                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3211
                        ___________________________

                                     Shawna Hess

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

Carol Ables, individually and in her official capacity as an employee of the City of
Stuttgart; Tommy Lawson, individually and in his official capacity as an employee
of the City of Stuttgart; Marion Maynard, individually and in her official capacity
                as Mayor of the City of Stuttgart; City of Stuttgart

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Pine Bluff
                                  ____________

                             Submitted: March 14, 2013
                               Filed: April 26, 2013
                                  ____________

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
                           ____________

GRUENDER, Circuit Judge.

      The City of Stuttgart (“the City”) terminated Shawna Hess’s employment after
she refused a state trooper’s request to take a drug test. Hess claims she was
terminated in retaliation for her decision to exercise her Fourth Amendment rights,
and she sued the City, her supervisor Tommy Lawson, the City’s personnel director
Carol Ables, and the City’s mayor Marianne Maynard. The district court1 granted the
defendants’ motion for summary judgment based on qualified immunity, and we
affirm.

                                          I.

        We review the district court’s grant of summary judgment de novo, taking the
facts in the light most favorable to Hess, the nonmoving party. See Schmidt v. City
of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). During the middle of the workday
on February 23, 2010, State Trooper David Chastain (“Trooper Chastain”) was
performing surveillance on the vehicle of a suspected drug dealer. Hess, the former
girlfriend of the car’s owner, arrived at the vehicle, which was located in a public
parking lot. After Hess opened the car door, Trooper Chastain approached and
observed a substance that appeared to be crystal meth on the console. Trooper
Chastain briefly questioned Hess and then told her to return to work but to report to
his office later that day. He immediately called Hess’s supervisor, Tommy Lawson,
to request permission for Hess to leave the office for an interview. Lawson agreed,
and upon Hess’s return, Lawson told her to go to Trooper Chastain’s office. At the
meeting, Trooper Chastain inquired about the car’s owner and Hess’s reasons for
opening the car door. Hess denied that she had been attempting to procure drugs.

       Trooper Chastain then asked Hess to submit to a drug test. Hess refused, saying
she would “flunk it.” Hess now explains that while she was not on drugs at the time
she made this statement, and therefore would have passed a urine drug test, she made
this comment in an attempt to be allowed to leave sooner. Trooper Chastain called
Lawson a second time, to inform him of what had transpired during the meeting.


      1
        The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.

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Lawson then called Carol Ables, the City’s personnel director, to ask if he had a
sufficient basis for terminating Hess’s employment. After reviewing a written
statement from Trooper Chastain describing the day’s events, Ables advised Lawson
that she believed Hess had violated the city’s drug policies. Later in the afternoon on
the same day, Lawson fired Hess. The official termination documents identify the
reason for separation as a violation of city policies and a failure to take a drug test as
requested by state police. For purposes of reviewing the district court’s grant of
summary judgment, we will assume, as Hess claims, that the defendants fired her
solely for refusing to submit to the urine drug test.

      Hess brought claims under 42 U.S.C. § 1983 against Lawson, Ables, and
Maynard (collectively, “the City employees”), in both their individual and official
capacities. Hess argues that these defendants’ retaliatory discharge violated her rights
under the Fourth, Fifth, and Fourteenth Amendments. Additionally, Hess asserted a
municipal liability claim under Monell v. Department of Social Services, 436 U.S. 658
(1978). Hess also alleged violations of the Arkansas Civil Rights Act (“ACRA”) and
Section 504 of the Rehabilitation Act of 1973.2 The district court granted summary
judgment to the defendants, finding they had violated no clearly established right.
Hess now appeals.

                                           II.

      A. Individual capacity claims

      In analyzing the City employees’ claims to qualified immunity, we consider two
questions: (1) whether the facts Hess has shown, when viewed in the light most


      2
       Although Hess’s complaint brought a claim under the Rehabilitation Act of
1973, Hess has abandoned the claim by failing to brief this court on why dismissal
was inappropriate. See Marksmeier v. Davie, 622 F.3d 896, 902 n.4 (8th Cir. 2010).

                                           -3-
favorable to her, demonstrate that the conduct of the City employees violated a
constitutional right, and (2) whether the constitutional right was “clearly established”
on February 23, 2010, such that a reasonable official in the position of each of the City
employees would have known his or her actions were unconstitutional. See Handt v.
Lynch, 681 F.3d 939, 943 (8th Cir. 2012). “Qualified immunity is appropriate only
if no reasonable factfinder could answer yes to both of these questions.” Nelson v.
Corr. Med. Servs., 583 F.3d 522, 528 (8th Cir. 2009). The plaintiff bears the burden
of proving that the law was clearly established. Sparr v. Ward, 306 F.3d 589, 593 (8th
Cir. 2002). If it was not clearly established, regardless of whether Hess has articulated
a constitutional violation, the City employees are entitled to qualified immunity. See
Livers v. Schenck, 700 F.3d 340, 360 (8th Cir. 2012).

        We will begin with Hess’s Fourth Amendment claim. Although a urine drug
test is a search under the Fourth Amendment, Skinner v. Ry. Labor Execs.’ Ass’n, 489
U.S. 602, 617 (1989), none of the City employees attempted to conduct such a search
because, as Hess admits, it was Trooper Chastain (a state police officer) who
“requested the drug test for his own purposes [and] not at the request of the City.”
Hess nonetheless contends her Fourth Amendment rights were violated when Ables
and Lawson fired her for exercising her right to refuse an unreasonable search and
when Maynard failed to intervene and halt this alleged constitutional violation. Under
this theory, discharging someone in retaliation for asserting his or her Fourth
Amendment rights is itself a Fourth Amendment violation. The district court
concluded that even if the City employees had committed a retaliatory discharge in
violation of Hess’s Fourth Amendment rights, the law at the time of the events in
question did not clearly establish that their actions were unconstitutional.

       As an initial matter, we recently held that, outside of the excessive force
context, there is no clearly established law regarding a duty to intervene to prevent
constitutional violations. Livers, 700 F.3d at 360. Therefore, Hess’s claim against
Maynard necessarily fails. As for the individual capacity claims against Ables and

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Lawson, Hess has not identified any cases clearly establishing that a retaliatory
discharge in these circumstances is a Fourth Amendment violation. Hess relies
primarily upon Lesher v. Reed, 12 F.3d 148 (8th Cir. 1994), as the source of the
clearly established law. In Lesher, city police officers informed the plaintiff, a fellow
officer, that he would be fired if he did not turn over his dog, which had bitten a child.
The plaintiff then relinquished the dog. We held this to be a seizure within the
meaning of the Fourth Amendment, and therefore if it was unreasonable, the plaintiff
had suffered a violation of his Fourth Amendment rights. We cited the Supreme
Court’s decision in Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation,
392 U.S. 280 (1968), a Fifth Amendment self-incrimination case, for the proposition
that “the State may not coerce [public employees] into relinquishing a constitutional
guarantee under threat of losing their employment.” Lesher, 12 F.3d at 151. Hess
argues that just as in Lesher, the defendants attempted to coerce her into relinquishing
her constitutional rights, namely the right against an unreasonable search.

       There are two primary obstacles to Lesher’s capacity to serve as clearly
established law for the purposes of this qualified immunity analysis. First, Lesher’s
holding establishes that a municipal employer cannot attempt to compel one of its
employees to relinquish his Fourth Amendment rights. But as Hess concedes, it was
a state trooper, not her employer the City, who requested the ostensibly unreasonable
search. Second, there was no coercion under threat of termination; neither Lawson
nor Ables ever threatened Hess in an attempt to convince her to voluntarily undergo
an unconstitutional search. Although Lawson directed Hess to leave work and go to
Trooper Chastain’s office, Hess does not allege that Lawson told her to go to the
police station and submit to a drug test or that Lawson warned her she would be fired
if she refused such a test. Instead, it was only after Hess had refused the test that
Lawson conferred with Ables and terminated Hess’s employment. Hess argues that
these differences are too minute to matter, but “the right allegedly violated must be
defined at the appropriate level of specificity.” Howard v. Kan. City Police Dep’t,
570 F.3d 984, 991 (8th Cir. 2009) (quoting Moore v. Indehar, 514 F.3d 756, 763 (8th

                                           -5-
Cir. 2008)). While “officials can still be on notice that their conduct violates
established law even in novel factual circumstances,” prior cases must give officers
“fair warning that their alleged [conduct] was unconstitutional.” Hope v. Pelzer, 536
U.S. 730, 741 (2002). Lesher simply does not provide fair warning. In light of
existing law on February 23, 2010, it would not have been clear to a reasonable
official in the position of Lawson or Ables that it was unconstitutional to fire someone
after she refused a state trooper’s request to take a drug test for law enforcement
purposes. Accordingly, we agree with the district court’s conclusion. Even assuming
the termination violated Hess’s Fourth Amendment rights, it was not clearly
established at the time of the incident that such an action was unconstitutional, and
therefore the defendants were entitled to qualified immunity.

       The district court ruled that Hess’s remaining federal claims failed to allege a
constitutional violation, and we agree. As to Hess’s Fifth Amendment claim, a urine
drug test would not violate her Fifth Amendment right against self-incrimination
because urine samples, which are not testimonial evidence, do not trigger Fifth
Amendment protections. See Hendricks v. Swenson, 456 F.2d 503, 506-07 (8th Cir.
1972). To the extent Hess is invoking the Fifth Amendment Due Process Clause, such
a claim is unsustainable against any of these non-federal government defendants. See
Warren v. Gov’t Nat’l Mortg. Ass’n, 611 F.2d 1229, 1232 (8th Cir. 1980).

       None of Hess’s district court filings identified the particular basis for her
Fourteenth Amendment claim. The district court ruled that Hess failed to allege a
Fourteenth Amendment violation, regardless of whether her claim is premised on
substantive due process, procedural due process, or a liberty interest. We agree. To
assert a claim against a municipal employer “for deprivation of a protected liberty
interest in a public employee’s reputation,” a plaintiff must demonstrate that the
statement was made in public. Crooks v. Lynch, 557 F.3d 846, 849 (8th Cir. 2009).
None of the defendants are alleged to have made public statements about Hess.
Success on a substantive due process claim requires allegations that the defendant’s

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course of action was “conscience shocking.” See Neal v. St. Louis Cnty. Bd. of Police
Comm’rs, 217 F.3d 955, 958 (8th Cir. 2000). Hess has failed to allege conscience-
shocking behavior. See Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927,
937 (8th Cir. 2012) (defining conscience-shocking actions as those “so inspired by
malice or sadism rather than a merely careless or unwise excess of zeal that [they]
amounted to brutal and inhumane abuse of official power literally shocking to the
conscience” (quoting C.N. v. Willmar Pub. Schs., Indep. Sch. Dist. No. 347, 591 F.3d
624, 634 (8th Cir. 2010))). Finally, it is well established that at-will employees do not
have a property interest in their continued employment, and thus their termination
cannot support a procedural due process claim. Skeets v. Johnson, 816 F.2d 1213,
1214 (8th Cir. 1987). When hired, Hess signed an “Employment at Will
Acknowledgment,” which explicitly recognized the signer’s at-will employment
status. Before the district court and in her briefs to this court, Hess argued that at the
time of her termination, her status had been altered. However, at oral argument, Hess
conceded that she was an at-will employee.3 As a result, she cannot maintain a
procedural due process claim.

      B. Municipal liability claims

       Hess’s § 1983 suit against Ables, Lawson, and Maynard in their official
capacities is treated as a lawsuit “against the municipality.” Spencer v. Knapheide
Truck Equip. Co., 183 F.3d 902, 905 (8th Cir. 1999). Even if Hess alleged facts
amounting to a constitutional violation, a municipality can be liable under § 1983 only
“if an action or policy itself violated federal law, or if the action or policy was lawful


      3
       Even had she not made this concession, we would affirm the district court’s
conclusion that she remained an at-will employee at the time of her termination. The
case Hess cited, Qualls v. Hickory Springs Mfg. Co., 994 F.2d 505 (8th Cir. 1993), is
inapposite because Hess does not claim that Lawson made an express promise, prior
to terminating her employment, that she could retain her job if she brought in a clean
drug test.

                                           -7-
on its face but ‘led an employee to violate a plaintiff’s rights [and] was taken with
“deliberate indifference” as to its known or obvious consequences.’” Pietrafeso v.
Lawrence Cnty., 452 F.3d 978, 982 (8th Cir. 2006) (alteration in original) (quoting Bd.
of Cnty. Comm’rs v. Brown, 520 U.S. 397, 407 (1997)). Hess argues she need not
show deliberate indifference because she has established an unconstitutional official
custom or policy. Hess correctly notes that under Pembaur v. City of Cincinnati, 475
U.S. 469 (1986), a custom or policy sufficient to support municipal liability can arise
from a single action, such as the act of terminating Hess’s employment. See Brown,
520 U.S. at 418. “It is well-settled that . . . ‘[m]unicipal liability attaches only where
the decisionmaker possesses final authority to establish municipal policy with respect
to the action ordered.’” Ware v. Jackson Cnty., 150 F.3d 873, 885 (8th Cir. 1998)
(alteration in original) (quoting Pembaur, 475 U.S. at 481). Hess has failed to allege
facts indicating that the City delegated final policymaking authority to Ables, Lawson,
or Maynard for the termination of city employees. As such, the district court properly
dismissed the official capacity claims and the claims against the City.

      C. State law claims

       Hess also filed claims under the Arkansas Civil Rights Act (“ACRA”), which
provides a cause of action for deprivation of rights secured by the Arkansas
Constitution. Ark. Code Ann. § 16-123-105(a). As the district court noted, both
parties failed to present arguments about whether the protection afforded by the
ACRA is broader or narrower than that afforded by § 1983, and the court accordingly
explained that its rulings on Hess’s § 1983 claims applied equally to her ACRA
claims. Because Hess did not explain why her ACRA claims warranted separate
analysis, the district court did not err in dismissing the ACRA claims alongside the
§ 1983 claims. See Lewis v. Jacks, 486 F.3d 1025, 1030 (8th Cir. 2007).




                                           -8-
                                 III.

For the foregoing reasons, we affirm the dismissal of Hess’s claims.
                ______________________________




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