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Washington v. Unified Government of Wyandotte County

United States District Court, D. Kansas

July 23, 2015

ROBERICK WASHINGTON, Plaintiff,
v.
UNIFIED GOVERNMENT OF WYANDOTTE COUNTY, KANSAS, et al., Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, District Judge.

This action arises out of plaintiff Roberick Washington's termination as an employee of the Wyandotte County Juvenile Detention Center ("JDC") in Kansas City, Kansas. Plaintiff was fired after testing positive for cocaine in a random urine drug test. He brought this suit against defendants Unified Government of Wyandotte County/Kansas City, Kansas ("the UG"); Wyandotte County Sheriff Donald Ash; Terri Broadus, administrator of the JDC; Gary Ortiz, UG Assistant County Administrator; and Douglas G. Bach, UG Deputy County Administrator. Plaintiff brings claims under 42 U.S.C. ยง 1983 for an unlawful search, due process violations, entitlement to a name-clearing hearing, and breach of an implied employment contract. Defendants Ash, Broadus, Ortiz, and Bach assert a qualified immunity defense. Before the court is defendants' Motion for Summary Judgment (Dkt. 35) on all claims. As discussed below, the motion is granted.

I. Uncontroverted Facts

The UG Sheriff's Department employed plaintiff as a lieutenant at the JDC, which houses up to 48 juveniles, both male and female, from ages 10 to 17. The JDC residents are juvenile offenders facing criminal charges. Many have a history of substance abuse and some are gang members. It is a secure facility; entrances and exits are controlled by staff at all times. The JDC also serves as a school and child development center for residents. Residents are supervised by juvenile detention officers, who are in turn supervised by sergeants and lieutenants. Officers are responsible for ensuring residents' safety, security, and care. They have significant contact with residents daily, and their duties range from intervening in resident fights to escorting residents to class.

Plaintiff served as the JDC training coordinator. He trained new officers on safety-related activities, including: accident and injury prevention; child abuse, neglect and exploitation reporting; crisis management and intervention; emergency and safety procedures; facility policies and procedures; first aid, including rescue breathing; health, sanitation, and safety measures; job duties and responsibilities; juvenile rights; observation of symptoms of illness and communicable diseases; policies regarding behavior management, use of restraints, and crisis intervention; and suicide prevention. Plaintiff also provided or coordinated 40 hours of annual in-service training for experienced officers on similar subjects. He directly advised officers regarding interactions with residents. Plaintiff supervised officers on the detention center floor on some nights and weekends. He also had personal contact with residents upon their admission to the JDC during the "classification" process. He further served as a hearing officer on disciplinary tickets issued to residents.

A. The UG Substance Abuse Policy

UG maintains a substance abuse policy ("SAP") that includes random drug testing of employees in "safety sensitive" positions. (Dkt. 35-2, at 9). The SAP lists certain job functions that qualify a position as "safety sensitive" if performed regularly, including "[m]onitoring or supervising offenders or detainees in the criminal justice system, both juveniles and adults...." (Dkt. 35-2, at 15). The SAP specifies that the Sheriff's Department positions of "juvenile detention officer" and "juvenile lieutenant" at the JDC are "safety sensitive" positions. (Dkt. 35-2, at 40).

Random drug testing is conducted by collecting and testing urine samples that are divided into two bottles: Bottle A and Bottle B. Testing is performed on Bottle A. By reference to 49 C.F.R. 40, the SAP defines a positive cocaine test as the presence of cocaine metabolites at concentrations of 150 ng/mL on initial test and 100 ng/mL upon a confirmatory test. Positive test results are confirmed by a medical review officer ("MRO"). After a positive drug test, an employee may make a request to the MRO that Bottle B be tested by a separate laboratory.

The SAP specifies that "[a]n employee who is tested under the provisions of this policy and who has a positive test result for drugs... is subject to discipline including discharge." (Dkt. 35-2, at 30). Under the SAP, "[a]ction to discipline an employee must be taken in accordance with the Human Resources Guide or applicable bargaining agreement." Id.

The Human Resources Guide ("HRG") suggests suspension upon a first offense for "[p]ossession, use or being under the influence of an intoxicant or drug while on duty." (Dkt. 35-2, at 45-47). The HRG also specifies that "[a] more severe penalty than indicated may be imposed if warranted by the circumstances." (Dkt. 35-2, at 45). Under the HRG, penalties are left "to be determined by the circumstances" for violations of department rules or regulations and violation of safety rules. (Dkt. 35-2, at 46).

B. Plaintiff's Positive Drug Test, Termination, and Grievance

On March 7, 2012, plaintiff supplied a urine sample pursuant to the SAP's random drug testing program. In accord with the SAP, the sample was divided into Bottles A and B. Bottle A was submitted to Quest Diagnostics for testing. On March 15, 2012, Quest reported to the MRO, Gregory Bono, M.D., that plaintiff had tested positive for cocaine. The same day, Dr. Bono notified Renee Ramirez, the administrator of the UG's drug and alcohol testing program, of the positive test result. Ramirez notified Sheriff Ash. Sheriff Ash, Ramirez, and Broadus met with plaintiff that afternoon and informed him of the positive test. Plaintiff asked to have Bottle B tested by a different laboratory, Clinical Reference Laboratory. They obliged, and Bottle B also tested positive for cocaine metabolites. On or about March 20, 2012, Sheriff Ash terminated plaintiff's employment for violating the SAP.

On March 22, 2012, plaintiff filed a grievance regarding his termination under the UG's grievance procedure. Broadus and Sheriff Ash denied the grievance, and plaintiff appealed that denial to the County Administrator. On April 24, 2012, Ortiz presided over the appeal hearing, at which plaintiff was represented by counsel. On May 8, 2012, plaintiff's counsel emailed documentation to Ortiz purporting to be results of a hair sample drug test performed by Omega Laboratories on April 24, 2012. The Omega test reported negative for cocaine metabolites above a cut-off level of 500pg/mg. In a memorandum to defendant Bach dated May 14, 2012, Ortiz reported his findings of fact and recommended that plaintiff's termination be upheld. In a letter dated May 15, 2012, Bach informed plaintiff that his grievance was denied.

II. Summary Judgment Legal Standard

Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A factual dispute is material if it "might affect the outcome of the suit...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material ...


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