A public employee established a Fourth Amendment violation by several individual supervisors of his former employer when they selected him for reasonable suspicion drug testing – and later discharged him — based on an unreliable anonymous tip. Greer v. McCormick, 2:14-cv-13596 (E.D. Mich. April 10, 2017).

The Plaintiff, Ralph Greer, was a former employee of the Detroit Department of Water and Sewage (“DWSD”). He worked as a Construction Inspector and drove a DWSD truck to various sites to oversee construction and repair work that private contractors performed for DWSD. DWSD had a policy requiring drug testing when employees were involved in accidents or when they returned from absences beyond a specified length.

One morning Greer was told to report for a drug test but was not given a reason for the test, so he refused. He subsequently was suspended and discharged for “possession, consumption, use of or being under the influence of” alcohol or drugs and for refusing the drug test. Greer denied ever using drugs or alcohol while at work and sued five DWSD supervisors for their role in his selection for drug testing and subsequent discharge, arguing that the drug test was an unreasonable search and seizure in violation of the Fourth Amendment.

Defendants claimed that they had reasonable suspicion to test Greer, 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 photographed a black male rolling a marijuana cigarette while sitting in a DWSD-owned vehicle in a certain neighborhood in Detroit. The photographs, however, never were produced. The reporter also passed along a vehicle number that allegedly appeared on the vehicle in the photographs that he never saw. Based on that vehicle number, DWSD supervisors linked the vehicle as being assigned to Greer on the date in question. No one, however, questioned Greer or attempted to verify whether he was even in that neighborhood on that date. Greer denied being in that neighborhood on the date in question.

The Court held that uncorroborated anonymous tips, standing alone, cannot form the basis of a reasonable suspicion test against a public employee, and that the public officials had an obligation to establish the reliability of the anonymous tip before conducting a drug test. It was undisputed that no one at DWSD made any effort to corroborate or establish the reliability of the reporter’s tip. No one saw the photos and no one made any effort to find out who took the photos. The fact that Greer’s job was “safety-sensitive” also did not sway the Court because DWSD did not have a uniformly-applied safety-sensitive drug testing program, and, Defendants claimed that the test was based on “reasonable suspicion.” The Court held that Plaintiff established a Fourth Amendment violation and that he was entitled to summary judgment on the issue of liability.