Ricky Gonzales v. City of San Antonio

Filing 15

REPORT AND RECOMMENDATIONS re 6 Motion to Dismiss for Failure to State a Claim filed by City of San Antonio, The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered asa filing user with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Signed by Judge Richard B. Farrer. (wg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
RICKY GONZALES,
Plaintiff,
vs.
CITY OF SAN ANTONIO,
Defendant.

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5-17-CV-00998-OLG-RBF

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
To the Honorable Chief United States District Judge Orlando Garcia:
This Report and Recommendation concerns the Motion to Dismiss filed by Defendant
City of San Antonio. Dkt. No. 6. All pretrial matters in this case were referred to the undersigned
for disposition, pursuant to Western District of Texas Local Rules CV-72 and 1 to Appendix C.
Dkt. No. 10. The Court has federal question jurisdiction over this § 1983 case pursuant 28 U.S.C.
§ 1331, and the undersigned has authority to enter this recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(B). For the reasons discussed below, it is recommended that Defendant’s Motion to
Dismiss, Dkt. No. 6, be GRANTED but that Plaintiff be permitted an opportunity to amend the
complaint to cure the deficiencies outlined herein.
I.

Factual and Procedural Background

This wrongful-termination action is brought by Plaintiff Ricky Gonzales, a former
employee of the San Antonio Parks and Recreation Department, who was terminated after failing
a post-accident drug test. As a Parks and Recreation employee, Gonzales would often drive one
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of the City’s trucks while pulling an attached trailer. Compl. ¶ 9, 13. According to Gonzales, he
was “one of the safest drivers and best to park the Defendant, City’s truck while pulling a
trailer.” Id. ¶ 12. But on the afternoon of April 20, 2016, a fellow employee reported Gonzales
for damaging another vehicle while parking in the City’s yard. Id. ¶ 16. Gonzales’s supervisor
inspected both vehicles and trailers but found no visible damage. Id. Thereafter, Gonzales was
permitted to leave for the afternoon without further incident. Id.
The following morning at approximately 7 am, Park Operations Supervisor Terry Trevino
contacted Gonzales and informed him that he needed to take a drug test as a result of the
previous day’s incident. Id. ¶ 20. Initially, Gonzales refused. He maintained that the City’s Drug
Testing Policy required that all drug tests be administered on the same day of an accident. Id.
¶ 19, 20. But he relented and took the test after he was informed that further refusal would result
in his termination. Id. According to Gonzales, he submitted to the test “under pressure” and
because “he knew that he was ‘clean.’” Id. ¶ 21. But Gonzales straightforwardly concedes that
“[t]he results of the drug test came back positive for some drugs.” Id. ¶ 22. And he does not
dispute the testing procedures or take issue with the accuracy of the results; he instead contends
only that the City knew he was taking prescribed pain medication after suffering on-the-job
injuries. Id. ¶ 28. Gonzales offers no explanation for why his prescription for medication does
not excuse his positive test result.
Citing the drug-test results, the City, on May 12, 2016, issued Gonzales a Notice of Final
Termination. Id. ¶ 22. Gonzales appealed the termination decision. Id. ¶ 23. On July 28, 2016,
the Civil Service Commission held a hearing on the appeal. Id. ¶ 24. During this hearing,
Gonzales opposed his termination but only on the grounds that the City violated its own drug
testing policy by requiring him to take a drug test the day after the alleged incident. Id. In

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response, according to Gonzales, the Parks and Recreation Department argued that it has its own
non-written policy, “which requires that a drug test be taken on every accident.” Id. ¶ 25. On July
28, 2016, the Commission recommended that the City Manager sustain Gonzales’s termination.
Id. ¶ 26. On October 24, 2016, the City Manager accepted this recommendation, which
according to Gonzales made his termination “final.” Id. ¶ 27.
Gonzales initiated this § 1983 action on August 22, 2017, in Bexar County state court. He
alleged that the City violated his substantive and procedural due process rights. Id. ¶ 30.
Gonzales further alleged that the City violated his right to equal protection under the law “due to
the dichotomy in the Defendant, City’s application and enforcement of its Drug Testing Policy in
regards to all of its departments.” Id. ¶ 34. Finally, Gonzales alleged that the City violated his
“right of liberty of gainful employment and free of defamation by government action and
officials.” Id. Gonzales seeks both reinstatement of his employment and damages in the form of
back pay, mental anguish, reputational damages, and loss of benefits. Id. ¶¶ 35, 37. In the course
of lodging these claims, Gonzales does not allege that the drug test results were in error or
explain why his prescription does not excuse his positive test result.
The City removed the action to federal court and now moves to dismiss Gonzales’s
claims under Rule 12(b)(6). According to the City, Gonzales has failed to allege or identify any
facts sufficient to impose municipal liability. The City further alleges that Gonzales has failed to
identify how requiring a post-accident drug test was arbitrary or capricious or allege facts
capable of showing that the policymaker acted with conscious indifference. Mot. at 6.
II.

Legal Standards

In reviewing a motion to dismiss filed pursuant to Rule 12(b)(6), a court “accept[s] ‘all
well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’” New
Orleans City v. Ambac Assur. Corp., 815 F.3d 196, 200 (5th Cir. 2016) (quoting In re Katrina
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Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). But a court need not credit conclusory
allegations or allegations that merely restate the legal elements of a claim. Chhim v. Univ. of Tex.
at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (citing Iqbal, 556 U.S. at 678).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Although a
complaint “does not need detailed factual allegations,” the “factual allegations must be enough to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In other words, the
allegations must show “more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678.
III.

Analysis

For the reasons discussed below, Gonzales has failed to sufficiently plead facts capable of
showing that the City committed a constitutional violation and that a City policy was the moving
force behind any alleged constitutional violation.
Alleged Constitutional Violations. As further explained shortly, the only conceivably
viable alleged constitutional violation at issue here involves whether the City violated Gonzales’s
due process rights by testing him when it did. This claim involves only the timing of the test;
Gonzales does not take issue with the test itself or its results. But before turning to this claim,
Gonzales’s remaining claims—and why they fail under Rule 12(b)(6)—warrant some discussion.
First to fail is Gonzales’s claim that the City violated his right to equal protection under
the law by applying its drug testing policies unequally between different departments. This claim
can survive only if it is alleged that similarly situated employees are treated differently. See
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Bryan v. City of Madison, Miss., 213 F.3d 267, 276 (5th Cir. 2000). Employees who are
employed in different departments, however, are generally not similarly situated. See, e.g., Lee v.
Kansas City South Railway Co., 574 F.3d 253, 259-60 (5th Cir. 2009) (“Employees with
different supervisors, who work for different divisions of a company . . . generally will not be
deemed similarly situated.”); see also Integrity Collision Ctr. v. City of Fulshear, 837 F.3d 581,
587 (5th Cir. 2016) (noting that employment decisions “by their nature involve discretionary
decisionmaking” and, hence, are not amenable to a so-called class-of-one equal protection
claim). This claim, therefore, fails from the outset.
Next is Gonzales’s defamation claim. Because he has not alleged that the City
disseminated his drug-test results outside the proper chain of command or that the drug-test
results were inaccurate, he has failed to state a claim upon which relief could be granted. See
White v. Thomas, 660 F.2d 680, 684 (5th Cir. 1981) (“A constitutionally protected liberty interest
is implicated only if an employee is discharged in a manner that creates a false and defamatory
impression about him and thus stigmatizes him and forecloses him from other employment
opportunities.”); Johnson v. Martin, 943 F.2d 15, 17 (7th Cir. 1991) (affirming dismissal of
plaintiff’s claim that employer’s placement of drug test results in his personnel file violated his
liberty interest in his reputation where plaintiff conceded that the results had not been
disseminated to any potential future employers). This claim, therefore, also fails as alleged.
In any event, Gonzales has abandoned these other claims (the non-due process claims).
Gonzales argues in his Response only that the City violated his due process rights in connection
with his employment. His failure to defend any other claims in response to the motion to dismiss
effectively abandons those claims. See Black v. Panola Sch. Dist., 461 F.3d 584, 588 n. 1 (5th

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Cir. 2006) (plaintiff abandoned claim alleged in complaint when she failed to defend claim in
response to motion to dismiss).
Municipal Liability. Gonzales has not alleged sufficient facts to support a finding of
municipal liability under any theory or claim. “[M]unicipal liability under section 1983 requires
proof of three elements: a policymaker; an official policy; and a violation of constitutional rights
whose “moving force” is the policy or custom.” Piotrowski v. City of Houston, 237 F.3d 567,
578 (5th Cir. 2001). Gonzales alleges that the City violated his constitutional rights in two
different ways: (1) failing to comply with its city-wide drug test policy when subjecting him to a
drug test; and (2) employing two “separate distinct Drug Testing Policies each one delineating
different requirements and circumstances under which an employee of Defendant, City is
required to take a drug test.” Compl. ¶¶ 33-34. Accordingly, Gonzales presents both facial and
as-applied challenges to the City’s drug-testing policies. While a facial challenge to the
constitutionality of the City’s policies would be sufficient to hold the City liable (assuming the
policy is ultimately found unconstitutional), the mere failure to follow policy or procedure in a
single incident will not permit an inference of municipal liability. See Hudson v. City of Riviera
Beach, 982 F. Supp. 2d 1318, 1327 (S.D. Fla. 2013) (employee’s challenge to city’s failure to
follow drug testing policy did not support a finding of municipal liability). To hold otherwise
would impermissibly transform a single alleged constitutional violation by a non-policymaker
into a municipal policy. See City of Canton, Ohio v. Harris, 489 U.S. 378, 387 (1989) (a city is
not “automatically liable under § 1983 if one of its employees happened to apply the policy in an
unconstitutional manner, for liability would then rest on respondeat superior”).
Further, although a city manager may act as a final policymaker for purposes of § 1983
municipal liability in certain circumstances, see e.g., Mattix v. Hightower, No. 3-96-cv-15-R,

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1998 WL 246671, at *13 (N.D. Tex. May 3, 1998), the Complaint contains no allegation that the
City Manager is a final policymaker with respect to the employment decision at issue in this
case, see Advanced Tech. Bldg. Sols., L.L.C. v. City of Jackson, Miss., 817 F.3d 163, 165 (5th
Cir. 2016) (recognizing that while a “single decision” by an authorized policymaker may
represent “an act of official government policy . . . liability attaches only where the
decisionmaker possesses final authority to establish municipal policy with respect to the action
ordered”).
Accordingly, it appears that only Gonzales’s facial challenge to the constitutionality of the
City’s drug testing policies (if proven) could support a finding of municipal liability.
Due Process. Even if Gonzales had alleged facts sufficient, if true, to support municipal
liability, he has failed to allege facts, even if true, capable of supporting a finding that he suffered
either a substantive or procedural due process violation. See Hale v. Bexar County, Tex., 342
Fed. App’x 921, 925 (5th Cir. 2009) (“A municipality cannot be held liable under § 1983 if there
is no underlying constitutional violation.”); Bustos v. Martini Club Inc., 599 F.3d 458, 467 (5th
Cir. 2010) (“Because Bustos has alleged no constitutional injury attributable to the Officers,
Bustos has failed to state a claim that a City policy was the moving force behind a violation of
his constitutional rights.”).
“To succeed with a claim based on substantive due process in the public employment
context, the plaintiff must show two things: (1) that he had a property interest/right in his
employment, and (2) that the public employer’s termination of that interest was arbitrary or
capricious.” Lewis v. Univ. of Tex. Med. Branch at Galveston, 665 F.3d 625, 630 (5th Cir. 2011)
(quotation marks omitted). “[S]ubstantive due process requires only that public officials exercise
professional judgment, in a nonarbitrary and noncapricious manner, when depriving an

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individual of a protected property interest.” Id. (quotation marks omitted). An employment
decision is arbitrary or capricious where the decision is made “without a rational connection
between the known facts and the decision or between the found facts and the evidence.” Id.
(quotation marks omitted). In other words, to be arbitrary or capricious, a plaintiff must that an
employment decision involved an “abuse of power by the [ ] official [that] shocks the
conscience.” Id. (quotation marks omitted).
Procedural due process, on the other hand, “entitles a public employee with a property
right in his employment to notice of the charges against the employee, an explanation of the
employer’s evidence, and an opportunity to present his side of the story.” Fowler v. Smith, 68
F.3d 124, 127 (5th Cir. 1995) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546
(1985)).
Gonzales has not alleged a protected property interest in his continued employment.
Gonzales argues, in error, that merely by virtue of his longtime employment with the City, he
held a constitutionally protected interest in his employment. Resp. at 5. But “a property interest
is not incidental to public employment, instead it must be created by an independent source, such
as state law.” Muncy v. City of Dallas, Tex., 335 F.3d 394, 398 (5th Cir. 2003) (citing Perry v.
Sindermann, 408 U.S. 593, 601 (1972) and Conner v. Lavaca Hosp. Dist., 267 F.3d 426 (5th Cir.
2001)). The inquiry here is whether Gonzales had a “legitimate right to continued employment.”
McDonald v. City of Corinth, Tex., 102 F.3d 152, 155 (5th Cir. 1996). The Fifth Circuit has
recognized a property interest “where the public entity has acted to confer, or alternatively, has
created conditions which infer, the existence of a property interest by abrogating its right to
terminate an employee without cause.” Muncy, 335 F.3d at. In Texas, there is a presumption
against any such finding, unless the employment relationship is “altered by contract or by

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express rules or policies limiting the conditions under which an employee may be terminated.”
Id. (citations omitted). The mere fact that Gonzales may have held his position for a lengthy
period of time does cannot alone create a legitimate right of entitlement to continued
employment with the City. To state a claim, he must allege additional facts capable of supporting
the conclusion that he has a protected property interest in his continued employment.
Further, even assuming Gonzales were to adequately allege a protected property interest
in his continued employment with the City, the facts as alleged could not support an ultimate
finding that the City acted arbitrarily or capriciously in its decision to end Gonzales’s
employment. Gonzales admits that he tested positive for drugs, and he does not dispute the
accuracy of the test results. See, e.g., McKendall v. City of New Orleans, No. CIV. A. 92-2393,
1993 WL 85954, at *5 (E.D. La. Mar. 12, 1993) (“McKendall’s dismissal was not arbitrary or
capricious, as he had tested positive for an illegal drug.”); Adler v. County of Nassau, 113 F.
Supp. 2d 423, 432 (E.D.N.Y. 2000) (no denial of substantive due process where plaintiff’s drug
test proved positive for valium, and there was no allegation that the results had been falsified).
The thrust of Gonzales’s claim involves the timing of the test. He argues—without any
supporting authority—that the City violated his due process rights by administering his test the
day after the incident, as opposed to the day of that incident. This violated his rights, he
contends, because it contravened a City-wide policy. But, without more, the City’s mere
technical failure to comply with its own internal policies—resulting in a positive test result not in
dispute—does not amount to a due process violation, provided constitutional minima regarding
notice and other due process protections are met. See, e.g., Brown v. Texas A & M Univ., 804
F.2d 327, 335 (5th Cir. 1986) (“The University’s admitted failure to comport with its internal
pretermination procedures does not by itself amount to a violation of the Due Process Clause.

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The failure of a state agency to comply with its internal regulations is insufficient as a matter of
law to establish a violation of Due Process, because constitutional minima nevertheless may have
been met.”); Levitt v. Univ. of Texas at El Paso, 759 F.2d 1224, 1230 (5th Cir. 1985) (There is
not a violation of due process every time a . . . government entity violates its own rules. Such
action may constitute a breach of contract or violation of state law, but unless the conduct
trespasses on federal constitutional safeguards, there is no constitutional deprivation”; Fuller v.
Brownsville Indep. Sch. Dist., No. CV B: 13-109, 2016 WL 3960563, at *9 (S.D. Tex. May 18,
2016), report and recommendation adopted, 2016 WL 3932237 (S.D. Tex. Jul. 21, 2016)
(similar proposition). Accordingly, the question is not whether the City complied with or
violated a policy but rather whether and how in allegedly departing from its policy the City
allegedly fell short in providing Gonzales notice or other substantive or procedural protections to
which he is constitutionally due. Nothing in Gonzales’s Complaint reflects any such due process
violation here.
To start, it cannot “shock the conscience” to subject an employee to a drug test the day
after an incident, in the context of the facts as they are alleged here. According to Gonzales’s
own allegations, the traffic incident occurred late in the day. Without something more,
postponing a test to the next day could not “shock the conscience.” Importantly, Gonzales does
not assert that if the City had complied with its policy, his tests would have yielded a different
result. To the contrary, Gonzales appears to suggest that the result would have been the same;
under either scenario he was taking pain medication. See Compl. ¶ 28. What Gonzales appears to
allege is a harmless and purely technical departure from an internal procedure, with no
independent harm stemming from it beyond the mere failure to follow a procedure. See Spokeo,
Inc. v. Robins, 136 S.Ct. 1540, 1547-50 (2016) (discussing how purely technical violations of

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internal procedures may not cause harm sufficient to confer standing). A bare allegation of a
purely technical procedural violation, which otherwise appears utterly harmless, cannot in
circumstances such as these support a valid claim for relief.
Nor has Gonzales alleged facts that could reflect how the City’s alleged use of two
different drug testing policies is arbitrary or capricious. One policy is alleged to have applied
City-wide and another more specifically to the Parks and Recreation Department, but both
allegedly permitted post-accident drug testing. While two inherently contradictory policies might
give the Court pause if sufficient detail within the policies were at issue, here both policies, as
alleged, notified Gonzales that he could be subject to a drug test post-accident. Again, the only
difference between the policies appears to be the timing of the test. While an employer’s
maintenance of two slightly different policies is not ideal from an administrative perspective, as
alleged here it simply could not be deemed “so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.
8 (1998). Gonzales admits he had notice he could be subject to a drug test under these
circumstances, and he does not allege that in practice the City consistently refused to administer
drug tests beyond the day of the incident other than in this one instance. Accordingly, as alleged,
the City’s decision to test Gonzales and later terminate him for a positive results is neither
arbitrary nor capricious so as to implicative substantive due process concerns.
Gonzales’s related complaint about procedural due process essentially mirrors his
substantive due process claim, and it similarly lacks merit. See Resp. at 6-7. With respect to the
termination decision, Gonzales does not allege that the City failed to provide him with notice and
an opportunity to “present his side of the story” prior to his termination. Fowler, 68 F.3d at 127.
He does not dispute the basis for the City’s termination decision and admits that he was later

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afforded a hearing wherein he was provided an opportunity to speak. Gonzales does not
challenge the fairness of this hearing or argue that his termination would not have been justified
had he been drug tested one day earlier. Instead, Gonzales argues that the City violated his
procedural due process rights because the procedure employed “allowed for the continuation of
such arbitrary policy.” Resp. at 7. But a plaintiff does not have a procedural due process claim
merely because he does not agree with the results after process has been afforded. See, e.g.,
Clarke v. Univ. of N. Texas, 993 F.2d 1544 (5th Cir. 1993) (rejecting plaintiff’s procedural due
process claim because “[p]rocedural due process rights do not guarantee a particular outcome to
a disciplinary proceeding but only assure that it is fairly conducted”); Moreno v. Donna Indep.
Sch. Dist., No. 7:12-CV-141, 2013 WL 12099971, at *2 (S.D. Tex. Mar. 1, 2013), aff’d, 589 Fed.
App’x 677 (5th Cir. 2014) (rejecting plaintiff’s procedural due process claim and noting that
“[w]hile Plaintiff may disagree with the outcome, the evidence and Plaintiff’s own admissions
makes clear he received appropriate notice and a hearing.”); Cheathon v. Brinkley, 822 F. Supp.
1241, 1243 n. 4 (M.D. La. 1993) (“Since our concern here is procedural due process, the ultimate
outcome of the civil service proceedings does not concern us.”).
Finally, even if Gonzales properly alleged a violation of his pre-deprivation procedural
due process rights, reinstatement and back pay would likely be inappropriate here. See
Morehouse v. Jackson, 614 Fed. App’x 159, 163-64 (Jun. 5, 2015) (“When a plaintiff receives a
constitutionally satisfactory post-termination hearing, and it is clear that the plaintiff’s dismissal
would have ultimately occurred absent procedural defects, the plaintiff is not entitled to
reinstatement, or to back pay and related benefits.”) (internal citations and quotations omitted).
Leave to Amend. Gonzales requests leave to file an amended complaint in the event the
City’s motion is granted. Gonzales, however, does not specify how an amendment will cure the

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above deficiencies in his Complaint, and for this reason leave may properly be denied. See, e.g.,
U.S. ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 387 (5th Cir. 2003)
(“[A] bare request in an opposition to a motion to dismiss—without any indication of the
particular grounds on which the amendment is sought, cf. Fed. R. Civ. P. 7(b)—does not
constitute a motion within the contemplation of Rule 15(a).”) (quotation marks omitted).
Gonzales, however, has not previously attempted to amend his complaint and the undersigned
cannot say at this time that an amended complaint, in which Gonzales clarifies his factual
allegations, would necessarily be futile.
IV.

Conclusion

For the reasons discussed above, the City’s Motion, Dkt. No. 6, should be GRANTED.
Gonzales, however, should be permitted leave to file an amended complaint to cure the pleading
deficiencies outlined herein.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on
all parties by either (1) electronic transmittal to all parties represented by attorneys registered as
a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt
requested, to those not registered. Written objections to this report and recommendation must be
filed within fourteen (14) days after being served with a copy of same, unless this time period is
modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The objecting party
shall file the objections with the clerk of the court, and serve the objections on all other parties. A
party

filing

objections

must

specifically

identify

those

findings,

conclusions,

or

recommendations to which objections are being made and the basis for such objections; the
district court need not consider frivolous, conclusory, or general objections. A party’s failure to

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file written objections to the proposed findings, conclusions, and recommendations contained in
this report shall bar the party from a de novo determination by the district court. Thomas v. Arn,
474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000).
Additionally, failure to timely file written objections to the proposed findings, conclusions, and
recommendations contained in this report and recommendation shall bar the aggrieved party,
except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.
SIGNED this 12th day of June, 2018.

RICHARD B. FARRER
UNITED STATES MAGISTRATE JUDGE

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