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Robertson v. School Board of City of Richmond

United States District Court, E.D. Virginia, Richmond Division

November 4, 2019

HERBERT T. ROBERTSON, SR., Plaintiff,
v.
THE SCHOOL BOARD OF THE CITY OF RICHMOND, VIRGINIA, et al., Defendants.

          OPINION

          JOHN A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE

         Herbert T. Robertson, Sr., works as a teacher's assistant at Mary Scott Preschool Center in Richmond Public Schools (“RPS”).[1] 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[2] 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.

         Because 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.

         I. BACKGROUND

         On 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.

         Massenburg-Johnson 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.

         When Hawkes arrived at Mary Scott, Koger called Robertson to the front office, where he met Hawkes and a second RPS security officer, Patricia White.[3] 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 administrator's office.

         Once 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.

         The Policy allows RPS to test an employee “for the presence of alcohol or drugs” when “there is reasonable suspicion[4] . . . 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.)

         When 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.)

         After 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.

         Following 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.

         RPS 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.

         Robertson's 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).

         RPS has 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.

         II. DISCUSSION[5]

         A. Fourth Amendment Claims

         Robertson 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. 658 (1978).

         The 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.

         The 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).

         Courts 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.

         1. Unreasonable Seizure

         The 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)).

         To 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.

         Here, 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)).[6] 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.

         For 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 ...


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