Un-Reasonable Suspicion: A Cautionary Tale for Program Administrators

Workplace disagreements are common. What is important is that employers establish clear and reasonable protocol and ensure that appropriate training and controls are implemented to prevent a monumental escalation like that involved in the federal case Hudson v. City of Riviera Beach.[1]

In the case, the multi-media specialist for the City of Riviera Beach and the plaintiff in the case, Michael Hudson, contends that he had an argument with Troy Perry, the son of the Human Resources Director for the City, Doretha Perry (Perry). Hudson alleges that Troy and Doretha conspired to exploit her position to satisfy a vendetta against him by ordering three supposed “reasonable suspicion” drug and alcohol tests.

When asked to justify her decision to conduct a reasonable suspicion drug test with records supporting the determination, according to Hudson Doretha initially indicated that “[i]t does not work like that[.] I don’t have to give you anything. [T]here are no records[.]” Hudson alleges that she later indicated she would provide the documentation if she was given a records request. The following day, Perry gave Hudson a “one-paragraph explanation” which “stated that Perry had ‘received several verbal complaints from employees the latest being on January 29, 2009, stating that [Hudson’s] eyes were glassy and [he] smelled like marijuana.’”[2] Under oath, Perry indicated that she had forgotten who complained. Perry would later change her story to indicate that she had received a tip from an employee who had heard the information from another employee. Perry, according to Hudson, had also admitted that she tested employees based on her gut feelings and stated that she had been doing so for years.

At this point, the following policy inadequacies are made evident:

• The drug-free workplace policy lacked a clear and reasonable policy on who can make reasonable suspicion determinations and why. This is evidenced by the fact that Hudson’s manager was not involved with nor informed of the reasonable suspicion determination to test and Perry, the HR director, had not observed any phenomena herself. A clear and reasonable policy often indicates that in order to test under reasonable suspicion, either one or two trained, direct supervisors must personally observe specific, contemporaneous indicators of changes in speech, behavior, or appearance which might indicate substance use or abuse at work.
• No one involved in reasonable suspicion drug or alcohol testing had taken a comprehensive DOT or Non-DOT supervisor reasonable suspicion training course in order to adequately make, handle, and document such determinations.
• Whosoever was ultimately responsible for implementing the City’s drug-free workplace policy did not establish enough controls in place to prevent abuse of discretionary power in such reasonable suspicion determinations.

Ultimately, the United States District Court for the Southern District of Florida held that “Perry lacked any suspicion whatsoever to drug-test [Hudson] and instead did it to exact vengeance on [him]. This is in no way related to any public-safety measure or other recognized government interest supporting a suspicionless search. In the absence of any suspicion at all, such a personal and abusive use of the government’s power to conduct drug-testing so obviously violates Fourth Amendment rights that no case law stating this proposition was necessary to have put Perry on notice of its unconstitutionality.”[3] As a result, the court stripped Perry’s qualified-immunity as a city employee entirely and allowed the suit to move forward against her personally.[4]