                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                             February 6, 2017
                                     PUBLISH                Elisabeth A. Shumaker
                                                                Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 ROBERICK WASHINGTON,

              Plaintiff-Appellant,
       v.                                             No. 15-3181
 UNIFIED GOVERNMENT OF
 WYANDOTTE COUNTY, KANSAS;
 GARY ORTIZ, in his official and
 individual capacities, Assistant County
 Administrator; TERRY L. BROADUS,
 Administrator, in her official capacity,
 Wyandotte County Juvenile Detention
 Center; DONALD ASH, Sheriff, in his
 official and individual capacities,
 Wyandotte County Unified
 Government; DOUGLAS BACH, in
 his official and individual capacities,
 Assistant County Administrator,

              Defendants-Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                  (D.C. NO. 2:14-CV-02108-JTM)


Michael J. Gallagher, Gallagher & Kaiser, LLP, Kansas City, Missouri, for
Appellant.

Henry E. Couchman Jr., Legal Department, Unified Government of Wyandotte
County/Kansas City, Kansas, Kansas City, Kansas, for Appellees.


Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges.
TYMKOVICH, Chief Judge.


      Roberick Washington was employed as a lieutenant at the Wyandotte

County Juvenile Detention Center in Kansas City, Kansas. After a random drug

test, he was fired for testing positive for cocaine. Washington filed a civil rights

action against the County and several of his co-workers, alleging that the drug

test was an illegal search that violated his Fourth and Fourteenth Amendment

rights, as well as breached his employment contract. The district court granted

summary judgment for the defendants on all claims.

      We affirm because the County’s random drug test did not violate the Fourth

Amendment, since the test furthered the County’s need to ensure the safety and

welfare of the juvenile residents. Nor did his termination violate any other

constitutional or statutory right.

                                     I. Background

      In 1995, Roberick Washington began working for Wyandotte County as a

juvenile care worker in the Juvenile Detention Center, which houses juvenile

offenders facing criminal charges and serves as an educational and development

center for the residents. In 2002, Washington was promoted to juvenile

lieutenant. In that position, his job duties included, among other things,

classifying inmates based on their behavior. In 2005, while still holding the rank



                                          -2-
of juvenile lieutenant, Washington assumed further responsibilities for training

other personnel.

      After assuming his training responsibilities, Washington still interacted

with residents. He continued to classify inmates and occasionally supervised

juvenile detention officers, who oversee the residents on the “floor,” where

residents stay. Washington also conducted disciplinary hearings for residents and

filled in for absent floor lieutenants, earning overtime by working night and

weekend shifts. Sometimes he would drive the County van to take juveniles to

the intake assessment center. And whenever a fight broke out, he and “all

employees under juvenile detention would have to go to the floor just for

support.” App. at 105. Though Washington did not always go, he was supposed

to be present.

      Wyandotte County has a comprehensive random drug testing policy that

applies to employees in “safety sensitive positions.” Id. at 142. Pertinently, the

County’s Policy on Substance Abuse and Drug and Alcohol Testing lists “juvenile

lieutenant”—Washington’s position—as a safety sensitive position. Id. at 173.

According to the Policy, “failure to pass a drug or alcohol test is just cause for

discipline including discharge.” Id. at 162. The Policy also provides that

discipline must be administered in accordance with the Human Resources Guide,

which permits suspension from work for a first-time drug offense. The HR

Guide, however, expressly “does not modify the status of employees as

                                         -3-
employees-at-will or in any way restrict the Unified Government’s right to bypass

the disciplinary procedures suggested.” Id. at 177. The Guide also specifies that

“[a] more severe penalty than indicated may be imposed if warranted by the

circumstances.” Id. at 178.

      In 2012, Washington supplied a urine sample as part of this random drug

testing policy, as he had several times in the past. But this time, he tested

positive for cocaine. After a second test confirmed the result, Sheriff Donald Ash

terminated Washington. Pursuant to the Grievance Procedure detailed in the HR

Guide, 1 Washington appealed Ash’s decision to Terry Broadus, the administrator

of the Juvenile Detention Center. Broadus denied Washington’s grievance, and

Washington appealed to the County Administrator’s Office. After a hearing, Gary

Ortiz, an assistant county administrator, upheld Washington’s termination. Doug

Bach, the deputy county administrator, then wrote to Washington to inform him

that after reviewing Ortiz’s findings of fact and recommendations, the County

Administrator’s Office had decided to deny his appeal. Washington claims he

sought an evidentiary hearing and a name-clearing hearing and requested

reinstatement, but those requests were denied.

      Washington filed a four-count complaint in the District of Kansas, alleging

that: (1) Sheriff Ash and the County conducted an unconstitutional search, in

      1
        The Grievance Procedure qualifies that “employees remain ‘at will’” and
“the Unified Government may terminate an employee’s employment by the
Unified Government at any time, for any reason.” App. at 397.

                                          -4-
violation of 42 U.S.C. § 1983; (2) all defendants deprived Washington of his

property interest in continued employment without due process of law, in

violation of 42 U.S.C. § 1983; (3) all defendants failed to provide Washington a

name-clearing hearing, in violation of 42 U.S.C. § 1983; and (4) the County

breached an implied contract created by its written disciplinary policies, in

violation of state contract law. The district court granted summary judgment for

all defendants on all counts.

                                   II. Analysis

      Washington contends the district court erred in dismissing his federal and

state claims. We consider each in turn.

      A. Section 1983 Claims

      “Qualified immunity is an affirmative defense to a section 1983 action,

providing immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965,

971 (10th Cir. 2001) (alteration omitted). “We review a grant of summary

judgment on the basis of qualified immunity de novo.” Harman v. Pollock, 586

F.3d 1254, 1260 (10th Cir. 2009). To survive summary judgment after a

defendant has claimed qualified immunity, the plaintiff must establish (1) the

defendant violated a constitutional right, and (2) the right was clearly established.

Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). In this circuit, a right is

clearly established “‘when a Supreme Court or Tenth Circuit decision is on point,

or if the clearly established weight of authority from other courts shows that the

                                          -5-
right must be as the plaintiff maintains.’” Thomas v. Kaven, 765 F.3d 1183, 1194

(10th Cir. 2014) (quoting PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1196–97

(10th Cir. 2010)). If the plaintiff meets this two-part test, then the usual analysis

applies, with the defendant bearing the burden of showing he is entitled to

summary judgment. Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008).

      Unlike individuals, however, municipalities are not protected by qualified

immunity. Camuglia v. City of Albuquerque, 448 F.3d 1214, 1223 (10th Cir.

2006). Thus, granting summary judgment in favor of a municipality is

appropriate where the pleadings and supporting materials establish there is no

genuine issue as to any material fact, and the moving party is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). We must view the evidence and resolve all inferences in the

light most favorable to the nonmoving party. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986).

      A municipality may be liable under § 1983 where the plaintiff identifies an

unconstitutional policy that caused the claimed injury. Schneider v. City of

Grand Junction Police Dep’t, 717 F.3d 760, 769–70 (10th Cir. 2013). But the

plaintiff must establish that the municipal employees causing the harm violated

the plaintiff’s constitutional rights; otherwise, the municipality cannot be held

liable. Trigalet v. City of Tulsa, 239 F.3d 1150, 1154–55 (10th Cir. 2001).




                                          -6-
             1. Unreasonable Search

      Washington first argues the district court erred in finding the County’s

random drug test did not violate the Fourth Amendment’s probable cause and

warrant requirements. He claims there are genuine issues of material fact as to

whether the County is entitled to an exemption from the probable cause

requirement for employees in safety sensitive positions. We disagree.

      “When a government employer requires its employees to submit to a

urinalysis test for the purpose of detecting illegal drug use, the test is a search

subject to the Fourth Amendment and must be reasonable.” 19 Solid Waste Dep’t

Mechanics v. City of Albuquerque, 156 F.3d 1068, 1072 (10th Cir. 1998).

Ordinarily, a search “must be based on individualized suspicion of wrongdoing”

in order to meet the Fourth Amendment’s reasonableness requirement. Chandler

v. Miller, 520 U.S. 305, 313 (1997). But when the government asserts a “special

need” beyond ordinary crime detection, we have found suspicionless drug testing

reasonable if the government’s interests outweigh the individual’s privacy

interests. 19 Solid Waste, 156 F.3d at 1072.

      Before we balance the interests on each side, however, “the government

must . . . be able to show, as a threshold matter, that its case for suspicionless

testing is legitimate.” Id. at 1073. Thus, “the special need showing is best

viewed as a preliminary examination of the government interests at stake.” Id.

Moreover, as we explained in Dubbs v. Head Start, Inc.,

                                          -7-
            the [special need] cases seem to share at least these
            features: (1) an exercise of governmental authority
            distinct from that of mere law enforcement such as the
            authority as employer, the in loco parentis authority of
            school officials, or the post-incarceration authority of
            probation officers; (2) lack of individualized suspicion
            of wrongdoing, and concomitant lack of individualized
            stigma based on such suspicion; and (3) an interest in
            preventing future harm, generally involving the health or
            safety of the person being searched or of other persons
            directly touched by that person’s conduct, rather than of
            deterrence or punishment for past wrongdoing.

336 F.3d 1194, 1213–14 (10th Cir. 2003).

      In evaluating whether the government has demonstrated a legitimate special

need, we examine (1) “whether the testing program was adopted in response to a

documented drug abuse problem or whether drug abuse among the target group

would pose a serious danger to the public”; and (2) whether the testing scheme

would effectively detect and deter drug use. 19 Solid Waste, 156 F.3d at 1073.

      In the absence of a documented drug problem among employees, courts

have nevertheless concluded the government’s concerns are real if drug use

among the tested individuals would threaten workplace or public safety. See, e.g.,

Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 668–71 (1989)

(concluding government had a compelling interest in preventing drug use among

Customs employees charged with drug interdiction at the nation’s borders);

19 Solid Waste, 156 F.3d at 1074 (determining government’s significant interest

in preventing waste department mechanics from “operat[ing] heavy machinery in


                                        -8-
a dangerous manner, endangering others in the shop, or conduct[ing] repairs

improperly, [thus] imperiling individuals on the public streets” satisfied first part

of special need showing). Cf. Neumeyer v. Beard, 421 F.3d 210, 214 (3d Cir.

2005) (noting the “ready applicability of the special needs doctrine to the prison

context” given the need “‘to safeguard institutional security’”) (quoting Hunter v.

Auger, 672 F.2d 668, 674 (8th Cir.1982)).

      Further, courts have characterized random, rather than scheduled, drug tests

as an effective method of detecting and deterring drug use. See Skinner v. Ry.

Labor Exec. Ass’n, 489 U.S. 602, 630 (1989); Int’l Union v. Winters, 385 F.3d

1003, 1013 (6th Cir. 2004) (noting random drug tests are “more efficacious than

one time tests at achieving their intended result”); 19 Solid Waste, 156 F.3d at

1074 (finding government failed to satisfy second part of special need showing in

part because it administered drug tests in “predictable intervals”).

      Here, the County argues it administers random drug tests to juvenile

lieutenants to “ensur[e] the safety and welfare of the children housed in the

Juvenile Detention Center.” Aple. Br. 35. We find this special need is legitimate.

First, Washington “perform[s] a job in which safety is an important concern.”

See 19 Solid Waste, 156 F.3d at 1074. The County serves as guardian to juveniles

residing at the Juvenile Detention Center and has a significant interest in ensuring

the safety of those under its full-time care—many of whom may have struggled

with substance abuse, including use of illegal drugs. By preventing drug use

                                          -9-
among its employees who have interaction with and access to residents, the

County ensures that interaction with the youth are handled by non-impaired

individuals, that drugs have a lower likelihood of finding their way into the

facility, and that juvenile lieutenants serve as role models for the youth. Second,

the County’s testing program is random, which minimizes the possibility

employees will evade detection and maximizes the deterrent effect of the

program.

      Having found a legitimate special need for the random drug testing policy,

we balance Washington’s privacy interests against the County’s interests in safety

and welfare to determine whether testing Washington was reasonable in these

circumstances. See 19 Solid Waste, 156 F.3d at 1072. First, we consider “the

scope of the legitimate expectation of privacy at issue” and “the character of the

intrusion that is complained of.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646,

658 (1995). As a correctional employee, Washington’s expectation of privacy

was diminished. See, e.g., True v. Nebraska, 612 F.3d 676, 681 (8th Cir. 2010)

(“While correction officers retain certain expectations of privacy, it is clear that,

based upon their place of employment, their subjective expectations of privacy

are diminished while they are within the confines of the prison.”). Moreover, the

drug test was minimally invasive: Washington provided the urine sample in a

restroom with the door closed, without a monitor. Cf. Vernonia, 515 U.S. at 658




                                         -10-
(when urine samples are provided in an enclosed stall, “the privacy interests

compromised by the process of obtaining the urine sample are . . . negligible”).

      Next, we consider whether the government has asserted an interest

“important enough to justify the particular search at hand, in light of other factors

that show the search to be relatively intrusive upon a genuine expectation of

privacy.” Vernonia, 515 U.S. at 661 (emphasis in original).

      Here, the County has identified two interests important enough to justify

randomly testing Washington. The first involves the unique situation of working

with juveniles in an educational setting. When an employee has an in loco

parentis custodial and educational relationship with minors—especially at-risk

minors—that employee’s illegal drug use presents a risk of harm to the minors.

Cf. Knox Cty. Educ. Ass’n v. Knox Cty. Bd. of Educ., 158 F.3d 361, 384 (6th Cir.

1998) (finding a compelling government interest to drug test new teachers

“considering their unique in loco parentis obligations and their immense

influence over students”); Aubrey v. Sch. Bd. of Lafayette Par., 148 F.3d 559,

564–65 (5th Cir. 1998) (allowing suspicionless searches of school employees who

interact regularly with students). And, in upholding a school district’s random

drug-testing policy for student athletes, the Supreme Court has recognized there is

a strong governmental interest in deterring drug use by adolescents, who are more

susceptible to impairment and addiction. Vernonia, 515 U.S. at 661–62.




                                         -11-
      The County’s second interest involves the situation of working in a

correctional facility. If an employee has law enforcement duties, access to and

direct contact with inmates, or may be called on to secure a correctional facility,

that employee’s illegal drug use presents a significant potential threat to the

inmates and the security of the facility. See Winters, 385 F.3d at 1012

(recognizing state asserted legitimate special need to randomly drug test such

employees, whose impairment “would pose a significant potential threat to the

health and safety of themselves and others”).

      In balancing these interests, we note the Supreme Court has approved

suspicionless drug testing of employees in certain safety sensitive positions. See

Skinner, 489 U.S. at 620–21 (holding the government’s “interest in regulating the

conduct of railroad employees to ensure safety, like its . . . operation of a

government office, school, or prison[,]” justified subjecting employees engaged in

safety-sensitive tasks to warrantless drug and alcohol testing). For these

positions, the government interest in safety justifies suspicionless testing, because

“even a momentary lapse of attention can have disastrous consequences.” Id.

at 628. Here, though the County’s Policy on Substance Abuse and Drug and

Alcohol Testing lists “juvenile lieutenant” as a safety sensitive position,

Washington argues the County’s policy should not apply to him, because he

primarily performed administrative tasks.




                                         -12-
      We reject Washington’s argument, because the undisputed material facts

establish that the County’s safety interests apply to his position. 2 Perhaps if

Washington’s job duties were entirely administrative, or if he were not employed

in a juvenile correctional facility, he would have a point. But as Washington

himself acknowledged, he was required to report to the floor whenever a fight

broke out. The County has a strong interest in ensuring its employees are not

impaired in case of an emergency situation. Moreover, Washington filled in for

positions that are undeniably safety sensitive, such as driving juveniles to the

intake assessment center and supervising juvenile officers on the floor.

Washington took on these duties sporadically, such as when a floor lieutenant was

running late or sick. Therefore, a random drug testing policy was just as

applicable to Washington as it would have been to any full-time floor lieutenant.

The frequency or regularity of Washington’s contact with residents thus does not

affect our conclusion, since his on-call status made paramount his preparedness.

Cf. AFGE Local 1533 v. Cheney, 944 F.2d 503, 509 (9th Cir. 1991) (upholding

Navy’s random drug testing of civil employees with access to classified


      2
          The parties disagree about the nature of Washington’s interaction with
residents at the Juvenile Detention Center. Compare, e.g., Aplt. Br. 28
(“Washington had no unsupervised contact with those in detention in the
facility.”), with Aple. Br. 10 (“Washington worked directly with residents on a
regular basis.”). Washington argues there is a genuine dispute of material fact
about whether his position was safety sensitive. But the undisputed facts relied
on by the district court establish Washington had some interaction with and
access to juvenile residents, thus implicating the County’s safety concerns.

                                         -13-
information, noting “[c]onsiderations of other characteristics of the employees’

jobs, including the frequency with which the employees are likely to be exposed

to classified information, are irrelevant”).

      Washington also had access to the entire secured Juvenile Detention

Center, creating a risk he could expose residents to illegal drugs. Cf. Winters,

385 F.3d at 1010 (“[T]he introduction of alcohol and drugs into correctional

facilities, which prisoners could obtain possession of, presents a severe threat to

security and to the safety of correctional employees and prisoners, since the use

of drugs by prisoners can lead to disruptive behavior.”); Am. Fed’n of Gov’t

Emps., AFL-CIO v. Roberts, 9 F.3d 1464, 1467 (9th Cir. 1993) (“Drugs can reach

prisoners only by smuggling. . . . The employees have substantially greater

opportunity to smuggle drugs than do the visitors.”).

      Even if access alone would not be sufficient to justify suspicionless testing,

we consider all the factors and conclude the County’s interests are important

enough to outweigh Washington’s diminished privacy interests, and thus the

random drug test was reasonable. The balance we strike today is specific: the

government’s interests, while important in this case, might not apply to all

employees in a correctional facility. See, e.g., Winters, 385 F.3d at 1010

(allowing drug testing of non-custodial correctional facility employees who had

unsupervised access to and direct contact with prisoners); Taylor v. O’Grady, 888

F.2d 1189, 1199 (7th Cir. 1989) (allowing drug testing of only those correctional

                                         -14-
facility employees who had regular prisoner contact or had opportunities to

smuggle drugs to prisoners).

      Because the County’s interests outweigh Washington’s privacy interests,

Washington has not proven a constitutional violation, and neither Sheriff Ash nor

the County can be subject to § 1983 liability. 3 Therefore, we affirm the district

court’s grant of summary judgment on Washington’s Fourth Amendment claims.

             2. Deprivation of Property Without Due Process of Law

      Next, Washington contends the Sheriff’s practices and the County’s

personnel policies establish he had a protected property interest in continued

employment at the Juvenile Detention Center.

      The Due Process clause of the Fourteenth Amendment prohibits the

government from depriving an individual of life, liberty, or property without due

process of law. U.S. Const. amend. XIV. “To determine whether a plaintiff was

denied procedural due process, we engage in a two-step inquiry: (1) Did the

individual possess a protected interest to which due process protection was

applicable? (2) Was the individual afforded an appropriate level of process?”

Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir. 1998).




      3
         Even if Washington had established a constitutional violation, Sheriff
Ash still would not be subject to § 1983 liability, because Washington fails to
identify clearly established law from any jurisdiction that would have put Ash on
notice his actions were unconstitutional.

                                        -15-
      We look to state law to determine whether Washington has a protected

property interest. Darr v. Town of Telluride, 495 F.3d 1243, 1251 (10th Cir.

2007). Under Kansas law, public employment is presumptively at-will. Robert v.

Bd. of Cty. Comm’rs of Brown Cty., 691 F.3d 1211, 1220 (10th Cir. 2012). “To

override this presumption, a written contract must expressly fix the duration of

employment or otherwise limit the employer’s ability to discharge.” Id.

      Washington argues Kan. Stat. Ann. § 19-805(d) requires the Sheriff to act

in accordance with personnel policies and procedures, and the limitations outlined

in the Policy on Substance Abuse and the HR Guide thus give rise to a property

right. But none of the policies Washington identifies limited the Sheriff’s ability

to discharge him. Although the HR Guide suggests suspension would have been

appropriate for a first-time violation, the Guide is clear that its suggestions do not

alter an employee’s at-will status, and it provides that other discipline is

appropriate depending on the circumstances.

      “Absent an express agreement, Kansas law enforces an implied employment

contract only when the circumstances demonstrate a mutual intent to contract.”

Robert, 691 F.3d at 1220. Personnel policies alone are insufficient to create an

implied employment contract. Farthing v. City of Shawnee, 39 F.3d 1131, 1138

(10th Cir. 1994). Here, as explained above, the written policies do not

demonstrate a mutual intent to modify Washington’s at-will status. And contrary

to Washington’s argument, the existence of a grievance procedure also fails to

                                         -16-
show such mutual intent. See Kingsford v. Salt Lake City Sch. Dist., 247 F.3d

1123, 1129 (10th Cir. 2001) (“It is well established in this circuit, however, that

procedural protections alone do not create a claim of entitlement to continued

public employment. Rather, a legitimate claim of entitlement to continued public

employment arises only when there are substantive restrictions on the ability of

the employer to terminate the employee.”).

      Because Washington does not present “independent, probative evidence

bearing on the issue of the defendant’s intent[,]” he cannot withstand summary

judgment. Farthing, 39 F.3d at 1139. “Absent a property interest, there can be

no violation of Due Process.” Id. at 1140. Accordingly, we affirm the district

court’s grant of summary judgment.

             3. Deprivation of Liberty Without Due Process of Law

      Third, Washington contends he is entitled to a name-clearing hearing,

because he was deprived of a liberty interest.

      If a public employee can show that his liberty interest in “his good name

and reputation as they relate to his continued employment” was damaged, due

process affords an adequate name-clearing hearing. McDonald v. Wise, 769 F.3d

1202, 1212–13 (10th Cir. 2014). Here, in granting summary judgment for the

defendants, the district court concluded Washington was not entitled to a name-

clearing hearing, because the pre-trial order lacked any reference to a damaged

liberty interest. Washington now argues the district court abused its discretion in

                                         -17-
giving weight to the pre-trial order, where Washington mistakenly asserted a

property interest in employment, rather than a liberty interest in his good name

and reputation.

      “The pre-trial order supersedes the pleadings and becomes the governing

pattern of the lawsuit.” Case v. Abrams, 352 F.2d 193, 195 (10th Cir. 1965).

Thus, it is difficult to see how the district court abused its discretion in confining

the issues to those in the pre-trial order. But even if the district court should have

considered the merits of Washington’s claim, defendants would still be entitled to

summary judgment. Washington makes only a conclusory allegation of a

damaged liberty interest without factual or legal support, and without explaining

why the post-termination process he received failed to satisfy due process. This

is wholly insufficient to demonstrate a constitutional violation. See, e.g., Garrett

v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (holding

that “conclusory allegations with no citations to the record or any legal authority

for support” disentitled plaintiff to review).

      Therefore, we affirm the district court’s grant of summary judgment on

Washington’s liberty interest claim.

      B. State Contract Law Claim

      Washington’s sole state law claim is that he is entitled to reinstatement

with back pay, because the County breached an implied contract created by its

written policies. Because we have already concluded Washington failed to

                                          -18-
establish the County’s conduct or policies created an implied employment

contract, see supra Section II.A.2, we agree with the district court that the County

is entitled to summary judgment on Washington’s breach of contract claim.

                                III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s order granting

the defendants’ motion for summary judgment on all claims.




                                        -19-
