimed that he appeared to be under the influence of some type of controlled substance, to which Plaintiff responded that no, neither of those things had occurred. (Greer Dep. 27:22-28.) Sanders told Plaintiff that he did not need to go to the clinic because DWSD needed a reason to send him for a drug test and they had not given him such a reason. (Greer Dep. 28:4-7.) Sanders then had a conversation with Walton outside of Plaintiff's hearing. (Greer Dep. 29:2-5.) Walton then left Plaintiff and Sanders inthe conference room to wait, stating that security would make a decision. Walton returned less than an hour later with the 29-day suspension pending discharge paperwork, which Plaintiff signed. (Greer Dep. 29:6-30:10.) Walton made no further statements to Plaintiff or to Sanders and Plaintiff got in his personal car and drove home. (Greer Dep. 30:11-17, 31:22-32:3.) Plaintiff denies that he smoked marijuana either on September 10th or 11th, 2013 and denies that he ever smoked marijuana in a DWSD vehicle when he was on duty. (Greer Dep. 32:4-14.)
The Notice of Suspension was issued on Wednesday, September 11, 2013, by Plaintiff's direct supervisor, Thomas Dotson and by Mr. Dotson's supervisor, Donovan Walton. (Pl.'s Mot. Ex. 9, Sept. 11, 2013 Notice of Suspension.) The Notice of Suspension informed Plaintiff that he was being suspended immediately for a period of twenty-nine (29) days, with a recommendation for discharge following the suspension period. (Id.) The reason given for the suspension was as follows:
Possession, consumption, use of or being under the influence of alcoholic beverages, narcotics, habit-forming drugs, or any other potentially intoxicating or potentially impairing substance during working hours or on DWSD property (Employee refused to submit to a drug and alcohol screening).
(Pl.'s Mot. Ex. 9, Notice of Suspension.)
Greer filed a grievance against his suspension, which was denied by the DWSD on September 27, 2013. (ECF No. 29, Pl.'s Mot. Ex. 13, Sept. 27, 2013 GrievanceDenial Letter from DWSD Manager Terri Tabor Conerway.) The Letter stated in part:
(Pl.'s Mot. Ex. 13, Sept. 27, 2013 Correspondence from Terri Conerway to Juanita Sanders.)
On October 7, 2013, the DWSD served Plaintiff with a Notice of Discharge, signed by Susan McCormick, the Director of DWSD. (Pl.'s Mot. Ex. 12.) The reason given for the discharge was as follows:
Possession, consumption, use of or being under the influence of alcoholic beverages, narcotics, habit-forming drugs, or any other potentially intoxicating or potentially impairing substance during working hours or on DWSD property (Employee refused to submit to a drug and alcohol screening).
(Pl.'s Mot. Ex. 13, Notice of Discharge.) Ms....
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