Pike v. Gallagher
| Decision Date | 08 October 1993 |
| Docket Number | Civ. No. 91-0891 JB. |
| Citation | 829 F. Supp. 1254 |
| Parties | Sabrina PIKE, Plaintiff, v. Ray GALLAGHER, Robert Rohlfs, Ted Drennan, Michael Harpster, William Rehm, John W. Higgins, In Their Individual and Official Capacities, Bernalillo County Sheriff's Department, Defendants. |
| Court | U.S. District Court — District of New Mexico |
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Stephen T. LeCuyer, Mettler & LeCuyer, Albuquerque, NM, for plaintiff.
Robert C. Gutierrez, Virginia Anderman, Miller, Stratvert, Torgerson & Schlenker, Albuquerque, NM, for defendants.
THIS MATTER is before the Court on the motion of Defendants Ray Gallagher, Robert Rohlfs, Michael Harpster, William Rehm, Ted Drennan and Bernalillo County Sheriff Department for summary judgment as to all counts of Plaintiff Sabrina Pike's amended complaint. Plaintiff brought her claims under 42 U.S.C. § 1983 and state law wrongful discharge for damages she claims she suffered when Defendants allegedly terminated her employment in violation of her rights under the First, Fourth and Fourteenth Amendments to the United States Constitution. Having reviewed the pleadings, the evidence of record, the relevant law, and having heard the arguments of counsel, the Court finds Defendants' motion is well taken in part and will be granted in part.
On August 15, 1988, Defendant Bernalillo County Sheriff's Department (Department) hired Plaintiff as a deputy sheriff. On October 13, 1989, she was assigned to the Department's Field Services Division as a vice detective. Sometime after October 13, 1989, Plaintiff alleges she began investigating a lead that officers within the Department, including supervisory officers, were receiving illegal payments. These payments were allegedly coming from illegal "lotion" or "massage" parlor businesses in the Albuquerque area. The payments were made to officers who "tipped" the establishments of possible raids by the Department.
Plaintiff claims she informed Sergeant William Rehm, in a private conversation before October 1, 1990, of the possible corruption within the Department. Plaintiff further alleges that after she turned over the investigation to the FBI, she had a meeting with Undersheriff Joe Bowdich, Chief Deputy Robert Rohlfs, and Captain Dan Houston. At this meeting Plaintiff claims she divulged the individuals' names, their descriptions, and the dollar amounts involved in the investigation. Part of the investigation involved deputies Michael Disney and Darryl Burt, who were allegedly picked out of a photo array by a confidential informant in the presence of Plaintiff. The informant also stated that the "boss of Disney" was receiving illegal payments. Plaintiff claims she narrowed the "boss of Disney" down to four individuals: Lieutenant Richard Sawin, Lieutenant Larry Stapleton, Sergeant Richard Scott and Rohlfs.
Plaintiff claims that after she made these statements she was involuntarily transferred to the Narcotics Unit on October 1, 1990. After her transfer, she was required to sign a form consenting to random drug testing. The Department further ordered Plaintiff to cease all her ongoing investigations in the Vice Unit.
On Friday May 10, 1991, Plaintiff had an argument with an informant with whom she worked. On the same day, Plaintiff informed her immediate supervisor, Lieutenant Michael Harpster, that she no longer wished to work with this informant. Several hours later, Harpster claims he received a phone call from the informant who accused Plaintiff of smoking marijuana with her.
On May 13, 1991, Plaintiff reported to work and was informed that she and the rest of the Narcotics Unit1 must submit to a urinalysis test. Sheriff Ray Gallagher ordered the urinalysis testing on the advice of Harpster and Rehm. On May 17, 1991, Plaintiff's test came back positive for marijuana and cocaine use. After being informed of the positive result, Plaintiff notified Captain Ted Drennan and requested a retest as called for under the Department guidelines. The Department performed the retest on the same urine sample which once again came back positive for marijuana and cocaine use.
On her own volition, Plaintiff submitted a urine sample to Lovelace Medical Center, an independent health care center, on May 14, 1991. She submitted another sample to the same facility on May 21, 1991. On May 24, 1991, she submitted a third sample to a medical facility in Freona, New Mexico. All three samples came back negative for both cocaine and marijuana use.
On May 31, 1991, Rehm prepared a notice of pending disciplinary action alleging that an Internal Affairs investigation had been authorized and commenced into Plaintiff's use of marijuana with a confidential informant on May 3, 1991. In the notice Rehm recommended that Plaintiff be fired. Drennan, Gallagher, Harpster and Rohlfs agreed with the recommendation.
On June 6, 1991, at approximately 3 p.m. Harpster notified Plaintiff to be present at 9 a.m. on June 7, 1991, for her "pre-determination" hearing. She had not yet received the written notice of the disciplinary action against her. Plaintiff's former attorney called Gallagher to complain about the short notice of the hearing. He claims Gallagher rejected his objection to the short notice, stating that the hearing was a "mere formality." On June 7, 1991, a pretermination hearing was held in Gallagher's office. On June 11, 1991 Gallagher terminated Plaintiff on behalf of the Department.
Gallagher personally delivered the May 31, 1991, notice of pending disciplinary action to Plaintiff on June 11, 1991. Plaintiff filed a grievance with the Department on June 14, 1991, seeking review of the decision. The post-termination hearing was held between June 24 and June 27, 1991. The hearing board (Board) of Sergeant Richard Scott, Sergeant Bruce Ford, and Deputies Derrly Smith, Jennifer Iskow, and Jack Jones rejected Plaintiff's request that the confidential informant be present to testify and that the Board's decision be by secret ballot. The Board upheld the termination decision of Gallagher on June 27, 1991.
A motion for summary judgment may be granted only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986), and as a matter of law, must show entitlement to summary disposition beyond a reasonable doubt. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir.1980); Madison v. Deseret Livestock Co., 574 F.2d 1027, 1037 (10th Cir.1978). The Court must view the record in a light most favorable to the existence of triable issues. Exnicious v. United States, 563 F.2d 418 (10th Cir.1977).
It may appear prosaic, but the Court finds it necessary to address Defendants' claims of qualified immunity separately since they have properly raised issues involving qualified immunity under each of Plaintiff's constitutional claims. Therefore, the Court will first address whether Plaintiff has raised material issues of fact, as to her constitutional claims, and then will separately address Defendants' claims of entitlement to qualified immunity.
Defendants claim the May 13, 1991, urinalysis test was a random urinalysis test that was consistent with the Supreme Court's decisions in Skinner v. Railway Labor Exec. Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Plaintiff contends the urinalysis of the Narcotics Unit was ordered because of the allegations of drug use against Plaintiff and, therefore, was not random.
Skinner and Von Raab upheld random urinalysis testing of railroad and United States Customs Service employees under the Fourth Amendment. The Court stated that "special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable." Skinner, 489 U.S. at 619, 109 S.Ct. at 1414; Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390. The Court held that the strong public interest in safety outweighed the limited intrusions on the employees in both instances. Skinner, 489 U.S. at 621-22, 109 S.Ct. at 1415-16; Von Raab, 489 U.S. at 671-72, 109 S.Ct. at 1393-94. In finding that the tests were "reasonable" in light of the public interest versus the private intrusion, the Court strongly emphasized that the tests were defined "narrowly" and "specifically," Skinner, 489 U.S. at 622, 109 S.Ct. at 1416, and that the "covered employee is simply not subject `to the discretion of the official in the field.'" Von Raab, 489 U.S. at 667, 109 S.Ct. at 1391 (quoting Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930 (1967)).
The Court need not determine if Skinner and Von Raab applies to sheriff deputies such as Plaintiff,2 see Ford v. Dowd, 931 F.2d 1286, 1289 (8th Cir.1991); Fraternal Order of Police v. Tucker, 868 F.2d 74 (3d Cir.1989); but see Jackson v. Gates, 975 F.2d 648 (9th Cir.1992), since the urinalysis test fails in the manner in which it was carried out. Skinner, 489 U.S. at 622, 109 S.Ct. at 1416; Penny v. Kennedy, 915 F.2d 1065, 1067 (6th Cir.1990) (en banc).
Rehm, along with Harpster, recommended the testing of the Narcotics Unit to Gallagher. Rehm stated in his deposition that he believed Plaintiff was the "catalyst" for the May 13, 1991, testing. Gallagher in his deposition stated he understood the urinalysis recommendation was due to the allegations against Plaintiff.
Even if Plaintiff was not the reason for the May 13, 1991, analysis, ...
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