United States District Court, E.D. North Carolina, Southern Division
MALCOIM J. HOWARD, Senior United States District Judge
matter is before the court on defendants' motion to
dismiss all claims for failure to state a claim upon which
relief can be granted, [DE #20]. Plaintiff has responded, [DE
#36], and defendants have replied, [DE #40] . This matter is
ripe for adjudication.
complaint alleges the following facts. Plaintiff was a
fifty-seven year old African-American male resident of the
Town of Bolivia, Brunswick County, North Carolina, at all
times relevant to the complaint. [DE #1 at ¶13].
Plaintiff alleges Defendants Lewis, Hollis, and Hardy were
acting as supervisory personnel on behalf of Brunswick County
Government's Operation Services Department ("the
department"), and under color of state law. Id.
at ¶37. Plaintiff alleges violations of his
constitutional rights as well as violations of state law
surrounding his being selected for drug testing, his
subsequent termination and defendants' decision not to
began working with Brunswick County's ("the
County") department as an Equipment Operator II in 1988.
Id. at ¶ 29. Plaintiff worked with the
County's department as an Equipment Operator II for the
next eighteen years. Id. At all times relevant to
the complaint, plaintiff's supervisors consistently rated
his job performance as "meets or exceeds
standards." Id. at ¶15. In fact, plaintiff
received a 2% merit-based pay raise approximately two weeks
before his termination. Id. at ¶¶15, 32.
years prior to the events surrounding plaintiff's 2014
termination, on January 10, 2011, plaintiff was charged with
Driving While Impaired ("DWI"), and as a result, he
was demoted to a Maintenance Assistant I and had his salary
cut by $3, 500.00. Id. at 40. In a meeting held on
January 21, 2011, between Defendant Lewis and plaintiff,
Defendant Lewis assured plaintiff that his Equipment Operator
II position would remain open for thirty days, in order to
provide plaintiff the opportunity to have his Commercial
Driver's License ("CDL")
reinstated. Id. Eventually, plaintiff was
found not guilty of the DWI; however, in a letter from
Defendant Lewis dated March 2, 2011, nine days beyond the
February 21, 2011 deadline imposed by Defendant Lewis for
plaintiff to have his CDL reinstated, Defendant Lewis
informed plaintiff he had advertised and hired a white male
to fill plaintiff's position. Id. Defendant
Lewis refused to restore plaintiff to his previous position
or salary. Id.
time between 2011 and 2014, plaintiff was reinstated to the
position of Equipment Operator II, as that was the position
he held when he was terminated. Id. at ¶14. On
an unspecified date in 2014, plaintiff was tested for drug
use. After plaintiff allegedly tested positive for a
controlled substance, plaintiff was terminated on August 15,
2014, by Defendant Lewis, the department's director, for
"... Failure in Job-Related Personal Conduct in
accordance with Brunswick County Personnel Manual Section II,
Policy No. 250, § 11.1.3, 'use or possession of
illegal narcotics or habit forming drugs.'"
Id. at ¶16. The County claimed plaintiff
violated the aforementioned policy by allegedly "testing
positive for an illegal substance." Id.
Plaintiff alleges the County "relied exclusively on Mr.
Davis' alleged positive' drug screening test as the
sole basis for terminating [plaintiff's]
employment." Id. at ¶17.
plaintiff s termination, plaintiff applied for the position
of Equipment Operator II with the department and was denied
placement on the following four separate occasions: September
24, 2014; January 25, 2015; June 7, 2015; and finally on
September 22, 2015. Id. at ¶33. Defendant
Hollis, who had been plaintiff's supervisor, rejected all
of plaintiff's applications for the open Equipment
Operator II positions, and plaintiff was not given an
interview for any of the four open Equipment Operator II
positions for which he alleges he was highly qualified.
Id. at ¶¶34 and 35. Eventually, Defendants
Hollis and Lewis, with Defendant Hardy's approval,
selected all white males to fill all four of the open
Equipment Operator II positions, who were allegedly
objectively less qualified than plaintiff. Id. at
¶¶32, 35, and 39.
plaintiff met with defendants concerning their refusal to
hire him for any of the four open positions as Equipment
Operator II, he was told that he had improperly filled out
all four of his job applications. Id. at ¶38.
October 9, 2014, plaintiff met with Defendant Hardy, the
County Manager, to discuss his occupational
"blacklisting" by the department and their
discriminatory employment practices. Id. at
¶41. During the October 9, 2014 meeting, Defendant Hardy
reviewed plaintiff's personnel file and informed him that
he was well qualified for an Equipment Operator II position
and was eligible for rehire. Id. at ¶42.
However, plaintiff alleges Defendant Hardy failed to
investigate or take any corrective measures in response to
plaintiff's raising his concerns to her.
Standard of Review
federal district court confronted with a motion to dismiss
for failure to state a claim should view the allegations of
the complaint in the light most favorable to the plaintiff.
See Ibarra v. United States, 120 F.3d 472, 474 (4th
Cir. 1997). The intent of Rule 12(b) (6) is to test the
sufficiency of a complaint. Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule
12(b) (6) motion “'does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.'" Id. (quoting
Republican Party v. Martin, 980 F.2d 943, 952 (4th
Cir. 1992)). "[O]nce a claim has been stated adequately,
it may be supported by showing any set of facts consistent
with the allegations in the complaint." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 563 (2007) .
complaint need not 'make a case' against a defendant
or 'forecast evidence sufficient to prove an element'
of the claim." Chao v. Rivendell Woods, Inc.,
415 F.3d 342, 349 (4th Cir. 2005) (quoting Iodice v.
United States, 289 F.3d 270, 281 (4th Cir. 2002)). Rule
8 of the Federal Rules of Civil Procedure provides "for
simplicity in pleading that intends to give little more than
notice to the defendant of the plaintiff's claims and
that defers until after discovery any challenge to those
claims insofar as they rely on facts." Teachers'
Ret. Sys. of La. v. Hunter, 477 F.3d 162, 170 (4th Cir.
2007) . A complaint is generally sufficient if its
"'allegations are detailed and informative enough to
enable the defendant to respond.'" Chao,
415 F.3d at 349 (quoting 5 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure, §
1215 at 193 (3d ed. 2004)) (citing Hodgson v. Virginia
Baptist Hosp., Inc., 482 F.2d 821, 824 (4th Cir. 1973)).
Thus, a complaint satisfies the Rules if it gives "fair
notice" of the claim and "the grounds upon which it
rests." Twombly, 550 U.S. at 554-55 (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)).
42 U.S.C. § 1981 Claim and 42 U.S.C. §
1983 does not itself confer substantive rights upon a
plaintiff. Graham v. Connor, 490 U.S. 386, 394
(1989) (quoting Baker v. McCollan, 443 U.S. 137,
144, n.3 (1979)). It only allows recovery for plaintiffs who
are denied federal civil rights by someone "acting under
the color of state law." 42 U.S.C. § 1983.
Therefore, the first step in a § 1983 action is to
identify the underlying right at issue. See Graham,
490 U.S. at 394, aff'd by Cty. of Sacramento v.
Lewis, 523 U.S. 833 (1998).
alleges violations of his rights under the
First, Fourth, Fifth, and Fourteenth Amendments.
Fourth Amendment Claim
alleges his Fourth Amendment right to be free from
unreasonable searches and seizures was violated when he was
subjected to a warrantless search, absent individualized
suspicion, in the form of a drug test.
Fourth Amendment provides
[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no [w]arrants shall
issue, but upon probable cause, supported by [o]ath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const, amend. IV. A urine drug test is a search.
Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602,
617 (1989). Whether a search is reasonable under the Fourth
Amendment is determined by balancing the intrusion upon the
individual's Fourth Amendment interests and a legitimate
governmental interest. Id. at 619 (quoting
Delaware v. Prouse, 440 U.S. 648, 654 (1979);
United States v. Martinez-Fuerte, 428 U.S. 543, 574
reasonableness of a warrantless search, absent individualized
suspicion, is determined by conducting the above balancing
test and finding the privacy interests implicated by the
search are minimal and the important governmental interest
furthered by the intrusion upon the individual's privacy
would be jeopardized by the requirement of individualized
suspicion. Id. at 624.
alleges he was selected for a drug test in violation of the
Fourth Amendment, without justification and prior to
establishing drug testing guidelines or procedural
safeguards, while also alleging the department implemented a
drug testing program that failed to comply with the North
Carolina Controlled Substances Examination Regulation Act
("CSERA"). [DE #1 ¶58].
defendants contend plaintiff is a commercial driver's
license holder subject to regulations which allow for testing
such employees randomly without individualized suspicion,
defendants have failed to show how the County implemented
these regulations and how such policies demonstrate the
governmental interest required by the balancing test set
forth above. Therefore, finding inadequate support for
defendants' arguments in their brief, defendants'
motion to dismiss plaintiff's Fourth Amendment claim is
Fourteenth Amendment Claims
alleges violations of his Fourteenth Amendment rights to due