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Complaint in DJJ Drug Testing Case
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
RODERICK H. WENZEL,
Plaintiff,
v.
CASE NO.:4:03CV403-RH\WCS
WILLIAM G. BANKHEAD, individually and
in his capacity as Secretary of the Florida
Department of Juvenile Justice,
Defendant.
______________________________________/
COMPLAINT
Plaintiff sues Defendant and states:
JURISDICTION and VENUE
1. This action for monetary damages, for declaratory and injunctive relief, and for other equitable and ancillary relief is brought pursuant to the Fourth and Fourteenth Amendments to the Constitution of the United States of America; pursuant to 42 U.S.C. § 1983 (hereinafter "§ 1983"); and pursuant to 28 U.S.C. §§ 2201 and 2202.
2. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343(3) and (4).
3. Plaintiff Roderick H. Wenzel (hereinafter "Wenzel" or "Plaintiff"), is a citizen of the United States and a resident of Leon County, Florida, who has so resided at the times material hereto.
4. Defendant William G. Bankhead (hereinafter "Bankhead"), in his official capacity, is Secretary of the Florida Department of Juvenile Justice (hereinafter "DJJ"). DJJ is an agency of the State of Florida created by statute for the principal purpose of dealing with youthful offenders in the criminal justice system. DJJ maintains its headquarters in Tallahassee, Leon County, Florida. Bankhead is and, at all times material hereto was the highest ranking official of DJJ, reporting only to the Governor.
5. Defendant William G. Bankhead in his individual capacity transacts business in Leon County, Florida.
6.Count I of this Complaint seeks injunctive and other equitable and ancillary relief against Bankhead in his official capacity. Count II seeks monetary damages against Bankhead in his individual capacity.
CONDITIONS PRECEDENT
7.All conditions precedent to institution of this action have been performed or have occurred.
GENERAL ALLEGATIONS
8. Plaintiff was employed by the State of Florida for seventeen (17) years, four (4) of them with DJJ.
9. Plaintiff has previously served in good standing as a senior governmental analyst with Governors Lawton Chiles and Jeb Bush, in addition to honorable service at Florida State University and at the Florida Department of Transportation.
10.At DJJ, Plaintiff consistently received "Outstanding" evaluations, the agency's highest, and won the prestigious Davis Productivity Award.
11. Plaintiff had no reprimands or discipline in seventeen (17) years of employment with the State of Florida.
12. DJJ, alone among the various agencies of the State of Florida, subjects its current employees to random drug testing even if those employees are not in safety-sensitive positions or are not suspected of drug use. This is pursuant to DJJ policy 4.07, Drug Testing.
13. On June 27, 2003, a DJJ personnel officer notified Plaintiff that he had been randomly chosen to submit to a drug test.
14. DJJ did not suspect Plaintiff of drug use.
15. Plaintiff did not work in a safety-sensitive position nor perform safety-sensitive functions.
16. Plaintiff had no contact or interaction with juvenile offenders in his job and did not work in or around facilities or programs that held juvenile offenders.
17. The personnel officer informed Plaintiff that he was to come immediately to the personnel area to have "the patch" applied. The "patch" is an adhesive skin-cell collection device sometimes used in lieu of urine samples and other forms of drug testing.
18. Plaintiff refused to submit to the test, citing his right to privacy and his rights under the Fourth Amendment.
19. DJJ communicated nothing further to Plaintiff about drug testing until six weeks later, on August 8, 2003, when Plaintiff's supervisor, DJJ Chief of Staff Jane McElroy ("McElroy"), met with Plaintiff about his refusal.
20. McElroy requested that Plaintiff submit to the random drug test to be in compliance with agency policy.
21. Plaintiff again refused, citing his right to privacy, his Fourth Amendment rights, lack of case law or statutory basis supporting drug testing in such situations, and his desire to be judged by the content of his character and excellent evaluations.
22. McElroy stated that she would have to discuss the matter with the Deputy Secretary, that the discipline might range from a written reprimand to dismissal, and that she would get back to Plaintiff in a few days.
23. Plaintiff heard nothing further until five weeks later on September 17, 2003, when McElroy asked him to attend a meeting at a conference room at DJJ headquarters.
24. Plaintiff met with McElroy, an agency attorney, and the agency Director of Quality Assurance.
25. The attorney stated that because Plaintiff had refused a random drug test, a positive test result was assumed, therefore McElroy regarded him as suspicious and now demanded a suspicion-based drug test.
26. The DJJ attorney added that a refusal to submit to the drug test would be regarded by DJJ as an act of insubordination which would result in dismissal.
27. Plaintiff again refused the drug test and was fired.
28. The acts of DJJ's various employees in enforcing a random drug test policy, in selecting Plaintiff for drug tests and taking adverse actions against him are the acts of Bankhead in both his individual capacity and his official capacity.
29. The termination of Plaintiff's employment was for refusal to submit to a drug test.
30.Plaintiff has had to retain counsel and owes a reasonable attorney fee to vindicate his rights in these matters.
COUNT I -- 42 U.S.C. § 1983
FOURTH AND FOURTEENTH AMENDMENT VIOLATION
OFFICIAL CAPACITY
31. The Plaintiff realleges Paragraphs 1 through 30.
32. The foregoing facts establish a basis for reinstatement, restoration of pay, benefits, and status, and other injunctive and equitable and ancillary relief against Defendant Bankhead in his official capacity.
33. Defendant Bankhead, in his official capacity, is a "person" within the meaning of § 1983.
34. The acts of Defendant as described herein were taken under color of state law, custom, or usage.
35. The acts of Defendant as described herein were purposeful and arise from an official policy or custom.
36. The Fourteenth Amendment of the United States Constitution guarantees that no state shall deprive any person of liberty without due process of law. The Fourth Amendment of the United States Constitution, applicable to the states under the Fourteenth Amendment, guarantees the right of the people (including public employees) to be secure in their persons, and to enjoy freedom from the fear of unreasonable searches and seizures.
37. Defendant's policy of imposing drug testing at random upon employees such as Plaintiff, on its face and as applied to Plaintiff, has deprived Plaintiff of his rights under the Fourth and Fourteenth Amendments of the United States Constitution by interfering with his fundamental rights to freedom from unreasonable searches and seizures without adequate justification and without exhausting less restrictive measures.
38. In violating Plaintiff's constitutional rights to freedom from unreasonable, unnecessary and thus, unlawful searches and seizures, Defendant has caused and continues to cause damage to Plaintiff, including, without limitation, loss of employment, wages, benefits, seniority, status, and reputation.
COUNT
II -- 42 U.S.C. § 1983
FOURTH AND FOURTEENTH AMENDMENT VIOLATION
INDIVIDUAL CAPACITY
39. The Plaintiff realleges Paragraphs 1 through 30.
40. The foregoing facts establish a basis for damages and ancillary relief against Defendant Bankhead in his individual capacity.
41. The acts of Defendant as described herein were taken under color of state law, custom, or usage.
42. The acts of Defendant as described herein were purposeful and arise from an official policy or custom.
43. The Fourteenth Amendment of the United States Constitution guarantees that no state shall deprive any person of liberty without due process of law. The Fourth Amendment of the United States Constitution, applicable to the states under the Fourteenth Amendment, guarantees the right of the people (including public employees) to be secure in their persons, and to enjoy freedom from the fear of unreasonable searches and seizures.
44. Defendant's policy of imposing drug testing at random upon employees such as Plaintiff, on its face and as applied to Plaintiff, has deprived Plaintiff of his rights under the Fourth and Fourteenth Amendments of the United States Constitution by interfering with his fundamental rights to freedom from unreasonable searches and seizures without adequate justification and without exhausting less restrictive measures.
45. Defendant knew, or a reasonable official in Defendant's position would have known, that the acts of Defendant as described herein, violated clearly established law.
46. In violating Plaintiff's constitutional rights to freedom from unreasonable, unnecessary and thus, unlawful searches and seizures, Defendant has caused and continues to cause damage to Plaintiff, including, without limitation, stress and loss of enjoyment of life.
47. The acts of Defendant were malicious, willful and wanton.
Prayer for Relief
WHEREFORE, Plaintiff prays for the following relief:
(a) that process issue and this Court take jurisdiction over this case;
(b) judgment against the Defendant in his individual capacity and for Plaintiff awarding compensatory and punitive damages against Defendant for the violations of law enumerated herein;
(c) judgment against the Defendant in his official capacity and for the Plaintiff permanently enjoining Defendant from future violations of law enumerated herein, reinstating Plaintiff with no interruption of service to a status the same as if he had never been discharged, and remedying all past and future lost income, raises, promotions, and other benefits and earnings of which Plaintiff has been unlawfully deprived;
(d) prejudgment interest;
(e) judgment against the Defendant and for the Plaintiff awarding the Plaintiff his attorneys' fees and costs pursuant to 42 U.S.C. § 1988;
(f) Advancement of this case on the calendar pursuant to Fed.R.Civ.P. 57; and
(g) such further relief as is equitable and just.
Jury Demand
Plaintiff demands trial by jury on all issues so triable.
Respectfully submitted,
Richard
E. Johnson
Florida Bar No. 858323
Lisa
C. Lambert
Florida Bar No. 495298
Law
Offices of Richard E. Johnson
314 West Jefferson Street
Tallahassee, Florida 32301
850/ 425-1997
850/561-0836 facsimile
Cooperating Attorneys For The American Civil Liberties Union Foundation Of Florida, Inc. -- Tallahassee Chapter
Randall
C. Marshall
American Civil Liberties Union Foundation of Florida, Inc.
4500 Biscayne Boulevard, Suite 340
Miami, Florida
(305) 5762337
Florida Bar No. 181765
