United States District Court, District of Columbia
PATRICIA D. LEWIS, Plaintiff,
GOVERNMENT OF THE DISTRICT OF COLUMBIA, et al., Defendants.
JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE
Happily ensconced in the District of Columbia’s new Consolidated Forensic Sciences Laboratory, the city’s Office of the Chief Medical Examiner (OCME) decided that all employees stationed there had to take a drug test as a condition of continued employment. Plaintiff Patricia Lewis, formerly employed as a human-resources adviser with OCME, balked. Objecting on privacy grounds, she refused to take the test and was fired nine months later. She then brought this suit against the District, former Mayor Vincent Gray, and a number of its officials. Although the crux of her grievance lies with the drug testing, her Complaint is muddied by a skein of claims under the U.S. Constitution, federal statutes, state statutes, and state common law. A subset of Defendants - the District, former Mayor Gray, and OCME’s Chief of Staff, Beverly Fields - now moves to dismiss. The Court will grant in part and deny in part their Motion.
Before her termination in 2013, Lewis held the job of “[Human Resources] Advisor, Management Liaison Specialist” in the city’s Office of Chief Medical Examiner. See Am. Compl., ¶ 20. OCME’s duties include autopsies as well as other forensic and medicolegal investigations. See generally D.C. Code Ann. § 5-1401 et seq. When she was hired, OCME was located in an office building on Massachusetts Avenue in Southeast Washington. See id., ¶ 24. Sometime in or before July 2012, the city informed OCME’s workforce that it would be moved to a new facility: the city’s Consolidated Forensic Sciences Laboratory. See id., ¶ 21. The new laboratory, which opened in October 2012, was designed to house under one roof a number of city departments, including OCME, the Department of Forensic Sciences, and several divisions of the Metropolitan Police Department, such as the Firearms and Fingerprint Examination Division, the DNA laboratory, and the Forensic Sciences Services Division. See D.C. Council Resolution No. 19-726 § 2(b) (Dec. 4, 2012).
During a staff meeting on July 18, 2012, an attorney for the city, Charles Tucker, informed OCME employees that, as a condition of their ability to relocate to the new laboratory, and thus to maintain their jobs, they would be required to consent to a set of background checks detailed in a 2012 Mayor’s Order. See Am. Compl., ¶¶ 21, 22, 28 (citing Mayor’s Order 2012-84); Def. Mot., Exh. A (Mayor’s Order 2012-84). The Order indicated that the city’s Department of Human Resources possessed the authority to require employees with “a duty station” at the new laboratory to submit to some combination of “background checks, investigations, mandatory criminal background checks, and tests for controlled substance use.” Mayor’s Order 2012-84 at 2. Tucker stated that employees had until 4:00 p.m. that day to sign a “Notification of  Drug and Alcohol Testing Form, ” which also required disclosure of “any current medications, ” or risk being fired. See Am. Compl., ¶¶ 21, 22.
Lewis “immediately protested” both the requirements themselves and the short timeframe that employees were given to respond. See id., ¶ 23. She alleges that she made her objections known “verbally” to an unspecified audience on July 18, 2012, and “in writing” in a letter to Tucker two days later. See id., ¶¶ 23, 24. In the letter, Lewis stated that she was “hired into a non-sensitive position that has not been reclassified, nor designated as high risk, ” suggesting that certain inquiries into her background, like the drug test, were unwarranted. See id., ¶ 23. Plaintiff received a written response from Tucker on August 30, 2012, which stated definitively that, “due to the relocations of your position to the new facility, you will be subject to mandatory criminal background checks and testing for controlled substance use in accordance with [M.O. 2012-84].” Id., ¶ 27. According to Lewis, she refused to “submit to the background check, ” including a drug test. See id., ¶ 24.
Plaintiff claims that, as a consequence of her refusal to comply with those requirements, she suffered repeated mistreatment at the hands of the city and its agents. The first set of wrongs related to her working conditions. Beginning on October 23, 2012, she was forced to “remain at the abandoned [OCME] Office” building - i.e., her former duty station prior to the relocation - while the rest of the OCME workforce departed for the new facility. See id., ¶ 24. She remained working there, alone, until January 3, 2013, when she received a proposed letter of termination from her employer. See id., ¶¶ 24, 57. More on that later. During that time, the facility lacked “adequate heat” and afforded her inadequate access to her office and the bathroom, given what she claims was her “known disability-- difficulty of traversing stairs.” Id., ¶ 24. The problem, according to Plaintiff, was that the “elevators were largely inoperable[, ] which meant that [she] had to climb the stairs to get to her office on the second floor.” Id., ¶ 55. Furthermore, because the “bathroom facilities on the second floor were disabled because the ceiling in the bathroom had fallen, ” Plaintiff was forced “to make the difficult climb up and down two flights of stairs just to use the bathroom.” Id., ¶ 56.
She also alleges that certain city employees retaliated against her, at times in rather odd ways. One grievance is that OCME’s Chief of Staff, Beverly Fields, directed her executive assistant to “stealthily and surreptitiously enter the suite occupied by Ms. Lewis without identifying herself, ” ostensibly to either scare or intimidate Plaintiff. Id., ¶¶ 58, 59. These spectral visitations apparently happened “on several occasions.” Id. In one instance, Lewis “heard noises and shouted out for the individual to identify himself or herself.” Id. The assistant, who was apparently “hiding in the supply room next to [Plaintiff’s] office space, came out and said to [Plaintiff], ‘While you’re calling out for someone to identify themselves you could already be dead.’” Id. The assistant then left. Id.
She also complains of harm to her reputation. Specifically, she asserts that an OCME employee posted Plaintiff’s picture at a guard station at the new laboratory with a caption indicating that she had “fail[ed] the background check, ” even though she had simply refused to submit to one. Id., ¶¶ 24, 60.
Finally - and perhaps most importantly - Lewis claims that the city fired her because of her refusal to undergo the background checks and her decision to “speak up and protest” the background-check requirement. Id., ¶¶ 5, 25, 98. The District issued its proposed letter of termination on January 3, 2013, see id., ¶ 57, and terminated her on April 9. See id., ¶ 5. (The Complaint leaves unexplained what Plaintiff was doing or where she was working between January 3, 2013, and her eventual termination, but she appears to concede that she no longer went to work in the abandoned office building after receiving the proposed-termination letter. See id., ¶ 24).
She then brought this 10-count suit against the District, certain officials, and various city employees, alleging violations of: (1) the First, Fourth, and Fourteenth Amendments of the U.S. Constitution (Counts IX, II, and V); (2) various federal and state civil-rights statutes, including Title VII of the Civil Rights Act, the Genetic Information Nondiscrimination Act, the Americans with Disabilities Act, and the D.C. Human Rights Act (Counts III, VII, VIII, and IV); and (3) state law prohibiting wrongful termination, intentional infliction of emotional distress, and defamation (Counts I, VI, and X). Certain Defendants - comprising the District, former Mayor Gray, and Beverly Fields - now move to dismiss. (Other Defendants subsequently filed separate motions, which the Court does not address here.)
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a claim upon which relief can be granted.” In evaluating Defendants’ Motion to Dismiss, the Court must “treat the complaint's factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1250 (D.C. Cir. 2005). The notice-pleading rules are “not meant to impose a great burden upon a plaintiff, ” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and she must thus be given every favorable inference that may be drawn from the allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007).
Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, id. at 555, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plaintiff must put forth “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court need not accept as true “a legal conclusion couched as a factual allegation, ” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm’n., 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal quotation marks omitted)). For a plaintiff to survive a 12(b)(6) motion even if “recovery is very remote and unlikely, ” moreover, the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
In evaluating the sufficiency of Plaintiff’s Complaint under Rule 12(b)(6), the Court may consider “the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice.” Equal Emp’t Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). The Court may thus consider those materials on a motion to dismiss without treating the motion “as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d); Marshall v. Honeywell Tech. Solutions, Inc., 536 F.Supp.2d 59, 65 (D.D.C. 2008).
As is frequently the case when counsel toss any conceivable claim into the cauldron and give it a mighty stir, the Complaint here often looks more like a product of Macbeth’s witches than a well-drafted legal pleading. Because the Court has thus been unable to tease out a clear organizational thread therein, it finds the cleanest way to address Plaintiff’s causes of action - albeit out of order - is to begin with her Constitutional claims, proceed to her statutory claims, and end with her remaining common-law claims.
Before addressing the merits of those claims, however, the Court will dismiss Plaintiff’s Count XI for “DECLARATORY and INJUNCTION [sic] RELIEF.” Am. Compl. at 28. Requests for declaratory judgments and injunctions are not “freestanding cause[s] of action” but rather invoke “form[s] of relief to redress the other claims asserted by Plaintiff.” Base One Technologies, Inc. v. Ali, 78 F.Supp.3d 186, 199 (D.D.C. 2015). Such dismissal does not limit the remedies to which Lewis may be entitled, of course, should she succeed on one or more of her claims. See Thorp v. D.C., No. 15-195, 2015 WL 6769071, at *12 (D.D.C. Nov. 5, 2015).
A. Constitutional Claims (Counts II, V, and IX)
Lewis presents three counts that invoke the U.S. Constitution in one form or another. Although she has not specifically so pled, the Court presumes that Plaintiff means to rely on 42 U.S.C. § 1983, and that she aims to hold the District liable for its actions under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978) (holding that a municipality may be sued under § 1983 for injuries arising from execution of a government’s policy or custom). Among other failings, each count does not contain only one distinct constitutional violation. The Court will thus proceed amendment by amendment, rather than count by count, in addressing Plaintiff’s claims. It ultimately concludes that the causes of action based on the Fourth and First Amendments will survive, but that those based on the due-process clauses of the Fifth and Fourteenth Amendments will not.
1. Fourth Amendment (Count II)
The true gravamen of Lewis’s digressive Complaint is her challenge to the drug-testing requirement. She asserts that the city’s blanket and mandatory background check for all laboratory employees - which included a drug test - is an “unreasonable search” under the Fourth Amendment, see Am. Compl., ¶ 49; Opp. at 7, which protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . .” U.S. Const., Amend. IV. The grist of her dispute is that she and her coworkers were forced to either submit to an unconstitutional practice - a suspicionless drug test - or face termination as a consequence.
It is helpful to view the claim as a subspecies of the doctrine of “unconstitutional conditions, ” in which the government improperly seeks to “extract . . . consent” for an invalid search “through a threatened withholding of a benefit, ” like public employment. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1214 (10th Cir. 2003); accord United States v. Scott, 450 F.3d 863, 868 (9th Cir. 2006) (“Government employees . . . do not waive their Fourth Amendment rights simply by accepting a government job; searches of government employees must still be reasonable.”); Burka v. New York City Transit Auth., 747 F.Supp. 214, 223 (S.D.N.Y. 1990) (concluding that city employees fired for refusing to submit to unconstitutional drug tests were entitled to seek compensation and correction of employment records).
In considering the Fourth Amendment question, the Court begins with the obvious: “For the most part, [the Supreme Court has] required that a search be based upon probable cause.” O’Connor v. Ortega, 480 U.S. 709, 722 (1987). But in the context of a government employer’s search of an employee where that “search is not used to gather evidence of a criminal offense, ” the Court has concluded that probable cause is not required. Id. at 724-25. The search, rather, must be judged against the standard of “reasonableness under all the circumstances, ” id. at 725-26, which typically means that it “must be based on individualized suspicion of wrongdoing.” Chandler v. Miller, 520 U.S. 305, 313 (1997).
In certain limited circumstances, however, “where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.” Id. at 314 (internal quotation marks and citation omitted); see Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 668 (1989) (holding that subset of U.S. Customs Service employees may be required to submit to mandatory, suspicionless drug tests).
Here, the government does not dispute that the drug test is a Fourth Amendment search, nor does it argue that Lewis’s privacy interests are diminished for any reason apart from her position. Defendants instead emphasize that certain interests pertaining to the city’s management of the laboratory and its multi-agency workforce justify recourse to blanket drug testing. See Mot. at 11.
In so doing, the District relies on an amorphous bucket of cases bearing the “special needs” moniker, wherein warrantless or suspicionless searches may be justified where the government’s interests lie “‘beyond the normal need for law enforcement’” and when “‘it is impractical to require a warrant or some level of individualized suspicion in the particular context.’” Stigile v. Clinton, 110 F.3d 801, 808 (D.C. Cir. 1997) (quoting Von Raab, 489 U.S. at 665-66). In particular, Defendants argue, a suspicionless testing program is justified here because of the city’s overall interest in “maintaining a secure [laboratory] facility” and “reduc[ing] or eliminat[ing] any fraud, waste, and abuse of individuals who have a duty station [there], ” as well as the Department of Forensic Science’s specific interest, mandated by Mayoral Order, in “safeguard[ing] evidence and samples in [DFS’s] custody.” Mot. at 11.
There can be no doubt that the city intends its drug test to “‘serve special governmental needs, beyond the normal need for law enforcement, ’” Stigile, 110 F.3d at 808 (quoting Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989)), because the stated goal is to make the facility and its assets more secure by ensuring its workforce is free from substance abuse. The dispositive question, then, is whether the city’s search is reasonable, which “is determined by balancing ‘the public interest in the . . . testing program against the privacy concerns implicated by the tests, ...