Cordero v. City of Columbia, The et al

Filing 104

ORDER RULING ON REPORT AND RECOMMENDATION adopting 98 Report and Recommendation, granting 82 Motion for Summary Judgment, denying 38 Motion for Default Judgment. Signed by the Honorable Joseph F. Anderson, Jr on 03/27/2013. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Johnnie Cordero,

)
)
Plaintiff,
)
)
vs.
)
)
The City of Columbia, South Carolina;
)
Joseph H. Timmons, III, individually and in )
his official capacity as Risk Manager for the )
City of Columbia, South Carolina, a/k/a
)
“Chip”; Hattie M. Bing, individually and in )
her official capacity as Deputy Director of )
the City of Columbia Department of Parks )
and Recreation; S. Allison Baker,
)
individually and in his official capacity as )
Senior Assistant City Manager and Director )
of the Department of Parks and Recreation )
of the City of Columbia, South Carolina;
)
Jacque Gilliam, individually; and Pamela )
Benjamin, in her official capacity as
)
Director of Human Resources for the City )
of Columbia, South Carolina,
)
)
Defendants.
)
)

C/A No.: 3:11-cv-2502-JFA

ORDER

This matter comes before the court on Plaintiff Johnnie Cordero’s Objection to the
Report and Recommendation (“Report”) issued by a Magistrate Judge in this case. Plaintiff filed
this action pursuant to 42 U.S.C. §§ 1983 and the Americans with Disabilities Action (“ADA”),
42 U.S.C. §§ 12101, et seq. In her Report, the Magistrate Judge recommended that this court
grant Defendants’ Motion for Summary Judgment and deny Plaintiff’s Motion for Default
Judgment. Having reviewed the entire record, including Plaintiff’s Objection, this court finds
that the Magistrate Judge has fairly and accurately summarized the facts and has applied the

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correct principles of law in her Report. Accordingly, the court adopts the Report and fully
incorporates it into this order.
I.

Factual and Procedural History
The court has already incorporated the Magistrate Judge’s Report in its entirety, but

because the court will intermittently reference the facts of this case in addressing Plaintiff’s
objections, the court provides the facts as recited in the Report below.
The following facts are either undisputed or are viewed in the light most
favorable to Cordero, to the extent they are supported by evidence in the record.
Cordero, who has a federal felony criminal conviction, has worked off and on for
the City of Columbia since 2004. He was recruited through the City’s Work
Initiative Program, through which the City trains former criminal offenders
following service of their sentences and teaches them certain job skills. Cordero
was involved in a work related traffic accident on June 29, 2005. On that same
date, he was required to submit to a post-accident drug test, which he failed.
Cordero’s employment was terminated, but following Cordero’s completion of
the City’s requirements for reemployment, the City again hired him effective
October 28, 2005. At that time, Cordero agreed to be subject to random testing
for a three-year period ending October 28, 2008.
During this time, Cordero took an unpaid leave of absence and then later
resigned from his position with the City so that he could serve a six-month term
of imprisonment resulting from violation of the conditions of his supervised
release—specifically, multiple positive drug tests. Upon his release from the

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federal Bureau of Prisons, Cordero sought in September of 2008 reemployment
with the City and recommenced work on October 28, 2008.
According to the defendants, this reemployment was conditioned on
Cordero’s submission to drug testing on demand. According to Cordero, after
October 28, 2008 he was subject to drug testing only upon reasonable suspicion in
accordance with the terms of the City’s Employee Handbook. In spite of that, he
asserts, Defendants Gilliam, Timmons, Bing, and Baker prepared and processed
paperwork indicating that he was subject to random drug testing along with the
City employees who held safety-sensitive jobs.

Cordero was subsequently

required to take a drug test on June 18, 2009. Effective June 30, 2009, Cordero’s
position with the City was eliminated. Cordero received severance pay.
A few months later, Cordero sought a new position with the City and
passed a preemployment drug test in accordance with the terms of the Employee
Handbook. The record shows that Defendant Bing informed Cordero that his
reemployment was conditioned on submission to drug testing at any time.
Around December 21, 2009, Cordero refused a drug test and was terminated as a
result. Cordero requested that he be reinstated to his position, but his request for
reemployment was denied. Cordero subsequently filed this action. The only
claims properly before the court are a civil rights claim against the City for failing
to train individuals regarding the implementation of its drug testing policy and a
civil rights claim against Defendants Gilliam, Timmons, Bing, and Baker for
conspiring to deprive him of his Fourth Amendment right to be free of

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unreasonable searches. Additionally, Cordero purports to assert a claim pursuant
to the Americans with Disabilities Act.
(ECF No. 98 at 2–3.)
In her Report, the Magistrate Judge recommended that this court grant Defendants’
Motion for Summary Judgment and deny Plaintiff’s Motion for Default Judgment. Plaintiff filed
a thirty-three page document wherein Plaintiff generally objects to “each and every part” of the
Report. In addition to that general objection, Plaintiff also identifies nine1 specific objections to
the Magistrate Judge’s reasoning. Defendants filed a response to Plaintiff’s objections on March
26, 2013.
II.

Legal Standards
A.

Magistrate Judge’s Report and Recommendation

The Magistrate Judge made her review in accordance with 28 U.S.C. § 636(b)(1)(B) and
Local Civil Rule 73.02. The Magistrate Judge only makes a recommendation to the court. It has
no presumptive weight, and the responsibility for making a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). Parties are allowed to make a written
objection to a Magistrate Judge’s report within fourteen days after being served a copy of the
report. 28 U.S.C. § 636(b)(1). From the objections, the court reviews de novo those portions of
the report that have been specifically objected to, and the court is allowed to accept, reject, or
modify the report in whole or in part. Id.
B.

Legal Standard for Summary Judgment

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall
be rendered when a moving party has shown that “there is no genuine dispute as to any material

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The final objection purports to be “Objection #10,” but it appears that Plaintiff skipped number nine when he was
numbering his specific objections.

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fact and the movant is entitled to judgment as a matter of law.” The court must determine
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. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251–52 (1986). Summary judgment should be granted in those cases
where it is perfectly clear that there remains no genuine dispute as to material fact and inquiry
into the facts is unnecessary to clarify the application of the law. McKinney v. Bd. of Trustees of
Mayland Community College, 955 F.2d 924, 928 (4th Cir. 1992). In deciding a motion for
summary judgment, “the judge’s function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477
U.S. at 249.
III.

Discussion
A.

Miscellaneous Objections

In Plaintiff’s first objection, he argues that he was prejudiced because the Report relied
on evidence that is inadmissible under the Federal Rules of Evidence. Specifically, Cordero
objects to the Report’s reference to his federal criminal conviction. However, this court finds
that the reference to Plaintiff’s criminal conviction is relevant—it explains how he began
working for the City and also why, at one point, he had to take a leave of absence from his job
with the City. Additionally, the court denies Plaintiff’s renewed motion to strike, as Cordero has
not been prejudiced by the reference to his criminal conviction (Rule 403), nor has it been used
to show his character (Rule 404) or to attack his character for truthfulness (Rule 609).
In his second objection, Plaintiff renews his motion for default judgment against
Defendant Gilliam, asserting that this court should grant default judgment as there is already an
entry of default against Defendant Gilliam in this case. “[A] defendant’s default does not in

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itself warrant the court entering a default judgment. There must be a sufficient basis in the
pleadings for the judgment entered.” DIRECTV, Inc. v. Pernites, 200 F. App’x 257, 258 (4th
Cir. 2006). In this case, Defendant Gilliam has a meritorious defense, which has been presented
to the court by the other named Defendants. Because this court finds that summary judgment is
appropriate in this case, the court is constrained to deny Cordero’s Motion for Default Judgment.
B.

Objections Related to Finding of Consent

Plaintiff’s third and sixth objections deal with the issue of consent. The Magistrate Judge
concluded that Cordero consented to the drug tests based on a conversation between Defendant
Bing and Cordero in which she informed him that his reemployment was conditioned on what
the City has characterized as “on demand” drug testing. As noted by the Magistrate Judge, a
search conducted with consent does not violate the Fourth Amendment. See, e.g., Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973).
In Cordero’s third objection, he takes issue with the Magistrate Judge’s reliance on
Bing’s deposition testimony about that conversation. Plaintiff has filed an affidavit, which states
that “[t]here were no conditions placed on my reemployment. I did not consent to any conditions
at all. No conditions were discussed and none were imposed.” (ECF No. 92-1 at 5–6.) Plaintiff
has also submitted the transcript of the administrative hearing related to his unemployment
benefits where both he and Bing testified about their conversation before he was reemployed in
September 2009. When asked by the hearing officer if Bing told him during that conversation
that he was “still on a random test list,” Cordero responded, “I don’t recall, but I will say this, I
do know Ms. Bing as being very, very thorough, and having a good memory. So, I’m not . . .
I’m not in a position here to dispute . . . if she says it happened, I don’t . . . we had that
conversation, I wouldn’t dispute that.” (ECF No. 93-13 at 31.) A party may not avoid summary

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judgment by the introduction of self-serving and inconsistent testimony. As the Fourth Circuit
has recognized, “a genuine issue of material fact is not created where the only issue of fact is to
determine which of the two conflicting versions of [an individual’s] testimony is correct.”
Barwick v. Celotex Corp., 738 F.2d 946, 960 (1984). “If a party who has been examined at
length on deposition could raise an issue of fact simply by submitting an affidavit contradicting
his own prior testimony, this would greatly diminish the utility of summary judgment as a
procedure for screening out sham issues of fact.” Id. (quoting Perma Research and Dev. Co. v.
The Singer Co., 410 F.2d 572, 578 (2nd Cir. 1969)).
Cordero further argues that Bing did not have the authority to place conditions on his
employment based on disclaimer language contained in the City’s Employee Handbook.
However, the handbook disclaimer merely informs employees that neither the handbook nor
anyone but the City Manager can change the at-will status of an employee. It does not mean that
Bing could not inform Plaintiff that he would be subject to on demand drug testing upon
reemployment.
In his sixth objection, Plaintiff disputes that he consented to the drug tests. He submits
that the only consent that he gave expired on October 28, 2008 (at the conclusion of the threeyear period that he agreed to be subject to random testing). Plaintiff then argues that the
difference between his statements and that of Bing raise an issue of credibility, which should be
resolved by a jury. The court has addressed this argument above. Cordero also makes the
following argument:
In each of the cases decided by the Supreme Court on the issue of drug testing all
of them required the employees to consent to drug testing in order to maintain

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employment. But in none of the cases did the Court find that the test was valid
because of the employee’s consent.
(ECF No. 102 at 14).

Plaintiff failed to specify which Supreme Court cases support his

argument, but after reviewing some of the seminal Supreme Court cases pertaining to urine drug
testing, the court disagrees with the proposition that those cases involved employee consent.
See, e.g., Chandler v. Miller, 520 U.S. 305 (1997); Nat’l Treasury Emps. Union v. Von Raab,
489 U.S. 656 (1989); Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602 (1989). In contrast,
Plaintiff has admitted that he did not object to the June 2009 drug test. Though Cordero knew
that his position with the City was being eliminated soon after that test, he took the test after
deciding that he did not “want to cause any problems,” and there is no evidence that he was
forced to submit to the drug test. (See ECF No. 93-13 at 32.) As Plaintiff himself noted in his
objections, consent must be “voluntarily given, and not the result of duress or coercion, express
or implied.” Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973). Here, Cordero admits that
he voluntarily consented to the drug test in June 2009. As to the December 21, 2009 test,
Cordero refused that test. Thus, his rights were not violated on that date.
Of course, a finding of consent is not essential for this court to find summary judgment
appropriate in this case. Even if Plaintiff did not consent to drug testing, his claims against the
City and the individual defendants still fail.
C.

Objections Related to Claim Against the Municipal Defendant

As noted by the Magistrate Judge in her Report, local governments are responsible only
for their own illegal acts; § 1983 provides no vicarious liability for their employees’ actions.
Connick v. Thompson, 131 S. Ct. 1350, 1359 (citing Pembaur v. Cincinnati, 475 U.S. 469, 479
(1986)). Thus, a plaintiff seeking to impose liability on a local government under § 1983 must

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show that “‘action pursuant to official municipal policy’” caused his injury. Id. (quoting Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)).
In this case, Plaintiff has asserted a failure-to-train claim against the City. To allow a
shortcoming in training to be properly considered as an actionable policy or custom giving rise to
liability under § 1983, the municipality’s decision not to train must amount to “‘deliberate
indifference to the rights of persons with whom the [untrained employees] come into contact.’”
Id. at 1359–60 (quoting Canton v. Harris, 489 U.S. 378, 388–89 (1989)) (alterations in original).
Ordinarily, a pattern of similar constitutional violations by untrained employees is necessary to
show deliberate indifference in a failure-to-train case. Id. at 1360 (citing Bd. of Cnty. Comm’rs
v. Brown, 520 U.S. 397, 409 (1997)). Such a pattern can establish policymakers’ “‘continued
adherence to an approach that they know or should know has failed to prevent tortious conduct
by employees’” and show conscious disregard for the consequences of their actions, thus
demonstrating the deliberate indifference necessary to trigger municipal liability. Id. (quoting
Bd. of Cnty. Comm’rs, 520 U.S at 407). Without notice that the training is deficient in a
particular respect, a decision maker cannot be said to have deliberately made a choice that will
cause violations of protected federal rights.

Id.

Nonetheless, “in a narrow range of

circumstances,” a plaintiff may show deliberate indifference even without establishing a pattern
of similar constitutional violations when the unconstitutional consequences of the failure to train
are “patently obvious.” Id. at 1361 (citing Bd. of Cnty. Comm’rs, 520 U.S. at 409 and City of
Canton v. Harris, 489 U.S. 378, 390).
In light of this case law, the Magistrate Judge concluded
Cordero must show under the applicable standard that it was highly predictable
that the risk manager would misapply the drug testing policy in a manner that

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violated the Fourth Amendment—so predictable that failing to train the risk
manager regarding proper drug testing amounted to a conscious disregard by the
City for his Fourth Amendment rights. Cordero has failed to meet this standard.
(ECF No. 98 at 8 (citations omitted).) Plaintiff asserts that the Report fails to conclude that he
did not establish a prima facie case against the City, but, by concluding that there was no
deliberate indifference by the City, the Magistrate Judge did just that. Cordero then argues that
the Magistrate Judge should have used the standard articulated in Canton v. Harris, where the
Supreme Court theorized a circumstance in which a municipality could be liable under § 1983
based on a single-incident of deliberate indifference. 489 U.S. at 390. However, this court finds
that this case does not fit into the “‘narrow range of circumstances’” described in Canton where a
pattern of similar violations is unnecessary to show deliberate indifference. Thus, the Magistrate
Judge applied the correct standard.
In Plaintiff’s fifth objection he argues that he has established a pattern that shows
deliberate indifference. However, this court agrees with the Magistrate Judge that Cordero has
only alleged a single incident where City employees decided, allegedly contrary to City policy
and unconstitutionally, to subject Cordero to drug testing. Even if Plaintiff had established that
the City had violated Plaintiff’s Fourth Amendment rights, he has failed to establish that the
other City employees subject to on demand drug testing have had their Fourth Amendment rights
violated. As such, Cordero has not shown a “pattern of similar violations that would ‘establish
that the policy of inaction [was] the functional equivalent of a decision by the city itself to
violate the Constitution.’” Connick, 131 S. Ct. at 1366 (quoting Canton, 489 U.S. at 395).
In an attempt to show that the Defendant’s drug testing policy is unconstitutional,
Plaintiff baldly proclaims that the City’s drug testing policy differs in a constitutionally

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significant way from the policies of “all” other jurisdictions—he states that these other
jurisdictions use consent forms and provide training for their employees. However, there is no
evidence that municipalities are required to obtain written consent or to train their employees
who administer the drug testing policy.
D.

Objections Related to Claims Against the Individual Defendants

In his seventh, eighth, and tenth objections, Plaintiff raises issues related to the
Magistrate Judge’s finding that summary judgment was appropriate for Cordero’s claims against
the individual Defendants in this case. The Magistrate Judge concluded that Cordero had
consented to the drug testing—thus, there could be no Fourth Amendment violation. However,
the Magistrate Judge also found that even if there had been a Fourth Amendment violation, the
individual Defendants are entitled to qualified immunity because their conduct fell within the
gray areas of Fourth Amendment jurisprudence and did not transgress any bright line.
In his seventh objection, Plaintiff argues that he “made a prima facie showing as to
conspiracy.” He then sets out in detail the evidence that he has presented that supports his claim
of conspiracy against Defendants Timmons, Bing, Baker, Gilliam, and Benjamin. What Plaintiff
has failed to grasp is that the Magistrate Judge assumed for purposes of her Report that Plaintiff
had met the elements of his § 1983 claim against the individual Defendants. Nevertheless, she
found that they were entitled to qualified immunity, which shields the Defendants “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 Plaintiff’s eighth objection, he contests the Magistrate Judge’s qualified immunity
analysis. Primarily, Cordero asserts that the individual Defendants knew that they did not have

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the authority to drug test the Plaintiff and that they conspired to put him on the list for on
demand drug testing. In support of this proposition, Plaintiff has submitted an email from Judy
Edwards, a risk manager for the City. In the email, Edwards asks to have Cordero placed on the
list for on demand drug testing though it appears that there was some question as to whether he
fell under the City’s policy because his most recent employment with the City ended when
Plaintiff resigned during incarceration. Cordero attempts to draw a comparison between the
Edwards email and a false affidavit, asserting that, in this case, the Defendants’ qualified
immunity is negated by the Edwards email just as probable cause would be negated if based on a
knowingly false statement made in an affidavit. Though creative, this comparison is not valid, as
the false affidavit analysis is not applicable in this case. The court finds that the Edwards email
does not in any way cancel the individual Defendants’ entitlement to qualified immunity.
In his final objection, Plaintiff argues that there is no gray area as to whether his Fourth
Amendment rights were violated.

He restates the facts and summarily concludes that the

individual Defendants “intentionally and conspiratorially violated plaintiff’s significant
constitutional rights.” (ECF No. 102 at 32.) This court disagrees with that conclusion. Based on
Supreme Court precedent in this area, which the Magistrate Judge has detailed in her Report, the
court finds that the constitutionality of a government employer’s requirement that an at-will
employee who is not in a safety-sensitive position but who has had a long history of positive
tests for illegal drugs be subjected to unannounced testing is unclear. Thus, the individual
Defendants are entitled to qualified immunity in this case.

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IV.

Conclusion
For the foregoing reasons, this court adopts the recommendation of the Magistrate Judge.

Accordingly, Plaintiff’s Motion for Default Judgment is denied (ECF No. 38) and Defendants’
Motion for Summary Judgment is granted (ECF No. 82).
IT IS SO ORDERED.

March 27, 2013
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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