     Case: 18-30135      Document: 00514780489         Page: 1    Date Filed: 01/03/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 18-30135                        January 3, 2019
                                                                           Lyle W. Cayce
TERRY ALLEN PARKS,                                                              Clerk


              Plaintiff - Appellant

v.

TERREBONNE PARISH CONSOLIDATED GOVERNMENT,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:16-CV-15466


Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
PER CURIAM:*
       In October 2015, Plaintiff-Appellant Terry Parks tested positive for THC,
the active chemical in cannabis or marijuana, and subsequently retired from
the Terrebonne Parish Consolidated Government (the “Parish”). The
circumstances surrounding Parks’s positive drug test and retirement form the
basis of this case. Parks asserts that the Parish constructively discharged him
as he was placed between the “Scylla of voluntary resignation and the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 18-30135
Charybdis of forced termination.” Fowler v. Carrollton Pub. Library, 799 F.2d
976, 981 (5th Cir. 1986).
       For the reasons stated below, we AFFIRM the district court’s grant of
summary judgment for the Parish on Parks’s remaining Section 1983 claim
based on an alleged violation of his due process rights under the 14th
Amendment, as well as his state law constitutional due process claim.
 I.    RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
       Parks worked 33 years for the Parish and was a tenured and permanent
employee who could only be fired for cause. Throughout his tenure with the
Parish, Parks worked in “safety-sensitive” roles, ultimately retiring as an
Instrumentation Technician. Accordingly, he was subject to random drug
testing pursuant to Parish Policy. Section 13, Subsection G-2 of the Parish
Personnel Manual states that “[t]he confirmed presence of a controlled,
dangerous substance in a urine sample of an employee/prospective employee
shall result in termination of said individual.”
       On October 12, 2015, Parks was randomly assigned to take a drug test
and reported to Multi-Management Services, Inc. (“MMSI”) for administration
of the test. Parks tested positive for THC. However, Parks alleges that his test
was not handled properly, and thus, it is defective and cannot present cause
for his termination. Parks testified that his test was defective because the vial
containing the specimen did not have a seal where he could initial. The vials
were sealed at some disputed time, but it is undisputed that Parks never
initialed the seals. 1




       1 Parks’s failure to initial the seals on the vials and sample collector Kevin Lecompte’s
failure to report the lack of Parks’s initials on the vials allegedly violates DOT testing
procedures. See 49 C.F.R. § 40.71(b)(7) (2001).

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                                 No. 18-30135
      Parks also testified that there were procedural defects with his test
because Brittany Comeaux, an MRO assistant, spoke with him about his test
rather than Dr. Brian Heinen, the Medical Review Officer (“MRO”). See 49
C.F.R. § 40.131 (a)-(b) (2008) (stating that the MRO must “actually talk to the
employee” regarding the outcome of the test, but if the employee declines to
speak with the MRO, then staff under the MRO’s personal supervision can
record that information before the MRO certifies the test).
      After Parks was notified about his positive test results, he spoke with J.
Dana Ortego the Parish’s Human Resources Director; Michael Ordogne, his
supervisor; and Al Levron, the Parish Manager. During Parks’s individual
conversations with Ortego, Ordogne, and Levron, Ortego allegedly advised
Parks that “it would be in [Parks’s] best interest to retire,” and Levron
allegedly told Parks that if he did not quit, he was going to be fired. Based on
these alleged statements, Parks claims that he was constructively discharged.
      Parks’s retirement allowed him to retain his healthcare benefits as well
as other retirement benefits that he accrued pursuant to the State Parochial
Employee’s Retirement system, referred to as the “DROP” Program. Parks has
not sought to reapply to the Parish since he retired—which he is able to do one
year from the date of termination under Section 13, Subsection G-6 of the
Parish Personnel Manual—and he has not filed a grievance or sought a hearing
before the Personnel Board.
      In October 2016, Parks sued the Parish; MMSI; Alere Toxicology
Services, Inc. (“Alere”), the organization responsible for testing his urine
sample; and Dr. Brian Heinen, as a professional medical corporation and as
the MRO. In December 2016, Parks amended his complaint, alleging a Section
1983 claim because his drug test was unreasonable under the Fourth
Amendment, given that MMSI, Alere, and Dr. Heinen made procedural errors
in administering his drug test and relaying to him the results. See U.S. CONST.
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amend. IV. Parks also alleged a separate Section 1983 claim because the
Parish’s reliance on the defective drug test led to his constructive discharge
without adequate due process, which violated the Fourteenth Amendment.
U.S. CONST. amend. XIV. Further, Parks brought various state law claims,
including state law constitutional claims against the Parish.
       In February 2017, the district court granted MMSI’s motion to dismiss
and granted in part and denied in part the Parish’s motion to dismiss. The
district court dismissed Parks’s Section 1983 claim based on the Fourth
Amendment against the Parish. It also denied the Parish’s motion as to Parks’s
Section 1983 claim based on the Fourteenth Amendment, Parks’s state law
constitutional claims, and the Parish’s alternative motion for summary
judgment. In March 2017, the district court granted Alere’s motion for
judgment on the pleadings and dismissed Parks’s claims against Dr. Heinen
(as a professional corporation and as the MRO) without prejudice for failure to
prosecute. In December 2017, the Parish filed a second motion for summary
judgment, and in January 2018, the district court granted the motion resolving
Parks’s remaining claims against the Parish. Parks timely appealed.
II.    ANALYSIS
       “We review the grant of summary judgment de novo, applying the same
standards as the district court.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.
2010) (citation omitted). Summary judgment is appropriate where the
pleadings, depositions, answers to interrogatories and admissions on file,
together with any affidavits, show there are no genuine issues of material fact
and that the moving party is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.
R. Civ. P. 56(c)). “The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144,
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158-159 (1970)). Not every factual dispute between the parties will prevent
summary judgment; rather, the disputed facts must be material and must have
the potential under the substantive law governing the issue to affect the
outcome of the suit. See Anderson, 477 U.S. at 247-48. A plaintiff’s mere beliefs,
conclusory allegations, speculation, or unsubstantiated assertions are
insufficient to survive summary judgment. See Clark v. Am.’s Favorite Chicken
Co., 110 F.3d 295, 297 (5th Cir. 1997) (citation omitted).
       To establish a Section 1983 claim based on termination of employment
without affording procedural due process, Parks must first establish that he
has a property interest that entitles him to adequate due process before his
property interest is deprived. See McDonald v. City of Corinth, 102 F.3d 152,
155-56 (5th Cir. 1996)); see also LeBeouf v. Manning, 575 F. App’x 374, 376 (5th
Cir. 2014) (per curiam) (unpublished) (citing McDonald, 102 F.3d at 155-56). 2
Parks’s property interest in his continued employment with the Parish is
undisputed. Secondly, Parks must establish that he was terminated without
receiving adequate due process. McDonald, 102 F.3d at 155-56.
       For a party with a property interest in continued employment, notice and
the opportunity to respond are the essential requirements for pre-termination
due process. Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 546 (1985)
(“The tenured public employee is entitled to oral or written notice of the
charges against him, an explanation of the employer’s evidence, and an
opportunity to present his side of the story. To require more than this prior to
termination would intrude to an unwarranted extent on the government’s
interest in quickly removing an unsatisfactory employee.” (internal citations



       2  Monell v. Department of Social Services is also applicable to this case because Parks
brings a claim against a municipality. 436 U.S. 658 (1978). However, because we hold that
the district court was correct in granting summary judgment to the Parish, there is no Monell
liability for the Parish.
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                                  No. 18-30135
omitted)). However, this notice and opportunity to respond must be coupled
with adequate post-termination administrative procedures. Id.
      The crux of this case is whether Parks was terminated via constructive
discharge without receiving requisite due process. “Constructive discharge in
a procedural due process case constitutes a [Section] 1983 claim only if it
amounts to forced discharge to avoid affording pre[-]termination hearing
procedures.” Fowler, 799 F.2d at 981; see also Rutland v. Pepper, 404 F.3d 921,
923 (5th Cir. 2005) (per curiam) (citing Fowler, 799 F.2d at 981).
      Parks does not provide any evidence that the Parish was motivated by a
desire to avoid pre-termination proceedings when Parks was offered the
opportunity to retire instead of being terminated. Instead, Parks asserts that
Brown v. Texas A&M University presents an alternative option for him to
establish a constructive discharge claim within the context of Section 1983. 804
F.2d 327, 333 (5th Cir. 1986). Interpreting Fowler, the Fifth Circuit’s opinion
in Brown states that “in order to establish a cognizable claim of constructive
discharge, a plaintiff must allege particular facts showing either that the
employee found [them]self ‘between the Scylla of voluntary resignation and the
Charybdis of forced termination,’ or that [the employer was motivated to evade
pre-termination hearing procedures].” Id. at 333 (citing Fowler, 799 F.2d at
981) (emphasis added); see also LeBeouf, 575 F. App’x at 376 n.1 (noting the
conflict between Fowler and Brown without fully addressing it).
      The Fifth Circuit rule of orderliness requires us to follow the earliest
precedential opinion when there is a conflict between two cases concerning the
same issue. Rios v. City of Del Rio, 444 F.3d 417, 425 n.8 (5th Cir. 2006) (“The
rule in this circuit is that where two previous holdings or lines of precedent
conflict the earlier opinion controls and is the binding precedent in this circuit
(absent an intervening holding to the contrary by the Supreme Court or this
court en banc).”). Fowler is clear that a constructive discharge claim in a due
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                                       No. 18-30135
process case only constitutes a Section 1983 claim if the employer seeks to
avoid affording an employee pre-termination due process. Brown misinterprets
Fowler and created an incorrect standard.
       There has been no intervening Supreme Court or Fifth Circuit en banc
case regarding the establishment of a Section 1983 claim in a procedural due
process case based on a constructive discharge theory. Therefore, Fowler is the
binding law of the circuit.
       Parks’s lack of evidence regarding any motivation on behalf of the Parish
to avoid pre-termination proceedings necessarily means that Parks fails to
provide a required element of his Section 1983 claim, and thus summary
judgment was properly granted for the Parish. See Celotex Corp., 477 U.S. at
323 (“[A] complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial” and
thus, the moving party is entitled to a judgment as a matter of law).
       Alternatively, assuming Parks only had to establish that he was placed
in a position where he was forced to choose between termination and
retirement, the Parish should still receive summary judgment because Parks
received adequate due process. 3
       “[D]ue process is flexible and calls for such procedural protections as the
particular situation demands.” Gilbert v. Homar, 520 U.S. 924, 930 (1997)
(quoting Morrisey v. Brewer, 408 U.S. 471, 481 (1972)). Pre-termination
proceedings do not need to be elaborate; the “[Supreme Court] ha[s] pointed
out that ‘the formality and procedural requisites for the hearing can vary,
depending upon the importance of the interests involved and the nature of the
subsequent proceedings.’” Loudermill, 470 U.S. at 544 (quoting Boddie v.


       3 “This circuit follows the rule that alternative holdings are binding precedent and not
obiter dictum.” United States v. Potts, 644 F.3d 233, 237 n.3 (5th Cir. 2011) (quoting Pruitt v.
Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991)), cert denied. 566 U.S. 923 (2012).
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Connecticut, 401 U.S. 371, 378 (1971)). Additionally, pre-termination hearings
“should be an initial check against mistaken decisions—essentially, a
determination of whether there are reasonable grounds to believe that the
charges against the employee are true and support the proposed action.” Id. at
545-46 (citing Bell v. Burson, 402 U.S. 535, 540 (1971)).
      It is undisputed that Parks had notice of his positive test results and
impending termination; therefore, we must determine whether Parks had an
opportunity to be heard. Parks asserts that because the Parish Policy
regarding a positive drug test calls for an automatic termination, it does not
provide an opportunity to consider the “appropriateness or necessity of the
discharge.” See Loudermill, 470 U.S. at 543. However, Parks was presented
with several opportunities to be heard prior to his retirement regarding an
appropriate course of action.
      After Parks was notified of his positive test results, he spoke with
Ordogne, Levron, and Ortego regarding how the test result would affect his
employment. Parks asserts that he was told to retire rather than be
terminated, placing him between the “Scylla of voluntary resignation and the
Charybdis of forced termination.” But, he had notice of his impending
termination, he knew the evidence against him, and he had the opportunity to
be heard regarding his impending termination by speaking with Ordogne,
Levron, and Ortego. See Loudermill, 470 U.S. at 546. Therefore, we hold that
the Parish offered him constitutionally adequate pre-termination due process.
See, e.g., Browning v. City of Odessa, 990 F.2d 842, 844-45 (5th Cir. 1993)
(determining that Plaintiff’s thirty-minute meeting with his superior
constituted an adequate pre-termination hearing “since a full evidentiary post-
termination hearing was available”).
      As to post-termination due process, Parks never attempted to implement
the grievance procedure set out in Section 8.2 of the Parish Personnel Manual.
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Under this section, Parks could have appealed to the Personnel Board for a
hearing regarding any disciplinary action taken against him. Parks testified
that he was not sure that he could have gone through the grievance process as
a “non-employee.” However, he also testified that he had gone through the
grievance process before regarding a separate non-disciplinary matter, which
establishes that he was familiar with the grievance process. Further, Parks
testified that “[he] probably had a grievance process,” but that he did not have
the necessary evidence to rebut the doctor’s test and he would have to do it
while already terminated.
       Taking the facts in Parks’s favor, Parks had knowledge of the grievance
procedure, but he did not take advantage of this opportunity post-termination.
Whether Parks believed that a post-termination hearing would be futile does
not establish that the Parish lacked adequate post-termination opportunities
for Parks to be heard, and it does not establish a lack of post-termination due
process. See Browning, 990 F.2d at 845 n.7 (“This [c]ourt has consistently held
that one who fails to take advantage of procedural safeguards available to him
cannot later claim that he was denied due process.” (citations omitted)); see
also Myrick v. City of Dallas, 810 F.2d 1382, 1388 (5th Cir. 1987) (same). In a
post-termination hearing Parks could have argued that the test was improper,
that there were other alleged procedural defects, and any other arguments
surrounding his termination. For these reasons, we hold that the Parish
provided Parks with an adequate opportunity for post-termination due
process. 4



       4 We do not address the Parish’s argument that Parks waived his right to post-
termination due process because he retired. Regardless of whether Parks waived his right to
post-termination due process, the outcome would still be the same because we hold that the
Parish offered Parks an adequate opportunity for post-termination due process. Additionally,
we do not address this argument because the panel is also able to resolve this case on other
grounds.
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                                       No. 18-30135
III.     CONCLUSION
         For the reasons stated above, we AFFIRM the district court’s grant of
summary judgment for the Parish on Parks’s remaining Section 1983 claim
and state law constitutional claim. 5




         Parks’s state law constitutional claim pursuant to La. Const. Art. I § 2 fails for the
         5

same reasons as Parks’s Section 1983 claim. See Plaquemines Par. Gov’t v. River/Rd. Const.,
Inc., 828 So. 2d 16, 24 (La. Ct. App. 2002) (“Unlike the Louisiana Constitution’s provision on
equal protection, which is distinct from that provided in the Fourteenth Amendment, its
guarantee of due process does not vary semantically from the Due Process Clause of the
Fourteenth Amendment. Consequently, federal jurisprudence is relevant in determining the
nature and extent of La. Const. Art. I, § 2’s due process protection.” (citing Progressive Sec.
Ins. Co. v. Foster, 711 So.2d 675, 688 (La. 1998))), writ denied, 829 So. 2d 1055 (La. 2002).
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