Bryant v. Monroe et al

Filing 53

MEMORANDUM RULING re 35 MOTION for Summary Judgment filed by City of Monroe, Don Hopkins. Signed by Magistrate Judge Karen L Hayes on 10/31/13. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
JESSE J. BRYANT

*

CIVIL ACTION NO. 12-2378

VERSUS

*

MAG. JUDGE KAREN L. HAYES

CITY OF MONROE AND DON
*
HOPKINS
MEMORANDUM RULING
Pending before the court is a motion for summary judgment [doc. # 35] filed by
Defendants, the City of Monroe and Don Hopkins. With the consent of all parties, the District
Court referred the above-captioned case to the undersigned magistrate judge for the conduct of
all further proceedings and the entry of judgment. 28 U.S.C. § 636(c). For reasons assigned
below, the motion is GRANTED.
Background
On September 13, 2012, Jesse Bryant filed the instant civil rights action pursuant to 42
U.S.C. § 1983 against Defendants, the City of Monroe (the “City”) and Don Hopkins, the City’s
Sanitation Superintendent for the Department of Public Works. (Compl.). Bryant contends that
on January 19, 2012, the City unlawfully discharged him from employment after he tested
positive for marijuana on a post-accident drug screen, notwithstanding his previously
unblemished 20 year tenure with the City. Plaintiff contends that the City’s drug screening
policy violates his rights under the Fourth Amendment to the U.S. Constitution and Article I § 5
of the Louisiana Constitution. He further alleges that the City violated his substantive due
process rights under the U.S. and Louisiana constitutions when it terminated his employment

without cause or legal justification as required by the collective bargaining agreement (“CBA”)
that was in effect between the City and its employees. Bryant seeks resulting compensatory and
punitive damages under 42 U.S.C. § 1983 and applicable state law, plus costs, expenses, and
attorney’s fees. He also seeks reinstatement to his former position with the City.
On August 15, 2013, Defendants filed the instant motion for summary judgment seeking
dismissal of Plaintiff’s claims in their entirety. Bryant filed his opposition on September 10,
2013. Defendants filed a reply memorandum on September 17, 2013; Plaintiff filed a sur-reply
on October 7, 2013. The matter is now ripe.
Summary Judgment Standard
Summary judgment is appropriate when the evidence before the Court shows “that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law” Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or nonexistence would
affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A dispute about a material fact is
“genuine” if the evidence is such that a reasonable fact finder could render a verdict for the
nonmoving party. Id.
“[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53 (1986) (quoting Anderson, 477
U.S. at 247). “The moving party may meet its burden to demonstrate the absence of a genuine
2

issue of material fact by pointing out that the record contains no support for the non-moving
party’s claim.” Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if
the non-movant is unable to identify anything in the record to support its claim, summary
judgment is appropriate. Id.
In evaluating the evidence tendered by the parties, the court must accept the evidence of
the non-movant as credible and draw all justifiable inferences in its favor. Anderson, 477 U.S. at
255. While courts will “resolve factual controversies in favor of the non-moving party,” an
actual controversy exists only “when both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). There can be no
genuine issue as to a material fact when a party fails “to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp., 477 U.S. at 322-323. The non-moving party may not
merely rely on the allegations and conclusions contained within the pleadings; rather, the nonmovant “must go beyond the pleadings and designate specific facts in the record showing that
there is a genuine issue for trial.” Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.
1996). The non-movant does not satisfy his burden merely by demonstrating some metaphysical
doubt as to the material facts, by setting forth conclusory allegations and unsubstantiated
assertions, or by presenting but a scintilla of evidence. Little, 37 F.3d at 1075 (citations omitted).
Moreover, “summary judgment is appropriate in any case ‘where critical evidence is so
weak or tenuous on an essential fact that it could not support a judgment in favor of the
nonmovant.’” Little, supra (citation omitted) (emphasis in original). In other words, summary
judgment is warranted if no reasonable juror could return a verdict in favor of the non-movant.
3

Relevant Facts
a)

Bryant’s Job
Bryant began his employment with the City on July 5, 1991, as a laborer in the Cemetery

Division of the Public Works Department. (Bryant Depo. Def. MSJ, Exh. 5, pgs. 33-34, 51). He
held various positions over the years, and by the time of his discharge, had attained the position
of labor leader in the City’s Department of Public Works Beautification Division. Id. Bryant’s
latest job placed him in charge of a five to six person crew, which he drove around in a cityowned F-350 pickup truck1 while sometimes pulling a trailer with lawn mowers or four-wheel
“Gators.” Id., pgs. 52-53. However, not only was Bryant responsible for his crew’s safety, he
also assisted them with their work duties, which included, inter alia, maintenance of the grassy
medians and right of ways along I-20 and Louisiana Highway 165 within the city limits. Id., pgs.
53-59. The crew’s equipment included two large tractors and a slope mower, plus the fourwheeled Gators. Id., pg. 52.2 The two large tractors pulled three large folding blades that were
more than five feet in length. Id., pg. 60. Bryant’s crew also used a tractor to tote a five hundred
gallon tank of poison to spray on weeds. Id., pg. 64. Bryant acknowledged that operating this
machinery in the medians of I-20 and Highway 165 was very dangerous work. Id., pgs. 53, 67.
b)

Bryant’s November 1, 2011, Accident
On November 1, 2011, Bryant and his crew were assigned to clear some overgrown lots

in the city. (Bryant Depo. Def. MSJ, Exh. 5, pg. 106). In so doing, Bryant drove Work Truck
Unit 8090 (the Ford F-350), carrying two of his crew (Carlos Adams and John Coleman) to a

1

2

See Photos Attach. as Exh. G to Cecil Janway Jr. Affidavit; Def. MSJ, Exh. 1.
See also Photos Attach. as Exh. H to Cecil Janway Jr. Affidavit; Def. MSJ, Exh. 1.
4

vacant house on the corner of Malvern and South Grand streets in Monroe, described by Bryant
as an overgrown lot, with grass that was approximately three to four feet tall. Id., pgs. 24, 106109. According to Bryant, he brushed the bottom side of the truck against a small bush as he
drove the truck into the yard. Id., pg. 25. He explained that he heard a “little scrape.” Id.
Bryant exited the truck and confessed to his crew, “oh yeah, I did hit a bush going in the yard.”
Id.3 Bryant said that his crew members, Adams and Coleman, looked at the truck and said “Jesse
hit this bush, got a dent in it.” Id., pg. 111.4 Bryant does not deny that he hit the bush. Id., pg.
140. However, he disclaimed responsibility for the dent because he believed that it preexisted
the incident. Id.
Bryant did not report the incident to his superior(s). Id., pgs. 24-25. According to
Bryant, he and his crew regularly ran over and struck bushes when they pulled the truck into
yards. Id. Unfortunately for Bryant, however, at least one of his crew members, Russell
Marshall, believed that this was a reportable event. (Marshall Depo., pg. 16; Pl. Sur Reply, Exh.
1). After waiting in vain for several days to see whether Bryant would report the incident
himself, Marshall reported the matter to Don Hopkins on Friday, November 4, 2011. Id.,

3

Bryant further agreed that he ran into a small bush in the front yard. Id., pg. 21; see
also Photos; Def. MSJ, Exh. 4; Bryant Depo., pgs. 106-107.
4

In his statement, Carlos Adams indicated that he did not notice any damage at the time
of the incident, but noticed a dent in the truck the following day. (Carlos Adams Statement; Exh.
D to Cecil Janway Affidavit; Def. MSJ, Exh. 1). John Coleman stated that he did not notice any
damage to the truck. (John Coleman Statement; Exh. D to Cecil Janway Affidavit; Def. MSJ,
Exh. 1). However, another crew member, David Wilson, stated that he noticed the dent in the
truck when Bryant pulled out of the yard. (David Wilson Statement; Exh. D to Cecil Janway
Affidavit; Def. MSJ, Exh. 1).
5

Hopkins Affidavit; Def. MSJ, Exh. 2.5 In Hopkins’ words:
[o]n Friday, November 4, 2011, I was told by Beautification Division employee
Russell Marshall, who was a member of Bryant’s labor crew, that on the
preceding Tuesday, November 1, 2011, Bryant had been involved in an on-the-job
accident while driving a City Public Works truck, which was a Ford F-350 Super
Duty Truck. I was told Bryant had run over a tree stump (later described as a
bush) on a job site, and that he had damaged the truck by causing a dent. Bryant’s
immediate supervisor, Sam Dickey, was absent from work the following Monday,
November 7, 2011, and on Tuesday, November 8, 2011, I asked Sam Dickey to
examine the truck Bryant had been driving at the time of the accident. Sam
Dickey examined the truck that day, and reported to me he had seen a dent on the
passenger side of the truck, although he did not know how long the dent had been
in the truck. I later spoke with members of Bryant’s work crew, who confirmed
that Bryant had been involved in the referenced accident on November 1, 2011.
Id. (emphasis in original).
Hopkins also spoke with Bryant who admitted that he had run over the bush, but claimed that the
damage to the truck preexisted the accident. Id.
Based on the information provided to him through discussions with Bryant’s labor crew,
and Sam Dickey’s observation of the dented truck, Hopkins concluded that Bryant had been
involved in a first offense “Simple Fault” accident pursuant to the Public Works Department’s
Accident/Incident Policy, which required an employee drug test, even in cases of minimal
damage. (Ex. 2, Hopkins Aff., ¶11; Ex. 1, Janway Aff. Ex. B, Accident/Incident Policy).6
Bryant’s accident also triggered his need to undergo a drug test pursuant to the City’s Drug Test

5

Apparently on an earlier occasion, Marshall had been required to undergo a drug test
when he had damaged the rear of the truck. (Bryant Depo., pgs. 68-69).
6

Under the Accident/Incident Policy, “[a]n employee is at simple fault when the
accident/incident is one which posed minimal danger to life and/or property and is one that was
the result of simple inadvertence, e.g., backing into a stationary object.” Id. Furthermore, the
“Consequences” of a simple fault accident are, in part: “1st Offense – Written Reprimand - Drug Screen.” Id.
6

Policy [Art 2, Sec. 2.3] as set forth in the Employee Handbook. (Ex. 1, Janway Aff. Ex. A, Bates
No. 00382).
On Tuesday, November 8, 2011, Hopkins instructed Sam Dickey to take Bryant to the
medical facility for a drug screen. (Hopkins Affidavit). Bryant, however, was called away from
work that day because of his wife’s medical emergency. Id. Accordingly, on Wednesday,
November 9, 2011, at approximately 9:00 a.m., Dickey took Bryant for drug testing at St.
Francis-Occumed Clinic, where Bryant provided a post-accident, unobserved urine specimen.
Id.; Litigation Package for Lab Number [31301249] Specimen ID [35112645], Sec. 1A; Pl. Opp.,
Exh. 7 [doc. # 44].
Also on November 9, 2011, Hopkins issued Bryant a “simple fault” written warning for
running over a bush and denting the City truck. (Janway Affidavit, Exh. C). Bryant signed the
written warning that same day. Id. The form contained a space for employee remarks, and
specified that “[t]he absence of any statement on the part of the employee indicates his/her
agreement with the report as stated.” Id. Bryant did not include a statement contesting the
circumstances that led to his written warning. Id.
On November 12, 2011, Alere, a drug test analyzing facility in Gretna, Louisiana,
reported that Bryant’s urine sample had tested positive for marijuana metabolite, with a
quantitative value of 78 ng/mL. (Litigation Package for Lab Number [31301249] Specimen ID
[35112645], Sec. 1A; Def. MSJ, Exh. 7 [doc. # 44]). The drug screen, however, was negative for
amphetamines, benzoylecgonine-cocaine metabolites, opiates, and phencyclidine. Id.
According to the Marijuana (THC) fact sheet attached to the drug test report, marijuana
has a urine half-life of 48 hours; i.e., every 48 hours the concentration drops by one-half. Id.
7

Furthermore, it takes four to five days for marijuana to clear from a urine sample for a social
marijuana user. Id. For someone who smokes marijuana several times per week it takes seven to
ten days for marijuana to clear itself from the urine. Id. For chronic users, it takes four to six
weeks for marijuana to be clear in the urine. Id. In addition, “realistic passive inhalation” will
not occur over 4 ng/mL. Id.7
On December 8, 2011, the City, via Hopkins, issued a Pre-Determination Hearing letter
ordering Bryant to attend a “pre-determination” hearing set for Thursday, December 15, 2011, at
9:00 a.m. (Janway Affidavit, Exh. D; Def. MSJ, Exh. 1). In the letter, Hopkins advised Bryant
that “considering the results of the investigation and [the] positive drug screening results, it [was
his] intent to recommend [Bryant’s] immediate termination to the appointing authority.” Id. The
letter further advised Bryant of his right to counsel and to present witnesses at the hearing to
refute the charges and the evidence against him. Id.
Bryant attended the pre-determination hearing on December 15, 2011. See Hopkins
Affidavit; Bryant Depo., pg. 139. Nevertheless, in correspondence dated January 17, 2012,
Hopkins notified Bryant that, effective January 19, 2012, his employment with the City’s
Sanitation Division was terminated. (Janway Affidavit, Exh. E).
c)

The City’s Drug Testing Policy
The City adopted its “Policy and Procedure Relative to Drugs and Alcohol” (the “Policy”)

on July 28, 1992, through passage of Ordinance No. 9315, which was amended by Ordinance No.
9402 on September 14, 1993. (Affidavit of Carolus Riley & Exhs. A-C referenced therein; Def.

7

On November 15, 2011, Bryant provided another urine sample, which tested negative
for controlled substances. (Nov. 16, 2011, Drug Test Report; Pl. Opp., Exh. 9).
8

MSJ, Exh. 3). The referenced Ordinances are incorporated into the 1996 City of Monroe
Employee Handbook (“Employee Handbook”). See Janway Affidavit & Exh. A attached thereto;
Def. MSJ, Exh. 1). The overriding concerns for employee and public safety are reflected in the
Policy’s statement of “Purpose”:
[t]he City of Monroe, Louisiana (hereinafter referred to as “City”)
desires to maintain a safe, healthful and productive environment
for all of its employees and the public which they serve.
The City recognizes that the use of alcoholic beverages and the use
of unauthorized drugs by City employees in the work environment
is a threat to the public welfare and to the safety of the individual
employee, co-workers, and the public in general.
In order to protect the health, welfare and safety of the public, the
individual employee and co-employees, and to heighten the
efficiency and effectiveness of service to the public, the City will
act to eliminate any substance abuse which increases the potential
for accidents, absenteeism, substandard performance, poor
employee morale and damage to the reputation of our community.
It is the goal of this policy and procedure to eliminate substance
abuse in the City work environment.
(The Policy and Employee Handbook; Exhs. to Riley and Janway Affidavits, respectively).
The Policy provides for employee drug testing in four categories. Pertinent here are
Categories I and II, which provide, in pertinent part:
Sec. 2.2
A.

EMPLOYEE TESTING – CATEGORY I
Category I - positions where the health, welfare and/or
safety of the public, co-employees and the individual
employee is at risk shall be deemed “safety sensitive”
positions, including but not limited to the following:
***
operation of motorized vehicles, including
automobiles, trucks, tractors, or other heavy
equipment
***

9

positions that entail working in dangerous
conditions
positions that require the handling or use of
chemical substances
B.

All applicants for Category I positions shall be
required to satisfactorily pass a substance abuse
screening prior to employment or promotion into
any Category I position.

C.

All employees who occupy Category I positions shall
participate in routine substance abuse screening in
accordance with the following:
1.

2.

Sec. 2.3

All employees in Category I positions shall
be tested at least once every three (3) years;
All employees in Category I positions shall
be subject to random routine substance
abuse testing according to the procedures
prepared by the Department of
Administration, with a least 33 1/3% of the
positions being tested each year.

EMPLOYEE TESTING - CATEGORY II
Category II - whenever an employee has an on the
job accident or suffers an occupational on the job
injury requiring immediate treatment by a doctor or
absence from work, or causes an injury to a fellow
employee or to the general public which requires
treatment by a doctor or absence from work, or
where the injury was due to the employee’s failure
to wear required personal protective equipment or
where the property damage of said accident is
estimated at greater than $500.00, said employee
shall be required to participate in a substance abuse
screening test.

Id. (emphasis added).8
8

The Policy provides a Category III for “reasonable cause or suspicion” drug testing and
Category IV drug testing in relation to an employee’s enrollment and successful completion of a
10

Under the Policy, an “accident” is defined as “any occurrence which causes injury or fatality,
produce [sic] physical damage to property or material, or interrupts and/or terminates scheduled
work assignments.” (The Policy, § 1.4).
The Policy also includes specific and detailed provisions for the City’s Drug Screening
Procedure with provisions for Testing Method; Certified Laboratories for Drug Testing;
Collection Procedure for Urine Specimens, and the employee’s right to review the drug test
records. (The Policy and Employee Handbook). Finally, under the Policy,
[a]ny employee who tests positive for alcohol or other unauthorized substance
under the above procedures shall be dismissed from the City employment and
shall not be considered for future employment for a period of at least twelve (12)
months and/or then after satisfying the requirements of Sec. 2.5A [completion of
substance abuse counseling or rehabilitation program].
Id., § 5.2A.
d)

Bryant’s Knowledge of the City’s Drug Policy
Bryant knew that the City prohibited employees from coming to work while under the

influence of drugs or alcohol. See Bryant Depo., pgs. 166-167, 182. He also knew that no City
employee was supposed to test positive for drugs if tested. Id., pgs. 182-183. Bryant was aware
that if an employee suffered an accident, then he would have to undergo a drug test. Id., pg. 68.
Bryant also knew, pursuant to the Public Works Department’s Simple Fault Accident/Incident
policy, that if a person has an accident – even if he or she were not at fault – then the individual
would receive a written reprimand and a drug screen. See Bryant Depo., pgs. 78-79.

certified program of substance abuse counseling or rehabilitation. See the Policy §§ 2.4-2.5;
Employee Handbook.
11

Analysis
I.

The City’s Drug Testing Policy, as Applied, Did Not Violate the Fourth Amendment
In Aubrey v. Sch. Bd. of Lafayette Parish, the Fifth Circuit synopsized the pertinent law

and inquiry, as follows,
[t]he fourth amendment guarantees the privacy, dignity and security of persons
against certain arbitrary and invasive acts by officers of the government or those
acting at their direction. By virtue of the fourteenth amendment, the fourth
amendment governs searches by state as well as federal government officials.
Further, the fourth amendment is not limited to searches conducted for law
enforcement purposes but extends to all government searches, including those
conducted by the government while acting as an employer. This restraint on
government conduct generally bars officials from undertaking a search or seizure
absent individualized suspicion. Searches conducted without grounds for
suspicion of particular individuals have been upheld, however, in certain limited
circumstances.
A program which compels government employees to submit to urinalysis is a
search within the meaning of the fourth amendment because such tests invade
reasonable expectations of privacy. Such a drug test therefore must meet the
reasonableness requirement. The amendment does not proscribe all searches and
seizures, but reasonableness depends on the nature of the search and seizure. In a
situation in which the fourth amendment intrusion serves a special government
need beyond that of law enforcement, a balancing test is required. The interest of
the government must be weighed against the privacy interest of the employee. The
analysis of the privacy interest should include not only the desire to be free from
mandatory testing, but also the intrusiveness of the particular program at issue.
Aubrey v. Sch. Bd. of Lafayette Parish, 148 F.3d 559, 562 (5th Cir. 1998) (citations omitted).
In addition, the Supreme Court has recognized a special government need for warrantless,
suspicionless searches for government workers that occupy certain safety sensitive positions
where the “risk to public safety is substantial and real.” Chandler v. Miller, 520 U.S. 305, 323,
117 S. Ct. 1295, 1305 (1997).
Thus, the threshold issue is whether Bryant occupied a safety sensitive position sufficient
to support warrantless, suspicionless drug testing. The undersigned notes that courts have found
12

special needs for various safety sensitive positions including, air traffic controllers, aircraft
maintenance personnel, flight crew members, flight attendants, railroad safety inspectors,
highway and motor carrier safety specialists, lock and dam operators, forklift operators, tractor
operators, engineering operators, and crane operators. Krieg v. Seybold, 481 F.3d 512, 518 (7th
Cir. 2007) (compiling cases).9 Furthermore, the Fifth Circuit has recognized special needs
sufficient to support suspicionless drug testing for school custodians, bus drivers, and medical
residents. See Aubrey, supra; Jackson v. Metro. Transit Auth., 53 F.3d 1280 (5th Cir. 1995)
(unpubl.); Nobles v. Metro. Transit Auth., 62 F.3d 394 (5th Cir. 1995) (unpubl.); and Pierce v.
Smith, 117 F.3d 866, 868 (5th Cir. 1997).
In Aubrey, the Fifth Circuit noted that a school custodial position was safety sensitive
because the custodian handled various cleaning chemicals and worked with potentially dangerous
machinery such as a lawn mower in a school environment. Aubrey, supra. Similarly, in
Middlebrooks v. Wayne County, the Michigan Supreme Court recognized that operation of a
riding lawn mower on highway medians and embankments, and driving front-end loaders and
trucks are the kinds of activities that might cause serious injury stemming from “momentary
lapse[s] of attention” characteristic of illegal drug use. Middlebrooks v. Wayne Cnty., 446 Mich.
151, 163, 521 N.W.2d 774, 780 (1994). Thus, the court concluded that the Fourth Amendment
did not bar the state from requiring urinalysis testing for workers who apply for those position(s).
Id.
In light of the foregoing authorities, the undersigned readily concludes that Bryant
9

On the other hand, some courts have held that jobs that require driving cars or vans do
not constitute safety sensitive positions sufficient to support random drug testing. Id. (citations
omitted).
13

occupied a safety sensitive position. Not only did Bryant drive a large pickup truck to transport
his crew, he also was responsible for the safety of his crew and the motoring public whilst his
crew mowed grass along the City’s busy state and interstate right of ways. Moreover, Bryant
assisted his crew with these activities, which entailed use of dangerous grass cutting machinery
and a chemical spraying truck containing herbicides. In fact, Bryant agreed that operating the
machinery along Interstate 20 was very dangerous work; further, if one were not careful, one
could be injured. (Bryant Depo., pg. 67).
The court also takes judicial notice of the fact that at least two secondary schools and one
primary school are located no more than two blocks away from Highway 165 within the City
limits along the right of way that Bryant and his crew maintained. Bryant and his crew’s use of
dangerous mowing machinery and chemicals in the vicinity of these schools and their students
further demonstrate that his position constituted a “special need” exception to the Fourth
Amendment.
In enacting its drug-testing policy, the City articulated that it had an interest in protecting
its workers and the public. See the Policy. In particular, the City wished to eliminate substance
abuse by city workers that had the tendency, inter alia, to increase the potential for accidents. Id.
In so doing, the City created four categories of employee testing. Category I applies to
employees in “safety sensitive” positions that potentially imperil the “health, welfare and/or
safety of the public, co-employees and the individual employee . . .” Id. Category I employees
must undergo substance abuse screening prior to employment or promotion into a Category I
position. Id. In addition, each Category I position must be tested randomly at least once every
three years. Id. Bryant does not contest that he held a “safety sensitive” position as set forth in
14

the 1996 City of Monroe Employee Handbook. (Pl. Resp. to Defs’ Statement of Material Facts).
The Policy also mandates drug testing for any employee who, inter alia, “has an on the
job accident . . . or where the property damage of said accident is estimated at greater than
$500.00 . . .” (The Policy, § 2.3) (emphasis added). By its terms, the Policy’s Category II
accident-based testing may be triggered solely by an “on the job accident.” Id. There is no
requirement for fault by the employee; thus, the additional $500 property damage threshold is an
alternative trigger that effectively is rendered superfluous by the broader “on the job accident”
catchall.
In addition, under the City’s Department of Public Works’ Accident/Incident Policy, the
consequences for an employee who is involved in a simple fault accident/incident include a
written reprimand and a drug screen. See Accident/Incident Policy; Janway Affidavit, Exh. B.
The court finds that the City has a substantial interest in its drug testing procedures, at
least as applied in this case.10 Bryant was employed in a safety sensitive position and, by his own
10

The City has not demonstrated that there was (or is) an extensive drug or alcohol use
problem with its employees who hold safety sensitive positions. This omission, however, is not
fatal: “[a] demonstrated problem of drug abuse . . . [is] not in all cases necessary to the validity
of a testing regime, but . . . some showing does shore up an assertion of special need for a
suspicionless general search program.” Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie
Cnty. v. Earls, 536 U.S. 822, 835-36, 122 S. Ct. 2559, 2567-68 (2002) (citing Chandler v. Miller,
520 U.S. 305, 319, 117 S.Ct. 1295 (1997)) (internal quotation marks omitted). Furthermore,
there is no need to demonstrate a particularized or pervasive drug problem before allowing the
government to conduct suspicionless drug testing. See Earls, supra; Aubrey, supra.
In National Treasury Employees Union v. Von Raab, the Supreme Court upheld the drug
testing of customs officials on a purely preventive basis, without any documented history of drug
use by such officials. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 673, 109 S.
Ct. 1384, 1395 (1989). In Von Raab, no more than 5 out of 3,600 employees tested positive
under the program. Id. Nonetheless, the Court overcame the lack of evidence relating to drug
use by noting that “drug abuse is one of the most serious problems confronting our society today”
and that programs to prevent and detect drug use among customs officials could not be deemed
unreasonable. Id., see also Earls, supra.
15

admission, brushed against, hit, struck, or otherwise ran over a bush while driving a City pickup
truck. Moreover, according to Bryant, the truck’s contact with the bush was perceived to be
significant enough that he and his crew members exited the vehicle to inspect it for damage.
While Bryant maintained that it was commonplace for his crew to drive over bushes in this
manner, at least one member of his crew disagreed, and thought the incident extraordinary
enough to merit a report to Bryant’s supervisor for a drug screen.
Bryant contends that there was little or no evidence to attribute the dent in the truck to the
impact with the bush. Again, however, at least one member of his crew, David Wilson, made the
connection. Plaintiff further argues that it was unreasonable for Hopkins to rely on Wilson’s
statement because Wilson has a history of alcohol and drug charges, and because Wilson
ultimately was promoted to Bryant’s position after his discharge. Nonetheless, the City’s Policy
and the Department of Public Works Accident/Incident Policy called for a drug screen following
an employee’s accident or incident regardless of the amount of damage that ensued.
Plaintiff persists that it was unreasonable for the City to require him to undergo a drug
test merely because of a minor collision with a bush that caused no more than negligible property
damage. However, drug testing under these circumstances still promotes public safety because it
provides an opportunity for intervention before greater harm occurs. See Tanks v. Greater
Cleveland Reg'l Transit Auth., 930 F.2d 475, 480 (6th Cir. 1991) (citations omitted). The City is
not required to wait until an employee is involved in a serious accident involving significant
injury to life or property before it may insist upon a drug test. Depending upon when Bryant last
underwent a random drug test under Category I of the City’s Policy, the City otherwise may have

16

had to wait up to three years before Bryant took another random test.11
Plaintiff further argues that even if a fault-based accident with minor damage were to
provide reasonable grounds for a drug test, any nexus between the two became too attenuated
once the City permitted eight days to lapse before it eventually sent Bryant for a drug test. In
support of his argument, Plaintiff cites various guidelines, laws, and regulations that urge drug
testing as soon as practicable after the triggering event. See e.g., U.S. Labor Dept. Drug Testing
Guidelines (it is usually recommended that post-accident testing be effected within 12 hours); La.
R.S. 23:1081 (an employer may demand that the employee undergo drug and alcohol testing
immediately after an accident in order to determine whether the employee was under the
influence and therefore ineligible for workers’ compensation benefits); U.S. Department of
Transportation (“DOT”) Regulations, 49 C.F.R. § 382.303 (a commercial vehicle driver must
undergo a drug test as soon as practicable after a defined occurrence); and U.S. Federal
Transportation Authority (“FTA”) Regulations, 49 C.F.R. § 655.44 (requiring an employer to
drug and alcohol each covered employee as soon as practicable, but within 32 hours after a
covered accident).
The court observes, however, that at least part of the rationale requiring the temporal
nexus between the accident and testing in the foregoing laws and regulations is to discern
whether the accident was caused by the employee’s drug or alcohol use. Clearly, as more time
elapses, and the effects of alcohol and drugs naturally dissipate from the body, the relevancy of

11

In fact, in the Department of Labor Drug Testing Guidelines adduced by Plaintiff,
some employers expand the post-accident test trigger to include incidents where an accident or
injury was averted, i.e., cases that involved no damage. See U.S. Labor Dept. Drug Testing
Guidelines; Pl. Opp. Memo., Exh. 8.
17

testing becomes more attenuated for purposes of determining the cause of the accident.
Nevertheless, because of its relative unpredictability, post-accident/incident drug testing serves
an additional purpose in deterring and uncovering on the job drug use:
[b]y ensuring that employees in safety-sensitive positions know they will be tested
upon the occurrence of a triggering event, the timing of which no employee can
predict with certainty, the regulations significantly increase the deterrent effect of
the administrative penalties associated with the prohibited conduct concomitantly
increasing the likelihood that employees will forgo using drugs or alcohol while
subject to being called for duty.
Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 629-30, 109 S. Ct. 1402, 1420 (1989).
In other words, post-accident drug testing shares the deterrent characteristics of random drug
testing.
Plaintiff further argues that the delayed drug test in this case was ineffectual for purposes
of determining substance abuse as a cause of the accident because casual marijuana use can only
be detected in urine for a period of three to four days. Plaintiff’s argument, however, overlooks
the afore-mentioned deterrent effect of post-accident testing. In addition, according to the
Marijuana Fact Sheet included in the Litigation Package submitted into evidence by both sides in
this case, it takes seven to ten days for marijuana to dissipate from the system of a moderate user.
(Pl. Opp. Memo., Exh. 7 [doc. # 44]). Also, the drug screen tested not only for marijuana, but for
other controlled substances such as barbiturates which remain detectable for up to ten days. See
Alere Drug Test Report; Pl. Exh. 7 and DOL Drug-Free Workplace Advisor; Pl. Exh. 8. Thus,
the delayed drug screen in this case remains retains a nexus with the accident.12
12

The court notes that there is no indication that the City purposefully delayed the drug
test for some nefarious or improper purpose. Hopkins was not advised of the accident until three
days after the event on Friday. Moreover, before requiring the drug test, he made inquiries with
Bryant’s crew and discussed the matter with Bryant’s immediate supervisor, who did not return
to work after the weekend until Tuesday, November 8. The drug test would have taken place no
18

Paired with the City’s substantial interest in administering a drug test under the instant
circumstances, the court stresses that Bryant’s privacy interest was minimal. First, Bryant
provided an unobserved urine sample at a medical clinic. See Earls, supra (finding sample
collection minimally intrusive where a faculty member listened outside a closed restroom stall
for the student to produce a sample). Second, there is no evidence that Bryant was required to
disclose any personal medical information, nor was the urinalysis used to determine the presence
of anything other than drugs. See Aubrey, supra. In addition, Bryant had a diminished
expectation of privacy because his job was a safety-sensitive position that already required him to
undergo drug testing on a random basis, and at the time that he was hired/promoted. .Aubrey,
supra. Akin to the custodial employees in Aubrey, Bryant and other safety-sensitive City
employees “reasonably should expect effective inquiry into their fitness and probity . . .” Id.
Bryant endeavors to distinguish Aubrey on the grounds that his drug testing was not
random, but instead accident-inspired. As a result, Bryant contends that resolution of this case
should be governed by United Teachers of New Orleans v. Orleans Parish Sch. Bd. Through
Holmes, where the Fifth Circuit invalidated a no fault, post-accident drug testing policy for all
school employees, largely because the policy’s purpose was to defeat workers’ compensation
claims, not to protect the safety of students. See United Teachers of New Orleans v. Orleans
Parish Sch. Bd. Through Holmes, 142 F.3d 853, 854 (5th Cir. 1998). Although, as written, the
City’s Policy for Category II employees appears broad enough to run afoul of the Fifth Circuit’s
concerns as expressed in Orleans Parish School Board, supra, the drug test administered in this

later than the 8th, but for Bryant’s having to leave work to tend to his wife. In short, the testing
occurred as soon as practicable after the event.
19

case stemmed from a fault-based accident precipitated by an employee who held a safety
sensitive position. As such, this case is more analogous to Aubrey.
Plaintiff’s unadorned mantra that Aubrey remains inapposite because the testing therein
was random proves unavailing. If anything, fault-based post-accident testing affords greater
protection to an employee than a random test, because it requires some misstep by the employee.
Furthermore, a drug test following an employee-caused accident/incident is more suggestive of
possible drug use than a random, no fault-based drug test. In any event, when, as here, there was
a delay between the accident and the testing, then the testing takes on the characteristics of a
random, unpredictable drug test that the Fifth Circuit endorsed in Aubrey. Indeed,
reasonableness under the Fourth Amendment does not require employing the least intrusive
means. Earls, supra.
In sum, the undersigned finds that, under the facts of this case, the City’s interest in
requiring a post-accident (albeit, with minimal to no resulting damage), fault-based, suspicionless
drug test for a worker who holds a safety-sensitive position, and who already was subject to drug
testing, both randomly and at the time of his hire, more than outweighs the worker’s minimal
privacy interests in this context. Aubrey, supra. Therefore, no rational juror could conclude that
the warrantless, suspicionless drug test at issue here transgressed Plaintiff’s Fourth Amendment
rights, as extended to the States via the Fourteenth Amendment.
II.

Bryant’s Discharge did not Violate his Fourteenth Amendment Right to Substantive
Due Process
To succeed on a substantive due process claim under the Fourteenth Amendment in the

context of public employment, a plaintiff must show that “(1) he had a property interest/right in

20

his employment and (2) his termination was arbitrary or capricious.” Bolton v. City of Dallas,
Tex., 472 F.3d 261, 263 (5th Cir. 2006) (citations omitted). However, “substantive due process
requires only that public officials exercise professional judgment, in a nonarbitrary and
noncapricious manner, when depriving an individual of a protected property interest.” Lewis v.
Univ. of Texas Med. Branch at Galveston, 665 F.3d 625, 630-31 (5th Cir. 2011) (citations
omitted). Even if “reasonable minds could disagree on the propriety of [the plaintiff]'s
termination” that does not suffice to overcome a public official's qualified immunity defense
against a substantive due process claim. Id. Rather, the plaintiff must demonstrate that the
decision was “made without a rational connection between the known facts and the decision or
between the found facts and the evidence.” Id. Stated differently, Plaintiff had the burden to
show that “the abuse of power by the state official shocks the conscience.” Id.
Assuming for purposes of this motion that Bryant enjoyed a property interest in his
employment, no reasonable juror could conclude that Hopkins and the City’s decision to
terminate his employment was arbitrary or capricious. Indeed, as one circuit has recognized,
given that drug abuse is one of society’s most serious problems, a “City’s decision to treat a
positive drug test as ‘just cause’ for immediate discharge of employees deemed safety sensitive,
though harsh, is not irrational and cannot be held offensive to the Constitution.” Rutherford v.
City of Albuquerque, 77 F.3d 1258, 1263-64 (10th Cir. 1996) (citations omitted).
Furthermore, there is no evidence that the City arbitrarily or discriminatorily applied its
drug policy to Bryant. In fact, Bryant’s direct supervisor, Sam Dickey, underwent drug testing
following accidents, including in the aftermath of at least one minor accident. (Dickey Depo.,
pgs. 15-16; Def. Exh. 7). Moreover, even Don Hopkins underwent drug testing following an
21

accident. (Hopkins Depo., pg. 46; Def. Exh. 6).
Finally, to the extent that Bryant contends that his dismissal was premised upon Hopkins’
decision to require him to submit to a drug test despite less than conclusive proof that Bryant had
caused the dent in the truck, the court observes that the City’s Drug Policy and the Department’s
Accident/Incident Policy requires a drug test following an accident, particularly when the
employee is at fault, but even if the damage is negligible. See discussion, supra. In addition,
Bryant admitted to Hopkins and/or Dickey that he hit the bush with the truck. See Lewis supra
(even if complaints by co-employees that contributed to employee’s discharge stemmed from
their desire to rid themselves of the employee, the termination decision nonetheless did not
violate due process because it was supported by a basis in undisputed fact).13 In sum, Bryant has
not demonstrated that the circumstances of his discharge “shock the conscience.”
III.

Bryant’s Drug Testing and Discharge did not Violate Louisiana Law or the
Louisiana Constitution
Insofar as Plaintiff contends that his accident-inspired drug test violates Louisiana law,

the court notes that Louisiana law authorizes a public employer to provide a drug test sample
following an accident that occurred during the course and scope of his employment. La. Rev.
Stat. Ann. § 49:1015.14 Here, there is no question that Bryant struck or hit a bush with a city-

13

The court has not relied on the opinion of Plaintiff’s expert accident reconstructionist,
Marshall Lyles or on the repair estimates for the dent in the truck recently obtained by
Defendants. See Lyles Depo., Pl. Exh. 2 and Affidavits; Def. Reply Memo., Exh. 2 (in globo).
These sources of proof were not before Hopkins and the City at the time that they rendered their
decisions. See Wren v. Towe, 130 F.3d 1154, 1159 (5th Cir. 1997) (it is the information known
at the time of seizure and the reasonability of the inferences drawn from such information that is
determinative).
14

Louisiana law also authorizes drug testing based upon reasonable suspicion of drug
use, as part of a rehabilitation agreement, as a condition of hiring, or randomly for those
22

owned truck while acting within the course and scope of his employment.
Plaintiff also argues that the drug test violated Article 1, § 5 of the Louisiana Constitution
which specifies that “[e]very person shall be secure in his person, property, communications,
houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” LA .
CONST . ART . I, § 5. Although the Louisiana Constitution’s affirmative right to privacy is one of
the most conspicuous instances in which Louisiana has chosen a higher standard of liberty than
that afforded by jurisprudence interpreting the federal constitution, both the Fourth Amendment
and Article I, § 5 protect only reasonable expectations of privacy. Banks v. Dep't of Pub. Safety
& Corr., Louisiana Training Inst.-E. Baton Rouge, 598 So. 2d 515, 518 n3 (La. App. 1st Cir.
1992) (citing inter alia, State v. Hernandez, 410 So. 2d 1381, 1385 (La. 1982)). Furthermore,
Louisiana’s additional protection against invasions of privacy may be traced back to the
expanded right to marital privacy and in response to fears of unrestrained gathering and
dissemination of information on individuals via computer banks – circumstances not present
here. State v. Jackson, 764 So. 2d 64, 71 (La. 2000) (citations omitted). In addition, despite
imprecise or loose dicta in Richard v. Lafayette Fire & Police Civil Serv. Bd., 8 So. 3d 509, 514
(La. 2009), there is no indication that Louisiana would afford Plaintiff any greater protection than
that afforded by the Fourth Amendment under the facts of this case.
Finally, Plaintiff contends that his discharge violated his due process right under the
Louisiana Constitution, Article 1, § 2, which dictates that, “ [n]o person shall be deprived of life,
liberty, or property, except by due process of law.” However, the “scope of protection under the
Louisiana Constitution parallels the Fourteenth Amendment of the United States Constitution.”

employees who occupy safety-sensitive positions. Id.
23

Johnson v. City of Monroe, 2007 WL 1521436, *5 (W.D. La. May 21, 2007). Having determined
that Defendants did not violate Plaintiff’s substantive due process rights under the Fourteenth
Amendment, the court necessarily concludes for the same reasons that Plaintiff’s rights were not
violated under the Louisiana equivalent.
IV.

Qualified Immunity
Defendants also invoke the affirmative defense of qualified immunity. “The doctrine of

qualified immunity protects government officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Club Retro LLC v. Hilton, 568 F.3d 181, 194 (5th Cir.
2009) (quoted sources omitted). When a defendant invokes qualified immunity, the burden shifts
to plaintiff to establish that the defense is inapplicable. Id. (citation omitted). Plaintiff’s burden
is two-pronged. Id. First, he must demonstrate that defendants violated a constitutional right
under current law. Id. “Second, he must claim that the defendants' actions were objectively
unreasonable in light of the law that was clearly established at the time of the actions complained
of.” Id. (quoted source and internal quotation marks omitted). The courts are “permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances of the particular case at hand.”
Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (citing Pearson v. Callahan, 808 U.S.
2009, 129 S.Ct. 808 (2009)).
In the case sub judice, Bryant has not shown that Defendants violated his constitutional
rights. Accordingly, further analysis of the qualified immunity defense is superfluous. See Lytle
v. Bexar Cnty., Tex., 560 F.3d 404, 410 (5th Cir. 2009) (if the alleged conduct did not violate a
24

constitutional right, then the inquiry ceases because there is no constitutional violation for which
the government official would need qualified immunity).
Conclusion
For the foregoing reasons, the court finds that there is no genuine dispute as to any
material fact, and that movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56.
Therefore, the motion for summary judgment [doc. # 35] filed by Defendants, the City of Monroe
and Don Hopkins, is hereby GRANTED. Judgment shall issue dismissing with prejudice
Plaintiff’s claims, in their entirety, at his cost.
THUS DONE AND SIGNED in chambers, at Monroe, Louisiana, this 31st day of October
2013.

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