Thompson v. City of Arlington, Tex.

• Decision Date: 17 November 1993
• Docket Number: No. 4:93-CV-375-A.,4:93-CV-375-A.
• Citation: 838 F. Supp. 1137
• Parties: Ann Q. THOMPSON, Plaintiff, v. CITY OF ARLINGTON, TEXAS, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

838 F. Supp. 1137

Ann Q. THOMPSON, Plaintiff, v. CITY OF ARLINGTON, TEXAS, et al., Defendants.

No. 4:93-CV-375-A.

United States District Court, N.D. Texas, Fort Worth Division.

November 17, 1993.

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Lawrence J. McNamara, Jay C. Counts, Allan G. King, Johnson & Gibbs, Dallas, TX, for plaintiff.

Stephen Fred Fink, Thompson & Knight, Mark J. Dyer, Thomas Phillip Brandt, Fanning Harper & Martinson, Dallas, TX, George Foster Christie, Lee Foster Christie, Pope Hardwicke Christie Harrell & Kelly, Kent Royce Smith, Bettye S. Springer, Haynes & Boone, Fort Worth, TX, Patricia Hummel Seifert, Lori L. Bennett, Crouch & Hallett, Dallas, TX, for defendants.

MEMORANDUM OPINION and ORDER

McBRYDE, District Judge.

Came on for consideration the motions of defendants, City of Arlington, Texas ("City"), George C. Campbell ("Campbell"), David M. Kunkle ("Kunkle"), David Pugh ("Pugh"), Robert E. Diaz ("Diaz"), and John O. Rucker ("Rucker"), to dismiss. The court, having considered the motions, the response of plaintiff, Ann Q. Thompson, the record and applicable authorities, makes the following determinations.

I. Plaintiff's Complaint

A. Capacities of Defendants:

On May 27, 1993, plaintiff filed her original complaint, naming as defendants City, which employs her in its police department, and individual employees of City. Campbell is the city manager, Kunkle is the police chief, Pugh is the deputy police chief, Rucker is a police lieutenant and co-worker, and Diaz is the assistant city attorney and police legal adviser. The individuals were first sued solely in their individual capacities. On June 14, 1993, plaintiff amended her complaint to assert her claims against the individuals in their official capacities as well.

B. Alleged Factual Bases of All Plaintiff's Claims:

In paragraphs IV through XVI of her complaint, as amended, ("complaint") plaintiff alleges the factual bases of all her claims under the heading "Factual Allegations." Essentially, they are that:

Plaintiff has been employed by City as a police officer for approximately ten years. She has been suffering from depression for approximately two years, for which she sought both psychiatric and psychological counseling. Under the care of her doctors she managed to continue on the police force and to perform her duties satisfactorily. In October 1992, upon returning home from the funeral of a fellow police officer, she took a severe overdose of prescription drugs. She was hospitalized under the care of her psychiatrist and psychologist for approximately one month thereafter, during which time she was treated with drug therapy and counseling. When she was released from the hospital, she sought reinstatement to regular duty as a police officer. Before authorizing plaintiff to return to regular duty, i.e. to exhibit a badge, carry a gun, wear her police uniform, or engage in other regular police officer activities, the individual defendants required that she consent to the release to City of her mental health records. That requirement was made after plaintiff's doctors and a consulting psychologist employed by the City had advised City that plaintiff was fit for return to duty. After initially refusing to do so, plaintiff signed an authorization for the release of her records. Upon reviewing the records, the individual defendants determined that plaintiff should remain on restricted duty, performing clerical duties. Further, they required that, in order to be evaluated again, plaintiff would have to authorize release of all her mental health records, as they are created, and request her doctors to submit various reports to defendants. The monitoring by defendants of plaintiff's condition in the future would interfere with her ability to continue her health care treatment. She has refused to accede to the requests for future disclosures, with the result that she remains indefinitely on restricted duty.

The demands of City for plaintiff's health care records after City had received an opinion from the psychologist who had evaluated plaintiff for City, City's refusal to return her to full duty, and City's request for future information pertaining to plaintiff were all pursuant to a policy adopted and enforced by Campbell and Kunkle, who had final policy-making authority for City. That policy and the restrictions on her employment have been applied discriminatorily to plaintiff because of her sex and in retaliation for her protests to Kunkle regarding the demands made by the department for information concerning her mental health. The actions taken against plaintiff by the individual defendants were in bad faith; and, the actions of each of the individual defendants were knowing, calculated, malicious, and willful attempts to interfere with clearly established rights of privacy plaintiff has under the United States and Texas Constitutions.

C. Plaintiff's Theories of Recovery:

Plaintiff asserts claims against defendants pursuant to 42 U.S.C. §§ 1983 and 1988 (First Cause of Action); art. 1, §§ 13 and 19 of the Texas Constitution (Second Cause of Action); the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12117 (Third Cause of Action); the Civil Rights Act of 1991 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 1981a, 2000e to 2000e-17 (Fourth Cause of Action); the Texas Commission on Human Rights Act ("TCHRA"), Tex.Rev.Civ.Stat.Ann. art. 5221k (Fifth Cause of Action)¹; the Texas Whistleblower Act, Tex.Rev.Civ.Stat.Ann. art. 6252-16a (Sixth Cause of Action); and, the Texas Medical Practice Act, Tex.Rev.Civ. Stat.Ann. art. 4495b, § 5.08, and the Texas Health and Safety Code Ann. § 611.005 (Seventh Cause of Action). Also, she contends she was subjected to intentional infliction of emotional distress (Eighth Cause of Action) and invasion of privacy (Ninth Cause of Action).

II. Motions to Dismiss

Each defendant has filed a motion to dismiss, asserting that plaintiff's allegations are insufficient to state any claim upon which relief can be granted.² Additionally, the individual defendants maintain that they are entitled to qualified and official immunity from suit. For the purposes of defendants' motions, the court accepts as true all well-pleaded allegations in the complaint, and views them in the light most favorable to plaintiff. See Rankin v. City of Wichita Falls, 762 F.2d 444, 446 (5th Cir.1985).

III. Dismissal of Claims Against Individual Defendants in Official Capacities

Since the official capacity claims are in reality claims against City, the court will dismiss those claims as to the individual defendants. See Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985); Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 877-78, 83 L.Ed.2d 878 (1985); Russell v. Edgewood Indep. Sch. Dist., 406 S.W.2d 249, 252 (Tex. Civ.App. — San Antonio 1966, writ ref'd n.r.e.).

IV. The Claims Under 42 U.S.C. §§ 1983 and 1988

A. Nature of Plaintiff's § 1983 Claim:³

A person seeking to recover under § 1983 "must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law."⁴ West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988). The rights plaintiff claims were violated are described by her in paragraph XIX of her complaint as follows:

XIX. The actions of Defendants, acting under color of state and local law, custom and usage, deprived Plaintiff of her rights, privileges, and immunities under the laws and Constitution of the United States, in particular her right of privacy. By these actions, Defendants have jointly and severally deprived Thompson of her rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C. §§ 1983 and 1988. Section 1983 liability of the Defendants also is founded upon their violations of 42 U.S.C. §§ 1981A, 2000e — 2000e-17 and 12101 — 12117, as more fully set forth below.

Complaint at 7-8. She "more fully sets forth" in paragraphs XXIV through XXVIII of the complaint her contentions that her rights under 42 U.S.C. §§ 1981a and 2000e to 2000e-17 have been violated. In those paragraphs she maintains that defendants discriminated against her because of her sex, that actions taken against her were, in part, to retaliate against her because of her opposition to sex discrimination within the police department, and that defendants have retaliated against her by interfering with the free exercise of her religion, i.e. by not permitting her to schedule her duties so that she would be able to attend religious education and prayer activities on Fridays. Her theory of recovery under 42 U.S.C. §§ 12101-12117 is set forth in paragraphs XXII and XXIII of the complaint, where she asserts that defendants violated the ADA by refusing to return her to active duty and by "their establishment of terms and conditions that apply uniquely to her." Complaint at 8. She alleges that she is, or is considered to be, "disabled" within the meaning of the ADA and that she is a "qualified individual with a disability" as defined in the ADA. Id.

B. Basic Constitutional Right-of-Privacy Principles:

The Supreme Court has recognized two different kinds of constitutionally protected privacy interests, one, a person's interest in avoiding disclosure of personal matters (the "confidentiality" branch of the right of privacy) and, the other, a person's interest in independence in making certain kinds of important decisions (the "autonomy" branch). Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.Ct. 869, 876-77, 51 L.Ed.2d 64 (1977). The Fifth Circuit has expressly recognized both interests. Ramie v. City of Hedwig Village, Texas, 765 F.2d 490, 492 (5th Cir.1985); Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir. Unit B Jan. 1981); ...