UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RALPH GREER, JR.,

Plaintiff, Case No. 14-cv-13596

v. Paul D. Borman

United States District Judge

SUSAN McCORMICK, BARRETT JONES,

WESLEY SLAUGHTER, THOMAS DOTSON,

and DONOVAN WALTON, in their

individual capacities,

Defendants.

___________________________________________/

OPINION AND ORDER (1) DENYING DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT (ECF NO. 27) AND (2) GRANTING IN PART

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

AS TO LIABILITY (ECF NO. 29)

In this 42 U.S.C. § 1983 action, Plaintiff claims that his employer violated his

Fourth Amendment right to be free from an unreasonable search and seizure when it

suspended and terminated him from his employment for refusing to undergo a urine

drug test that was ordered without reasonable suspicion that he had used drugs in

violation of company policy. Defendants respond that they did have reasonable

suspicion, based on a call to their public relations department from a news reporter

who passed along an anonymous tip from someone who claimed to have seen and

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photographed a black male rolling a marijuana cigarette while sitting in a companyowned vehicle. 

On March 13, 2015, this Court denied Defendants’ motion to dismiss,

concluding that Plaintiff had adequately alleged a Fourth Amendment violation and

that “it was clearly established in September, 2013, that an uncorroborated anonymous

tip, even if purportedly backed up by undisclosed photographic evidence, relayed

second hand by a news reporter with no first hand knowledge of the facts alleged by

the tipster, did not provide individualized reasonable suspicion sufficient to require

an employee to submit to a urine drug test.” Greer v. McCormick, No. 14-cv-13596,

2015 WL 1181675, at *10 (E.D. Mich. March 13, 2015) (emphasis in original.) See

Wrightsell v. City of Chicago, 678 F. Supp. 727, 732 (N.D. Ill. 1988) (“Complaints

regarding the reasonableness of a urinalysis drug test ordinarily cannot be dismissed

on a motion under Fed. R. Civ. P. 12(b)(6).”). 

Discovery is complete and Defendants now seek summary judgment based

upon qualified immunity (ECF No. 27) and Plaintiff seeks a partial summary

judgment finding on the issue of liability (ECF No. 29). The parties filed Responses

(ECF Nos. 32, 33) and Defendants filed a Reply (ECF No. 34). Defendants also filed

a Notice of Supplemental Authority on March 28, 2017 (ECF No. 37), to which

Plaintiff responded (ECF No. 38). The Court held a hearing on the cross-motions on

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December 21, 2016. Following the hearing, the parties engaged in settlement

discussions that were unsuccessful in resolving the case.

For the reasons that follow, the Court GRANTS IN PART Plaintiff’s motion

for partial summary judgment as to liability and DENIES Defendants’ motion for

summary judgment. 

I. BACKGROUND

A. Plaintiff’s Version of Events

The Plaintiff, Ralph Greer, began work with the Detroit Department of Water

and Sewage (“DWSD”) in October, 2000, and ultimately transferred to his position

as a construction inspector. (ECF No. 29, Pl.’s Mot. Ex. 1, April 8, 2016 Deposition

of Ralph Greer 6:17-7:4.) The DWSD is not a Defendant. The Defendants are

employees of the DWSD who are sued only in their individual capacities: Susan

McCormick, who was the Director of DWSD (Pl.’s Mot. Ex. 11, April 18, 2016

Deposition of Susan McCormick 5:16-66:7); Barnett Jones, who was the Chief

Security and Integrity Officer for the DWSD (Pl.’s Mot. Ex. 5, March 23, 2016

Deposition of W. Barnett Jones 5:2-7); Wesley Slaughter, who was a Security Officer

assigned to Special Investigations for the DWSD (Pl.’s Mot. Ex. 6, March 23, 2016

Deposition of Wesley Slaughter 6:17-24); Thomas Dotson, who was a Construction

Inspector/Supervisor for the DWSD (ECF No. 27, Defs.’ Mot. Ex. 5, March 23, 2016

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Deposition of Thomas Dotson 3:13-18); and Donovan Walton, who was the Manager

of the DWSD Maintenance and Repair Division and who was the supervisor of

Plaintiff’s direct supervisor, Thomas Dotson (Pl.’s Mot. Ex. 8, March 23, 2016

Deposition of Donovan Walton). 

Throughout his employment with DWSD, Greer worked as a Construction

Inspector and drove a DWSD panel truck to various sites to oversee the construction

and repair work that private contractors performed for the DWSD. (Greer Dep. 16:19-

17:8, 18:17-19.) On the date of the incident that is the subject of this litigation, Greer

was assigned to a job in suburban Wyandotte and was driving a “very dark blue” Ford

F335 Cargo Van with a vehicle number – 381188 – stenciled on both sides of the

truck. (Greer Dep. 12:10-13:23, 15:4-18:9.) Plaintiff submitted a declaration in

which he confirms that he was assigned to a job in Wyandotte on the dates in question

in this case, that on those days he was driving a dark blue DWSD van and that “at no

time on those days did [he] drive a DWSD van on or near Hunt Street in Detroit or on

or near any street in the vicinity of Eastern Market in Detroit.” (ECF No. 33, Pl.’s

Resp. Ex. 15, August 24, 2016 Declaration of Ralph Greer ¶¶ 9-11.) Plaintiff’s direct

supervisor at the time was Thomas Dotson. (Greer Dep. 19:21-22.)

According to Plaintiff, he was sitting in his office at approximately 7:30 a.m.

on September 10 or 11, 2013, when Mr. Walton, Mr. Dotson’s supervisor, told

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Plaintiff that security wanted to see Plaintiff downtown. (Greer Dep. 21:3-5.) 

Plaintiff did not inquire why but told Walton that he would stop by security when he

left the office for his daily assignment. (Greer Dep. 21:6-8, 24:13-25:14.) About 30-

45 minutes later, before Plaintiff left the office for his daily assignment, Walton

returned and said that security called back and wanted Plaintiff to go to the clinic for

a drug test. (Greer Dep. 25:15-26:7.) Plaintiff asked Walton why, and Walton stated

that he did not know, he was just doing what security asked him to do. (Greer Dep.

26:15-18.) At this point, Plaintiff asked to speak with his union representative, Juanita

Sanders, who was already out in the field and had to be called back to the office to

meet with Plaintiff. (Greer Dep. 26:19-27:11.) When Sanders arrived, she and

Plaintiff met privately in a conference room at the DWSD offices. (Greer Dep. 27:10-

18.) Plaintiff asked Sanders why he had to go for a drug test, and she asked him if he

had been involved in an accident with a company vehicle or if someone had claimed

that he appeared to be under the influence of some type of controlled substance, to

which Plaintiff responded that no, neither of those things had occurred. (Greer Dep.

27:22-28.) Sanders told Plaintiff that he did not need to go to the clinic because

DWSD needed a reason to send him for a drug test and they had not given him such

a reason. (Greer Dep. 28:4-7.) Sanders then had a conversation with Walton outside

of Plaintiff’s hearing. (Greer Dep. 29:2-5.) Walton then left Plaintiff and Sanders in

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the conference room to wait, stating that security would make a decision. Walton

returned less than an hour later with the 29-day suspension pending discharge

paperwork, which Plaintiff signed. (Greer Dep. 29:6-30:10.) Walton made no further

statements to Plaintiff or to Sanders and Plaintiff got in his personal car and drove

home. (Greer Dep. 30:11-17, 31:22-32:3.) Plaintiff denies that he smoked marijuana

either on September 10th or 11th, 2013 and denies that he ever smoked marijuana in

a DWSD vehicle when he was on duty. (Greer Dep. 32:4-14.)

The Notice of Suspension was issued on Wednesday, September 11, 2013, by

Plaintiff’s direct supervisor, Thomas Dotson and by Mr. Dotson’s supervisor,

Donovan Walton. (Pl.’s Mot. Ex. 9, Sept. 11, 2013 Notice of Suspension.) The

Notice of Suspension informed Plaintiff that he was being suspended immediately for

a period of twenty-nine (29) days, with a recommendation for discharge following the

suspension period. (Id.) The reason given for the suspension was as follows:

Possession, consumption, use of or being under the influence of

alcoholic beverages, narcotics, habit-forming drugs, or any other

potentially intoxicating or potentially impairing substance during

working hours or on DWSD property (Employee refused to submit to a

drug and alcohol screening).

(Pl.’s Mot. Ex. 9, Notice of Suspension.)

Greer filed a grievance against his suspension, which was denied by the DWSD

on September 27, 2013. (ECF No. 29, Pl.’s Mot. Ex. 13, Sept. 27, 2013 Grievance

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Denial Letter from DWSD Manager Terri Tabor Conerway.) The Letter stated in part:

A thorough review and discussion revealed that the Department received

a complaint regarding Mr. Greer. Consequently, Assistant

Superintendent of Water Systems Maintenance and Construction,

Donovan Walton directed Mr. Greer to submit to a drug and alcohol

screen. The grievant informed Mr. Walton that he was unable to submit

to a screen and requested Union representation before the conversation

could proceed. The grievant had an opportunity to confirm that he was

not in possession or under the influence of any intoxicating or impairing

substance during work hours or while on DWSD property. When given

the directive to undergo a drug and alcohol screen, Mr. Greer refused. 

The Department views this as a refusal to follow a directive. This refusal

is considered as a positive test result by default.

It is Management’s position that based on these findings, the

aforementioned grievance is denied.

(Pl.’s Mot. Ex. 13, Sept. 27, 2013 Correspondence from Terri Conerway to Juanita

Sanders.)

On October 7, 2013, the DWSD served Plaintiff with a Notice of Discharge,

signed by Susan McCormick, the Director of DWSD. (Pl.’s Mot. Ex. 12.) The reason

given for the discharge was as follows:

Possession, consumption, use of or being under the influence of

alcoholic beverages, narcotics, habit-forming drugs, or any other

potentially intoxicating or potentially impairing substance during

working hours or on DWSD property (Employee refused to submit to a

drug and alcohol screening).

(Pl.’s Mot. Ex. 13, Notice of Discharge.) Ms. McCormick subsequently confirmed

that Plaintiff’s refusal to take a drug test was “a significant factor” in the decision to

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terminate. (Pl.’s Mot. Ex. 11. McCormick Dep. 28:6-12.)

Plaintiff’s discharge went to arbitration. On July 25, 2014, an arbitrator

appointed under the contract between the Union and the DWSD rendered an Opinion

and Award that held that the DWSD did not have “reasonable suspicion” for ordering

the drug test and that the discharge of Greer violated the contractual prohibition of

discipline without just cause. (Pl.’s Mot. Ex. 14, Arbitration Opinion and Award.) 

The Arbitrator denied back pay because he concluded that under the collective

bargaining contract Greer had a duty to obey the order to submit to the test even if the

order was invalid and grieve it later. (Opinion and Award 9-10.) The Arbitrator

specifically declared that he was not ruling on whether the order to submit to the test

or the subsequent suspension and discharge for failing to take the test violated Greer’s

Fourth Amendment rights. (Opinion and Award 9-10.) As a result of the Arbitration

Award, Greer was reinstated as a Construction Inspector on September 8, 2014. 

(Greer Dep. 37:1-5.) Greer lost wages and benefits for a period of twelve months,

form September 11, 2013 to September 11, 2014. (Greer Dep. 37:5-7.) As a result

of his discharge, Plaintiff was forced to move in with his mother and his brother-inlaw, and lost the health insurance under which he and his son had been covered at the

DWSD. (Greer Dep. 38:8-40:6.) 

As of September, 2013, when the incident that led to Plaintiff’s termination

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occurred, DWSD had published rules requiring employees to take drug tests when

they were involved in accidents or when they returned from absences beyond a

specified length. DWSD did not have a published policy requiring employees to

submit to drug tests under any other circumstances. (Pl.’s Mot. Ex. 14, Arbitrator’s

Opinion and Award 3-4.)

B. DWSD’s Version of the Facts

1. What DWSD claims it knew on the morning of September 11, 2013,

when it ordered Greer to undergo a urine drug test and suspended

him pending termination for refusing to take the test.

a. William Wolfson - General Counsel and Chief Compliance

Officer

Between 8:00 and 9:00 a.m. on the morning of September 10, 2013, Wolfson,

DWSD’s Chief Compliance Officer and General Counsel, received a call from DWSD

public affairs director Mary Alfonso. (Wolfson Dep. 22:17-25, 25:20-21.) Ms.

Alfonso, who passed away before this litigation was filed, allegedly informed Mr.

Wolfson that she had just received a call from a Channel 4 Reporter, Kevin Dietz. 

Dietz was investigating concerns regarding issues of running water in vacant buildings

in the City of Detroit, and was preparing to run a story on the issue. Dietz had been

in contact with the DWSD at least as early as August, 2013, regarding the vacant

building running water concerns. (Wolfson Dep. 20:12-21:9, 21:3-8, 22:25-23:21;

Barnett Dep. 12:24-13:4.) 

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During the early morning call on September 10, 2013, Dietz also reportedly

informed Ms. Alfonso, again according to Mr. Wolfson, that Dietz “had a videotape

of a DWSD employee smoking a joint in a DWSD vehicle.” (Wolfson Dep. 24:3-

24:6.) Wolfson asked Ms. Alfonso if she had seen the videotape, which she had not,

and she informed Wolfson that Dietz was “likely to run a story and certainly wanted

to know what, if any, response the department would have.” (Wolfson Dep. 24:7-19.) 

Wolfson instructed Ms. Alfonso to attempt to identify the vehicle, check the

provisions in the employee’s contract regarding drug testing and, if appropriate under

the contract, get him tested. (Wolfson Dep. 24:21-25:2.) Ms. Alfonso indicated to

Mr. Wolfson that she was concerned because Dietz indicated that he was not prepared

to produce the videotape at that point. (Wolfson Dep. 26:24-27:12.)

Following the call from Ms. Alfonso, Wolfson believes that he would have

contacted Mr. Barnett, the DWSD Director of Security and Integrity and asked Barnett

to “touch base” with Ms. Alfonso and “see what identifying information, in fact, she

had received, and then take a look and see if there were other things that would help

us determine the veracity of the information that had been received.” (Wolfson Dep.

30:11-31:1.) Wolfson has no specific recollection of having made the call to Barnett

but believes that he would have done so and would have probably pointed out that “if

the contract allowed for testing, we should consider testing from a public safety point

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of view.” (Wolfson Dep. 30:17-31:4.) No one at DWSD checked further with Mr.

Wolfson prior to suspending Plaintiff the next morning, with a recommendation of

discharge, for refusing to take the drug test. Nor did Mr. Wolfson not instruct anyone

at DWSD to, nor did he himself, consider the constitutional limitations on ordering

Plaintiff to undergo a drug test based on the information that was then available to the

DWSD. (Wolfson Dep. 33:9-34:7.)

b. Barnett Jones - Chief of Security and Integrity

Mr. Jones recalls that Ms. Alfonso contacted him and said that she had just

received a phone call from Mr. Dietz, and that Dietz had indicated that he had

received information, a phone call and a video from, Jones believed, a retired or an

off-duty Detroit police officer who was in a park somewhere and indicated to Dietz

that he had observed a male who was driving a DWSD vehicle who appeared to take

a baggie from either under the seat or between the seats and, Jones believed, proceed

to roll a marijuana cigarette and proceed to smoke it. (Jones Dep. 13:5-14:5.) Mr.

Jones asked Ms. Alfonso if she had a vehicle number from the truck and inquired

whether Ms. Alfonso had a copy of the video. Ms. Alfonso did give Jones the vehicle

identification number but responded that Dietz refused to give DWSD the video but

threatened to do his own investigation into the matter and to “put it on the news” if

DWSD didn’t do an investigation. (Jones Dep. 14:6-15.) Mr. Jones recalled

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specifically that Ms. Alfonso told him that Mr. Dietz told her that the alleged police

officer was in a park somewhere in the City of Detroit. (Jones Dep. 15:16-23.) Jones

received no information from Ms. Alfonso regarding exactly where or when this

alleged rolling of the joint had occurred other than that it was a DWSD vehicle in a

park somewhere. (Jones Dep. 16:3-16.) Jones could not recall whether he was

informed of the race or gender of the driver of the DWSD vehicle. (Jones Dep. 16:17-

24.) Jones does recall that he “wanted to get his hands on the video,” but that Alfonso

told him that Dietz was not going to give it to him. (Jones Dep. 17:3-11.)

Jones then assigned the matter to a DWSD investigator, Wesley Slaughter,

either by phone or by directly walking down to Slaughter’s office. (Jones Dep. 17:15-

22.) Jones recalls that he said to Slaughter exactly what Alfonso had said to him:

I’ve just been advised by Mary Alfonso that we have a report from

Kevin Dietz that an off-duty officer has recorded one of – possibly one

of our employees in a park with – smoking marijuana or indicated that

he observed him roll the marijuana cigarette and smoked the marijuana,

that he was on duty in our vehicle and here’s the vehicle identification

number can you check it out.

(Jones Dep. 17:25-18:7.) Slaughter called Jones back shortly thereafter and informed

him that the vehicle was operational, that he knew who the driver was and that he was

with the driver’s field supervisor, Doc Walton, who was going to call in the driver of

that vehicle and, pursuant to policy, ask him to take a drug test. (Jones Dep. 18:8-

19:25.) 

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At the time that Jones gave the assignment to Slaughter to investigate, Jones did

not know where or when the alleged undisclosed video had been taken or by whom

and did not know where the vehicle in question had been assigned, or would likely

have been located, the morning of September 10, 2013. (Jones Dep. 20:14-21:18.) In

fact, as discussed infra, Plaintiff was assigned to a project in suburban Wyandotte on

September 10, 2013, and was not assigned to any job duties in downtown Detroit.

The next contact that Jones had regarding this issue was later that day, around

5:00 or 5:30 p.m., when Slaughter called Jones back to report that Walton “had asked

Mr. Greer to go to the clinic and Mr. Greer had refused to go to the clinic and that they

were following the policy which was he was being suspended pending termination.” 

(Jones Dep. 22:4-15.) Slaughter testified that Walton reported that he had asked

Plaintiff to go to the clinic and “invoked the policy which was refusal to go to the

clinic for a urine sample when asked by your supervisor meant that you were

suspended pending termination.” (Jones Dep. 23:9-14.) 

No one asked Mr. Jones whether the suspension to Plaintiff should be issued

– he was simply informed that it had been done. (Jones Dep. 23:15-23.) Jones’s only

other recollection regarding this issue was that he continued to ask for the video and

Ms. Alfonso continued to reiterate that Dietz was not going to produce the video. 

Jones testified:

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A: I asked her for the video.

Q: All right. And what, if anything, did she say in response?

A: “He’s not giving us the video.” And I told her that I would like to

have it for the record.

Q: All right. And why did you want it for the record?

A: As a police officer you like to have all of your – all of any

particular evidence. I knew that there had been an investigation

done by one of my people, that the call had come in indicating that

there was possible video, and that I would have liked to have that

in the record, in the file because it completes the file.

(Jones Dep. 25:3-15.) In fact, however, Mr. Jones could not specifically recall

whether Ms. Alfonso had represented that Mr. Dietz told her that there was video or

whether it was still photographs, concluding that he “thought” is was videos “but it

could be videos or photos. I’m not sure.” (Jones Dep. 38:7-38:9.) Mr. Jones was

never informed by anyone at DWSD that they actually viewed the video or

photographs. (Jones Dep. 39:21-40:7.)

Mr. Jones testified that he was aware of the need for reasonable suspicion to

order such a test, but that no one asked his opinion, as a police officer, whether in his

view there was reasonable suspicion to require Plaintiff to be tested. (Jones Dep.

28:14-21, 32:17-21.) As a retired police officer of some 40 years, Mr. Jones had great

familiarity with the concept of “reasonable suspicion,” and believed it was “more than

a hunch,” “as in stop and frisk,” and “intuitive information that you are able to

perceive with your senses.” (Jones Dep. 33:19-35:3.) Mr. Jones was aware that the

information he received from Ms. Alfonso, i.e. that Dietz told her that an anonymous

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source had told him that there was a video, had been double hearsay. (Jones Dep. 

29:2-30:4.) Mr. Jones also indicated that he is obligated to investigate even hearsay

tips and that is what he did here by assigning Slaughter to investigate. (Jones Dep.

30:3-8.) Mr. Jones testified that the DWSD gets calls from contractors who are

unhappy with inspectors like Mr. Greer looking over their work. Mr. Jones

acknowledged that, at the time the test was ordered, no one at DWSD knew the

identity of the tipster, knew whether or not he was being truthful or whether he had

a motive to be less than truthful. (Jones Dep. 30:14-31:21.) In fact, no one knew

anything about the tipster other than Dietz’s alleged representation (which Dietz

actually denies having said, see infra) that the anonymous tipster was perhaps a retired

police officer. Mr. Jones confirmed that the only information he received “as to what

might or might not be reasonable suspicion is entirely what Ms. Alfonso told [him]

that Mr. Dietz told her based on what this person told Mr. Dietz.” (Jones Dep. 35:10-

16.) Jones did not make any notes on Ms. Alfonso’s call – after he received the call

he walked down and gave the information and assignment to Slaughter. (Jones Dep.

39:14-20.) Mr. Jones believed they had reasonable suspicion here based upon the

information he received in the phone call from Alfonso:

I believe even though we had hearsay information we had cause and

effect to investigate. The officer did go out and investigate. He did put

together the fact that the person operating the vehicle at the time was Mr.

Greer. He eliminated all the other drivers; and that he had asked Mr.

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Greer with his supervisor there, he had made the supervisor aware of

what the complaint was and the supervisor I believe asked Mr Greer

pursuant to our policy to take a urine test.

(Jones Dep. 43:21-44:23.) At the time that Jones reached this conclusion, he did not

know that Mr. Greer had a prior drug test issue. (Jones Dep. 45:22-46:2.)

Under the DWSD policy, the driver of the vehicle would have the right to

refuse. (Dotson Dep. 19:22-25.) Also at the time the DWSD procedure for

determining who would make the decision to require an employee to undergo a drug

test “would have been a combination. If there was an investigation that tipped the box

of reasonable suspicion that would have been – information would have been given

to the supervisor, and the supervisor would have had the responsibility to ask the

employee to go for a drug test.” (Jones Dep. 11:22-12:5.) One of Jones’s

investigative officers would call the supervisor to “make him aware that there was a

need for the supervisor to read the report or partake in the information that the

investigation would reveal.” (Jones Dep. 12:6-12.) The supervisor would ultimately

be responsible for making the call to send someone for a drug test. (Jones Dep. 12:13-

18.)

c. Wesley Slaughter - Investigator 

Slaughter, who received the assignment from Jones to investigate the

anonymous tip regarding someone allegedly rolling a marijuana cigarette in a DWSD

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vehicle, understood the DWSD drug policy to dictate that “if a supervisor had

reasonable suspicion that an employee may be under the influence of alcohol or illegal

drugs that they could be asked to go to the clinic for testing.” Slaughter understood

that the if an employee turns down a request based on reasonable suspicion, the

penalty is a 29-day suspension and then termination. Slaughter had never been

involved in a reasonable suspicion investigation before the incident with Plaintiff. 

(Slaughter Dep. 7:12-8:5.)

Mr. Slaughter was contacted by Mr. Jones in person and told that Ms. Alfonso,

who was the public relations person for DWSD at the time, had received information

from Mr. Dietz that an off-duty or a retired police officer had observed one of our

persons or employees using drugs while he was sitting in a DWSD vehicle. (Slaughter

Dep. 9:7-10:24.) Jones told Slaughter it was a male, did not tell him the race, did not

describe the individual, did not tell Slaughter that there was a video and did not tell

Slaughter anything about when or where this incident allegedly occurred. (Slaughter

Dep. 10:24-12:3.) Jones verbally gave Slaughter the vehicle identification number

and asked Slaughter to find out who was driving the vehicle. (Slaughter Dep. 12:7-

19.) Jones told Slaughter that he wanted the information as quickly as possible

because Dietz wanted to run a story on the incident and the department did not want

to suffer the negative publicity. (Slaughter Dep. 13:1-10.) 

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After speaking with Jones, Slaughter went down the hall and spoke directly

with Ms. Alfonso, who told him that Kevin Dietz had relayed information that a

DWSD employee, a black male, was observed possibly using or rolling up a marijuana

cigarette while sitting in his vehicle and that Dietz had still photos of this while it was

happening. Alfonso verbally repeated the vehicle number to Slaughter. (Slaughter

Dep. 14:8-16.) Slaughter was not informed where the incident had occurred or where

the photographs had been taken but Alfonso did give a date when this supposedly

occurred, information that Slaughter needed to line up who was driving the vehicle

with that number that day, and informed Slaughter that it was allegedly a black male

driving the van. (Slaughter Dep. 15:3-16:8.) Neither Jones nor Alfonso mentioned

or discussed with Slaughter the issue of a drug test. (Slaughter Dep. 16:16-19.) 

After receiving the vehicle number verbally from Alfonso and confirming that

it had been in operation on the date question, Slaughter called Donovan Walton, who

was in charge of the crew to which that vehicle was assigned, and asked Walton to

identify which employee had that vehicle on the date that Alfonso had given Walton. 

Walton called Slaughter back about an hour later and informed him that Plaintiff was

assigned to the vehicle that day. (Slaughter Dep. 16:23-17:15.) Slaughter then

reviewed the video logs that monitor company vehicles entering and exiting the

facility and confirmed that it was Greer who did swipe in and out that day. (Slaughter

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Dep. 17:16-24.)

Jones told Slaughter, as Alfonso had told Jones, that this was going to go on the

news and that it was important: “It was conveyed to me by the Chief that we wanted

to be ahead of this story before Mr. Dietz put out whatever he was going to do.” 

(Slaughter Dep. 19:17-19.) Although Slaughter did determine that Plaintiff was

assigned to the vehicle that matched the number he was verbally given by Alfonso,

Slaughter did not know whether that vehicle was at the location where this incident

allegedly occurred and did not know the time that the incident allegedly occurred. 

(Slaughter Dep. 19:20-20:4.) Slaughter compiled his report regarding the identity of

the individual who was assigned to the vehicle matching the number he was given and

the next he knew of the situation a meeting took place the next day with himself,

Plaintiff, Plaintiff’s union representative and Mr. Walton. (Slaughter Dep. 21:9-22:2.)

Slaughter could not recall who initially suggested the drug test but Slaughter

recommended that a drug test should be required and he told Mr. Walton that a drug

test should be done. (Slaughter Dep. 22:10-24.) Slaughter testified that it was up to

Walton to determine whether or not to follow Slaughter’s recommendation and require

Plaintiff to undergo the drug test because Walton, as Plaintiff’s supervisor, had the

final call on how to discipline the Plaintiff. (Slaughter Dep. 23:3-11.) Ultimately,

after Slaughter explained to the Plaintiff and the union representative what the charges

19
were, and after conferring privately with his union representative, Plaintiff refused to

submit to the test. (Slaughter Dep. 25:1-26:2.)

Slaughter testified that no one asked his opinion on whether there was

reasonable suspicion to test the Plaintiff but he believed that, based solely on what

Alfonso reported to Jones and to Slaughter about what Dietz told Alfonso, i.e. that an

anonymous source had allegedly observed a black male in a DWSD vehicle bearing

a certain number roll a marijuana cigarette, Slaughter believed that there was

reasonable suspicion to test Plaintiff after they determined that the vehicle

identification number they received verbally from Dietz matched the vehicle assigned

to Plaintiff that and that Plaintiff drove that day. Nothing further was learned before

Plaintiff was required to submit to a urine drug test. (Slaughter Dep. 27:4-28:2.) 

Slaughter prepared his report on September 10, 2013 and gave it to Jones. His report

did not note the date on which these recorded events allegedly occurred, although

Slaughter admitted that was important information. (Slaughter Dep. 29:21-31:19.) 

Slaughter made the recommendation to require the test before the meeting with

Plaintiff, Walton and the union representative. (Slaughter Dep. 29:17-23.)

Slaughter testified that he tried to contact Dietz himself but never received a

return phone call from Dietz and never followed up or spoke to Dietz about the

incident. (Slaughter Dep. 31:20-32:12.) Slaughter testified that he had no information

20
whatsoever to corroborate the identity of the tipster, did not know if he was a police

officer (retired or otherwise), knew nothing about his credibility, his trustworthiness

or motives yet conceded that the veracity of the allegations underlying the decision

to require Plaintiff to undergo a drug test rested entirely on the credibility of the

tipster, about whom the DWSD knew nothing:

Q: So am I correct in terms of the allegation that there was some

criminal activities, specifically smoking weed or rolling weed or

whatever or anything rests on how credible this guy is; doesn’t it?

A: Yes.

Q: And we don’t know anything about him?

A: Yes. No, we don’t know anything about the guy.

Q: So we don’t know how credible he is, do we?

A: No.

(Slaughter Dep. 33:17-34:7.) 

d. Donovan Walton - Manager of Maintenance and Repair -

Plaintiff’s Indirect Supervisor

Mr. Walton testified that he was the supervisor of Plaintiff’s direct supervisor,

Thomas Dotson. (Walton Dep. 4:21-25.) Walton received a call from Slaughter

around 8:00 a.m., on a date he could not specifically recall, asking him to determine

who was driving a certain vehicle with a given number on a certain date. Walton did

not give Dotson any background on why he needed the information. Walton called

Dotson and asked him to determine who was driving that vehicle and Dotson checked

and reported to Walton that it was Plaintiff. (Walton Dep. 6:21-10:5.) Walton then

21
conveyed the information to Slaughter over the telephone but still at this point had not

been told what this was all about or why Slaughter needed the information. (Walton

Dep. 11:2-8.) Slaughter then told Walton to have Plaintiff report to security. 

Slaughter still did not tell Walton why. (Walton Dep. 11:2-12:6.) Five minutes later,

Slaughter called Walton back and said: “Have Mr. Greer report to a clinic for a drug

and alcohol screen.” Slaughter still had not told Walton anything about the situation

– nothing about the call from Dietz or the tip – and did not ask Walton to do any

independent investigation and did not ask Walton’s opinion on the request to send

Greer for a drug screen. (Slaughter Dep. 12:10-13:15.) Walton did not know where

Plaintiff had been assigned to work on the date in question, and did not know where

Plaintiff would have been at 9:00 a.m. on that day. (Walton Dep. 22:17-22.) 

Slaughter instructed Walton to have Plaintiff transported to the clinic. Walton

testified that Slaughter has the authority to issue that order to Walton. (Walton Dep.

12:10-13:15.) 

Walton then called Plaintiff into his office (Walton did not recall that anyone

else was in the room) and informed him that security wanted him to be transported to

the clinic for a drug and alcohol screen. Plaintiff asked why and Walton replied that

he did not know the reason he was just informed by security to send Plaintiff to the

clinic. (Walton Dep. 13:18-14:6.) Walton testified that “off the cuff” he asked

22
Plaintiff, as he usually does when a drug test is required, whether Plaintiff could pass

the test. Walton testified that Plaintiff told Walton that he “did something over the

weekend” and could not pass the test. Walton did not put this in his report because

it was “just between me and him and it’s more like hearsay.” (Walton Dep. 14:7-22.) 

Walton testified that Plaintiff then asked to meet with his union steward, whom

he conferred with in private and then came back after ten to fifteen minutes and stated

that based on what his union representative told him, without probable cause DWSD

could not send him for the test, and the union representative said there was no such

cause and so Plaintiff refused to go. (Walton Dep. 15:4-16:6.) Walton explained to

Plaintiff that they would treat this as a refusal and Walton called Slaughter and others

in human resources to report Plaintiff’s refusal. (Walton Dep. 16:8-24.) Walton was

told by the people in human resources to stand by for further instruction and then

someone called him back and said that they would be issuing the suspension. Walton

then received the directive to issue the suspension, which was probably prepared by

human resources and emailed to him, which he signed and dated September 11, 2013. 

Walton testified that he was given a directive to sign and issue the suspension, and

that “given the circumstances” he wanted to do it. (Walton Dep. 20:11-25.) Walton

prepared a “Statement of Facts,” that indicated he received a call from Slaughter on

Wednesday, September 11, 2013 at 8:45 a.m. asking who was driving “such and such

23
a vehicle on the preceding day,” September 10, 2013, at approximately 9:00 a.m. 

(Walton Dep. 21:19-22:12.) Walton did not know where Plaintiff was assigned to

work or where Plaintiff would have been on the morning of September 10, 2013. 

Walton testified that Slaughter was not present when he issued the suspension to

Plaintiff but that he was carrying out Slaughter’s order to send Plaintiff for a test and

that he made no decision of his own to send Plaintiff for a test. Walton was never

informed of the facts allegedly supporting the order for Plaintiff to undergo a drug

screen, i.e. the call from Dietz regarding the photos/video, until much later in the case

– after the suspension. He suspended Plaintiff based on what he was told to do. 

(Walton Dep. 24:1-25:7.) Walton did not tell anyone about the alleged comment from

Plaintiff regarding being unable to pass the test due to activities over the weekend to

anyone else at the DWSD. (Walton Dep. 16:25-17:25, 18:13-19:19.) Walton testified

that he had no independent basis to suspect that Plaintiff had been using marijuana or

had it in his vehicle. (Walton Dep. 28:12-18.)

e. Thomas Dotson - Construction Inspector Supervisor –

Plaintiff’s Direct Supervisor

Thomas Dotson, Plaintiff’s direct supervisor, testified that Plaintiff was

assigned to work on a job in Wyandotte on the days in question. (Dotson Dep. 7:1-

24.) Plaintiff, like other construction inspectors, would report to the DWSD office

first thing in the morning to do paperwork and receive his assignment for the day. 

24
Plaintiff’s shift began at 7:00 a.m. and he knew his assignment was in Wyandotte and

because it is a long drive, approximately 45 minutes, Plaintiff did not usually stay long

at the office. (Dotson Dep. 7:11-24.) Dotson first learned of the situation when

Walton called Dotson into his office early in the morning one day in September, 2013,

and said “you need to go get Ralph and bring him to my office.” (Dotson Dep. 9:25-

10:9.) Dotson testified that Walton told him that there was a complaint against Greer

but he didn’t say what it was. “At some point” Walton told him there was a video of

Plaintiff in a vehicle smoking marijuana and that Plaintiff was being asked to go to the

clinic at once. Walton did not mention anything about where this occurred or the time

at which it occurred but he did mention the day of the week it was alleged to have

occurred. (Dotson Dep. 10:10-11:25.) 

Dotson got Plaintiff and brought him to Walton’s office and the three of them

spoke. Walton told Plaintiff that he had received a phone call from security and that

Plaintiff had to go to the clinic to take a test. Plaintiff said he did not want to take the

test and asked to talk to his union steward. Dotson recalls that Walton asked Plaintiff

if there was any reason he couldn’t pass the test and Plaintiff said yes because he did

something over the weekend. (Dotson Dep. 12:25-14:7.) Plaintiff then spoke with his

union representative and came back in the room and said the union recommended that

he not take the test because there is no random drug testing. Then both Plaintiff and

25
Dotson left the room while Walton called security because Dotson was “not privy to

any of the conversations with security.” (Dotson Dep. 14:8-15:14.) After Walton

called security, he called Plaintiff back in and informed Plaintiff that, per DWSD

security, Plaintiff was going to be suspended because he refused to take the drug test. 

(Dotson Dep. 15:11-24.) Walton handed Plaintiff a suspension that both Walton and

Dotson had signed. Dotson testified that he was asked to sign the suspension because

he was Plaintiff’s immediate supervisor but he didn’t really want to sign it. Dotson

testified that he “just didn’t understand and [] had nothing to do with the reason for

his suspension.” (Dotson Dep. 16:17-17:2.) No one ever asked Dotson his opinion

as to whether Plaintiff should be discharged. (Dotson Dep. 19:2-5.)

2. What DWSD claims it learned after suspending Plaintiff on

September 11, 2013, with a recommendation for discharge based on

a presumed positive drug test, and before October 7, 2013, when it

carried out the discharge. 

In 2013, McCormick, as the Director of DWSD, had three different individuals

reporting to her on matters of labor relations and employment: William Wolfson,

Barnett Jones, and Terri Conerway, the Director of Human Resources. (McCormick

Dep. 6:14-7:1.) In general, if there was a reason for a termination, McCormick would

get a report from Mr. Jones as to what investigation he would do and she would also

get a recommendation from Ms. Conerway as to what she thought the appropriate

action should be. (McCormick Dep. 8:8-11, 9:21-25.) In this case, McCormick

26
would have seen the notice of suspension, which is a 29-day suspension during which

there can be a grievance and determination, followed by a determination on

termination. Ms. Conerway would forward the suspension notice to McCormick and

would make a recommendation regarding termination. (McCormick Dep. 9:6-20.) 

The first McCormick recalls becoming aware of the issue with Plaintiff was on

September 13, 2013, two days after Plaintiff was suspended, when she was scheduled

to do an interview with Kevin Dietz regarding public concern and complaints over the

running water in abandoned buildings in the City of Detroit. Dietz, as an

investigative reporter, had visited some of the sites where there was running water and

was looking to the DWSD to explain why there was running water in abandoned

buildings that was not being shut off in a timely fashion. (McCormick Dep. 10:10-

23.) In advance of that scheduled meeting, McCormick received a call from Ms.

Alfonso informing McCormick that Dietz also had some information regarding some

independent report and some documented evidence regarding an employee’s alleged

activities smoking marijuana in a DWSD vehicle. (McCormick Dep. 10:23-11:20.) 

After the interview with Dietz regarding the running water issue, McCormick and

Dietz had a conversation about the third-party evidence Dietz had received. Dietz

wanted to know what DWSD was doing about the situation that he brought to their

attention about the anonymous tip and evidence. McCormick explained to Dietz that

27
it would be very difficult for the DWSD to move forward with anything without the

alleged third-party evidence, i.e. the alleged photographic or video evidence. 

McCormick asked if she could view the evidence and Dietz displayed portions of a

video on a small screen hand held device, probably a cell phone. (McCormick Dep.

12:2-14:14.) 

All that Ms. McCormick could discern from the video was that there was a

vehicle number visible (she does not recall if it was legible or not but she did not make

a note of the number if it was) on the side of the truck, and there was an employee in

the truck smoking something that did not look like a standard cigarette (it was

“crimped on the edges”). She did not recall if the individual was actually smoking the

cigarette but it was visible in the individual’s mouth. McCormick did not see any

“rolling” of a cigarette and believed that the video was shot through a driver-side

window. (McCormick Dep. 14:15-15:19.) She does not think she would be able to

identify the individual driving the vehicle if she saw the person again. (McCormick

Dep. 16:9-11.) McCormick asked Mr. Wolfson to follow up on the investigation and

that was the end of the discussion of the subject that day. (McCormick Dep. 18:18.) 

McCormick does not recall specifically that Jones or Wolfson reported back to her

regarding the investigation; she only recalls that they determined that the vehicle was

assigned to Plaintiff and that he was under investigation. (McCormick Dep. 20:1-11.)

28
McCormick had no input into the decision to suspend the Plaintiff, which was

made on September 11, 2013, before Ms. McCormick sat down with Dietz for the

running water interview and learned, for the first time, about his alleged third-party

evidence of marijuana being rolled or smoked in a DWSD vehicle. The suspension

with a recommendation of discharge was a decision made by human resources without

McCormick’s knowledge or input. (McCormick Dep. 28:14-19, 31:6-14.) Before

making the ultimate decision to approve the termination, McCormick had a

conversation with Ms. Conerway and learned that Plaintiff had refused to submit to

a drug test. McCormick explained the discharge decision process as follows:

I make the decision based on what I see in the investigation. Mr. Jones

will advise me as to, you know, his findings and he will share those with

Ms. Conerway. Ms. Conerway ultimately will make a recommendation,

and again, then ultimately I sign-off on the recommendation if I believe

it’s appropriate.

(McCormick Dep. 23:25-24:5.) 

In this particular case, Ms. McCormick made the decision to terminate based

on (1) the fact that Plaintiff refused to submit to a drug screen which is viewed as a

presumptive positive result; (2) the video that she viewed and that Mr. Wolfson

viewed that showed a DWSD vehicle being driven by an individual who was either

rolling or smoking what looked like a marijuana cigarette; (3) the fact that the number

reportedly seen on the vehicle was the number of the vehicle assigned to Plaintiff on

29
the day in question. (McCormick Dep. 25:17-28:5.) McCormick did not

independently verify the number that she viewed on the vehicle in the video. Ms.

McCormick testified that the Plaintiff’s refusal to take the drug test was a “significant

factor” in the decision to terminate. (McCormick Dep. 28:6-12.) At the time of the

decision to discharge, DWSD still had not been able to get a hold of the actual video. 

(McCormick Dep. 28:20-29:6.) Notably, McCormick was certain that the van in the

video she viewed was white. (McCormick Dep. 32:25-33:2.) It is undisputed Plaintiff

was driving a dark blue van on September 10, 2013. Ms. McCormick could not

determine from the video whether the individual driving the van was black or white

and she was certain that the view in the video was through the driver’s side window

and not through the front windshield. (McCormick Dep. 33:23-34:6.)

3. The facts according to Kevin Dietz and his tipster, learned after

Plaintiff’s suspension and discharge.

1

a. Sunny Miller – the tipster.

Reluctantly, the anonymous tipster ultimately agreed to be deposed after Kevin

Dietz disclosed his identity in this litigation. The tipster was Sunny Miller, who

actually has never worked as police officer despite the information allegedly received

1 In reaching its decision on the parties’ cross-motions for summary judgment, the Court does

not rely on any information that was not known to the Defendants at the time of the

constitutionally challenged conduct. 

30
by the DWSD from Dietz that the anonymous tipster was either an off-duty or retired

police officer. (Miller Dep. 6:1-7.) Although Miller refused to answer a number of

questions regarding his “profession,” it appears that he worked as a private

investigator with some training in criminal investigation. (Miller Dep. 6:14-25.) 

Miller testified, after several times refusing to answer and ultimately placing a call to

Kevin Dietz on the record at his deposition, that he has sources at all of the networks

and relationships with all of the local television channels, and has known Dietz for

several years and provided him “information” on multiple occasions. (Miller Dep.

7:10-8;7, 11:24-12:2.) Miller testified that he has connections to the DWSD through

the legal department because the DWSD owes him $68,000 in apparent fees for

investigative work, money that was owed at the time of the “anonymous tip” that is

the subject of this lawsuit, and that DWSD, according to Miller, has never paid. 

Miller implied at the deposition that the DWSD had agreed to fix his water in

exchange for his testimony in this case. (Miller Dep. 12:25-15:1.)

Miller testified that when he saw the individual in the DWSD vehicle handling

marijuana, he was in the City of Detroit at 2200 Hunt Street near the Eastern Market. 

He testified that he shot several pictures and some video from the second floor of the

building, through the windshield of the vehicle, of a black male with a large head

reaching down under the driver’s seat to retrieve a baggie, then reach for a clipboard

31
off the dashboard and proceed to roll “weeds,” that were not the color of tobacco, in

a cigarette and to lick the paper, put the cigarette in his mouth, and pull away stuffing

the baggie back underneath the seat. He did not actually see the individual light the

cigarette and smoke it. (Miller Dep. 15:16-21:17.) As he was shooting the still

photographs, he called Dietz on the phone to tell him what he was seeing and he began

to shoot video. He then sent the photos and the video to Dietz’s cell phone. (Miller

Dep. 21:18-25.) Miller was adamant that his photos and video were shot through the

windshield of the vehicle, looking down on the vehicle from a second story window. 

(Miller Dep. 23:3-10.) Miller claims to have captured the number of the vehicle on

his photographs and video, and testified adamantly that the numbers were on the rear

of the vehicle. (Miller Dep 24:23-25:4, 45:5-25.) The whole process of stopping,

rolling the cigarette and driving away took approximately six to eight minutes. 

(Miller Dep. 25:21-26:2.) He does not think that the driver ever lit the cigarette. 

(Miller Dep. 26:3-9.) He thought the incident occurred around noon. (Miller Dep.

39:5-12.) When shown a picture of Plaintiff, Miller believed that he could identify

him as the individual driving the DWSD vehicle. (Miller Dep. 46:16-47:13.) 

Miller testified that he knew he had something in these photos and video that

Dietz would be interested in due to his previous relationship with Dietz – i.e. he knew

Dietz was working on a case involving the DWSD. (Miller Dep. 27:1-11, 34:11-

32
35:4.) About a month after the incident, when talking with Dietz on an unrelated

matter, Miller asked about the DWSD driver incident and was told that the guy was

terminated so he erased all of the evidence from his phone. He has no evidence of the

vehicle number or anything else that was depicted in the photos or the video. (Miller

Dep. 28:6-25, 51:5-15.) Miller could not explain why he called a news reporter

instead of calling the DWSD or the police when he witnessed this DWSD driver

rolling and possibly smoking marijuana on the job, while driving a DWSD vehicle. 

(Miller Dep. 47:14-48:10.)

b. Kevin Dietz – the reporter.

Kevin Dietz denied that he ever possessed a video and testified that he had two

or three still pictures of a water truck and a person in the water truck sent to him on

his phone. Dietz did not witness the events that were depicted on the photos himself

and never possessed any actual photos – only the photos on his cell phone. (ECF No.

29-4, Pl.’s Mot. Ex. 3, December 9, 2015 Deposition of Kevin Dietz 7:5-8:24.) He

testified that he showed these photos to Ms. McCormick and perhaps Mr. “Wilson”

at the September 13, 2013, interview regarding the running water. He does not recall

contacting anyone at DWSD about the pictures before the September 13, 2013

33
meeting with McCormick.2

 (Dietz Dep. 9:3-19.) 

Dietz recalls that the photos depicted a blue truck with white numbers, and an

African-American male in the driver’s seat. Dietz did not recognize the location and

did not learn from Miller where the pictures were taken. He did believe that it was

somewhere in the City of Detroit. (Dietz Dep. 10:4-11:20.) Dietz could not tell from

the photos what the person was doing at the time, but was told by Miller that he had

seen the person roll a marijuana cigarette in the vehicle but Dietz could not see that

happening in the photos. (Dietz Dep. 11:21-12:20.) Dietz testified that he had to call

Miller back to get the vehicle number from him, verbally, over the phone. (Dietz Dep.

12:21-13:9.) Dietz does not recall telling anyone at DWSD anything about the person

who gave him the photos, i.e. that he was a retired police officer. (Dietz Dep. 14:11-

19.) Dietz denies that he showed McCormick or anyone else at DWSD the photos on

his phone the day of the September 13, 2013 interview. (Dietz Dep. 18:9-19:15, 22:5-

9.) Dietz recalled that they showed video of the water in one of the abandoned houses

but he does not recall showing any photos of the marijuana incident. As far as Dietz

knows, only he and his source ever saw the pictures. (Dietz Dep. 22:10-23:4.) Dietz

2 Although Dietz’s testimony that he does not recall placing the September 10, 2013

telephone call to the DWSD contradicts the DWSD employee’s testimony, Plaintiff does not

dispute the Defendants’ version of the facts, which establish that Dietz did place a call to the

DWSD on September 10, 2013, regarding the events allegedly reported to him by Miller. 

34
recalls that at the September 13, 2013 meeting, he called his source and got the

number of the van and gave it to McCormick. (Dietz Dep. 24:23-25:16.) Dietz

recalled that the photos depicted a blue truck with white numbers and he reaffirmed

that these were still photos and not videos. (Dietz Dep. 26:1-9.) Dietz did not recall

being asked by anyone at DWSD for the photos and believes he would have given

them copies had they asked to see if they could find out more about it. Dietz would

not have disclosed his source to the DWSD. (Dietz Dep. 26:13-24.) Dietz reiterated

on cross-exam that he has no recollection of seeing somebody roll a joint in the

photographs and if he had he believes he would remember. (Dietz Dep. 31:11-17.)

II. STANDARD OF REVIEW

Summary judgment is appropriate where the moving party demonstrates that

there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); Fed. R. Civ. P. 56(a). A fact is “material” for purposes of a

summary judgment motion where proof of that fact “would have [the] effect of

establishing or refuting one of the essential elements of a cause of action or defense

asserted by the parties.” Midwest Media Prop., L.L.C. v. Symmes Twp., Ohio, 503 F.3d

456, 469 (6th Cir. 2007) (quoting Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.

1984)). A dispute over a material fact is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

35
Lobby, Inc., 477 U.S. 242, 248 (1986).

“Rule 56(e) identifies affidavits, depositions, and answers to interrogatories as

appropriate items that may be used to support or oppose summary judgment.”

Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). “Of course, [the moving

party] always bears the initial responsibility of informing the district court of the basis

for its motion, and identifying those portions of the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, which

it believes demonstrate the absence of a genuine issue of material fact.” Taft

Broadcasting Co. v. United States, 929 F.2d 240, 247 (6th Cir. 1991) (internal

quotation marks omitted) (quoting Celotex, 477 U.S. at 323). If this burden is met by

the moving party, the non-moving party’s failure to make a showing that is “sufficient

to establish the existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial,” will mandate the entry of summary

judgment. Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an

essential element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Id. at 323. 

“The test is whether the party bearing the burden of proof has presented a jury

question as to each element in the case. The plaintiff must present more than a mere

scintilla of the evidence. To support his or her position, he or she must present

36
evidence on which the trier of fact could find for the plaintiff.” Davis v. McCourt, 226

F.3d 506, 511 (6th Cir. 2000) (internal citations and quotation marks omitted). The

non-moving party may not rest upon the mere allegations or denials of his pleadings,

but the response, by affidavits or as otherwise provided in Rule 56, must set forth

specific facts which demonstrate that there is a genuine issue for trial. Fed. R. Civ. P.

56(e). “When the moving party has carried its burden under Rule 56(c), its opponent

must do more than simply show that there is some metaphysical doubt as to the

material facts . . . . Where the record taken as a whole could not lead a rational trier

of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–587 (1986) (footnote

and internal quotation marks omitted). 

In making the determination on summary judgment whether there are genuine

issues of material fact for trial, the court must draw all reasonable inferences in favor

of the non-moving party. See Moran v. Al Basit LLC, 788 F.3d 201, 204 (6th Cir.

2015). “‘The central issue is whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail

as a matter of law.’” Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (quoting

In re Calumet Farm, Inc., 398 F.3d 555, 558 (6th Cir. 2005)). At the same time,

plaintiff must produce enough evidence to allow a reasonable jury to find in his favor

37
by a preponderance of the evidence, Anderson, 477 U.S. at 252, and “[t]he ‘mere

possibility’ of a factual dispute is not enough.” Martin v. Toledo Cardiology

Consultants, Inc., 548 F.3d 405, 410 (6th Cir. 2008) (quoting Mitchell v. Toledo

Hosp., 964 F.2d 577, 582 (6th Cir. 1992)). “If the evidence is merely colorable, or is

not significantly probative, summary judgment may be granted.” Anderson, 477 U.S.

at 249–50 (internal citations omitted).

Ultimately, the party who bears the burden of proof must present a jury question

as to each element of the claim. See Davis, 226 F.3d at 511. Plaintiff cannot meet that

burden by relying solely on “[c]onclusory assertions, supported only by [his or her]

own opinions.” Arendale v. City of Memphis, 519 F.3d 587, 560 (6th Cir. 2008).

Plaintiff must show probative evidence, based “on more than mere speculation,

conjecture, or fantasy,” to prevail. Id. at 601 (quoting Lewis v. Philip Morris Inc., 355

F.3d 515, 533 (6th Cir.2004)).

All evidence submitted in opposition to a motion for summary judgment must

ultimately be capable of being presented in a form that would be admissible at trial:

The submissions by a party opposing a motion for summary judgment

need not themselves be in a form that is admissible at trial. Otherwise,

affidavits themselves, albeit made on personal knowledge of the affiant,

may not suffice, since they are out-of-court statements and might not be

admissible at trial. See Fed.R.Evid. 801(c), 802. However, the party

opposing summary judgment must show that she can make good on the

promise of the pleadings by laying out enough evidence that will be

38
admissible at trial to demonstrate that a genuine issue on a material fact

exists, and that a trial is necessary. Such “‘evidence submitted in

opposition to a motion for summary judgment must be admissible.’”

Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007) (quoting

United States Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185,

1189 (6th Cir.1997)). That is why “‘[h]earsay evidence . . . must be

disregarded.’” Ibid. It is also the basis of this court’s repeated emphasis

that unauthenticated documents do not meet the requirements of Rule

56(e).

CareSource, 576 F.3d at 558-59 (internal citations omitted).

When the Court is faced with cross-motions for summary judgment, each

motion must be evaluated on its merits and in light of the applicable burdens at the

summary judgment stage:

The fact that the parties have filed cross motions for summary judgment

does not automatically justify the conclusion that there are no facts in

dispute. Parks v. LaFace Records, 329 F.3d 437, 444 (6th Cir. 2003)

(“The fact that the parties have filed cross-motions for summary

judgment does not mean, of course, that summary judgment for one side

or the other is necessarily appropriate.”). Instead, the Court must apply

the well-recognized summary judgment standards when deciding such

cross motions: the Court “must evaluate each motion on its own merits

and view all facts and inferences in the light most favorable to the

nonmoving party.” Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503,

506 (6th Cir. 2003).

***

In a defensive motion for summary judgment, the party who bears the

burden of proof must present a jury question as to each element of the

claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to

prove an essential element of a claim renders all other facts immaterial

for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly

39
Yours, Inc., 936 F.2d 889, 895 (6th Cir.1991).

When the moving party also bears the ultimate burden of persuasion, the

movant's affidavits and other evidence not only must show the absence

of a material fact issue, they also must carry that burden. Vance v.

Latimer, 648 F.Supp.2d 914, 919 (E.D. Mich. 2009); see also Resolution

Trust Corp. v. Gill, 960 F.2d 336, 340 (3d Cir. 1992); Stat–Tech

Liquidating Trust v. Fenster, 981 F.Supp. 1325, 1335 (D. Colo. 1997)

(stating that where “the crucial issue is one on which the movant will

bear the ultimate burden of proof at trial, summary judgment can be

entered only if the movant submits evidentiary materials to establish all

of the elements of the claim or defense”). The plaintiff therefore “must

sustain that burden as well as demonstrate the absence of a genuine

dispute. Thus, it must satisfy both the initial burden of production on the

summary judgment motion—by showing that no genuine dispute exists

as to any material fact—and the ultimate burden of persuasion on the

claim—by showing that it would be entitled to a directed verdict at trial.”

William W. Schwarzer, et al., The Analysis and Decision of Summary

Judgment Motions, 139 F.R.D. 441, 477-78 (1992) (footnotes omitted).

Ely v. Dearborn Heights School Dist. No. 7, 150 F. Supp. 3d 842, 849-50 (E.D. Mich.

2015). 

Here, Plaintiff bears the burden of establishing each element of his § 1983 claim

and also bears the burden of establishing that the governing law was clearly

established. Thus Plaintiff, in its motion for summary judgment, bears a heavier

burden than Defendants on their motion for summary judgment:

Tapper's summary judgment burden is greater. Because it seeks summary

judgment on claims for which it has the burden of persuasion, Tapper's

showing “must be sufficient for the court to hold that no reasonable trier

of fact could find other than for [it].” See Calderone v. United States,

799 F.2d 254, 259 (6th Cir. 1986) (quoting W. Schwarzer, Summary

Judgment Under the Federal Rules: Defining Genuine Issues of Material

40
Fact, 99 F.R.D. 465, 487–88 (1984)). In making this determination, the

Court views the evidence, and any reasonable inferences drawn from the

evidence, in the light most favorable to Chubb. See Matsushita, 475 U.S.

at 587.

Tapper’s Fine Jewelry, Inc. v. Chubb Nat’l Ins. Co., 14-cv-13280, 2015 WL 9268750,

at *4 (E.D. Mich. Dec. 21, 2015). 

All evidence submitted in opposition to a motion for summary judgment must

ultimately be capable of being presented in a form that would be admissible at trial:

The submissions by a party opposing a motion for summary judgment

need not themselves be in a form that is admissible at trial. Otherwise,

affidavits themselves, albeit made on personal knowledge of the affiant,

may not suffice, since they are out-of-court statements and might not be

admissible at trial. See Fed.R.Evid. 801(c), 802. However, the party

opposing summary judgment must show that she can make good on the

promise of the pleadings by laying out enough evidence that will be

admissible at trial to demonstrate that a genuine issue on a material fact

exists, and that a trial is necessary. Such “‘evidence submitted in

opposition to a motion for summary judgment must be admissible.’”

Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007) (quoting

United States Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185,

1189 (6th Cir.1997)). That is why “‘[h]earsay evidence . . . must be

disregarded.’” Ibid. It is also the basis of this court’s repeated emphasis

that unauthenticated documents do not meet the requirements of Rule

56(e).

CareSource, 576 F.3d at 558-59 (internal citations omitted).

III. ANALYSIS

“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation

41
of a right secured by the Constitution and laws of the United States, and must show

that the alleged deprivation was committed by a person acting under color of state

law.” West v. Atkins, 487 U.S. 42, 48 (1988). Under the doctrine of qualified

immunity, “government officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “In

determining whether the government officials in this case are entitled to qualified

immunity, we ask two questions: First, viewing the facts in the light most favorable

to the plaintiff, has the plaintiff has shown that a constitutional violation has occurred?

Second, was the right clearly established at the time of the violation?” Phillips v.

Roane County, Tenn., 534 F.3d 531, 538-39 (6th Cir. 2008). All facts and factual

inferences are drawn in favor of the nonmovant. Tolan v. Cotton, 134 S. Ct. 1861,

1866 (2014). If multiple government officials are alleged to have violated a plaintiff’s

Fourth Amendment rights, each officer’s conduct must be analyzed individually. 

“Each defendant’s liability must be assessed individually based on his own actions.” 

Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010) (citing Dorsey v. Barber, 517

F.3d 389, 399 n. 4 (6th Cir. 2008)). 

“The doctrine of qualified immunity protects government officials ‘from

42
liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity requires

the court to determine: (1) “whether the facts that a plaintiff has alleged . . . make out

a violation of a constitutional right” and (2) “whether the right at issue was “clearly

established” at the time of defendant’s alleged misconduct.” Pearson, 555 U.S. at 232

(citations omitted). “Qualified immunity is applicable unless the official’s conduct

violated a clearly established constitutional right.” Id. Courts may “exercise their

sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the particular case

at hand.” Id. at 236. 

The Sixth Circuit has adopted the following familiar analysis for determining

whether a right is clearly established:

For a right to be clearly established, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what

he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635,

640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “It is important to

emphasize that this inquiry ‘must be undertaken in light of the specific

context of the case, not as a broad general proposition.’” Brosseau v.

Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)

(quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151). “The general

proposition, for example, that an unreasonable search or seizure violates

the Fourth Amendment is of little help in determining whether the

43
violative nature of particular conduct is clearly established.” Ashcroft v.

al-Kidd, ––– U.S. ––––, 131 S.Ct. 2074, 2084, 179 L.Ed.2d 1149 (2011)

(citing Saucier, 533 U.S. at 201–02, 121 S.Ct. 2151). Thus, “[t]he

relevant, dispositive inquiry ... is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he

confronted.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (citing Wilson v.

Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)).

“We look first to the decisions of the Supreme Court, and then to the

case law of this circuit in determining whether the right claimed was

clearly established when the action complained of occurred.” Gragg v.

Ky. Cabinet for Workforce Dev., 289 F.3d 958, 964 (6th Cir. 2002)

(citing Black v. Parke, 4 F.3d 442, 445 (6th Cir. 1993)). “[T]he case law

must ‘dictate, that is, truly compel (not just suggest or allow or raise a

question about), the conclusion for every like-situated, reasonable

government agent that what defendant is doing violates federal law in the

circumstances.’ ” Id. (quoting Saylor v. Bd. of Educ. of Harlan Cnty.,

118 F.3d 507, 515 (6th Cir. 1997)). Plaintiffs bear the burden of showing

the claimed right was clearly established. Everson v. Leis, 556 F.3d 484,

494 (6th Cir. 2009).

Clemente v. Vaslo, 679 F.3d 482, 490 (6th Cir. 2012). “‘We do not require a case

directly on point, but existing precedent must have placed the statutory or

constitutional question beyond debate.’” Flying Dog Brewery, LLP v. Michigan

Liquor Control Comm’n, __F. App’x__, 2015 WL 968278, at * 11 (6th Cir. March 5,

2015) (quoting al-Kidd, 131 S. Ct. at 2013). The inquiry requires the Plaintiff to point

to “controlling authority” or “a robust consensus of cases of persuasive authority” to

demonstrate that the right was clearly established. Hidden Village, LLC v. City of

Lakewood, Ohio, 734 F.3d 519, 529 (6th Cir. 2013).

44
A. The Reasonable Suspicion Requirement 

The parties agree that the issue presented is whether the Defendants had

constitutionally supportable “reasonable suspicion,” based on “individualized

suspicion of wrongdoing,” of on the job drug use when they made the decision to

order Greer to undergo a urine drug test and to suspend and discharge him for refusing

that test.3

 See Chandler v. Miller, 520 U.S. 305, 313 (1997) (“To be reasonable under

the Fourth Amendment, a search ordinarily must be based on individualized suspicion

3 There is no genuine issue of material fact that Plaintiff was terminated in this case for

asserting his Fourth Amendment right to be free from an unreasonable search. The DWSD

had a zero tolerance drug policy that also provided that a refusal to submit to a drug test was

treated as a positive test resulting in termination. DWSD’s counsel confirmed at the hearing

on the motions that DWSD has a policy of zero tolerance for drug use and deems a refusal

to undergo a requested drug screen as a positive result. Slaughter also confirmed this DWSD

policy, pursuant to which refusal to take a drug test results in: “Termination. Discipline

leading up to termination.” (Slaughter Dep. 7:12-23.) Plaintiff was aware that his refusal

would result in discharge before he signed his suspension. (Greer Dep. 30:3-10.) And

Plaintiff grieved his “discharge” long before McCormick finalized his termination. (ECF No.

28-15, Pl.’s Mot. Ex. 14, Arbitration Order at 2, PgID 707.) See Cummerlander v. Patriot

Preparatory Academy, Inc., 86 F. Supp. 3d 808, 816 (S.D. Ohio 2015) (observing that “the

Supreme Court and the Sixth Circuit have held that public employees cannot be given a stark

choice between asserting a constitutional right and losing their jobs”) (citing Pickering v. Bd.

of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (“If a search is

unreasonable, a government employer cannot require that its employees consent to that

search as a condition of employment.”)). There is no genuine issue of material fact that

Plaintiff’s continued employment was conditioned on his consent to submit to the drug test

and his termination was based upon his refusal, which was an automatic positive result and

grounds for termination per the DWSD Human Resource Director, Terri Conerway. 

(Arbitration Order at 6, PgID 711.) The Court rejects Defendants’ attempt to analogize this

case to Clemente v. Vaslo, 679 F.3d 482 (6th Cir. 2012), in which the Sixth Circuit held that:

“What is clearly established is only that public employers may not coerce their employees

to abdicate their constitutional rights on pain of dismissal, and that is not what happened

here.” But that is what happened here. 

45
of wrongdoing.”). The parties further agree that the relevant inquiry in this matter is

limited to the circumstances existing, and the facts known to the individuals who

ordered the search, at the time the urine test was ordered and Plaintiff was terminated. 

 This “reasonable suspicion” test, as applied in the public employer context, was

recognized nearly thirty years ago in this Circuit in Smith v. White, 666 F. Supp. 1085,

1089-90 (E.D. Tenn. 1987), aff’d 857 F.2d 1475 (6th Cir. 1988) (affirmed per curiam

following briefing and oral argument “based on the reasoning of the district court”):

It is now clear that a urinalysis is a search and seizure within the

meaning of the Fourth Amendment. McDonell v. Hunter, 809 F.2d 1302,

1307 (8th Cir. 1987); National Treasury Employees Union v. Von Raab,

816 F.2d 170, 176 (5th Cir. 1987); Lovvorn v. City of Chattanooga, 647

F. Supp. 875, 879 (E.D. Tenn. 1986). The Fourth Amendment proscribes

only unreasonable searches and seizures. Whether a search is

unreasonable depends on the context within which it takes place. New

Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 741, 83 L.Ed.2d 720

(1985). In the case of searches conducted by a public employer, a

determination of reasonableness requires a balancing of the invasion of

the employees' legitimate expectations of privacy against the

government's need for supervision, control and the efficient operation of

the workplace. O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 1499,

94 L.Ed.2d 714, 724 (1987).

The balancing process requires a determination as to whether the

urinalyses were justified at their inception. The governmental interest in

having a drug free work force to protect and operate the most vital areas

of a nuclear power plant is patently obvious. This Court and others have

held that drug urinalyses may be conducted when there is “reasonable

suspicion.” See Lovvorn v. City of Chattanooga, 647 F.Supp. at 881;

National Treasury Employees Union, 816 F.2d at 117. The Court rejects

plaintiffs' contention that the defendants could not have had “reasonable

suspicion” with respect to any of them unless actual observed behavior

46
indicated that their job performance was influenced by drugs.

Reasonable suspicion is a lesser standard than probable cause. There is

reasonable suspicion when there is some articulable basis for suspecting

that the employee is using illegal drugs. Lovvorn, 647 F.Supp. at 881.

Put another way, there is reasonable suspicion when there is some

quantum of individualized suspicion as opposed to an inarticulate hunch.

Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d

660 (1979); Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20

L.Ed.2d 889 (1968); Lovvorn, 647 F. Supp. at 882. Reasonable suspicion

may be based on statements made by other employees and tips from

informants. Even probable cause can be based on informants' tips when

the totality of the circumstances indicates a fair probability of accuracy.

Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d

527 (1983). In this case, the defendants had no reason to doubt the

statements of Lieutenant Daniel and other employees. The defendants

even checked out part of the information obtained from Daniel insofar

as it was possible to do so without compromising the secrecy of this

investigation. The information which TVA officials had formed an

ample basis for their conclusion that they had reasonable suspicion to

test the plaintiffs.

666 F. Supp. at 1089-90. See also Wrightsell, 678 F. Supp. at 732 (citing Smith and

holding that “reasonable suspicion is a lesser standard than probable cause . . . [and

requires] some articulable basis for suspecting that the employee is using illegal drugs.

. . . [and] some quantum of individualized suspicion as opposed to an inarticulate

hunch”) (alterations added). In Knox County Educ. Ass’n v. Knox County Bd. Of

Educ., 158 F.3d 361 (6th Cir. 1998), the Sixth Circuit applied these principles and

found that the County’s suspicion-based drug testing policy “sufficiently limit[ed] the

discretion of the officials administering the rule” because the testing was “clearly

based upon a finding of individualized suspicion,” thus “comport[ing] with the

47
reasonableness requirement of the Fourth Amendment.”4 Id. at 385 (alterations

added). 

Plaintiff relies on several cases discussing the concept of “reasonable suspicion”

in the context of criminal stop and detain cases. In that context, it has long been

established by Supreme Court and Sixth Circuit precedent that uncorroborated

anonymous tips, standing alone, cannot form the basis for reasonable suspicion to stop

and detain. “Unlike known or identified informants, anonymous tipsters, without

more, cannot be deemed reliable regarding their allegations.” Feathers v. Aey, 319

F.3d 843, 849 (6th Cir. 2003) (citing Florida v. J.L., 529 U.S. 266, 268 (2000));

Alabama v. White, 496 U.S. 325, 329-32 (1990) (holding that an anonymous tip must

be corroborated to some degree by additional indicia of reliability to support a finding

of reasonable suspicion); Bazzi v. City of Dearborn, 658 F.3d 598, 605 (6th Cir. 2011)

(“reasonable suspicion requires that a tip be reliable in its assertion of illegality, not

just in its tendency to identify a determinate person”) (internal quotation marks and

citations omitted); United States v. Caruthers, 458 F.3d 459, 465-66 (6th Cir. 2006)

(noting that information received from unknown tipsters are especially unreliable

4 Notably, none of the illustrative circumstances under which suspicion-based testing was

permitted under the Knox County policy permitted a search based on an uncorroborated

anonymous tip. Indeed, none of the requirements in the policy approved in Knox County

permitted officials to rely on “tips” of any type. 158 F.3d at 385.

48
because a “tipster who refuses to identify himself may simply be making up the story”

and giving anonymous tip “little weight in the reasonable suspicion calculus”). See

also United States v. Torres, 534 F.3d 207, 210 (3d Cir. 2008) (“The honesty of the

caller, the reliability of his information, and the basis of his knowledge are closely

intertwined issues that may usefully illuminate the commonsense, practical question

of whether there is reasonable suspicion.”) (internal quotation marks and citation

omitted); United States v. Blackshaw, 367 F. Supp. 2d 1165, 1172-73 (N.D. Ohio

2005) (citing Feathers and observing that “when an anonymous tip is neither

supported with “indicia of reliability” nor corroborated with police observation, it

cannot provide an officer reasonable suspicion,” and finding that “[i]n the few

instances when the Sixth Circuit has [found] reasonable suspicion predicated on an

anonymous tip, such suspicion has always been built upon more than the tip itself”)

(alterations added).

 As they did in their motion to dismiss, Defendants suggest that the criminal

search and detainment cases have little relevance in determining what constitutes

‘reasonable suspicion’ to drug test a public employee. As the Court noted in its

Opinion and Order denying the motion to dismiss, Defendants themselves rely on such

criminal cases when discussing the reasonable suspicion standard that they submit

should be applied in this case. And, in fact, these criminal cases have informed the

49
debate on public employee drug testing since the Sixth Circuit affirmed the district

court in Smith in 1988. Smith, affirmed without opinion and “based on the reasoning

of the district court,” 857 F.2d 1475 (6th Cir. 1988) (table case), expressly relied on

Terry v. Ohio, 392 U.S. 1 (1968), the quintessential stop and frisk case, when

determining the appropriate standard to be applied in the public employee context. 

Similarly, in Relford v. Lexington-Fayette Urban County Gov’t, 390 F.3d 452, 458

(6th Cir. 2004), the Sixth Circuit applied the reasonable suspicion framework,

expressly citing Terry v. Ohio as the basis for the standard, in the context of a Fourth

Amendment challenge to a mandatory drug screen in the public employer context. 

Defendants are wrong to suggest that the “search and detainment” cases have no

bearing on the “reasonable suspicion” inquiry in the public employee context. The

rationale and holdings of the stop and detain cases have “clear applicability” in the

public employee context. (See infra at Section III(C) discussion regarding the clearly

established prong of the qualified immunity analysis.) 

As early as 2003, the Sixth Circuit had acknowledged that “[t]he Supreme Court

had emphasized the importance of establishing the reliability of anonymous tips in

1990 . . . and had re-affirmed that principle in [Florida v. ]J.L., [529 U.S. 266 (2000)],

decided just a few months before this incident.” Feathers, 319 F.3d at 851 (alteration

added). In fact, as the Court noted in its prior Opinion and Order, Defendants concede

50
that such “tips” cannot stand alone and must have some degree of corroboration. The

Sixth Circuit in Smith in 1988 acknowledged the applicability of this standard in the

context of compulsory urinalysis in the public employer context, as did other federal

district courts at that time. See, e.g., Armington v. School Dist. of Philadelphia, 767

F. Supp. 661, 666-67 (E.D. Pa. 1991) (“The constitutional requisite for the

compulsory urinalysis is reasonable suspicion that plaintiff was under the influence

of drugs or intoxicants. . . Since the drug test in this case was not to be conducted

pursuant to a random or other suspicionless drug-testing program, the standard of

reasonable suspicion is appropriate. . . . The suspicion must be directed at a particular

individual . . . . Although the reasonable suspicion standard lacks some specificity,

one court has noted that factors that may effect the reasonableness of the suspicion are

(1) the nature of the tip or information; (2) the reliability of the informant; (3) the

degree of corroboration; and (4) other facts contributing to suspicion or lack thereof.”)

(internal quotation marks and citations omitted).

As discussed at length infra in Section III(C), public officials in 2013 had an

obligation to establish the reliability of an anonymous tip before conducting a search

based on the information provided in that tip. Even more so when the anonymous tip,

which itself contains insufficient individual details, is relayed second hand by a news

reporter with no first hand knowledge of the events allegedly relayed by the tipster. 

51
It is beyond debate that in the context of information relayed as a tip, the Court must

consider “the nature of the tip and the degree of corroboration.”5

 It goes without

saying that an anonymous tip, that is one that comes from a source that is completely

unknown to the public official, lacks any degree of corroboration.6

Defendants suggest that the anonymous tip in this case that was passed from

Dietz (a news reporter threatening the DWSD with adverse publicity) to Alfonso

should be treated like the anonymous tip conveyed by a police dispatcher to officers

in the field in Feathers. The Court disagrees. In Feathers, expressly relying on the

unique relationship between law enforcement officers and their dispatcher, the Court

held that the officers were entitled to qualified immunity where they relied on, and

were under no obligation to independently verify, information passed on to them by

5 Although the DWSD did not have a suspicion-based testing policy in 2013, as early as 1988,

the Model State Drug Testing Statute provided that reasonable suspicion could be based upon

a “report of drug use provided by a reliable and credible source[] and which has been

independently corroborated.” Evans, Model State Drug Testing in Employment Act

(Pittstown, NJ 1988). See also Ford v. Dowd, 931 F.2d 1286 (8th Cir. 1991) (police

superintendent cannot require officer to submit to drug testing based on an unsubstantiated

rumor). This is simply a general principle that was too evident even to be questioned as of

September, 2013.

6 It is undisputed that, other than the anonymous tip in this case, there is no evidence

to contradict Plaintiff’s sworn testimony that on September 10 and 11, 2013, he was

assigned to a job in Wyandotte and did not drive a DWSD van on or near the Hunt

street location, or anywhere near the Detroit Eastern Market, where the tipster

allegedly obtained his photographic or video evidence. It is also undisputed that the

DWSD had approximately 40-60 similar vans in operation in September, 2013. 

(McCormick Dep. 33:8-11.)

52
a police dispatcher. “Although this information was from an anonymous tipster,

whose information was not sufficient to create reasonable suspicion under J.L., the

officers knew only what had been reported from the dispatch, and efficient law

enforcement requires—at least for the purposes of determining the civil liability of

individual officers—that police be permitted to rely on information provided by the

dispatcher.” 319 F.3d at 851. No such relationship exists here between Dietz and the

DWSD that would justify anyone at DWSD blindly relying on his hearsay recitation

of an anonymous tip. See United States v. Colon, 250 F.3d 130, 135-38 (2d Cir. 2001)

(finding the imputed/collective knowledge cases inapplicable where the person

conveying the information on which the government official acts had no “training,

responsibility or authority to make a determination of reasonable suspicion”). 

Everyone in the decision making chain at DWSD was aware that Dietz had no first

hand knowledge of the events he described and that the source of the tip was

completely unknown and further that the source was not going to be disclosed and

neither were the alleged videos/photos. The DWSD acted on an anonymous tip with

absolutely no corroboration which was clearly insufficient to provide them with

reasonable suspicion in this case. That it was funneled to them through a news

reporter does nothing to remove the unconstitutional taint. Defendants’ reliance on

Feathers is misplaced. 

53
There is no dispute in this case that the DWSD made no effort to corroborate

or establish the reliability of Dietz’s tip. It is undisputed that, at the time that the urine

test was ordered, no one at DWSD was aware of where these alleged videos/photos

were taken, or by whom they were taken. Despite the fact that Director McCormick

determined that “it would be very difficult [] to move anything forward without at

least, you know, being able to view and see the third-party evidence . . .,” this is

exactly what occurred when Slaughter, through Walton and Dotson, ordered the drug

urine test without any degree of corroboration of Dietz’s story. (McCormick Dep.

12:24-13:6.) It is also not irrelevant to the analysis that, at the time DWSD received

the “tip” from Dietz, Ms. Alfonso was aware that Mr. Dietz was doing an investigative

story on accusations that the DWSD was improperly handling the problem of running

water in abandoned buildings. Ms. Alfonso allegedly was concerned that Mr. Dietz

would “go public” with the uncorroborated tip about a DWSD driver rolling and

possibly smoking marijuana in his DWSD vehicle and she urged Jones to act with

haste to avoid potential public revelation of the wholly unsubstantiated information. 

Jones, in turn, asked Slaughter to act with haste, which Slaughter did. Of course

avoidance a possible public controversy is not a justifiable basis for violating an

54
employee’s constitutional rights.7

 

The DWSD insists that it did corroborate the “tip” because they were able to

match up the number that was verbally reported to them with the van that was

assigned to Plaintiff on the alleged day in question. That the DWSD was able to

match that number to Plaintiff’s van, and to further determine as they did that Plaintiff

was driving a van bearing that number that day, does nothing to increase the reliability

of the information on which they acted in deciding to order the urine test. First, the

reliability of the number as reported must be questioned. It is undisputed that no

DWSD employee eversaw photographic or video evidence of the vehicle number that

Dietz had reported to them over the phone. Even McCormick and Wolfson, who

claim to have seen “video evidence” of the reported incident after Plaintiff had already

been suspended pending his termination, did not claim to have identified or recorded

the number of the vehicle in the videos that they claim to have seen. And Dietz did

not claim to have seen photographic or video evidence of that number himself and had

7 Also as it turns out, although this was not a fact known to the DWSD at the time and

therefore not something that the Court can consider in evaluating the Defendants’

conduct, the tipster had a personal dispute with the DWSD about an alleged $68,000

that he was owed by the DWSD. (Miller Dep. 12:25-13:20.) The Court does not

consider this testimony in reaching its resolution of the parties’ motions. The

information simply highlights why establishing the reliability of an anonymous tip is

essential and what the DWSD may have learned had they bothered to attempt to

corroborate the tip – that the tipster had a personal bias against the DWSD –

knowledge that might have caused them to question the reliability of the tip. 

55
to call his source back to obtain, again only verbally, the vehicle number from him. 

This means that the six-digit vehicle number was relayed verbally at least five or six

different times by five or six different individuals before it reached Dotson (through

Walton) who actually matched the number he received to the vehicle that Plaintiff was

driving that day. There were 40-60 DWSD vans in service in 2013, each bearing a

six-digit vehicle number. 

Even assuming that the number was accurately recorded by Miller, then

accurately verbally conveyed by Miller to Dietz, then accurately verbally conveyed

by Dietz to Alfonso, then accurately verbally conveyed by Alfonso to Jones, then

accurately verbally conveyed by Jones to Slaughter, then accurately verbally conveyed

by Slaughter to Walton and finally accurately conveyed by Walton to Dotson, the

constitutional taint occurred when DWSD acted on an uncorroborated anonymous tip

in the first place. Even if DWSD accurately conveyed that tainted information

through its ranks, this does not create the basis for a reasonable suspicion in the first

place that a DWSD employee was violating company policy by smoking marijuana

in a company vehicle the morning of September 10 or 11 at the Hunt street location. 

Regardless of whether DWSD did a thorough job of determining to whom a vehicle

bearing the number verbally conveyed to them sixth-hand had been assigned on the

day in question, the constitutional violation occurred when the DWSD decided to rely

56
on information received through an uncorroborated anonymous in the first place. See

Hudson v. City of Riviera Beach, No. 12-cv-80870, 2014 WL 1877412, at *9-11 (S.D.

Fla. May 9, 2014) (finding, in the public employer “reasonable suspicion” drug test

context, that factual allegations that employer relied “on the sparse, secondhand

information of an employee without investigating or corroborating the employee’s

claim” sufficiently stated a Fourth Amendment claim).

Defendants suggest that the Court should consider it significant in the

reasonable suspicion analysis that Dietz had “personally possessed or seen

photographic or video evidence corroborating the report.” (Defs. Mot. 14.) 

Importantly, there is no evidence in the record that Dietz ever saw photographic or

video evidence of the vehicle number – the evidence that Defendants claim supplied

their “reasonable suspicion.” As discussed supra, a television news reporter has no

special relationship with the DWSD such that his word should be blindly relied upon

by DWSD employees. And while Dietz may or may not have reported that he

personally viewed the photos or video, it is undisputed that the DWSD knew that he

was relaying information he had received from an anonymous source. There is no

genuine issue of material fact that the DWSD witnesses were aware that Dietz had no

personal knowledge of the events depicted in those photos or videos. Thus, Dietz’s

tip was only as good as his source, about whom DWSD employees confirmed they

57
knew absolutely nothing:

Q: So am I correct in terms of the allegation that there was some

criminal activities, specifically smoking weed or rolling weed or

whatever or anything rests on how credible this guy is; doesn’t it?

A: Yes.

Q: And we don’t know anything about him?

A: Yes. No, we don’t know anything about the guy.

Q: So we don’t know how credible he is, do we?

A: No.

(Slaughter Dep. 33:17-34:7.)8

Even viewing the facts, and all reasonable inferences from those facts, in the

light most favorable to the Defendants, the evidence demonstrates that the DWSD

failed to corroborate the anonymous tip from Dietz and acted without constitutionally

supportable individualized suspicion when it ordered Plaintiff to undergo a drug test

and terminated him for refusing. As McCormick, the Director of the DWSD, testified

8 Defendants suggest that the fact that McCormick and Wolfson actually viewed portions of

the video enhances the reasonable suspicion to test the Plaintiff. However, it is undisputed

that Plaintiff had already been suspended with a recommendation of termination for refusing

the drug test before McCormick and Wolfson allegedly viewed portions of the videos. 

Additionally, McCormick testified emphatically that she viewed a white DWSD vehicle in

the video and it is undisputed that Plaintiff was driving a dark blue DWSD vehicle.

McCormick also testified that the video was shot through the driver’s side window (Mr.

Miller testified he shot his video through the windshield looking down on the vehicle) and

McCormick could not independently verify the number of the vehicle from the video she

saw, nor could she determine whether the driver was black or white. (McCormick Dep. 33:2-

34:6.) Thus, not only was the claimed “viewing” of the video evidence by McCormick and

Wolfson subsequent to the underlying constitutional violation, but the evidence of that

viewing is fraught with genuine issues of material fact. Indeed, if anything, the subsequent

viewing of the video as described by McCormick and Wolfson, which depicted a white van,

an unrecognizable black male and a number that neither of them recalled noting, should have

caused them to question the credibility of the anonymous source.

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in her deposition, it would be difficult to move forward against anyone at the DWSD

without the photographic or video evidence to corroborate the tip. Yet this is exactly

what the DWSD did when it required Plaintiff to undergo a drug urine screen and then

terminated him for his refusal to comply. 

Plaintiff has carried his burden on his cross-motion for partial summary

judgment to establish, even viewing the facts in the light most favorable to the

DWSD, that no reasonable juror could conclude that the DWSD had constitutionally

supportable individualized reasonable suspicion when it ordered Plaintiff to undergo

a drug test and terminated him for refusing violated Plaintiff’s Fourth Amendment

right to be free from an unreasonable search. 

B. The Special Needs Safety Exception to the Reasonable Suspicion

Requirement Does Not Apply In This Case

Defendants suggest that they did not need “reasonable suspicion” to test the

Plaintiff based on the “safety-sensitive” nature of Plaintiff’s job. The Supreme Court

has held that the reasonable suspicion requirement generally applied when

government employees are required to undergo testing for drugs and alcohol can be

relaxed when the employee is engaged in certain “safety-sensitive” positions, which

present “special needs” that justify a diminished expectation of privacy. See Nat’l

Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) and Skinner v. Railway

Labor Executives’ Ass’n, 489 U.S. 602 (1989). The exception has been limited to

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those professions that involve employees who assume “‘duties fraught with such risks

of injury to others [and themselves] that even a momentary lapse of attention can have

disastrous consequences.’” Penny v. Kennedy, 915 F.2d 1065, 1067 (6th Cir. 1990)

(quoting Skinner). The exception has been extended to categories of employees that

fall within this description, i.e. police and firefighters, customs and border agents, etc. 

Importantly, and dispositive here, the Supreme Court and the Sixth Circuit have made

clear that such drug-testing programs must be known to employees and must be

subject to specific procedures to avoid indiscriminate application of the test:

Although Von Raab and Skinner generally validate urinalysis for

individuals in the categories of plaintiffs here, it by no means necessarily

follows that all of the protections of the fourth amendment have thereby

been fully satisfied regardless of the integrity of the test and of the

manner and means by which the test is given. So much is apparent in the

language of Justice Kennedy in Von Raab, where he observed that the

intrusion of the drug-testing program challenged there was defined

narrowly and specifically, particularly since the employee subject to

testing “knows that he must take a drug test, and is likewise aware of the

procedures the [Customs] Service must follow in administering the test.

A covered employee is simply not subject ‘to the discretion of the

official in the field.’” Von Raab, 109 S.Ct. at 1391 (quoting Camara v.

Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732–33, 18

L.Ed.2d 930 (1967)); see also Skinner, 109 S.Ct. at 1422 (“In light of the

limited discretion exercised by the railroad employers under the

regulations . . . we believe that it is reasonable to conduct such tests in

the absence of a warrant or reasonable suspicion that any particular

employee may be impaired.”).

Penny, 915 F.2d at 1067-68. 

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Defendants’ revisionist attempt to now fit this case within the special needs

safety exception fails. It is undisputed that in 2013, the DWSD had no systematic and

uniformly applied safety-sensitive testing program in place. Even if the Court were

to conclude that a construction inspector for the DWSD fits the type of profession in

which the exception has been constitutionally applied, e.g. nuclear power plant

workers, police officers, border patrol agents, firefighters, bus drivers, there is no

genuine issue of material fact that Plaintiff in this case was singled out based on an

anonymous tip and required to undergo a “reasonable suspicion” drug test. No

reasonable juror could conclude that Plaintiff was asked to undergo the drug test based

upon some systematic and uniformly applied safety sensitive testing program because

there is no evidence that the DWSD had such a program in place and the evidence is

undisputed that Plaintiff was asked to undergo a urine drug screen based upon alleged

“reasonable suspicion” of drug use. 

C. Plaintiff’s Right to be Free From This Unreasonable Search Was

Clearly Established in 2013

Defendants insist that even if they violated Plaintiff’s constitutional right to be

free from an unreasonable search, they are protected by the doctrine of qualified

immunity because it was not clearly established in 2013 that their conduct violated

Fourth Amendment standards for such a “reasonable suspicion” search in the public

employer context. Defendants, in a recent filing of Supplemental Authority, suggest

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that the Supreme Court’s decision in White v. Pauly, ––– U.S. ––––, 137 S.Ct. 548,

551 (2017) has changed the analysis of the clearly established prong. (ECF No. 37,

Supplemental Authority.) But subsequent Sixth Circuit cases interpreting Pauly

confirm that the case, while a strong reminder to courts not to define constitutional

rights at too general a level, has not changed the clearly established analysis in any

profound way. It remains the law that there need not be a case specifically factually

on point to alert a government official to the fact that his conduct is beyond the

bounds of constitutional tolerance:

Law-enforcement officers enjoy qualified immunity from suit when their

conduct “does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” White v. Pauly,

––– U.S. ––––, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (quoting

Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255

(2015)). In evaluating whether Defendants violated King’s clearly

established rights, even though we give King all reasonable inferences,

we consider “only the facts that were knowable to” Defendants. Id. at

550. And it is a “longstanding principle that ‘clearly established law’

should not be defined ‘at a high level of generality.’ ” Id. at 552 (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d

1149 (2011)). Rather, “the clearly established law must be

‘particularized’ to the facts of the case.” Ibid. (quoting Anderson v.

Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).

“Otherwise, [p]laintiffs would be able to convert the rule of qualified

immunity . . . into a rule of virtually unqualified liability simply by

alleging violation of extremely abstract rights.” Ibid. (quoting Anderson,

483 U.S. at 639, 107 S.Ct. 3034).

King v. Harwood, __F.3d__, 2017 WL 1130881, at *10 (6th Cir. March 27, 2017). In

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the next breath, the Sixth Circuit in Harwood then relied on several long standing

general principles of Fourth Amendment law that provided sufficient clarity on the

facts of that case to deny the government officials qualified immunity: 

That said, individuals have a clearly established Fourth Amendment

right to be free from malicious prosecution by a defendant who has

“made, influenced, or participated in the decision to prosecute the

plaintiff” by, for example, “knowingly or recklessly” making false

statements that are material to the prosecution either in reports or in

affidavits filed to secure warrants.

Id. (emphasis added). 

The Sixth Circuit also interpreted and applied Pauly in Arrington-Bey v. City

of Bedford Heights, __F. App’x__, 2017 WL 729730, at *3 (6th Cir. Feb. 24, 2017),

reaching the opposite conclusion regarding the clarity of the right at issue there:

 “[C]learly established law” may not be defined at such “a high level of

generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179

L.Ed.2d 1149 (2011). It must be more “particularized” than that.

Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d

523 (1987); see Hagans v. Franklin Cty. Sheriff's Office, 695 F.3d 505,

508–09 (6th Cir. 2012). The Supreme Court recently reminded us that a

plaintiff must identify a case with a similar fact pattern that would have

given “fair and clear warning to officers” about what the law requires.

White v. Pauly, ––– U.S. ––––, 137 S.Ct. 548, 552, 196 L.Ed.2d 463

(2017) (quotation omitted). The district court, we note, did not have the

benefit of Pauly. But we do, and accordingly we must follow its lead.

Immunity protects “all but the plainly incompetent or those who

knowingly violate the law.” Id. at 551 (quotation omitted). The

“dispositive inquiry . . . is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted.”

Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272

(2001).

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Arrington-Bey has not pointed to, and we have not found, any case like

this one—a case showing to “all but the plainly incompetent” that the

officers at the scene immediately needed to seek medical treatment or

that the jailers had to do the same once he arrived at the prison.

2017 WL 729730, at *3. 

Pauly did not change the law, it merely reaffirmed that the “dispositive inquiry

. . . is whether it would be clear to a reasonable officer that his conduct was unlawful

in the situation he confronted.” Arrington-Bey, 2017 WL 729730, at *3 (citing

Saucier, 533 U.S. at 202). Pauly does not require that a plaintiff now identify a case

directly factually on point if existing precedent places the statutory or constitutional

question beyond debate. 

It is Plaintiff’s burden to establish that the law placing Defendants’ actions

beyond the realm of constitutionally permissible conduct was clearly established at

the time. Here, Plaintiff has pointed to several cases that would demonstrate to “all

but the plainly incompetent” public official that they needed, but did not possess,

sufficient evidence of individualized reasonable suspicion in this case. It was clearly

established in this Circuit in September, 2013, at a minimum through Smith, Knox,

Terry, J.L., Feathers and Caruthers, that public officials in the employment context

could require reasonable suspicion testing only on a finding of individualized

suspicion of wrongdoing and that such officials had an obligation to establish the

reliability of an anonymous tip before conducting a reasonable suspicion search based

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on the information provided in that tip. It was clearly established that relying on an

uncorroborated tip, phoned in by a news reporter who had not personally observed the

facts he relayed but claimed to possess photographic or video evidence (which he

refused to disclose) of those facts, evidence that was supplied to the news reporter via

cell phone by an anonymous source (whom he refused to disclose), without any

attempt to corroborate the reliability of the tip, would violate the Fourth Amendment. 

Defendants suggest that the right here was not clearly established because

Plaintiff was in a “safety sensitive” public position, not in a law enforcement situation,

and that therefore the cases clearly establishing the constitutional dimensions of

reasonable suspicion in the law enforcement context cannot inform an official in the

public employment context of what constitutes “reasonable suspicion.” The Court

disagrees. The Supreme Court, the Sixth Circuit and other federal circuit and district

courts, as well as numerous state courts, have all drawn on the “reasonable suspicion”

standard developed in the law enforcement context to resolve drug testing issues in

the public employer context. Smith v. White, quoted at length supra, expressly

adopted the reasonable suspicion standard for application in the public employer

context, as did Relford, supra, and explicitly defined that standard with reference to

its development in the law enforcement context, specifically relying on the classic stop

and frisk case of Terry v. Ohio, and directly adopting the standards from that context

65
as they relate to reasonable suspicion based on anonymous tips: “[T]here is reasonable

suspicion when there is some articulable basis for suspecting that the employee is

using illegal drugs. Put another way, there is reasonable suspicion when there is some

quantum of individualized suspicion as opposed to an inarticulable hunch.” Smith,

666 F. Supp. at 1090. The Sixth Circuit affirmed the district court in Smith, see Smith

v. White, 857 F.2d 1475 (6th Cir. 1988) (based on the reasoning of the district court),

and in Penny, supra, Judge Wellford in his concurring opinion cited the Sixth

Circuit’s Smith decision as an example of a case that defines the constitutional

standards for reasonable suspicion testing in the public employer context. Penny, 915

F.2d at 1071 (Wellford, J. concurring).

Defendants suggest that the Supreme Court and the Sixth Circuit may perhaps

apply some type of hybrid test in the future where the basis for the search is

reasonable suspicion but the test is required in the public employer context. In

support of this suggestion, Defendants rely on those cases that have authorized

suspicionless testing in the context of safety sensitive public employment. The Sixth

Circuit made clear in Penny that a public employer who intends to subject its

employees to random suspicionless testing based on the safety sensitive nature of their

work, “must narrowly and specifically define its drug testing program so that the

employees subject to such testing both know that they are subject to such random

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testing, and, more importantly, are aware of the procedures the City must follow in

administering the testing program.” 915 F.2d at 1069 (citing Von Raab, 109 S. Ct. at

1391) (Martin, J. concurring). As discussed supra, the DWSD did not have a

suspicionless testing policy (indeed they did not even have a published reasonable

suspicion policy) and they did not purport to rely on such a random testing program

when they terminated the Plaintiff for refusing an alleged “reasonable suspicion”

demand for testing. Defendants cite no authority for the proposition that the Supreme

Court or the Sixth Circuit would accept and apply the diminished constitutional

protections found tolerable in cases like Skinner and Von Raab to a search based on

individualized suspicion of wrongdoing and not on a suspicionless testing policy made

known to employees. Indeed, to do so would gut the reasonable suspicion

requirement altogether and would strip suspicionless testing of the constitutional

protections required by Von Raab, Skinner and Penny. 

Defendants in this case concede that the tip they received required

corroboration. They cite no authority for the proposition that the degree of

corroboration required for a search based on reasonable suspicion is something less

than that required in the law enforcement context due to the nature of public

employment in general. Yes, Von Raab and Skinner clearly established that reasonable

suspicion is not a constitutional floor and that suspicionless testing is constitutionally

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permissible in certain recognized contexts. But Defendants in this case did not act in

that context and cannot reinvent the basis for their search now. The DWSD did not

have a suspicionless testing policy and did not purport to act pursuant to such a policy

when requiring the Plaintiff to submit to a drug test. If the DWSD was concerned

about its employees being on the road under the influence of drugs, they should have

adopted a suspicionless drug testing policy that may or may not have passed

constitutional muster under the principles announced in Skinner and Von Raab and the

like. But the DWSD had no such policy and they cite no authority that would require

the conclusion that the law governing the Defendants’ conduct in ordering a drug test

based on reasonable suspicion was not clearly established because of unsupported

conjecture that the Supreme Court or the Sixth Circuit might one day conclude that

the reasonable suspicion standard requiring individualized suspicion of wrongdoing,

which the Supreme Court and the Sixth Circuit have determined apply in the public

employer context, can be overriden by some general corporate concern, not announced

to employees in the form of published policy, about safety. The Defendants cannot

claim there is an absence of clearly established law by hypothesizing some

unrecognized and legally unfounded hybrid extension of existing precedent.

Defendants in essence argue that some lesser quantum of reasonable suspicion was

required of them here because of the safety sensitive nature of the Plaintiff’s job. But

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this was not the basis for the test in this case and Defendants had announced no such

policy to its employees. DWSD’s after the fact assertion of the need for some degree

of “suspicionless testing” that was not defined in any DWSD policy and not made

known to DWSD employees lacks the very protections that were deemed essential in

Von Raab and Penny. DWSD did not have a suspicionless drug testing policy and

we are not called upon to evaluate its constitutionality. Nor are we obligated to issue

an advisory opinion on the subject. “Plaintiff was not selected for urinalysis testing

according to a random or routine drug program which guarded against discriminatory

or arbitrary selection of employees to be tested. Consequently, . . . in the absence of

uniform or systematic random selection of employees subject to drug testing, we will

allow the Government to enforce drug testing where the employees are chosen ‘only

on the basis of a reasonable suspicion.’” Ford v. Dowd, 931 F.2d 1286, 1291-92 (8th

Cir. 1991) (noting that “the routine nature of particular plans in [Von Raab and

Skinner] guarded against their arbitrary application to tested employees,” and

observing that those cases “contrast sharply” with the situation where an employee is

singled out for an individualized test not required by an established plan or policy in

which case the constitutional minimum is reasonable suspicion).

The Court concludes that it was clearly established in this Circuit in 2013 that

a government official acting in the public employer context, even a plainly

69
incompetent government official, would have known to look to the clearly established

law developed in the law enforcement context and the public employer context to

determine whether he or she had sufficient reasonable suspicion, based on

individualized suspicion of wrongdoing, to require an employee to undergo a drug

screen. In fact, it is clear from the testimony of the DWSD officials that they were

aware that this standard governed their conduct and each of them testified that they

wanted, but were unable, to obtain the photographic evidence allegedly captured by

an anonymous individual, about whose credibility they conceded they knew nothing. 

Had Defendants examined that clearly established law, it would have informed even

the most incompetent of them that the constitution prohibited relying on a second

hand recitation of facts from a news reporter, that described events not observed first

hand but learned from an anonymous source whose identity would not be disclosed

and thus whose credibility could not be determined.

Even viewing the facts in the light most favorable to the Defendants, i.e. that

Defendants received a call from Dietz indicating that he had received photographic

evidence from an anonymous source that a DWSD employee in a DWSD vehicle

bearing the vehicle number 38118 was rolling a marijuana cigarette, Plaintiff has met

his burden and presented sufficient evidence that the law clearly established that the

Defendants acted on insufficiently reliable information in requiring the Plaintiff to

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surrender his Fourth Amendment rights on threat of termination. It is undisputed that

the DWSD employees were aware that Dietz had no first hand knowledge of the

events he was reporting, that he was passing on information received from a source

whom he refused to disclose and possessed only photographs from that source that he

also refused to disclose. Slaughter, who claims to have spoken directly with Alfonso,

testified that the entire basis for their reasonable suspicion was what was observed and

allegedly photographed by an individual about whom the DWSD knew absolutely

nothing. (Slaughter Dep. 33:17-34:7.) No other DWSD testified differently and no

DWSD employee claims to have obtained the vehicle number based on personally

viewing the photographic or video evidence. The “corroboration” that the Defendants

claim to have performed, i.e. taking the vehicle number verbally reported to them

second hand from Dietz, passing it through several DWSD employees and ultimately

matching it to Greer, assumed the reliability of the very uncorroborated information

on which they relied. Corroborating the uncorroborated certainly cannot suffice to

meet the constitutional requirements of reasonable suspicion. No further inquiry was

ever made of Dietz to determine whether he had actually even viewed the vehicle

number himself (which it turns out he had not) or if he had simply relied on the verbal

recitation of the number from his anonymous source (which it turns out he had). 

Surely the DWSD employees cannot fulfill their constitutional duty by simply failing

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to ask the most rudimentary and essential questions and then seek the cloak of

qualified immunity. 

The Sixth Circuit has confirmed the principle that “officials can still be on

notice that their conduct violates established law even in novel factual circumstances.” 

Baynes v. Cleland, 799 F.3d 600, 611 (6th Cir. 2015) (citing Hope v. Pelzer, 536 U.S.

730, 739 (2002). The Court concludes that clearly established law placed the

unconstitutionality of Defendants’ conduct beyond debate and that no reasonably

competent officer would have required Plaintiff to undergo a drug test or face

termination based solely on the uncorroborated anonymous tip relayed by Dietz in this

case. 

D. Genuine Issues of Material Fact Remain on the Issue of the Personal

Involvement of Certain Defendants

If multiple government officials are alleged to have violated a plaintiff’s Fourth

Amendment rights, each official’s conduct must be analyzed individually, and only

those officials who had sufficient personal involvement in the constitutional violation

can be held liable. “Each defendant’s liability must be assessed individually based on

his own actions.” Binay, 601 F.3d at 650. The issue of personal involvement is a

legal determination to be made by the Court. But when that determination is

dependent on genuinely disputed material facts, those facts must be determined by the

trier of fact. Only then, based on those factual determinations, can the Court make the

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legal determination regarding each Defendant’s personal involvement. See McKinney

v. Lexington-Fayette Urban County Gov’t, 651 F. App’x 449, 462-68 (6th Cir. 2016)

(unpublished) (finding district court’s decision to defer ruling on qualified immunity

pending further factual development regarding the individual officer’s subjective

beliefs was sufficiently individualized).

Plaintiff has established a Fourth Amendment violation, and has established that

the law prohibiting the search was clearly established at the time, entitling Plaintiff to

summary judgment on the issue of liability and requiring denial of Defendants’

motion for summary judgment. However, questions of fact remain regarding which

Defendants had sufficient personal involvement in the constitutional violation to be

held liable under § 1983. These questions of fact are created by the Defendants’ own

inconsistent testimony, which preclude the Court’s legal determination of personal

liability at this stage. Warren v. Bd. of Educ. Of City of St. Louis, 200 F. Supp. 2d

1053, 1063 (E.D. Mo. 2001) (holding that “although the question of reasonableness

[of the suspicion that employee was using drugs] is one for this Court to ultimately

make, the jury must hear the underlying facts and determine those”) (alteration

added). 

Jones testified that DWSD policy required Plaintiff’s supervisor, Dotson, to

make the final call whether to require the drug test or not. Dotson, who signed

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Plaintiff’s suspension, maintains that he had no idea what the facts were that

supported the request for the test and that he was carrying out Slaughter’s order. 

Walton, who also signed Plaintiff’s suspension, likewise testified that Slaughter had

the authority to make the call and instructed Walton, without ever supplying the

underlying facts, to order Dotson to order Plaintiff to take the test. Slaughter testified

that he had no authority to order the test and that Dotson was responsible for making

the final call. 

At one point in his deposition, Dotson recalled that “at some point [Walton] did

mention that there was a complaint made. There was supposedly a video of him in a

vehicle smoking marijuana or – so Ralph was asked to go to the clinic at once.” 

(Dotson Dep. 9:25-10:19.) But Walton emphatically stated at least three times in his

deposition that he was never given the information regarding Dietz’s call, i.e. he was

never advised of the allegation that Greer was on video rolling or smoking marijuana,

at any point before the suspension was given and only learned of those allegations

“way later into the case.” (Walton Dep. 5:15-20; 8:7-11; 11:2-8; 12:2-6.) Walton

specifically testified, when asked whether Slaughter told him about a phone call from

Dietz or an alleged report, that he had not been told anything of that nature before he

suspended him for his refusal to report for the test. (Walton Dep. 12:12-13:7.) In fact,

Walton testified that when Greer asked him why he was being sent for a test, Walton

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replied: “I don’t have the reason why. . . . I was just informed by security to send you

to the clinic.” (Walton Dep. 14:1-6.) This of course calls into question whether

Dotson’s testimony that Walton “mentioned that there was a complaint made,” and

Dotson’s further statement that “there was supposedly a video of Greer in a vehicle

smoking marijuana,” suggests that Dotson learned of the video before he ordered

Greer to report for the drug test and suspended for his refusal. In any event, Dotson

never offered any detail regarding how he came to learn of “the video” or what details

the video allegedly contained or how it came into existence or how it came to the

attention of the DWSD. In the end, Dotson testified that he did not want to sign

Greer’s suspension because he “didn’t understand and [] really had nothing to do with

the reason for the suspension.” (Dotson Dep. 17:1-4.) He acknowledged that at the

time he issued the suspension he was not aware of any evidence that Greer was in

possession of or under the influence of any illegal drug. (Dotson Dep. 17:5-11.)

Because Dotson and Walton both admitted to having no understanding of the

detailed facts underlying the alleged reasonable suspicion for ordering the test, any

suspension by them on these facts would have clear constitutional infirmities even

apart from the unreliability of the tip from Dietz. Jones states that no one consulted

him when the final decision to test was been made but Slaughter states that he

compiled his report for Jones’s approval. And Jones, who was Slaughter’s supervisor,

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testified that he formed the opinion, based on forty some years as a police officer, that

there was reasonable suspicion to test. Resolution of these disputed factual issues are

necessary to inform the Court on the issue of each of these Defendant’s personal

involvement in the constitutional violation. 

Plaintiff has carried his burden to demonstrate the personal involvement of

McCormick, who made the final decision to terminate the Plaintiff based upon his

refusal to undergo the drug screen. However, a determination of the personal

involvement of Defendants Jones, Slaughter, Walton and Dotson, and hence their

individual liability under § 1983, must await the determination of disputed facts by

a jury, which also will be charged with determining Plaintiff’s damages. 

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Defendant’s Motion for

Summary Judgment, GRANTS IN PART Plaintiff’s Motion for Partial Summary

Judgment on Liability, and will issue a pre-trial Scheduling Order within the next

week.

IT IS SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: April 10, 2017

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CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each

attorney or party of record herein by electronic means or first class U.S. mail on April

10, 2017.

s/Deborah Tofil 

Case Manager

77