In the case of Gonzales v. City of San Antonio, 2019 U.S. Dist. LEXIS 130252, 2019 WL 3557351 (W. Dist. Tex. 8/5/2019), Plaintiff Ricky Gonzales, a former employee of the San Antonio Parks and Recreation Department, sued the city in connection with his alleged wrongful termination. As part of his duties as a maintenance worker for the park and recreation department, Plaintiff drove one of the city’s trucks. The city terminated Plaintiff’s employment after he failed a drug test. Plaintiff primarily took issue with the procedures associated with the test, including the timing of when the test was administered.
On the afternoon of April 20, 2016, a fellow employee reported that Plaintiff had damaged another vehicle while he parked his truck and trailer in the city’s yard. The parties dispute whether Plaintiff hit the other vehicle and damaged it. According to Plaintiff, neither he nor his supervisor found any visible damage on either vehicle. It is undisputed that no one was injured in the alleged accident, no vehicles were towed, and Plaintiff didn’t receive a citation. Following the aforementioned inspection of the vehicles, Plaintiff’s supervisor permitted Plaintiff to leave work for the day.
Later that day or during the morning of the next, an employee emailed the supervisor photographs allegedly showing damage to the left front bumper of the other vehicle. The supervisor and another employee then located the alleged damage. An incident report was ultimately completed by both the city and the San Antonio Police Department. The police were unable to determine how the “minor damage” to the other vehicle occurred.
At approximately 7 a.m. that same next morning, the park and recreation safety coordinator informed Plaintiff that he needed to take a drug test because of the previous day’s incident. Plaintiff initially refused. He maintained that the city’s drug testing policy required that all drug tests be administered “on the same day of an accident.” Plaintiff then relented and took the test after being told that continued refusal would result in termination. According to Plaintiff, he submitted to the test “under pressure,” because he didn’t want to lose his job. The test results later came back positive for prohibited drugs.
Citing the drug-test results, the city, on or about April 25, 2016, issued Plaintiff a Notice of Proposed Termination for “testing positive for illegal drugs during the post-accident alcohol/drug screen, per city policy.”
On May 4, Plaintiff, now assisted by his attorney, submitted a response objecting to the proposed termination because “the city had failed to follow its own drug-testing policy when requiring that he submit to the test, including by requiring that he take the test the next day.” Further, referring to the city’s policy, Plaintiff additionally argued, “there was no reasonable suspicion that he was under the influence of an intoxicating substance to warrant requiring him to take a drug test.” Plaintiff also pointed out “the accident didn’t involve death or bodily injury, disabling damage to either vehicle, or the striking of a pedestrian.” Further, he noted, “a citation was never issued” by the police.
As a result, pursuant to the city’s own policy that cited these specific situations for requiring a drug test, Plaintiff contended he should not have been subject to a drug test in this particular instance. Plaintiff did not, however, dispute the actual testing procedures (beyond the timing of, and necessity for, the test). Plaintiff also did not take issue with the accuracy of the results. He instead pointed out that, under a physician’s direction, he takes Orthopedic Meloxicam (a nonsteroidal anti-inflammatory) and Cyclobenzaprine (a muscle relaxant) to ease knee pain, as well as several over-the-counter physician-recommended medicines. Plaintiff claimed the combination of these prescription and over-the-counter medications could yield a positive drug test.
Hearing on Appeal
On May 12, 2016, the city issued a Notice of Final Termination, citing the city’s zero-tolerance policy for illegal drugs. Plaintiff appealed the termination decision, and on July 28, 2016, the civil service commission held a hearing on the appeal. Both Plaintiff and the city were permitted to introduce evidence and examine and cross-examine witnesses. During this hearing, Plaintiff opposed his termination — again on the ground that the city violated its own drug-testing policy by “requiring him to take a test even though the accident didn’t fall within any of the circumstances delineated in the city’s written policy” and “requiring him to take a drug test the day after the alleged incident.”
Although Plaintiff had argued that his medications could result in a positive drug test, he did not produce any evidence (such as testimony from a doctor) tying his medications to the types of drugs found in his system.
At the hearing, park and recreation department officials explained, “The department’s own unwritten policy requires that a drug test be taken on every accident, regardless of the extent of the damage or who is at fault.” Moreover, the department emphasized, “The city also has a zero-tolerance policy for drugs.” City officials also disputed whether Plaintiff ever informed them of his prescriptions as allegedly required by the city’s policy, and further argued that Plaintiff failed to show the relevancy of these prescriptions.
At the conclusion of the hearing, the commission unanimously recommended that the city manager sustain Plaintiff’s termination, concluding that the evidence and testimony supporting a violation of Civil Service Rule XVII, Section 2(g) and the City’s Drug and Alcohol Policy (“AD 4.3”).
Medical Review Reconsideration
Plaintiff subsequently requested reconsideration, arguing that his prescriptions offered a valid excuse for his positive drug test. On September 2, the city assistant manager and the assistant human resources director met with Plaintiff and recommended that he submit his prescriptions to the medical review officer for reconsideration. Ultimately, however, Plaintiff’s request for reconsideration was denied. Per the medical review officer, “None of the medications listed on Plaintiff’s submitted prescriptions would account for the substances that tested positive on [his] drug test.”
On October 24, 2016, the city manager accepted the commission’s recommendation to terminate Plaintiff’s employment with the city.
Due Process Claim
Plaintiff then brought a federal civil rights claim in federal district court, alleging “the city violated his substantive and procedural due process rights” and “his right to equal protection under the law” under 42 U.S.C. Sec. 1983. Plaintiff sought damages in the form of back pay and compensation for mental anguish, reputational damages and loss of benefits.
In his complaint, Plaintiff claimed his termination violated his procedural and substantive due process rights because there were “two separate distinct drug-testing policies, each one delineating different requirements and circumstances under which an employee of the defendant, the city is required to take a drug test.” Further, Plaintiff contended the city did not “equally apply its drug testing to all employees.” Plaintiff also claimed, “the city refused to consider the medical evidence offered by Plaintiff.”
Plaintiff, however, did not allege that the drug-test results were in error. He also did not explain, “why his prescription(s) would or could excuse his positive test result,” which included “a positive result for amphetamines.”
In response to Plaintiff’s complaint, the city filed a motion in federal district court to dismiss Plaintiff’s due process claims.
Substantive Due Process
As described by the federal district court: “To succeed with a claim based on substantive due process in the public employment context, Plaintiff must show two things: (1) that he had a property interest/right in his employment, and (2) that the public employer’s termination of that interest was arbitrary or capricious.”
When “depriving an individual in a protected property interest in the right of employment,” the federal district court acknowledged that a public official “exercising professional judgment” would be “acting in a non-arbitrary and non-capricious manner.” Within the context of substantive due process, the court found an arbitrary or capricious employment decision would be one that is made “without a rational connection between the known facts and the decision or between the found facts and the evidence.” In addition, the court noted that an arbitrary or capricious employment decision could also be one that “involved an abuse of power by the official that shocks the conscience.”
In this particular instance, the court determined Plaintiff, as a civil service employee, “had a protected property interest in his continued employment.” However, under the circumstances of this case, the court found “the undisputed evidence could not support a finding that the city acted arbitrarily or capriciously in connection with its decision to end Plaintiff’s employment.” In so doing, the court noted Plaintiff had admitted that he had “tested positive for prohibited drugs.” Further, the court found Plaintiff had not disputed “the accuracy of the test results.”
In failing to follow its own drug-testing policy, which required an employee to submit to a drug test the next day after an accident, Plaintiff claimed the city had deprived him of his constitutional right to due process. The federal district court rejected this argument. In the opinion of the court, Plaintiff’s complaint was “at most a harmless and purely technical departure from an internal procedure, with no independent harm stemming from it beyond the mere failure to follow a procedure.” According to the court, a due process violation does not necessarily occur “every time a government entity violates its own rules”:
A mere technical failure by the city to comply with its own internal policies and procedures does not by itself amount to a violation of the Due Process Clause....[T]he failure to comply with internal regulations is insufficient as a matter of law to establish a violation of due process, so long as constitutional minima have been met with regard to notice and other due process protections.
Procedural Due Process
As defined by the federal district court, procedural due process “entitles a public employee with a property right in his employment to notice of the charges against the employee, an explanation of the employer’s evidence, and an opportunity to present his side of the story.”
The relevant due process inquiry for the federal court, therefore, was not “whether the city violated its own policies.” Rather, the due process issue before the federal district court was “whether the city could be found to have fallen constitutionally short in providing Plaintiff notice or other guaranteed substantive or procedural protections.”
In this particular instance, regarding due process “notice,” the court found “no dispute that Plaintiff was aware of the city’s zero-tolerance drug-and-alcohol policy that provides for random drug testing at any time, with only two-hours’ notice.” In the alternative, assuming Plaintiff never received notice of the park and recreation department’s policy, the court found it would not be an arbitrary and capricious employment decision that would “shock the conscience” for the city to subject Plaintiff to a drug test “the day after the incident instead of that same afternoon or evening.”
According to the court, nothing in the city-wide policy or “relevant due process protections” would require “only a same-day post-accident drug test.” On the contrary, the federal district court found administering Plaintiff’s drug test the next day was reasonable, certainly not arbitrary and capricious, under the circumstances:
[T]he uncontested evidence establishes that the traffic incident here occurred late in the day and after either all or at least a majority of the witnesses had already left for the day. Given that random tests are authorized, it makes abundant sense under these undisputed facts to administer a test and to do so the next day, and it certainly did not — and could not as a matter of law — shock the conscience to do so.
The federal district court further found the “undisputed evidence establishes that the city provided Plaintiff with both notice and an opportunity to ‘present his side of the story’ prior to his termination.” As a result, the court concluded, “the pre-termination process employed by the city here sufficiently served as an initial check against a mistaken decision.” Moreover, the court found the city had provided Plaintiff “a full evidentiary post-termination hearing at which he was permitted to present evidence and cross-examine witnesses.” Plaintiff conceded, “He wasn’t prohibited from calling any witness to testify.” Further, the court found “no evidence (or argument) suggesting that the civil service commission was biased.” Accordingly, the court concluded: “Plaintiff does not have an actionable procedural due process claim merely because he disagrees with the results after having been afforded ample process”:
Procedural due process rights do not guarantee a particular outcome to a disciplinary proceeding but only assure that it is fairly conducted. While Plaintiff may disagree with the outcome, the evidence and Plaintiff’s own admissions make clear he received appropriate notice and a hearing.
More Stringent Drug Policy
The federal district court also addressed Plaintiff’s claim that the city had violated its own policies on drug testing. In so doing, the court acknowledged, “the city-wide written drug policy delineates several specific circumstances in which an employee will be subject to a drug test.” The court, however, found that “the policy by its own terms sets a drug-testing floor, not a ceiling.” As cited by the court, the expressed language of the policy explained: “Department policies may be more stringent but never more lenient than this administrative directive.”
Accordingly, in the opinion of the court, the city could apply a “more stringent [park] and recreation department policy” under the “undisputed facts” in this particular case without violating “any constitutional guarantees” to Plaintiff’s right to due process.
Plaintiff had also claimed that his positive drug test could have been caused by the combination of his prescription pain and over-the-counter medications. The court, however, found “no evidence in the record” of “a physician’s order directing him to take certain medications,” including the drugs for which Plaintiff tested positive. In particular, the court found no evidence that “the City had approved his use of those medications while driving a City vehicle.” (Emphasis of court.) Further, the court noted that Plaintiff’s “Fitness for Duty Forms” made no mention of any “medication restrictions.” Moreover, the medical review officer had reported: “none of the medications listed on Plaintiff’s submitted prescriptions, would account for the substances that tested positive on [his] drug test.”
In the opinion of the federal district court, the city was entitled to rely on this information provided by the medical review officer in upholding the termination of Plaintiff’s employment. Further, the court found Plaintiff had “done nothing” to “bring into question” the medical review officer’s opinion.
Lab Test Confirmation
The federal district court also addressed Plaintiff’s claim that “the city officials had refused Plaintiff’s request to submit his sample to an independent medical laboratory of his choosing.” In the opinion of the court, Plaintiff had “no due process right to have a drug test conducted at a laboratory of an employee’s choice.” Moreover, the court found “the uncontroverted evidence shows that the city did subject Plaintiff’s sample to confirmatory testing.” As noted by the court, Plaintiff did not dispute “the validity of the test results or submit any evidence suggesting that he would’ve tested negative had a different laboratory been used.”
Drug Policy Equal Protection
Plaintiff had also claimed that he had been denied “equal protection” under the circumstances of this case. In so doing, Plaintiff had alleged the city arbitrarily applied a drug-testing policy towards him but not to other similarly situated employees. The federal district court found “no merit” in Plaintiff’s equal protection argument. As noted by the court, “the city had submitted uncontroverted evidence showing that two other [park] and recreation department employees, unlike Plaintiff, were not drivers involved in on-the-job incidents.” Similarly, the court found Plaintiff had failed to “identify any other similarly situated [park] and recreation department employee who was treated differently than he.” As a result, the federal district court rejected Plaintiff’s claim that he was denied equal protection of the law under the circumstances of this case:
Plaintiff’s equal protection claim can survive only if similarly situated employees were treated differently. There is no evidence that Plaintiff was treated differently than any other similarly situated parks and recreation employee with respect to the drug-testing policy, or that the city possessed any discriminatory intent in ordering Plaintiff to submit to a drug test.
Making a Ruling
Accordingly, based on the record and the recommendation of the federal magistrate in this case, the federal district court would grant the city’s motion for summary judgment effectively dismissing Plaintiff’s lawsuit.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism at George Mason University. Webpage with link to law review articles archive (1982 to present).