United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
matter comes before the Court on the Motion to Dismiss
pursuant to Federal Rule of Civil Procedure
12(b)(6) filed by Defendants Richmond Public
Schools ("RPS"), Kimberly Gray, Kristen Larson,
Donald Coleman, Jeffrey Bourne, Derik Jones, Glen Sturtevant,
and Dana T. Bedden (collectively,
"Defendants"). (ECF No. 13.) Plaintiff Regina Turner
responded, and Defendants replied. (ECF Nos. 16, 17.) The
Court exercises jurisdiction pursuant to 28 U.S.C. §
1331. This matter is ripe for disposition. The
Court dispenses with oral argument because the materials
before it adequately present the facts and legal contentions,
and argument would not aid the decisional process. For the
reasons that follow, the Court will grant Defendants'
Motion to Dismiss.
Motion to Dismiss for Failure to State a Claim
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A
Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1356 (1990)). In considering a motion to
dismiss for failure to state a claim, a plaintiffs
well-pleaded allegations are taken as true and the complaint
is viewed in the light most favorable to the plaintiff.
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993); see also Martin, 980 F.2d at 952. This
principle applies only to factual allegations, however, and
"a court considering a motion to dismiss can choose to
begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth." Ashcroft v. Iqbal, 556 U.S. 662, 679
Federal Rules of Civil Procedure "require[ ] only 'a
short and plain statement of the claim showing that the
pleader is entitled to relief, ' in order to 'give
the defendant fair notice of what the... claim is and the
grounds upon which it rests.'" Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (omission in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). Plaintiffs cannot satisfy this standard with
complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must assert facts that rise above speculation and
conceivability to those that "show" a claim that is
"plausible on its face." Iqbal, 556 U.S.
at 678-79 (citing Twombly, 550 U.S. at 570;
Fed.R.Civ.P. 8(a)(2)). "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. at 678
(citing Twombly, 550 U.S. at 556). Therefore, in
order for a claim or complaint to survive dismissal for
failure to state a claim, the plaintiff must "allege
facts sufficient to state all the elements of [his or] her
claim." Bass v. E.I. DuPont de Nemours & Co.,
324 F.3d 761, 765 (4th Cir. 2003) (citations omitted).
Procedural and Factual Background
Summary of Allegations in the Amended
an African-American woman, applied for a position as an
Instructional Data Specialist with RPS. On November 25, 2014,
she received a letter confirming that RPS offered her the
position with a start date of January 19, 2015. Turner accepted
the offer and "began carrying out her duties in that
position" on December 3, 2014. (Am. Compl. ¶ 16.)
Around the middle of December, Turner signed a form
acknowledging that she had read "RPS Policy 7.54, "
which set forth RPS's drug and alcohol policy. (Am.
Compl. ¶ 17.)
January 7, 2015, as a "condition of her employment and
RPS [sic], " Turner submitted a urine sample for drug
and alcohol screening at Chippenham Hospital. (Am. Compl.
¶ 18.) RPS authorized a "'Pre-Placement'
substance abuse test... identified as a 'Non-DOT'
drug screen and breath alcohol test with a 'Company'
chain of custody." (Am. Compl. ¶ 21.) Twelve days
later, on January 19, 2015, Dr. Andriano notified Turner that
her drug test returned positive for cocaine. Turner,
"incredulous because she has never ingested cocaine in
her entire life, " requested another test. (Am. Compl.
¶¶ 28-29.) Dr. Andriano denied that request.
about the results of the January 7, 2015 drug test, Turner
spoke with Janice Garland, her supervisor, and D. Timothy
Billups, Executive Director of Human Resources. Garland
advised Turner to "go to her personal physician and
obtain another drug test" and then report to work on
January 20, 2015. Billups informed Turner that Dr. Andriano
must resolve "any decision with regard to [Turner's]
positive drug test, " and that Turner could continue to
work until a final decision had been made. (Am. Compl. ¶
33.) On January 20, 2015, Turner submitted to her personal
physician a "urine sample for drug testing." (Am.
Compl. ¶ 32.) The results for this test came back on
January 22, 2015, and "showed that Turner all drug
screening including cocaine was negative [sic]." (Am.
Compl. ¶ 35.)
January 21, 2015, Turner spoke again with Dr. Andriano, who
informed Turner that she could not submit an entirely new
urine sample, but that she could obtain a "split test,
" in which a different drug testing laboratory would
test her original urine sample. Turner chose to pay $175 for
a split test, which "Quest from LabCorp" would
perform. (Am. Compl. ¶ 36.) The split test came back
positive for cocaine on February 11, 2015. On February 27,
2015, Billups informed Turner by letter that RPS decided to
rescind her offer of employment because she had tested
positive for cocaine.
the rescission could be finalized, Dana Bedden,
Superintendent for RPS, had to ratify it. On an unspecified
day, Shonda Harris-Muhammed, a member of the School Board,
raised "Turner's issues and concerns" with the
Board's three-member Human Resources ("HR")
Committee. (Am. Compl. ¶ 40.) The HR Committee reviewed
"the facts of the case" and "concluded that
there were serious questions as to whether RPS Policy 7-3.1
was violated." (Am. Compl. ¶ 41.) The Committee
recommended that the matter "be investigated before a
decision was made regarding Billups'[s]
recommendation" to rescind Turner's offer of
employment. (Id.) However, "[t]he Board's
attorney questioned whether the HR Committee had authority to
look into matters of discipline." (Am. Compl. ¶
Board was scheduled to review Turner's case on March 2,
2015. Billups scheduled a meeting with Bedden and Garland
immediately before the scheduled Board meeting to discuss
Turner's case. Billups denied Turner's request to
attend the meeting with Billups, Bedden, and Garland, telling
Turner that "Garland would be [Turner's]
representative at that meeting." (Am. Compl. ¶ 44.)
Turner prepared a "time line [sic] of events" for
Garland to share with Bedden at the meeting, but Garland
otherwise came "[un]prepared to present to Bedden
Turner's issues and concerns" regarding the
rescission of her employment offer. (Am. Compl. ¶ 45.)
At the meeting with Billups and Garland, Bedden "did not
question or look into why Turner was not given a drug test
pursuant to Policy 7-1.3, " nor did he investigate the
type of drug test administered to Turner, specifically
"why [Turner was given] a 'Pre-Placement'
substance abuse test... identified as a 'Non-DOT'
drug screen and breath alcohol test with a 'Company'
chain of custody." (Am. Compl. ¶ 46.) Bedden simply
stated that "he was not going to reverse HR's
decision to rescind Turner's employment offer because he
was trying to leave RPS and a decision in favor of Turner
'would not look good' for him." (Am. Compl.
March 2, 2015 Board Meeting, without advising the Board of
the type of drug test Turner was given, Bedden recommended
rescission of Turner's employment offer. "Without
any discussion, " and contrary to the HR Committee's
recommendation, "the Board simply rubber-stamped
Bedden's recommendation." (Am. Compl. ¶ 49.)
15, 2015, Turner submitted a letter to the Board requesting
reconsideration of its decision to rescind her employment
offer. In support of her request for reconsideration, Turner
(1) There are problems with the policy and procedure that
were used in Ms. Turner's case including deficits in the
chain of custody of the urine sample collected from Ms.
Turner and the results reached with regard to that sample;
(2) there are serious questions with regard to the uniformity
in the treatment of RPS employees who have tested positive
for drugs or alcohol which include but are not limited to
race and gender disparity; and (3) Ms. Turner was denied due
(Am. Compl. ¶ 51 (quoting June 15, 2015 Letter to RPS
same day, the Board notified Turner that it would evaluate
her request for reconsideration at its Board meeting later
that day "to determine whether there were sufficient
facts in her case to justify a reconsideration of its earlier
decision." (Compl ¶ 52.) Turner attended the
meeting prepared to provide additional information as needed.
However, someone made a bomb threat near the end of the
meeting and the Board had to evacuate the building, so it did
not consider Turner's request for reconsideration. Two
days later, the Board contacted Turner and asked her to
"provide[, by July 9, 2015, ] a two-page letter with any
additional information [Turner] would like to share with [the
Board]." (Am. Compl. ¶ 55.) Turner submitted
"a revised request for reconsideration" on June 26,
2015. For unexplained reasons, "[t]he Board never met in
a formal session either in open or executive session to
address Turner's request for reconsideration." (Am.
Compl. ¶ 57.)
points to two sources for RPS policies regarding drug and
alcohol use and testing: RPS Policy 7-3.1 and RPS Policy
7.54. Turner relied on these policies in asserting her
claims, but failed to attach them to her Amended
Complaint. Both parties quote from Policy 7-3.1 and
do not dispute that it applies to RPS and its drug testing
procedures. Neither party, however, attaches the full policy
to their pleadings. Thus, the Court has before it the
following policy language:
RPS 7.3-1 contains the language:
This policy and subsequent procedures applies to all
applicants and all School Board and Richmond Public schools
employees regardless of service, position[J or appointment
status. [(Am. Compl. ¶ 23.)]
All drug and alcohol testing procedures (including, but not
limited to, sample collection procedures, laboratory analysis
of samples, and reporting in review of test results) shall
also be developed in accordance with Procedures for
Transportation Workplace Drug Testing Programs, 49 C.F.R.
Part 40. [(Am. Compl. ¶ 61; Mem. Supp.
Mot. Dismiss 8-9, n.7.)]
Any employee found to have a detectable trace of . . . any
other controlled substance as defined in ... Title 54.1, Code
of Virginia, as amended . . . shall be recommended for
termination. [(Am. Compl. ¶ 89.)]
Richmond Public School reserves the right to conduct drug and
alcohol tests on employees and job applicants under the
circumstances described below and to require employees and
applicants to release to the division superintendent, the
Director of Human Resources, or their designee(s), and to
Medical Review Officer the test results performed by any
laboratory or health care provider performing drug and
alcohol testing. [(Mem. Supp. Mot. Dismiss 8-9, n.7.)]
pleading quotes from RPS Policy 7.54, but Turner summarizes
it as: "among other things, prohibit[ing] the unlawful
manufacturing, distribution, dispensing or possession or
being under the influence in the workplace any [sic] narcotic
drug, hallucinogenic drug, amphetamine, barbiturate,
marijuana, prohibited under State law or to possess [sic]
drug paraphernalia." (Am. Compl. ¶ 17.)
Amended Complaint asserts claims against RPS; Joseph
Andriano, M.D., who was "responsible, among other
things, for overseeing the testing of RPS employees and
applicants for RPS employment was [sic] regard to drugs and
alcohol, " (Am. Compl. ¶ 10); Kimberly Gray,
Kristen Larson, Donald Coleman, Jeffrey Bourne, and Derik
Jones, all "duly elected members of the Board [of RPS],
" (Am. Compl. ¶ 11); Glen Sturtevant, a
"former elected member of the RPS Board, " (Am.
Compl. ¶ 11); and, Dana Bedden, "the duly appointed
Superintendent of RPS, " (Am. Compl. ¶ 13). Turner
sued all individual defendants in both their personal and
their official capacities. However, Turner did not sue Mamie
Taylor, Shonda Harris-Muhammed, or Tichi Pinkney Eppes, who
are also "duly elected members of the [RPS] Board...
because they have by their statements and actions indicated
their support of [Turner] with regard to the claims set forth
herein." (Am. Compl. ¶ 12.)
relief, Turner seeks injunctive relief, including
"[reinstatement to her former position, " and a
name clearing hearing for herself and all RPS employees, as
well as monetary damages in the form of front and back pay,
five million dollars in compensatory damages, $750, 000 in
punitive damages, pre- and post-judgment interest, and
end of June 2015, Turner filed a charge of discrimination
with the Equal Employment Opportunity Commission (the
"EEOC"). Turner alleged "race and
color discrimination; sex (gender) discrimination[;] and[J
retaliation against RPS." (Am. Compl. ¶ 1.) The
EEOC issued a Notice of Right to Sue on or about February 10,
2016. Turner filed her Complaint on April 29, 2016, within 90
days of her receipt of the Notice of Right to Sue.
April 29, 2016, Turner filed her initial Complaint, which
contained no exhibits. All defendants except for Dr.
Andriano waived service,  and their responsive pleadings to
Turner's Complaint were due on July 18, 2016. Defendants
timely filed a Motion to Dismiss Turner's Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), and
Turner filed an Amended Complaint within twenty-one days,
pursuant to Federal Rule of Civil Procedure
15(a)(1)(B).Turner attached no exhibits to her
Amended Complaint. The Court denied the first Motion to
Dismiss as moot and ordered Defendants to file responsive
pleadings to the Amended Complaint. Dr. Andriano never
appeared in response to Turner's Complaint, so Turner
served him with the Amended Complaint on August 18, 2016.
Amended Complaint contains three counts:
Count One: "The 'Non-DOT' Test Administered to
Turner Denied Her Due Process of Law, " (the "Due
Process Claim") against all Defendants;
Count Two: "Denial of Name Clearing Hearing, " (the
"Procedural Due Process Claim") against the Board
Count Three: "Race and Gender Discrimination, "
(the "Title VII Claim") against RPS.
Defendants filed the instant Motion to Dismiss, Turner
responded, and Defendants replied.
Analysis: Counts I and II, Turner's ...