Parks v. Terrebonne Parish Consolidated Government et al
ORDER AND REASONS granting 85 Motion for Summary Judgment. The Parish is entitled to judgment as a matter of law and the plaintiffs claims are hereby dismissed with prejudice. Signed by Judge Martin L.C. Feldman on 1/10/2018. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TERRY ALLEN PARKS
CONSOLIDATED GOVERNMENT, ET AL.
ORDER AND REASONS
Government’s motion for summary judgment. For the reasons that
follow, the motion for summary judgment is GRANTED.
This civil rights litigation arises from a former Terrebonne
retirement after failing a drug test.
Terry Allen Parks has a bachelor’s degree in computer science.
He began working for Terrebonne Parish Consolidated Government
(TPCG, or the Parish) on April 5, 1982 and, after a probationary
period, he became a permanent employee of the Parish. He ultimately
worked in a safety-sensitive position in Pollution Control, where
his duties included working on computers that operated the sewer
system, providing technical support to all phases of the waste
water division, maintaining the sewer record drawings file system,
development and public projects, and providing all primary phases
(supervisory control and data acquisition) and GIS systems.
addition to operating the SCADA system, Mr. Parks also conducted
field and survey work.
As a tenured and permanent public employee, Parks could only
be terminated for cause.
During his 33 years of employment, Parks
had only one reprimand.
Parks planned to retire at the age of 62,
in 2021, despite having the necessary retirement credits to have
done so since April 2014. Parish employees who retire are entitled
to post retirement group health benefits provided by the Parish.
On the other hand, Parish employees who are terminated for cause
are not entitled to post retirement group health benefits.
Throughout Parks’s employment, the Parish had in effect a
drug testing policy under section 13 of the TPCG personnel manual,
employees, 1 as well as a grievance procedure, under section 8 of
Section 13, E-2.1 states,
All DOT regulated employees and NON-DOT employees who
occupy safety-sensitive...positions, shall be subject to
specimen...for routine analysis and screening for the
the TPCG personnel manual. 2
The drug testing policy provides that
“all [Parish] drug screens shall be submitted in accordance with
Transportation at 49 CFR Part 40.”
Pursuant to Parish policy,
“[t]he confirmed presence of a controlled...substance in a urine
sample...shall result in termination of said individual.”
Parish’s drug policy mandates that “[a] urine sample of a[n]
employee which has been confirmed as having the presence of a
controlled dangerous substances must be retained by the laboratory
in properly secured, long-term, frozen storage for at least one
Any employee who has been informed that his urine sample
tested positive for a controlled substance “shall have the right
to arrange for a retesting of a portion of his/her original urine
specimen if the employee makes a written request for retesting
presence of controlled dangerous substances and alcohol,
in accordance with all applicable state and federal laws
grievance procedure at section 8.2 provides, among other
D. The only grievance which may be brought as an appeal
and be the subject of a hearing before the Personnel
Board is a disciplinary action taken against a full-time
permanent employee, such as suspension, dismissal,
reduction in pay or demotion, and then to test the
reasonableness of such action. No other grievances or
complaints may be brought as an appeal before the
E. An employee who wishes to request a hearing before
the Personnel Board must submit a written statement to
the Personnel Director within eight (8) working days
within sixty days of receipt of the final test result from the MRO
[medical review officer].”
The drug testing policy states that
Department of Transportation at 49 CFR Part 40.”
results...shall be ineligible for employment with TPCG for a period
of one year.”
As a safety-sensitive employee, Mr. Parks was required to
submit to random drug tests as a condition of employment.
2003, Mr. Parks submitted to seven random drug screens. On October
12, 2015, Parks, as he had done in the past, was required to submit
to a random drug test as a condition of his employment as an
Parks’s immediate supervisor, Michael
Ordogne, informed Parks that he had been randomly selected to take
a drug test.
The drug testing process consists of three parts:
the drug test was administered and the sample collected by MultiManagement Services, Inc. (MMSI); the sample was tested by Alere
Toxicology Services, Inc.; and it was reviewed by Brian N. Heinen,
a Professional Medical Corporation.
Sometime before 8:30 a.m. that day, Parks drove to MMSI.
MMSI’s Kevin LeCompte, who as part of his training was familiar
with the Parish’s drug screening procedures, handled the urine
LeCompte used the Non-Federal Four-Part Drug Testing
and Control Form.
One copy of the form goes with the collector,
MMSI, one goes to the medical review officer, one goes to the
employee submitting the specimen, and the fourth goes to the lab,
One of those sheets contains the labels which are put on
the vials containing the urine to seal them for chain of custody
Parks’s specimen ID number provided by the drug testing
and control form was 202232929.
With LeCompte standing outside
the restroom, Parks urinated in the cup, and returned the cup to
LeCompte, in Parks’s presence, then poured the urine into two
Then, Parks accompanied LeCompte to his office, where they
finished the paperwork.
LeCompte documented the time and temperature of the specimen.
LeCompte completed the Drug Testing and Control Form in Parks’s
Parks signed the form.
In so signing, Parks certified
that the specimen he provided was his, and that it was not
adulterated in any manner, that the specimen was sealed with a
tamper-evidence seal in his presence, and that the information
provided on the form and the label affixed to each specimen was
As is standard procedure, LeCompte sealed the vials with
a tamper proof seal while Parks sat in front of him.
then put the sealed vial next to a pen in front of Parks for him
While LeCompte completed his paperwork, he saw that
Parks had a pen in his hand and LeCompte saw Parks moving the pen;
LeCompte thought that Parks was initialing the vials.
did not initial the vials.
Parks did not complain to anyone at
MMSI that there was any issue with his specimen or with the sealing
of the vials.
For chain of custody purposes, the number of the label placed
on the specimen vial (here, 202232929) coincides with the number
on the drug testing and control form.
LeCompte then puts the vials
in a plastic bag which is to be sent to the lab and completes the
The lab’s, Alere’s, chain of custody matches that of
samples for federally mandated drug tests as well as those required
concerning Parks’s urine by comparing the seal number on the vial
to that of the Drug Testing and Control Form.
After chain of
custody was verified, Alere checked the sample for any fatal flaws.
A fatal flaw would prevent it from performing the testing.
matching, or the seal on the vial not being intact, or if there
was an insufficient amount of urine.
Alere also follows a chain
of custody once the vials enter the laboratory.
chain of custody.
Parks’s urine sample that Alere received was
sealed with the lab number certified by Parks.
protocol for testing.
Alere followed its
Once verifying chain of custody and ruling
out fatal flaws, Alere personnel broke the seal on the vial, poured
into a bar coded tube the aliquot (a small portion of the sample),
certified by Parks contained 31 nanograms per milliliter of THC.
There were no flaws that prevented testing of the sample, and
personnel from Alere testified that “[t]here were no errors in
this testing.” 3 That Parks neglected to initial the specimen label
-- the specimen sample sealed with a specimen identification number
that he certified was his -- is not considered a flaw, nor is it
the sort of flaw that is required to be corrected.
Because the sample tested positive for marijuana, the results
were sent to the medical review officer (MRO), Dr. Heinen, on
October 14, 2015.
The MRO received the results and chain of
custody from Alere, which showed the positive indication for
Brittany Comeaux, who assists Dr. Heinen on non-DOT
tests, attempted to call Parks to collect information such as what
Alere’s David Green, Ph.D., testified:
There were no problems with the chain of custody, and
I’m 100 percent confident that the sample we received
sealed with this lab number and certified by Mr. Parks
contained marijuana, delta 9 THC carboxylic acid, at a
concentration of 31 nanograms per milliliter.
type of medications he was taking at the time of testing, to
determine whether it contained THC.
Comeaux attempted to contact
Parks several times before they spoke on the morning of October
15, 2015 at 9:16 a.m.
Comeaux informed Parks that his sample had
tested positive for marijuana and then, consistent with protocol,
asked him about any medications he takes and whether he has had
any recent medical procedures. Parks told Comeaux what medications
he takes and confirmed that he had not recently undergone any
Comeaux then asked if he currently or has
recently used marijuana, to which Parks responded no.
asked whether he had ever used it in the past.
that he had used it in the past, but that “it’s been a while.”
Comeaux then asked whether he had been given a prescription for
marijuana use; he had not.
Comeaux then informed Parks that he
could have the same sample re-tested at a different lab, but he
Parks also declined to speak with Dr. Heinen.
submitted the paperwork to Dr. Heinen, who checked the chain of
custody and confirmed that the form matched the lab report. 4
When an employee submits a urine specimen that tests positive
for a controlled substance, Parish policy calls for termination
subject to retest of the same urine sample and the right to appeal
Dr. Heinen testified that Parks’s test was non-DOT, which allowed
people whom he had trained to do the review to collect the data
to the personnel board.
On October 15, 2015, when Parks was
advised that his urine sample had indicated positive for marijuana
metabolites, he explored his options. Throughout the day, he spoke
with an attorney, his wife, as well as the Parish human resources
director, J. Dana Ortego, his supervisor, Michael Ordogne, and
Parish Manager Al Levron.
The first person Parks called after he was informed of the
positive drug screen was TPCG’s human resources director, J. Dana
Parks informed Ortego that he had just been advised that
his drug test indicated positive for marijuana.
that Parks could have the same sample retested at his expense. 5
Mindful of parish policy and knowing that employees who had failed
immediately,” Parks asked Ortego how the positive drug test would
impact his employment. Parks specifically “asked him if [the
positive drug test] would affect my retirement.”
that he was “asking if [it was possible for him to] retire[, which
would allow him to] maintain [his] group health insurance.” Ortego
said he would have to talk to administration.
Ortego says he “gave Mr. Parks the opportunity to ask me whatever
questions he wanted.” Parks says Ortego “was the most hush-mouthed
of everybody. He really didn’t tell me much except they had to
talk to administration about it.”
At some point during the day after he was notified of the
positive drug test, Parks called an attorney that had previously
represented him in another matter to see if she could take his
More than once that day, Parks called his wife, Althea
Parks, who was also employed by TPCG.
Mrs. Parks testified that
she told her husband if he had the option, he should probably
Parks called and spoke with Dr. Hans Heinen (another doctor
at Dr. Brian Heinen’s office) because he wanted to find out the
drug collection procedures.
Parks then spoke with Michael Ordogne
in Ordogne’s office; Parks informed him that he failed the drug
Parks spoke with Ordogne in his office at least one other
time later that day. Ordogne told Parks that he would have to call
parish administrators to discuss with them whether retirement was
an option, but that otherwise he would have to be terminated. 6
When Parks left Ordogne’s office, he called Parish Manager Al
Mike Ordogne testified that Parks was in his office and admitted
that he had smoked marijuana, and was worried that people would
think he was a pothead.
Ordogne assured him that the positive
drug test was confidential. Ordogne testified that Parks indicated
that he felt the drug test was not handled correctly, but he did
not recall Parks identifying anything specific about the alleged
mishandling. Parks testified that he told Ordogne (and possibly
Levron) at some point that he did not remember putting his initials
on the vial seals.
Levron testified that they discussed appeal rights,
retesting the urine sample, and issues concerning termination or
Parks told Levron he failed a drug test and said,
“Looks like I’m going to be fired.”
Levron testified that he told
Parks that “there are appeal procedures that are available to you
in the parish code” and offered to send them to him.
he already had the manual, but Levron said he would send it anyway.
Parks says Levron asked Parks how old he was.
Parks explained he
was 55, but that he was eligible for retirement because he was
already in the DROP program.
Levron and Parks discussed the
possibility of retirement, but Levron could not offer Parks that
option without speaking to the parish president. Parks says Levron
told him he should retire.
Levron also emailed Parks the Parish’s
drug testing policy even though it was available on the intranet.
When Parks spoke to Levron a second time later that day, Parks
testified that Levron told him that he “needed to retire or that
I would in all likelihood be terminated tomorrow.”
At some point during the day, Ortego participated in a
meeting with parish manager Al Levron, parish president Michel
Claudet, and parish attorney Courtney Alcock to discuss Parks’s
During the meeting, Ortego alluded to the procedures in
Ortego described the typical procedure as follows: if he is
advised that an employee tested positive for an illegal drug, he
reports that finding to his direct supervisor, Al Levron, who then
reports the result to the parish president.
the manual and said that termination subject to appeal was the
likely course of action.
According to Ortego, they discussed how
Parks had been a longstanding employee of the Parish and as a
result Parish officials considered allowing him to retire instead
of firing him.
Everyone agreed that Parks should be given the
The parish president had no objection to
administration allowing Parks to request retirement instead of
processing his termination.
Sometime after the meeting, Levron called Ortego and told him
that when Parks gets off work, he will be going to Ortego’s office;
Levron advised Ortego to accept Parks’s retirement letter.
called Levron again and asked him whether or not he would be
allowed to retire.
Levron conveyed the administration’s decision
to Parks, who was advised that he would be permitted to take early
When Parks arrived at Ortego’s office to finalize his
retirement, he asked if there was a retirement form he could
Ortego told him no, and gave him a pad of paper, in
which Parks wrote:
Please accept this as my request for retirement
effective today (10/15/15) 4:00pm. I would also like to
take advantage of any retirement benefits I am entitled
Parks signed and dated the request, and it was stamped Received by
TPCG Human Resources that same day, October 15, 2015.
had the urine sample retested, never had another drug screen, and
never applied for reemployment following the one year period of
Consolidated Government, Multi-Management Services, Inc., Alere
Toxicology Services, and Brian N. Heinen, a professional medical
corporation, alleging that the positive test result was due to
procedural errors made by MMSI, Alere, and Heinen in administering
the test, and that the positive drug test, which was done and taken
termination of a tenured public employee like him.
After three of
the defendants filed motions to dismiss, the plaintiff amended his
Parks alleges in his amended complaint that the drug
test was unreasonable under the Fourth Amendment because it was
not conducted in accordance with minimum procedural requirements
and standards, and that MMSI, Alere, and Heinen were acting under
color of state law and in accordance with official municipal
He alleges that TPCG, acting in accordance with its
municipal policy, relied solely on the procedurally defective and
Parks testified that he was familiar with the grievance process
available to Parish employees. However, he indicated in his
deposition that he was unsure whether or not he could pursue a
grievance process once he was no longer employed by the Parish.
Parks also testified that he never applied for reemployment
consistent with G-6 of the Parish’s drug testing policy.
Court denied as moot the motions to dismiss the initial
unconstitutional drug test in presenting Parks with the ultimatum
to either take early retirement, or be terminated.
As a result of
discharge, Parks alleges he suffered financial losses including
past lost wages, lost future earnings, lost life insurance premium
benefits, lost long-term and short-term disability benefits, and
lost deferred retirement benefits; he also claims that he has
suffered mental anguish, emotional distress, and loss of enjoyment
Parks seeks reinstatement as well as damages.
On February 22, 2017, the Court granted MMSI’s motion to
dismiss the plaintiff’s claims against it.
On that same day, the
Court granted in part and denied in part the Parish’s motion to
dismiss or for summary judgment: the motion was granted insofar as
the Parish requested dismissal of the plaintiff’s Section 1983
claim based on the Fourth Amendment; the motion was denied in part
insofar as the Parish sought dismissal of the plaintiff’s Section
1983 claim based on the Fourteenth Amendment, insofar as it sought
dismissal of the plaintiff’s state law claims (due to inadequate
briefing), and insofar as it alternatively sought summary judgment
or a more definite statement.
In March 2017, Alere’s motion for
judgment on the pleadings was granted, and the plaintiff’s claims
plaintiff’s failure to obtain a responsive pleading or entry of
The Parish now seeks summary relief dismissing the
plaintiff’s remaining claims.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.
In this regard,
the non-moving party must do more than simply deny the allegations
raised by the moving party.
See Donaghey v. Ocean Drilling &
Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).
must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.
Hearsay evidence and
unsworn documents that cannot be presented in a form that would be
Martin v. John W. Stone Oil Distrib., Inc.,
819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319
(5th Cir. 2007)(internal quotation marks and citation omitted).
Ultimately, "[i]f the evidence is merely colorable . . . or is not
Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are
improper as summary judgment evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007).
the Court must "resolve factual controversies in favor of the
nonmoving party," it must do so "only where there is an actual
controversy, that is, when both parties have submitted evidence of
Antoine v. First Student, Inc., 713 F.3d
824, 830 (5th Cir. 2013)(internal quotation marks and citation
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
It creates a
private right of action for violations of federally-secured rights
under color of state law:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State..., subjects,
or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws...shall
be liable to the party injured.
42 U.S.C. § 1983.
To state a § 1983 claim, a plaintiff must
satisfy three elements:
(1) deprivation of a right
Constitution or federal law;
that occurred under color of state law, and
was caused by a state actor.
Victoria W. V. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)(citation
Parks’ remaining Section 1983 claim against the Parish must
Municipalities are “persons” within the meaning of § 1983.
v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
But, it has
been cautioned, “[t]hey are liable only for their own acts and not
those attributed to them by principles of respondeat superior.”
Larpenter, 369 F.3d at 482 (citing Monell, 436 U.S. at 691-92).
Imposition of Section 1983 liability against a municipality under
constitutional tort is caused through the execution of a policy or
custom of the municipality.
See Bowen v. Watkins, 669 F.2d 979,
989 (5th Cir. 1982)(citation omitted).
“[A] local government may
not be sued under § 1983 for an injury inflicted solely by its
government’s policy or custom ... inflicts the injury that the
government as an entity is responsible under § 1983.”
U.S. at 694.
To determine whether municipal liability attaches, the Court
looks to whether unconstitutional conduct is directly attributable
“isolated unconstitutional actions by municipal employees will
Houston, 237 F.3d 567, 578 (5th Cir. 2001)(citations omitted).
Indeed, the rules for imposing municipal liability are wellsettled; proof of three elements is vital: (1) a policy maker; (2)
an official policy or custom; and (3) causation: a violation of
constitutional rights whose “moving force” is the policy or custom.
Id. (citing Monell, 436 U.S. at 694). 10
Official municipal policy,
the U.S. Supreme Court has observed, “includes the decisions of a
government’s lawmakers, the acts of its policymaking officials,
and practices so persistent and widespread as to practically have
the force of law.” See Connick v. Thompson, 131 S.Ct. 1350, 1359
municipality is actually responsible.’”).
The Fifth Circuit has
defined an official policy for Section 1983 purposes as:
1. A policy statement, ordinance, regulation, or
decision that is officially adopted and promulgated by
the municipality’s lawmaking officers or by an official
to whom the lawmakers have delegated policy-making
2. A persistent, widespread practice of city officials
or employees, which, although not authorized by
officially adopted and promulgated policy, is so common
and well settled as to constitute a custom that fairly
represents municipal policy.
Actual or constructive
knowledge of such custom must be attributable to the
Proof of these three elements is necessary “to distinguish acts
of the municipality from acts of employees of the municipality,
and thereby make clear that municipal liability is limited to
action for which the municipality is actually responsible.” Burge
v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999)
governing body of the municipality or to an official to
whom that body had delegated policy-making authority.
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984)(en
“Municipal liability for civil rights violations under § 1983
is based on causation, rather than respondeat superior.”
v. City of Dallas, 541 F.3d 545, 548 (5th Cir. 2008)(citation
“The fact that a tortfeasor is an employee or agent of
a municipality is therefore not sufficient for city liability to
attach; the municipality must cause the constitutional tort, which
occurs ‘when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury.’”
“That a plaintiff has suffered a deprivation
of federal rights at the hands of a municipal employee will not
alone permit an inference of municipal culpability and causation;
the plaintiff will simply have shown that the employee acted
Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. V. Brown,
520 U.S. 397, 411 (1997)(“Where a court fails to adhere to rigorous
requirements of culpability and causation, municipal liability
collapses [impermissibly] into respondeat superior liability.”).
A determination of municipal liability demands more, imposing “a
stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.”
(“A plaintiff must demonstrate that a municipal decision reflects
“Liability for unauthorized acts is personal; to
hold the municipality liable, Monell tells us, the agent’s action
must implement rather than frustrate the government’s policy.”
Bolten, 541 F.3d at 551 (quoting Auriemma v. Rice, 957 F.2d 397,
400 (7th Cir. 1992)).
The Fourteenth Amendment forbids a state from depriving “any
person of life, liberty, or property, without due process of law.”
situations may endow an employee with a legally cognizable property
Muncy v. City of Dallas, Tex., 335 F.3d 394, 398 (5th
Cir. 2003)(citation omitted).
Whether a property interest exists
“is guided by the specific nature and terms of the particular
employment at issue, and informed by the substantive parameters of
the relevant state law."
To succeed on a Section 1983 claim based on termination of
employment without being afforded procedural due process, Parks
must demonstrate that (1) he has a property interest in his
employment sufficient to entitle him to due process protection;
and (2) that he was terminated without receiving the due process
protections to which he was entitled.
See McDonald v. City of
Louisiana, a permanent classified civil service employee has a
protected property interest in [his] job.”
See Wallace v. Shreve
Mem’l Library, 97 F.3d 746, 748 (5th Cir. 1996).
“’[S]ome type of
process purposes before a public employee who has a property
interest in his job may be terminated.”
Fowler v. Carrollton Pub.
Library, 799 F.2d 976, 980 (5th Cir. 1986)(citing Cleveland Bd. of
Educ. V. Loudermill, 470 U.S. 532, 542 (1985)).
When an employee submits a urine specimen that tests positive
for a controlled substance, Parish policy calls for termination
subject to retest of the same urine sample and the right to appeal
opportunities to retest and the post-deprivation right to appeal
to the personnel board, those are components of the Parish policy
The Parish appears to concede that Parks had a protected
constructively discharged, 11 the Parish’s failure to provide him
Fowler, 799 F.2d at 980.
“To show constructive discharge, an employee must offer
evidence that the employer made the employee’s working conditions
so intolerable that a reasonable employee would feel compelled to
Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 562
(5th Cir. 2003)(citation omitted). 12
A constructive discharge may
also occur when the employer places the employee “between the
Fowler, 799 F.2d at 981.
discharge in a procedural due process case constitutes a § 1983
claim only if it amounts to forced discharge to avoid affording
pretermination hearing procedures.”
Id.; see also Rutland v.
Pepper, 404 F.3d 921, 923 (5th Cir. 2005).
Of course, the Parish’s threshold argument favoring dismissal is
that Parks was not constructively discharged, but, rather, he
elected to retire.
12 Whether a reasonable employee
would feel compelled to resign
depends on the facts and circumstances of each particular case,
but the Fifth Circuit has identified a number of relevant factors;
the only one that is marginally relevant to this case is “offers
of early retirement on terms that would make the employee worse
off whether the offer was accepted or not.” Barrow v. New Orleans
S.S. Ass’n, 10 F.3d 292, 297 (5th Cir. 1994).
focuses on these factors because they are not relevant to the
circumstances of this case.
Parks submits that the facts of his case fall squarely within
the reach of Findeisen v. North East Ind. Sch. Dist., 749 F.2d 234
(5th Cir. 1984) and Bueno v. City of Donna, 714 F.2d 484 (5th Cir.
1983) because, as the Fifth Circuit described in Fowler, the
plaintiffs in Findeisen and Bueno were faced with choosing between
“the Scylla of voluntary resignation and the Charybdis of forced
But Parks glosses over critical language in those
cases, as amplified in the Fowler case, which removes his case
from the scope of those decisions:
Findeisen and Bueno, far from constitutionalizing any
cause of action for constructive discharge, apply only
in the narrow range of cases in which an employee
confronts an either/or termination proposition, and it
can be said that the state agency’s motive is to avoid
conclusion that a valid procedural due process claim
requires the employer’s conduct to have been motivated
by a desire to avoid subjecting its actions to the
scrutiny of a termination-related hearing.
Fowler, 799 F.2d at 981 (emphasis added).
Here, Parks fails to submit or point to any evidence in the
summary judgment record indicating or even compelling an inference
that the Parish was motivated by a desire to avoid pre-termination
proceedings when Parks was presented with the option to retire
instead of being fired. 13
In fact, the record indicates that the
Although the record indicates that Parks himself was the one to
request retirement, or at least question parish officials
Parish was motivated by Parks’s years of service when it opted to
reject its own policy mandating termination of employment for
employees who test positive for controlled substances in order to
allow Parks to retire, in consideration for his many years of
service, so that he could receive the benefits he would not
otherwise receive if he was fired.
Indeed, the record indicates
that Parks discussed his options with Ortego, Ordogne, and Levron,
conferred and discussed how Parks had been a longstanding employee
of the Parish; everyone agreed that Parks should be given the
allowing an inference that the Parish was motivated by a desire to
The Fifth Circuit has acknowledged that there is a “potential
conflict” in its case literature concerning whether a plaintiff
advancing a constructive discharge theory must prove that his
proceedings in addition to proving that the employee had to choose
regarding the impact of the positive drug screen on his retirement,
the Court declines to search the entire record to determine whether
there is any genuine dispute concerning whether it was Parks to
first request retirement, or the Parish to suggest it in lieu of
between resignation and termination; or whether it need only prove
one or the other. A case decided after Fowler (Brown v. Texas A &
M University, 804 F.2d 327, 333 (5th Cir. 1986)) held that a
plaintiff advancing a constructive discharge theory must prove
either that the employee was forced to choose between resignation
and termination or that the employer’s conduct was motivated by a
desire to avoid subjecting its actions to the scrutiny of a
Fed.Appx. 374, 377 n.1 (5th Cir. 2014)(declining to resolve the
“potential conflict” because LeBeouf alleges facts sufficient to
resignation and termination and that the defendant was motivated
by a desire to avoid pre-termination procedures).
was decided before Brown, it would ostensibly control under the
rule of orderliness doctrine (see LeBeouf, 373 Fed.Appx. at 377
n.1), dooming Parks’s constructive discharge theory in this case
for the reasons already articulated.
Nevertheless, even if the
Court assumes that Parks need only prove that he was forced to
choose between termination and retirement such that genuine issues
of material fact preclude summary judgment in favor of the Parish
on the constructive discharge theory, the Court finds that Parks
was given all the process he was due.
Assuming that Parks’s constructive discharge theory could
survive summary judgment, the Parish was constitutionally obliged
adequate procedural protections.
The Parish submits that the
summary judgment record discloses no genuine dispute that it
complied with its constitutional obligations.
The Court agrees.
With respect to pre-deprivation process, the Supreme Court
The essential requirements of due process ... are notice
and an opportunity to respond.
The opportunity to
present reasons, either in person or in writing, why
proposed action should not be taken is a fundamental
requirement. The tenured public employee is entitled to
oral or written notice of the charges against him, an
opportunity to present his side of the story. To require
more than this prior to termination would intrude an
unwarranted extent on the government’s interest in
quickly removing an unsatisfactory employee.
Loudermill, 470 U.S. at 546 (citations omitted).
To be sure,
“[p]rocedural due process is a flexible concept whose contours are
shaped by the nature of the individual’s and the state interests
in a particular deprivation.” Caine v. Hardy, 943 F.2d 1406, 141112 (5th Cir. 1991).
The necessary amount and kind of pre-
deprivation process thus depends on an analysis of three factors:
First, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest to the procedures used, and
the probative value, if any of additional or substitute
procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal
and administrative burdens that the additional or
substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
In other words, the form of the process (“some type of
purposes before an employee who has a property interest in his
employment may be terminated depends on the circumstances. 14
Loudermill, 470 U.S. at 542.
That “due process if flexible and
calls for such procedural protections as the particular situation
demands” 15 means that something less than a formal hearing often
comports with pre-deprivation due process; an employer may fashion
a less elaborate meeting so long as it achieves conferring the
The Court assumes, without deciding, that Loudermill applies
here, given that both sides have framed the procedural due process
debate in Loudermill terms. However, the Court is compelled to
observe that Fowler reasonably observed that “[t]he Loudermill
rule does not a fortiori apply to cases of alleged constructive
Fowler, 799 F.2d at 980 (explaining that “[a]
pretermination hearing is just not feasible when the gist of the
employee’s claim is that he was forced to resign by unbearable
It would seem to follow that a preconstructive discharge hearing is neither feasible nor necessary
where an employee elects early retirement to avoid the consequences
of termination called for by a positive drug test about which the
only purported challenge to the reliability of the test result was
that the plaintiff neglected to initial the seals. (The parties
quarrel about whether the plaintiff’s neglect was purposeful).
15 Gilbert v. Homar, 520 U.S. 924, 930 (1997).
process that is due.
To fashion sufficient process, the parties
must realistically assess what that process ultimately achieves.
[T]he constitutional minimums for due process require
that the final decision maker must hear and consider the
employee’s story before deciding whether to discharge
the employee. The purpose of this is self-evident. It
is to provide a “meaningful opportunity to invoke the
termination takes effect.”
Coggin v. Longview Independent School Dist., 337 F.3d 459, 465 (5
Cir. 2003)(citations omitted).
There, the Fifth Circuit, en banc,
“Both the employer and the employee benefit from this
opportunity, for it ensures that the decision maker reaches an
Id. at 466 n. 32 (citations omitted). “It
thus protects persons ‘not from the deprivation, but from the
Id. (citing Carey v. Piphus, 435 U.S. 247, 259
Indeed, although “some kind of hearing” is the minimum
The Supreme Court has cautioned:
The federal court is not the appropriate forum in which
to review the multitude of personnel decisions that are
made daily by public agencies. We must accept the harsh
fact that numerous individual mistakes are inevitable in
the day-to-day administration of our affairs.
United States Constitution cannot feasibly be construed
to require federal judicial review for every such error.
In the absence of any claim that the public employer was
motivated by a desire to curtail or to penalize the
exercise of an employee’s constitutionally protected
rights, we must presume that official action was regular
and, if erroneous, can best be corrected in other ways.
called for to satisfy due process, so long as an adequate postdeprivation remedy exists, “[pre-deprivation process] may consist
of no more than a meeting at which the employer states the grounds
for dismissal and gives the employee an opportunity for rebuttal.”
Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991)(citations
Such an opportunity was presented here.
On this record, Parks received adequate pre-deprivation due
He received notice and an informal hearing with his
supervisor, the human resources director, and the Parish manager.
In his informal discussions with these three people, Parks was
given ample opportunity to give any explanation for the failed
More, he was extended the courtesy of discussing the
options available to him, thus invoking the discretion of the
decision makers, even where it would seem, by Parish policy,
discretion was not indulged (termination for a failed drug test
was stated in mandatory terms).
It is undisputed that Parks was
notified that he failed a drug test, 17 and he met with parish
officials and employers throughout the ensuing day to discuss his
options, and to present any explanation he had for the test
The Due Process Clause of the Fourteenth Amendment is
not a guarantee against incorrect or ill-advised
Bishop v. Wood, 426 U.S. 341, 349 (1976).
17 It is likewise undisputed that Parks was familiar with Parish
policy regarding a failed drug test qualifying as a terminable
indicating positive for marijuana.
Parks’s supervisor (Ordogne),
the parish human resources director (Ortego), and the parish
manager (Levron) each heard from Parks and advised him of his
appeal rights and the right to re-test his urine sample; they also
discussed the possibility of retirement to avoid the unfavorable
insurance consequences of termination.
Perhaps as an explanation
for the failed test, Parks indicated to one or two of these parish
officials that he was concerned with the procedure employed during
the drug test, but he did not elaborate (or, even if he did specify
that he did not initial the seal, it is undisputed that failure to
initial the seal is not a fatal flaw undermining the validity in
a drug test). 18 Notably, although more than one parish official
Mindful of the flexibility of procedural due process and that
pre-termination process in particular is “an initial check against
mistaken decisions-essentially, a determination of whether there
are reasonable grounds to believe that the charges against the
It is undisputed that Parks did not initial the seal on the vial;
however, there is likewise no dispute in the record that this
failure on Parks’s part did not compromise the validity of the
drug test. In fact, there is no evidence in the record indicating
that there was some flaw in the drug test protocol that compromised
Nor does Parks challenge his own contemporaneous
certification that the urine in the vial was his.
19 The Court will not speculate what process, if any, would have
unfolded or would have been due had he pursued a re-test the urine
employee are true and support the proposed action,” Loudermill,
470 U.S. at 545-46, the Court underscores that the process due
Parks under the circumstances of a “for cause” termination ground
backed by scientific test result need not be elaborate; indeed,
the process, which is designed in part to prevent the employer
from making a mistake, 20 may be informal.
See Griffin v. Bennett,
204 Fed.Appx. 565, 566-67 (7th Cir. 2006)(unpublished)(holding
that pre-termination procedures were constitutionally sufficient
where employee who failed employment-mandated drug test attended
a meeting in which employer advised him that it had been notified
of the positive drug test result, employee was given an opportunity
to explain the test result, but declined, and, at the end of the
meeting, was terminated).
Similarly, here, Parks does not dispute
that he had notice of the charge that he failed the drug test and
concerning this fire-able offense.
He admits that he explored his
options (discussing his predicament with parish officials as well
as with his wife), told at least one parish employee or official
that he questioned the drug test protocol, but otherwise declined
to retest his urine specimen or otherwise mount a challenge to the
See Browning v. City of Odessa, Tex., 990 F.2d 842, 844 (5th
Cir. 1993)(“an informal hearing which allows the employee to give
his version of the facts sufficiently hedges against an erroneous
dismissal and likewise satisfies the requirements of due
Throughout his telephone conferences and meetings
with Ordogne, Ortego, and Levron, Parks was advised of his options,
including the grievance process. There is no controversy regarding
these record facts, which demonstrate that Parks was given all the
pre-deprivation process he was due.
See Browning, 990 F.2d at
844-45 (pre-termination meeting that lasted no more than 30 minutes
complied with the Due Process Clause considering that the plaintiff
was given notice of the proposed dismissal, informed of the reason,
and given an opportunity to respond, and additionally considering
that post-termination procedural safeguards were available, even
if not pursued).
Parks offered nothing to parish officials, and
he offers nothing now, to challenge the veracity of the positive
drug screen, which supported for-cause termination.
the failed drug test and its consequences, and after speaking and
meeting with parish personnel and officials, he ultimately chose
the retirement path. 21
termination process would be due Parks in the face of testing
positive for marijuana as a result of a drug screen, especially
considering his failure to launch any challenge or explanation
that might undermine the credibility of a scientific test result.
And he declined to avail himself not only of the parish grievance
procedures but also of the opportunity spelled out in the parish
manual allowing employees who test positive for controlled
substances to apply for reemployment after a year has passed.
It seems clear on this record that the risk of an erroneous
deprivation was small, and the value of additional procedural
available and offers no suggestions as to how render a more
effective rebuttal to a positive drug screen) would be negligible.
deprivation process depends on the balance of three factors,
including “the risk of an erroneous deprivation of the private
interest through the procedures used, and the probable value, if
any of additional or substitute procedural safeguards.”).
the circumstances, informal meetings with supervisors, some in
person, some by telephone, constitute adequate pre-deprivation
Parks’s Section 1983 claim based on the Fourteenth Amendment
particular, the allegedly inadequate time he had to choose between
termination and retirement.
Insofar as Parks now attempts to
allege a deprivation of post-termination due process, the Court
finds that any such belated challenge must also fail on this
Parks failed to initiate any grievance procedure (such
The Court underscores that there is no evidence in the record
that would suggest that the Parish purposefully sought to avoid
providing Parks with the constitutional minimum due process.
23 There is nothing in Parks’s complaint or amended complaint that
would indicate he intended to challenge the Parish’s failure to
confer post-deprivation due process.
as a hearing before the personnel board) or otherwise avail himself
of the process available to an employee constructively terminated
as a result of a failed drug test. 24
See Browning, 990 F.2d at
845 and n.7 (citations omitted)(“This Court has consistently held
that one who fails to take advantage of procedural safeguards
Parks merely submits that any grievance would have
been futile. 25
But he fails to explain how or why the Parish
could or should have scheduled a full-blown post-constructive
discharge hearing under the circumstances where Parks retired,
failed to challenge the positive drug screen or pursue a re-test
or even a new drug screen, failed to request a hearing before the
personnel board pursuant to the Parish’s grievance procedure, and
failed to seek re-employment.
On this record, Parks offers no
case literature to support his theory that the Parish was obliged,
sua sponte, to schedule a hearing to assess whether its decision
to allow Parks to retire following a failed drug screen was
unjustified or correct.
When an employee submits a urine specimen that tests positive
for a controlled substance, Parish policy calls for termination
subject to retest of the same urine sample and the right to appeal
to the personnel board. The Parish also permits an employee who
failed a drug test to apply for rehiring after a year has passed.
Yet he now claims that he was deprived of post-deprivation
process that he never indicated to the Parish that he wished to
Finally, TPCG seeks judgment as a matter of law dismissing
the plaintiff’s state law claims, which the plaintiff appears to
concede are derivative of his Section 1983 claims.
advances no argument that would persuade this Court that he may
maintain his state law claims when his claims based on the same
federal constitutional rights are subject to dismissal on the
articulated in this Courts Order and Reasons dated February 22,
2017, the Court finds that the Parish is entitled to judgment as
a matter of law dismissing the plaintiff’s state constitutional
deprivations he alleged in connection with his Section 1983 claims
(Fourth and Fourteenth Amendment claims):
the plaintiff’s claims
under Article I, Section 5 and Article I, Section 2 of the
Louisiana constitution must be dismissed.
Finally, insofar as the
plaintiff now attempts to allege a claim under Article X, Section
8 of the Louisiana constitution, any such claim must be dismissed
as untimely presented. 26
Insofar as the plaintiff alleged in his complaint that the drug
test failed to comply with the Louisiana Drug Testing Act, that
claim regarding protocol was directed toward the previously
dismissed defendants and not even the plaintiff suggests that he
pursues any such claim against the Parish. Even if he had pursued
any such claim against the Parish, he offers no evidence in support
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the Parish’s motion for summary judgment is hereby GRANTED.
plaintiff’s claims are hereby dismissed with prejudice.
New Orleans, Louisiana, January 10, 2018
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
of the claim in opposition to the Parish’s motion for summary
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?