United States District Court, E.D. Virginia, Richmond Division
HERBERT T. ROBERTSON, SR., Plaintiff,
THE SCHOOL BOARD OF THE CITY OF RICHMOND, VIRGINIA, et al., Defendants.
A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE
T. Robertson, Sr., works as a teacher's assistant at Mary
Scott Preschool Center in Richmond Public Schools
(“RPS”). When a parent reported that Robertson came
to work smelling like alcohol, an RPS security officer drove
him to a local hospital for alcohol and drug testing. In this
§ 1983 action, Robertson contends that the
defendants lacked reasonable, individualized
suspicion to test him for drugs. He argues that the
defendants unreasonably searched and seized him in violation
of the Fourth Amendment. He also seeks to impose municipal
liability on RPS for the alleged unlawful search and seizure.
Finally, Robertson asserts claims under state law for false
imprisonment and defamation. The parties have filed
cross-motions for summary judgment.
Robertson cannot show that any seizure occurred, the Court
will grant summary judgment for all defendants with respect
to the seizure claims and the state law false imprisonment
claim. The state law defamation claim fails for independent
reasons. The drug test, however, amounts to an unreasonable
search in violation of the Fourth Amendment. Although
qualified immunity shields the individual defendants from
liability for the drug test, RPS is not entitled to judgment
as a matter of law with respect to municipal liability for
the unlawful search. Accordingly, the Court will deny the
parties' cross-motions for summary judgment with respect
to RPS' liability for the drug test.
November 6, 2017, a parent told Sonata Koger, an
administrative assistant at Mary Scott, that Robertson was
“drunk or smell[ed] like he [had been] drinking.”
(Dk. No. 19, at 13:1-9.) Koger also saw Robertson stumbling
while interacting with students. Following the parent's
report and her observation of Robertson, Koger called Johnnye
Massenburg-Johnson, the Regional Preschool Manager.
called the RPS safety and security team, who in turn
contacted Timothy Williams in human resources. Williams
learned about the parent's report to Koger and
Koger's observation of Robertson. Based on that
information, Williams determined that reasonable suspicion
existed to test Robertson for alcohol and drugs. Williams
then told Massenburg-Johnson to go to Mary Scott to read
Robertson the RPS Drug and Alcohol Free Workplace Policy (the
“Policy”) and have him sign it. Meanwhile, an RPS
dispatcher told RPS security officer Dandridge Hawkes to
report to Mary Scott to take Robertson to a local hospital
for alcohol and drug testing.
Hawkes arrived at Mary Scott, Koger called Robertson to the
front office, where he met Hawkes and a second RPS security
officer, Patricia White. Hawkes told Robertson to wait in the
administrator's office for Massenburg-Johnson to arrive.
Hawkes wore a shirt with an RPS badge and wore a taser on his
belt. Hawkes stood in the only doorway of the
administrator's office, which is a smaller room within
the front office. Hawkes, however, never placed his hands on
Robertson and never stopped him from leaving the
she arrived at the Mary Scott front office,
Massenburg-Johnson smelled alcohol as she walked past
Robertson. With Robertson, Koger, Hawkes, and White present,
Massenburg-Johnson told Robertson about the parent's
report that he smelled like alcohol. After Massenburg-Johnson
read the Policy to Robertson, he signed it. Robertson then
agreed to undergo drug and alcohol testing.
Policy allows RPS to test an employee “for the presence
of alcohol or drugs” when “there is reasonable
suspicion . . . that an employee is under the
influence and/or using drugs or alcohol in violation of the
School Board policy and school division procedures.”
(Id. at 3.) In practice, whenever RPS finds
reasonable suspicion that an employee has used alcohol
or drugs, that employee must undergo testing for
alcohol and drugs. (See Dk. No. 27-7, at
29:1-4, 13-21.) When “[a]n employee . . . refuses to
provide an adequate breath sample for alcohol testing,
” that employee “shall be recommended for
termination.” (Dk. No. 27-10, at 5.) Similarly,
“[a]n employee who refuses to provide an adequate urine
sample for drug testing . . . shall be recommended for
termination.” (Id. at 6.)
Robertson offered to drive himself to Retreat for testing,
Hawkes told Robertson that security would escort him to the
hospital for the testing. (Dk. No. 27-4, at 51:16-19.) The
RPS School Security Officer Standard Operating Procedures
allow security officers to “detain[ ] persons violating
the law or school board policies on school property.”
(Dk. No. 27-17, at 2.)
arriving at Retreat, Robertson signed a Breath Alcohol
Testing Form below the following statement: “I certify
that I am about to submit to alcohol testing and that the
identifying information provided on this form is true and
correct.” (Dk. No. 27-11, at 1.) Robertson then took
the breath alcohol test, which tested negative for alcohol.
Robertson signed a Chain of Custody form for the urinalysis
test and an Occupational Health Physical Exam Status Report
authorizing the release of the test results to RPS.
the alcohol and drug tests, Hawkes took Robertson to City
Hall to meet with Williams. Williams put Robertson on
administrative leave with pay pending the results of the drug
test. Robertson later returned to work after the results of
the drug test came back negative.
does not train its employees, including its security
officers, on detention, reasonable suspicion, transportation
of employees for testing, or what type of testing to
administer when RPS suspects that an employee is under the
influence of alcohol or drugs.
amended complaint asserts the following claims: unreasonable
seizure/false arrest in violation of the Fourth Amendment
against Massenburg-Johnson, Hawkes, and White, individually
(the “individual defendants”) (Count One);
unreasonable search for drugs in violation of the Fourth
Amendment against the individual defendants (Count Two);
unreasonable seizure/false arrest in violation of the Fourth
Amendment against RPS - custom or usage with the force of law
(Count Three); unreasonable seizure/false arrest in violation
of the Fourth Amendment against RPS - failure to train (Count
Four); unreasonable seizure/false arrest in violation of the
Fourth Amendment against RPS - official policy (Count Five);
false imprisonment in violation of Virginia law against the
individual defendants (Count Six); defamation against
Massenburg-Johnson (Count Seven); unreasonable search for
drugs in violation of the Fourth Amendment against RPS -
custom or usage with the force of law (Count Eight); and
unreasonable search for drugs in violation of the Fourth
Amendment against RPS - failure to train (Count Nine).
moved for summary judgment on all Counts of the amended
complaint. Robertson has moved for partial summary judgment
on the following Counts: One as to Hawkes only, Two as to
Hawkes only, Three, Four, Five, Eight, and Nine.
Fourth Amendment Claims
asserts two claims under the Fourth Amendment against the
individual defendants: unreasonable seizure in violation of
the Fourth Amendment (Count One), and unreasonable search in
violation of the Fourth Amendment (Count Two). Robertson also
asserts claims against RPS for unreasonable seizure (Counts
Three, Four, and Five) and unreasonable search (Counts Eight
and Nine) under multiple theories of liability pursuant to
Monell v. Department of Social Services, 436 U.S.
individual defendants invoke the defense of qualified
immunity as to Counts One and Two. Qualified immunity
protects government officials from liability under §
1983 arising from the performance of discretionary actions
within the scope of their authority. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). It applies so long
as “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.” Id. Qualified
immunity protects “all but the plainly incompetent or
those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341 (1986). In other words,
qualified immunity “gives ample room for mistaken
judgments.” Id. at 343.
analysis of a qualified immunity defense entails two steps.
At the first step, courts decide “whether a
constitutional right would have been violated on the facts
alleged.” Saucier v. Katz, 533 U.S. 194, 200
(2001); Bailey v. Kennedy, 349 F.3d 731, 739 (4th
Cir. 2003). This includes an analysis, based on the evidence,
of the specific right allegedly violated, and a conclusion
that such a right exists in the particular circumstances of
the case. Wilson v. Layne, 526 U.S. 603, 609 (1999).
At the second step, courts must determine whether, at the
time of the violation, the right was clearly established such
that a reasonable official in the defendant's position
would know that his actions would violate that right.
Simmons v. Poe, 47 F.3d 1370, 1385 (4th Cir. 1995).
have flexibility in the order in which to perform this
analysis. Pearson v. Callahan, 555 U.S. 223, 236
(2009). In this case, the Court will first address whether
the individual defendants violated a constitutional right,
and if so, whether that right was clearly established at the
time of the violation.
Fourth Amendment, made applicable to the states through the
Fourteenth Amendment, protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. “[D]rug or alcohol testing of a
government employee implicates the Fourth Amendment even
though the testing may not be related to enforcement of the
criminal law.” Pennington v. Metro. Gov't of
Nashville & Davidson Cty., 511 F.3d 647,
651 (6th Cir. 2008) (citing Skinner v. Rwy. Lab.
Execs.' Ass'n, 489 U.S. 602, 616 (1989)).
impose liability under § 1983 for an unlawful seizure,
Robertson must show that he was “(1) unreasonably (2)
seized (3) by a government actor.” Monroe v. City
of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009). A
seizure occurs when “a reasonable person [would not]
feel . . . free to disregard the officer and terminate the
encounter.” Id. In determining whether a
reasonable person would feel free to terminate the encounter,
courts consider “all of the circumstances surrounding
the encounter.” Id.
Robertson contends that Hawkes seized him when he submitted
to Hawkes' authority in the Mary Scott front office. He
argues that “the most important ‘custodial'
factor is that [he] was threatened with losing his job unless
he complied with the order to remain with Hawkes until Hawkes
released him.” (Dk. No. 29, at 8.) Multiple courts of
appeals have rejected that argument, holding that “the
possibility or even probability of a future adverse
employment action-as opposed to physical detention-cannot
enter [the] analysis of whether [public employees] were
seized.” Pennington, 511 F.3d at 652 (quoting
Driebel v. City of Milwaukee, 298 F.3d 622, 642 (6th
Cir. 2008)). Instead, an employee “is seized if a
reasonable person in [the employee's] position would
believe that he were not actually free to disobey the
command-that is, if he feared he would be detained if he
attempted to leave.” Gwynn, 719 F.3d at 300.
example, in Gwynn, two police officers alleged that
their superiors unreasonably seized them in violation of the
Fourth Amendment. Id. at 297. After being accused of
stealing money during a stop and frisk, the officers'
superiors ordered them to wait for representatives from the
Internal Affairs Bureau to arrive. The superior officers
prevented the officers from using their cell phones,
questioned them about the stop and frisk, ordered them to
pull out their pockets and pant legs, and forced them to open
their wallets. The Third Circuit held that the officers
complied with their superiors' orders because “they
feared ‘discipline and possible loss of employment'
if they disobeyed.” Id. at 297-98.
Accordingly, “to the extent [the officers] felt
compelled to obey their superior officers' commands, that
compulsion was borne out of their employment
relationship.” Id. at 302. The court further
noted that “the circumstances surrounding the