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

                                        No. 14-30020                               FILED
                                                                            November 19, 2014
                                                                              Lyle W. Cayce
JESSE J. BRYANT,                                                                   Clerk

                                                    Plaintiff-Appellant

v.

CITY OF MONROE; DON HOPKINS,

                                                    Defendants-Appellees


                     Appeal from the United States District Court
                        for the Western District of Louisiana
                               USDC No. 3:12-CV-2378


Before JOLLY and JONES, Circuit Judges, and AFRICK, District Judge. *
AFRICK, District Judge:**
      Plaintiff-Appellant Jesse J. Bryant (“Bryant”), an employee of the City
of Monroe (“City”), underwent a suspicionless urine test pursuant to City and
departmental drug-testing policies after an on-the-job vehicular accident. He
was terminated after testing positive for marijuana use.                     Bryant filed a
lawsuit against the City and his supervisor alleging, as relevant to this
appeal, that the urine test was an unreasonable search in violation of the

      *   U.S. District Judge for the Eastern District of Louisiana, sitting by designation.

      ** 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not be published and is not precedent except under the limited circumstances set forth in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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Fourth Amendment to the U.S. Constitution and Article I, § 5 of the
Louisiana Constitution, and that his resulting termination violated a
collective bargaining agreement (“CBA”) and the Due Process Clause of the
Fourteenth Amendment. The court below dismissed his claims on summary
judgment, finding no violations of the Fourth or Fourteenth Amendments,
the Louisiana Constitution, or the CBA because the drug test was a
reasonable search which gave the City cause to terminate him.                  Bryant
timely appealed. We AFFIRM.
                                         I.
      Bryant worked for the City as a labor crew leader in its Public Works
Department.    His job duties included driving City-owned pickup trucks,
supervising   and    transporting    a        grounds   crew,     operating     heavy
groundskeeping equipment, working with pesticides, and maintaining
highway medians.
      The City of Monroe prohibits drug use by its employees. The Public
Works   Department     had   an    Accident/Incident     Policy    which      requires
suspicionless drug tests after certain accidents, designated on a sliding scale
of “No Fault,” “Simple Fault,” “Negligent Fault,” and “Reckless Fault.” As
pertains to this appeal, the Policy defines a “Simple Fault” accident or
incident as “one which posed minimal danger to life and/or property and . . .
was the result of simple inadvertence, e.g. backing into a stationary object.”
Pursuant to the Accident/Incident Policy, a first-offense “Simple Fault”
accident or incident results in a “Written Reprimand” and a “Drug Screen.”
      The City of Monroe also established by ordinance a separate drug-
testing framework (“the City Policy”) governing all City employees, which
was included in an employee handbook issued to Bryant. Category II of the




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City Policy requires suspicionless drug testing after certain specified
accidents or injuries. 1
      While on the job in November 2011, Bryant drove a City-owned pickup
truck carrying crew members and equipment to clear an overgrown vacant
lot. As Bryant turned into the lot, the side of the truck brushed up against
what is described in the record as a bush or a stump. Although the record
appears unsettled regarding whether this damaged the truck, Bryant does
not dispute that he hit the bush/stump and that he was at fault in doing so.
Three days later, one of the crew members brought this incident to the
attention    of   Bryant’s    supervisor,    Defendant-Appellant        Don    Hopkins.
Following a brief investigation and several delays, eight days after the
accident Bryant underwent an unobserved urine test for drug or alcohol use.
      The City concedes that when it ordered Bryant to undergo the urine
test, it had no basis to suspect that he had used drugs or alcohol. Bryant
tested positive for marijuana metabolites. After a second test and additional
proceedings, the City fired Bryant.
      Bryant filed a § 1983 lawsuit alleging, as relevant to this appeal, that
the suspicionless drug test and termination violated his rights under the
Fourth Amendment, Article I, § 5 of the Louisiana Constitution, the CBA,
and the Due Process Clause of the Fourteenth Amendment.                     The parties

      1  The other testing categories of the City Policy are not implicated in this case.
Category I established “random routine” drug testing of employees in “safety sensitive”
positions. The drug test in this case was not “random [and] routine” and the City has not
argued at any stage of the proceedings that the test was conducted pursuant to Category I.
Likewise, the U.S. Magistrate Judge did not analyze or uphold the test administered to
Bryant as a Category I “random [and] routine” test. See Bryant v. City of Monroe, No. 12-
2378, 2013 WL 5924731, at *9 (W.D. La. Oct. 31, 2013) (noting that the City could have had
to wait up to three years before Category I authorized a random routine drug test).
Accordingly, Category I is not implicated in this case.
       Category III, which governs testing based on reasonable suspicion of substance
abuse, and Category IV, which governs testing following an employee’s completion of a drug
abuse program, do not apply.
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consented to proceed before a U.S. Magistrate Judge, who granted
defendants’ motion for summary judgment.              The U.S. Magistrate Judge
concluded that the City’s drug-testing policy, as applied to Bryant, did not
violate his constitutional rights. 2 Bryant timely appealed.
                                          II.
      “We review summary judgment de novo, applying the same standard as
the district court.” E.g., Thompson v. Mercer, 762 F.3d 433, 435 (5th Cir.
2014).    We review a lower court’s “ultimate determination of Fourth
Amendment reasonableness de novo.” Mack v. City of Abilene, 461 F.3d 547,
552 (5th Cir. 2006).
                                         III.
      “[S]tate-compelled collection and testing of urine . . . constitutes a
‘search’ subject to the demands of the Fourth Amendment.” Vernonia Sch.
Dist. 47J v. Acton, 515 U.S. 646, 652 (1995) (citing Skinner v. Rwy. Labor
Execs. Ass’n, 489 U.S. 602, 617 (1989)). “To be reasonable under the Fourth
Amendment, a search ordinarily must be based on individualized suspicion of
wrongdoing.” Chandler v. Miller, 520 U.S. 305, 313 (1997) (citing Vernonia,
515 U.S. at 652-53).      “But particularized exceptions to the main rule are
sometimes warranted based on ‘special needs, beyond the normal need for
law enforcement.’”     Id. (quoting Skinner, 489 U.S. at 619).           Accordingly,
“where a Fourth Amendment intrusion serves special governmental needs,
beyond the normal need for law enforcement, it is necessary to balance the
individual’s privacy expectations against the Government’s interests to
determine whether it is impractical to require a warrant or some level of



      2  The U.S. Magistrate Judge also granted summary judgment on Bryant’s claim that
the test violated Louisiana statutory law. Bryant, 2013 WL 5924731, at *12. Bryant does
not pursue this claim on appeal.
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individualized suspicion in the particular context.”       Nat’l Treasury Emps.
Union v. Von Raab, 489 U.S. 656, 665-66 (1989).
      The Supreme Court’s decision in Skinner is illustrative. In Skinner,
the Federal Railroad Administration (“FRA”) passed regulations requiring
drug testing of railroad employees after significant accidents, and authorizing
discretionary drug testing after certain specified safety violations. See 489
U.S. at 609-11. Presented with a facial Fourth Amendment challenge to the
constitutionality of those regulations, the Supreme Court first concluded that
public safety is a special, non-law-enforcement need justifying drug testing of
safety-sensitive railroad employees as a way of enforcing restrictions on
workplace drug and alcohol use. See id. at 620-21.
      The Supreme Court then examined the reasonableness of the drug
testing program by balancing the employees’ privacy interests against the
government’s need to test without individualized suspicion. See id. at 624.
On the privacy side of the balancing analysis, the Supreme Court concluded
that the unobserved urine tests required by the regulations were not a severe
privacy intrusion, see id. at 626, particularly because the expectations of
privacy of the subject employees were significantly reduced by their
“participation in an industry that is regulated pervasively to ensure safety, a
goal dependent, in substantial part, on the[ir] health and fitness,” id. at 627.
      On the other side of the balancing analysis, the Supreme Court
concluded that the government’s “interest in testing without a showing of
individualized suspicion is compelling.” Id. at 628. First, the Court reasoned
that blanket post-accident testing without any requirement of individualized
suspicion is “an effective means of deterring employees engaged in safety-
sensitive tasks from using controlled substances or alcohol in the first place.”
See id. at 629. Second, the Court reasoned that the drug tests would help the


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railroads investigate and respond to accidents by confirming or excluding
drug or alcohol use as a factor in both severe accidents as well as lesser
incidents which “involve the potential for a serious train accident or grave
personal injury.”      See id. at 630 (emphasis added and internal quotation
marks omitted).        Requiring the employer to obtain facts suggesting a
particular employee’s impairment, “a difficult endeavor in the best of
circumstances,” and even more difficult in the “chaotic” aftermath of a serious
accident, “would seriously impede an employer’s ability to obtain this
information, despite its obvious importance.” Id. at 631. Balancing these
interests, the Supreme Court concluded that “the Government’s compelling
interests outweigh privacy concerns.” Id. at 633. Accordingly, the drug tests
were constitutionally reasonable pursuant to the Fourth Amendment. See id.
at 634.
       Applying this “special needs” framework, the Supreme Court has
upheld rules or regulations authorizing suspicionless drug tests of Customs
employees applying for positions requiring them to carry firearms or directly
engage in drug interdiction, see Von Raab, 489 U.S. at 679, 3 and student
athletes, see Vernonia, 515 U.S. at 664-65, but rejected testing of political
candidates, Chandler, 520 U.S. at 321-22. This Court has applied the same
analytical framework to uphold a test of a custodian pursuant to a rule
requiring random drug testing of designated safety-sensitive school
employees. See Aubrey v. School Board of Lafayette Parish, 148 F.3d 559,


       3 The testing regulations at issue in Von Raab also applied to “employees who seek
promotions to positions where they would handle sensitive information.” See 489 U.S. at
677-78. The Supreme Court affirmed such testing in principle, but could not discern from
the appellate record whether all of the categories of employees designated for testing, such
as “Animal Caretaker” or “Baggage Clerk,” were in fact “likely to gain access to sensitive
information.” See id. Accordingly, the Supreme Court remanded for additional proceedings
to decide whether the regulations “defined this category of employees more broadly than is
necessary” to address the special need for suspicionless testing. See id. at 678.
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564-65 (5th Cir. 1998). 4 Finally, in a decision particularly relevant to these
facts, the Sixth Circuit upheld the application of a policy requiring public
transportation drivers to undergo a drug test after “an accident involving a
fixed object.” See Tanks v. Greater Cleveland Regional Transit Auth., 930
F.2d 475, 477, 479 (6th Cir. 1991). 5
       Guided by these cases, the U.S. Magistrate Judge concluded that the
test administered to Bryant was a constitutionally reasonable application of
both the departmental Accident/Incident Policy and Category II of the City
Policy. See Bryant, 2013 WL 5924731, at *10-11. On appeal, the parties
likewise frame the issues in terms of the “special needs” analysis.
       We begin by clarifying the issues presented in this appeal. First, we
find no genuine dispute of fact on this record that the “Simple Fault” testing
provision of the Accident/Incident Policy was triggered because Bryant’s City-
owned vehicle hit the bush as a result of his inadvertence. Second, although
Bryant suggests that the Policy is vague or overbroad, we do not treat this as
a facial constitutional challenge. A suspicionless drug-testing policy may be
constitutional as applied to some employees but unconstitutional as applied
to others.    See Von Raab, 489 U.S. at 678-79.               Accordingly, we address
whether the Accident/Incident Policy was constitutional as it was applied to

       4  Although Aubrey involved a drug test pursuant to a random drug-testing policy
and not a post-accident drug-testing policy as in this case, we consider portions of its
analysis very relevant to the present matter. See 148 F.3d at 561. First, the Aubrey panel
concluded that the duties of the school custodian, which included using cleaning chemicals,
mowing the school grounds, trimming trees, and making minor repairs, were safety-
sensitive, see id. at 561, 563, which sets a useful benchmark for assessing the safety
sensitivity of Bryant’s duties. Second, the Aubrey analysis regarding the intrusiveness of
the drug test and the employee’s expectations of privacy informs our analysis here.
        5 Bryant directs us to United Teachers of New Orleans v. Orleans Parish School

Board, in which we enjoined a suspicionless, no-fault, post-injury drug-testing program of
all teachers, teacher’s aids, and clerical workers. See 142 F.3d 853, 856-57 (5th Cir. 1998).
United Teachers is not apposite because the challenged testing program required drug tests
after workplace injuries without any showing of fault by the employee, as is required by the
Accident/Incident Policy in this case. See id. at 856.
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Bryant on these facts. Third, because we conclude that the drug test was a
constitutionally reasonable application of the Accident/Incident Policy, we
decline to decide whether the U.S. Magistrate Judge also correctly granted
summary judgment based on Category II of the City Policy. 6
       The first question in the Skinner analysis is whether the City has
articulated a “special need,” other than law enforcement, 7 justifying drug
testing of employees like Bryant. See Chandler, 520 U.S. at 318. The City
asserts its interest in public safety, and the Supreme Court has held that
public safety is a legitimate, non-law-enforcement interest that justifies drug
testing of safety-sensitive employees to enforce prohibitions on drug use. See
Skinner, 489 U.S. at 620 (testing justified to protect “safety of the traveling
public and of the employees themselves”); 489 U.S. at 672 (testing justified to
further “Government’s compelling interests in safety and in the integrity of
our borders”); see also Chandler, 520 U.S. at 323 (“[W]here . . . public safety is
not    genuinely    in    jeopardy,    the    Fourth     Amendment        precludes      the
suspicionless search, no matter how conveniently arranged.”) (emphasis
added). 8




       6  We note, however, that the U.S. Magistrate Judge’s interpretation of Category II of
the City Policy, which made superfluous the $500.00 property damage threshold for post-
accident drug testing, is not convincing. See Quarles v. St. Clair, 711 F.2d 691, 701 n.32
(5th Cir. 1981) (“[I]nterpretations which render parts of a statute inoperative or
superfluous are to be avoided.”) (internal quotation marks omitted).
        7 The Accident/Incident Policy states that “The Monroe Police Department must be

notified in the event of any accident/incident.” It is not apparent whether law enforcement
was notified after Bryant’s incident and neither party addresses this provision.
        8 Although Bryant points out the lack of any identified drug problem in the Public

Works Department, such a showing is “not in all cases necessary to the validity of a testing
regime.” See Chandler, 520 U.S. at 319. For example, there was no identified drug problem
in Aubrey, where we observed that while “such a showing would be of persuasive value, it is
not mandatory.” See 148 F.3d at 559; see also Von Raab, 489 U.S. at 673 (upholding
suspicionless testing program despite the fact that it “was not implemented in response to
any perceived drug problem among Customs employees”).
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        Bryant insists that his job duties, including the mere driving of a truck,
were not particularly safety-sensitive and, therefore, the City’s generalized
interest in safety does not extend to testing him under these circumstances.
As set forth above, his job duties included driving City vehicles and
transporting     co-workers,     operating       heavy    groundskeeping       equipment,
handling pesticides, and working in high-risk areas such as highway
medians. While these duties may be less safety-sensitive than those of the
railroad employees in Skinner, see 489 U.S. at 620-21, they are on the same
level as the duties of the school custodian in Aubrey who performed
groundskeeping and used cleaning chemicals, which we held to be sufficiently
safety-sensitive to justify drug testing. See 148 F.3d at 561, 563; see also
Tanks, 930 F.2d at 480 (holding that a transit agency had a special need to
test its drivers because of its “responsibility to protect the safety of its
passengers and the general public”). 9 Accordingly, we conclude that there is
no genuine dispute of material fact with respect to whether Bryant performed
safety-sensitive tasks and that the City sufficiently articulated a special, non-
law-enforcement need to test safety-sensitive Public Works Department
employees for prohibited drug use.
        “The question that remains, then, is whether the [City’s] need to
monitor compliance with [its drug] restrictions justifies the privacy intrusions
at issue absent a warrant or individualized suspicion.” Skinner, 489 U.S. at
621.     We conduct a balancing test to decide if this is one of the “limited


        9We also note that Category I of the City Policy states that “positions where the
health, welfare and/or safety of the public, co-employees and the individual is at risk shall
be deemed ‘safety sensitive’ positions, including but not limited to” “operation of motorized
vehicles, including automobiles, trucks, tractors, or other heavy equipment,” “positions that
entail working in dangerous conditions,” and “positions that require the handling or use of
chemical substances.” This buttresses our conclusion that Bryant’s job duties were
genuinely safety-sensitive, despite the fact that we do not uphold the test pursuant to the
City Policy.
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circumstances[] where the privacy interests implicated by the search are
minimal, and where an important governmental interest furthered by the
intrusion would be placed in jeopardy by a requirement of individualized
suspicion.” Id. at 624.
      On the privacy side of the constitutional balance, we examine the
intrusion on Bryant’s justifiable expectations of privacy. With respect to the
intrusiveness of the test itself, the unobserved urine specimen Bryant
provided is similar to the test administered in Aubrey, which we
characterized as minimally intrusive. See 148 F.3d at 564; see also Skinner,
489 U.S. at 626 (explaining that unobserved urine testing “reduce[s] the
intrusiveness of the collection process”).
      With respect to Bryant’s justifiable expectation of privacy, that
expectation “must be assessed in the context of the employment relation.”
Aubrey, 148 F.3d at 564 (citing O’Connor v. Ortega, 480 U.S. 709 (1987)). In
Aubrey, we held that the plaintiff school custodian’s justifiable expectations
of privacy were reduced by his awareness that he was designated as safety-
sensitive and subject to random testing, and that he should have expected
inquiry into his “fitness and probity” to perform his safety-sensitive duties.
See Aubrey, 148 F.3d at 565 (citing Von Raab, 489 U.S. at 671); see also Von
Raab, 489 U.S. at 672 & n.2 (“[A]pplicants know at the outset that a drug test
is a requirement of those positions.”). Like the custodian in Aubrey, Bryant
knew (or should have known) that he was subject to the Accident/Incident
Policy, and he should have expected inquiry into his “fitness and probity” to
operate vehicles and groundskeeping equipment through drug testing
pursuant to that Policy.      While Bryant’s expectation of privacy may be
greater than that of the heavily-regulated railroad workers in Skinner, see




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489 U.S. at 627, it is nonetheless reduced by the nature of his position and
duties.
       On the other side of the balance, we examine the City’s “interest in
testing without a showing of individualized suspicion.”                Id. at 628. 10 We
conclude that the City has a strong interest in the deterrent effect of
suspicionless mandatory testing of safety-sensitive employees after a fault-
based vehicular collision with an inanimate object.                   “By 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 [Accident/Incident Policy] significantly increase[s] the
deterrent effect” of the City’s penalties for drug or alcohol use. See id. at 630.
This is no less the case after a “Simple Fault” vehicular accident which posed
minimal danger, because “[t]esting drivers after a fault-based accident
involving minor property damage and no personal injuries . . . . provides an
opportunity for intervention before greater harm occurs.” Tanks, 930 F.2d at
480 (emphasis added).          A requirement of individualized suspicion before
administering such a drug test pursuant to the Accident/Incident Policy
would significantly impair this deterrent effect.
       The City’s interest in testing, absent individualized suspicion, in order
to investigate the cause of minor accidents such as this one is less compelling
than in Skinner, but measurable nonetheless. In Skinner, the difficulty of
investigating the aftermath of a serious train accident increased the
government’s need for suspicionless testing to gather “valuable information
respecting” causation. See 489 U.S. at 630-31. Here, the City would have

       10 To reiterate, we are focused on the City’s interest in testing Bryant under the
circumstances of this case. Because the Accident/Incident Policy expressly defines “backing
into a stationary object” as a triggering event, we express no opinion with respect to the
City’s interest in suspicionless testing of other employees after other hypothetical accidents
or incidents potentially covered by the Policy.
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less difficulty determining the cause of a “Simple Fault” collision with a
stationary object which “posed minimal danger to life and/or property.”
Nonetheless, the City has a valid interest in ruling out drug or alcohol use as
a cause whenever its safety-sensitive Public Works employees drive a City
vehicle into an inanimate object, and that interest would be impeded if
individualized suspicion were required. See Tanks, 930 F.2d at 480 (holding
that the city had an interest in “determining the cause of” a collision with a
stationary object even if only minor property damage resulted); see also
Skinner, 489 U.S. at 631 (explaining that even after less serious accidents,
“objective indicia of impairment are absent”).
      Bryant also points out that because he was not tested until eight days
after the incident, the test results were no longer helpful to any investigation
and the City’s need to test him without individualized suspicion was reduced.
The results of the test were still probative despite the delay, however,
because “[e]ven if urine test results disclosed nothing more specific than the
recent use of controlled substances by a covered employee, this information
would provide the basis for further investigative work designed to determine
whether the employee used drugs at the relevant times.” See Skinner, 489
U.S. at 632. Moreover, much of the delay was the result of Bryant’s failure to
report the incident, and the deterrent effect of mandatory post-accident
testing would be undermined if an employee could avoid testing by concealing
a triggering event from his employer.
      Balancing these considerations in the context of the particular facts of
this case, we conclude that the City’s strong interest in applying a drug-
testing policy to a safety-sensitive employee after a vehicular collision with a
stationary object outweighs the minimal intrusion on such an employee’s
reduced expectation of privacy. Accordingly, we conclude that the drug test


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administered to Bryant pursuant to the Accident/Incident Policy was
constitutionally reasonable and did not violate his Fourth Amendment rights.
We affirm the summary judgment in favor of the City on that claim.
                                     IV.
      Bryant also asserts that the drug test violated Article I, § 5 of the
Louisiana Constitution, which states that “[e]very person shall be secure in
his person, property, communications, houses, papers, and effects against
unreasonable searches, seizures, or invasions of privacy.”      Article I, § 5
“provides greater protection for individual rights than that provided by the
Fourth Amendment in some circumstances,” Louisiana v. Jackson, 764 So. 2d
64, 71 (La. 2000), but we are not convinced that this is one of those
circumstances.
      Bryant reads too much into the Louisiana Supreme Court’s statement
in Richard v. Lafayette Fire & Police Civil Service Board that “[t]he propriety
of a urinalysis test not ordered pursuant to a random drug testing program is
appropriately evaluated according to whether the appointing authority had
reasonable suspicion that a particular officer was a user of illegal drugs.” 8
So. 3d 509, 514 (La. 2009). Richard addressed whether a particular set of
facts gave rise to reasonable suspicion, not the constitutionality of
suspicionless workplace drug testing. Moreover, Richard cited Skinner as
providing the applicable balancing analysis for purposes of both the
Louisiana Constitution and the Fourth Amendment, suggesting that both
provide the same level of protection with respect to drug testing. See 8 So. 3d
at 515. Finally, if Bryant’s reading of Richard is correct, then the Louisiana
Supreme Court casually overruled a Louisiana statute expressly allowing
programmatic drug testing of a public employee “following an accident in the
course and scope of his employment.” La. Rev. Stat. § 49:1015(A). We decline


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to attribute such a holding to the Louisiana Supreme Court without a more
clear statement.
      We find nothing in Richard to suggest that Article I, § 5 of the
Louisiana Constitution sets a higher standard than the Fourth Amendment
to the United States Constitution with respect to suspicionless post-accident
drug testing. The drug test administered to Bryant was therefore reasonable
pursuant to the Louisiana Constitution for the same reasons set forth above,
and the U.S. Magistrate Judge correctly granted summary judgment to the
City on that claim as well.
      Bryant’s remaining claims pursuant to the Due Process Clause of the
Fourteenth Amendment and the applicable CBA depend on exclusion of the
drug test results as the cause for his termination. Because we conclude that
the drug test was constitutionally reasonable, the City had cause to
terminate him.      The U.S. Magistrate Judge correctly granted summary
judgment in favor of the City on those claims as well.
      For the foregoing reasons, the judgment is AFFIRMED.




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