Romero v. City of Miami, 8 F. Supp. 3d 1321

Romero, the City of Miami, Oklahoma’s former Chief Financial Officer, sues the City, several City officers, and two municipal entities (MESO and OMUSA) alleging unconstitutional drug/alcohol testing and unlawful termination.
The City’s Personnel Policy allowed random testing without individualized suspicion, including for Romero as CFO.
Romero’s test was administered by an OMUSA employee at a MESO-related testing setup; Hill and an OMUSA representative were present.
Romero informed Wells, Hill, Anderson, and Wilson that he believed the testing was illegal and violated his civil rights due to lack of safety position-basis and lack of individualized suspicion; he asserts retaliation and policy manipulation followed his inquiries.
Romero filed an EEOC claim (Feb. 2, 2012) and a Notice of Tort Claim (Feb. 23, 2012); he filed suit on June 19, 2012; OMUSA moved to dismiss for GTCA exhaustion, and other defendants moved to dismiss several counts; later, the court granted in part and denied in part the motions.
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Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether OMUSA's GTCA exhaustion defeats Romero's §1983 claims	Romero argues GTCA exhaustion does not apply to §1983 claims	OMUSA contends GTCA exhaustion is required	GTCA exhaustion not a bar to §1983 claims; denial of OMUSA's motion to dismiss
Whether the §1983 claims against the Individual Defendants survive personal-involvement standards	Romero pled supervisory liability via promulgation/maintenance of unlawful policy	Defendants contest personal involvement and state-of-mind requirements	Romero adequately alleged personal involvement, satisfying supervisory liability pleading standards
Whether the Individual Defendants are entitled to legislative immunity	Immunity does not apply to administrative termination decision	Actions were legislative and protected	Legislative immunity does not apply to these administrative actions; not protected
Whether Anderson is entitled to qualified immunity on §1983 claim based on legal advice	Anderson liable as supervisor; right clearly established	No clearly established law forbidding advisor's conduct	Anderson not entitled to qualified immunity at this stage; Chandler v. Miller cited as clearly established

Howlett ex rel. Howlett v. Rose, 496 U.S. 356 (1990) (§1983 claims not barred by GTCA where state law remedies are foreclosed)
Tiemann v. Tul-Ctr., Inc., 18 F.3d 851 (10th Cir.1994) (§1983 claim may exist despite GTCA foreclosing state relief)
Phillips v. Wiseman, 857 P.2d 50 (Okla.1993) (double-barreled GTCA/§1983 liability interplay)
Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010) (supervisory liability standard for §1983 claims)
Barney v. Pulsipher, 143 F.3d 1299 (10th Cir.1998) (supervisory liability analysis for municipal policy)
Brown v. Board of County Comm’rs, 520 U.S. 397 (1997) (culpability/causation when policy violates federal law)
Kamplain v. Curry County Bd. of Comm’rs, 159 F.3d 1248 (10th Cir.1998) (distinguishes legislative acts from administrative personnel decisions)
Chandler v. Miller, 520 U.S. 305 (1997) (suspicionless testing rights clearly established when no public-safety interest)
19 Solid Waste Dep’t Mechanics v. City of Albuquerque, 156 F.3d 1068 (10th Cir.1998) (special-needs suspicionless testing discussion)
Gilmore v. Enogex, Inc., 878 P.2d 360 (Okla.1994) (intrusion upon seclusion in private-employer context; distinctions for public entities)