                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                           File Name: 04a0409p.06

                         UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                        X
                                  Plaintiff-Appellant, -
 ROBERT RELFORD,
                                                         -
                                                         -
                                                         -
                                                              No. 03-5600
          v.
                                                         ,
                                                          >
 LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT,              -
                                 Defendant-Appellee. -
                                                        N
                        Appeal from the United States District Court
                      for the Eastern District of Kentucky at Lexington.
                       No. 98-00334—Joseph M. Hood, District Judge.
                                       Argued: September 22, 2004
                                 Decided and Filed: November 24, 2004
                        Before: KEITH, MOORE, and GILMAN, Circuit Judges.
                                           _________________
                                                COUNSEL
ARGUED: James M. Morris, MORRIS & MORRIS, Lexington, Kentucky, for Appellant. Robert L.
Roark, WALTHER, ROARK, GAY & TODD, Lexington, Kentucky, for Appellee. ON BRIEF: James
M. Morris, MORRIS & MORRIS, Lexington, Kentucky, for Appellant. Robert L. Roark, Beth A. Bowell,
WALTHER, ROARK, GAY & TODD, Lexington, Kentucky, for Appellee.
                                           _________________
                                               OPINION
                                           _________________
         DAMON J. KEITH, Circuit Judge. On August 12, 1998, the Plaintiff-Appellant, Robert Relford,
filed a civil complaint in which he charged the Defendant-Appellee, the Lexington-Fayette Urban County
Government (“County”), pursuant to 42 U.S.C. § 1983, with having violated his constitutional rights in the
administration of its employee drug testing policies and programs. Relford complains that the County
subjected him to an unlawful search in violation of the Fourth Amendment by failing to abide by its written
procedures and by requiring him to undergo random drug testing. He also claims the County deprived him
of due process in violation of the Fifth and Fourteenth Amendments when, according to him, it
constructively discharged him from employment.
         Following discovery, the parties filed cross motions for summary judgment. On July 17, 2002, the
district court dismissed Relford’s due process claims because it determined that he had resigned from his
employment voluntarily, had not been constructively discharged, and had received all of the process he was
due inasmuch as he was given notice of and an opportunity to respond to the County’s petition for his
termination. On the same day, the district court granted a period of leave to the parties and called upon them

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No. 03-5600            Relford v. Lexington-Fayette Urban County Gov’t                                Page 2


to file additional pleadings addressing whether an arrest for possession of drug paraphernalia constituted
reasonable grounds for randomly drug testing a government employee. On March 21, 2003, subsequent to
the submission of additional briefing papers by each of the parties, the district court entered a summary
judgment as a matter of law in favor of the County after finding that, under the circumstances of this case,
the County had reasonable suspicion to support its order requiring Relford to undergo random drug testing.
      In this appeal, Relford asserts that the district court erred in awarding summary judgment to the
County. For the reasons set forth below, we AFFIRM the judgment of the district court.
                                      FACTUAL BACKGROUND
        Relford began work as an electrician with the County in July 1993. He, however, was arrested and
imprisoned on May 29, 1997, on charges of criminal trespass and possession of drug paraphernalia. As a
result of his incarceration, Relford was unable to report to work on the following day, and he commissioned
a friend to help him devise an excuse that would innocently explain his absence from work. Shortly
thereafter, this friend apparently contacted the County and falsely reported that Relford’s absence was due
to sickness. Unfortunately for Relford, his supervisor subsequently learned of his arrest and his improper
use of sick leave. He suspended Relford for a period of five (5) days and issued him a notification of
Reasonable Cause Testing (“RCT”).
       The issuance of a RCT notice is governed by the County’s Alcohol and Drug Free Workplace
Guidelines and Procedure Handbook, which provides, in pertinent part, as follows:
       Alcohol and Drug Screening shall be conducted under the following circumstances:
       ...
       E.    Reasonable Cause Testing (RCT) - Employees will be tested for drugs or alcohol
             when reasonable suspicion exists to support a belief that the employee is under the
             influence of drugs or alcohol or that the employee’s behavior or work performance
             has been affected by drugs or alcohol. The basis for the decision shall be
             documented, in writing, by at least two (2) trained supervisors or by professional law
             enforcement or medical personnel. A determination will be based upon observation
             and documentation of:
               1.      Detection of an alcoholic substance emitting from the employee’s breath.
                       This shall include a detection of a “hang-over” odor.
               2.      Observation(s) of the employee’s speech being unusually slurred, or
                       noticeably different without a proper medical reason being given.
               3.      Observation(s) of the employee’s actions or conduct as being noticeably
                       different or impaired and not consistent with normal conduct and without
                       proper explanation.
               4.      Observation(s) that the employee’s appearance, in conjunction with the
                       above, indicates that the employee is impaired.
               At the request of the Division Director or the Director of Human Resources, the
               observed employee may be required to submit to an independent blood/breath/urine
               test to determine if the employee is impaired. The requested testing is to be done
               within two (2) hours but no later than eight (8) hours after the observation. All
               results of such testing will be delivered immediately to the Director of Human
               Resources.
No. 03-5600             Relford v. Lexington-Fayette Urban County Gov’t                                 Page 3


Joint Appendix (“J.A.”) at 39. The RCT notice that was issued to Relford directed him to proceed
immediately to an urgent treatment center where he would be given a drug and alcohol test. The RCT notice
indicated that it was being issued on the basis of his “recent police arrest for ‘possession of a controlled
substance and drug paraphernalia.’” Id. at 45. Inasmuch as his arrest did not include a charge for
possession, the RCT notice was technically inaccurate.
        Relford refused to submit to the RCT. Claiming that his refusal constituted grounds for dismissal,
the County filed charges with the Civil Service Commission (“Commission”) requesting that Relford’s
employment be terminated. On October 15, 1997, the Commission held a hearing, during which it gave the
parties an opportunity to present evidence in favor of their respective positions. On the same day, the
Commission issued an Order finding that the five-day suspension which had been levied against Relford
was justified because his actions constituted an “abuse of sick leave and falsification of a report.” Id. at 46.
The Commission further found that under the County’s drug testing policies and guidelines “reasonable
grounds existed for requesting Mr. Relford to submit to a drug test.” Id. The Commission, however, opined
that the County (1) “failed to adequately advise Mr. Relford of the grounds for which he was requested to
take the drug test;” (2) “may have . . . misled Mr. Relford as to those grounds and the consequences of his
failure to take the test, by and through the obviously inaccurate or defective” notice; and (3) used
“guidelines in regard to ‘reasonable cause testing’ [that] are confusing.” Id. Thus, the Commission ordered
that Relford’s discipline “be reduced from dismissal to an additional 30 days suspension,” and that he
“submit forthwith to the Employee Assistance Program (EAP) for evaluation for drug dependency.” Id.
        Relford returned to work and participated in the EAP. The County’s EAP is directed exclusively
to the “earliest possible diagnosis and treatment for substance or alcohol abuse.” Id. at 32. Through the
EAP, Relford was subjected to drug dependency counseling and evaluation. More importantly, all EAP
participants undergo drug-testing in random order. Contemporaneously with his return to work and
participation in the EAP, Relford appealed the Commission’s order to the Fayette Circuit Court. On
December 1, 1997, while his appeal was pending, Relford was randomly selected for drug testing from
among the pool of EAP participants. He submitted to the screening and tested positive for the use of illegal
narcotics. On the basis of this test result, the County filed a second petition for Relford’s termination with
the Commission.
        On January 21, 1998, prior to the Commission holding a hearing on the second petition, Relford
resigned from his employment with the County, indicating that he had found another job. Nearly six months
later (on July 15, 1998), the Fayette Circuit Court reversed the Commission’s October 15 order because it
determined that the County acted arbitrarily and had not complied with its own drug testing procedures.
Relford subsequently filed the present cause of action in the United States District Court for the Eastern
District of Kentucky.
                                                DISCUSSION
       Relford contends that the district court erred in resolving the parties’ cross-motions for summary
judgment. In reviewing a grant of summary judgment on cross-motions for summary judgment, we apply
the same legal standards as the district court. Benefits Comm. of Saint-Gobain Corp. v. Key Trust Co. of
Ohio, N.A., 313 F.3d 919, 925 (6th Cir. 2002). A request for summary judgment should be granted only
where the pleadings and evidence “show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In evaluating each party’s
motion, the court must view all facts and inferences in the light most favorable to the nonmoving party.
Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). Because we consider only
questions of law, our standard of review is de novo. Benefits Comm. of Saint-Gobain, 313 F.3d at 925.
         Relford contends the district court erroneously granted summary judgment in favor of the County
because, according to him, the evidence and applicable law establishes that the County violated (1) his right
to be free from unreasonable search and seizure, as protected by the Fourth Amendment of the United States
No. 03-5600             Relford v. Lexington-Fayette Urban County Gov’t                                Page 4


Constitution, and (2) his right to due process of law, as protected by the Fifth and Fourteenth Amendments
of the United States Constitution.
                                                      I.
         With regard to his claim of a Fourth Amendment violation, Relford asserts that the district court
failed to adhere to the determinations of the Fayette Circuit Court, improperly held that he had not suffered
a constitutional violation because he did not submit to the RCT, and erred in concluding as a matter of law
that the County had just cause to demand drug testing of him. The district court held that the mandated drug
testing of Relford as an EAP participant was reasonable under the circumstances.
        The central question pending before this court is whether the County violated Relford’s Fourth
Amendment right to be free from unreasonable search and seizure when it mandated his participation in the
drug and alcohol abuse EAP and thereby subjected him to random drug testing. The Fourth Amendment
provides, in pertinent part, that “[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, . . . but upon probable cause.”
U.S. Const. amend. IV. In assessing whether the right against unreasonable searches and seizures has been
violated, the court must consider whether the action is “attributable to the government,” and amounts to a
“search” or “seizure” for Fourth Amendment purposes. See Skinner v. Ry. Labor Executives’ Ass’n, 489
U.S. 602, 614 (1989) (“Before we consider whether the tests in question are reasonable under the Fourth
Amendment, we must inquire whether the tests are attributable to the Government or its agents, and whether
they amount to searches or seizures.”). If the contested action meets both of these requirements, the court
then considers whether the search or seizure is “unreasonable” under the Fourth Amendment. Id.
        In the present controversy, it is clear that both of the initial requirements have been satisfied. The
drug test at issue is attributable to government or government-sanctioned action inasmuch as Relford is
employed by county government. In addition, it is well settled that drug tests, which utilize blood-testing,
breath-testing or urinalysis, constitute “searches” that come within the ambit of the Fourth Amendment.
Skinner, 489 U.S. 602, 616-617 (citing Schmerber v. California, 384 U.S. 757, 767-768 (1966), (finding a
Fourth Amendment search in the use of blood-testing procedures); California v. Trombetta, 467 U.S. 479,
481 (1984) (finding a Fourth Amendment search in the use of breathalysers)).
        Having determined that the test is attributable to government and constitutes a search for Fourth
Amendment purposes, the court must now examine the drug testing of Relford for reasonableness. The
Fourth Amendment does not preclude all searches that are attributable to the government, only those that
are unreasonable. Skinner, 489 U.S. at 619. (citations omitted). Whether the intrusion is reasonable
“depends on all of the circumstances surrounding the search or seizure and the nature of the search or
seizure itself.” United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985).
        As a general matter, to satisfy the reasonableness requirement, a search or seizure must be
“accomplished pursuant to a judicial warrant issued upon probable cause.” Skinner, 489 U.S. at 619. Stated
differently, “a search ordinarily must be based on individualized suspicion of wrongdoing.” Chandler v.
Miller, 520 U.S. 305, 313 (1997) (citation omitted). The Supreme Court, however, has recognized
“particularized exceptions to the main rule,” id., when “special needs, beyond the normal need for law
enforcement, make the warrant and probable-cause requirement impracticable,” Skinner, 489 U.S. at 619.
(internal quotations and citations omitted). In evaluating these “particularized exceptions,” the
constitutionality of a governmental policy or procedure “is judged by balancing its intrusion on the
individual's Fourth Amendment interests against its promotion of legitimate governmental interests.” Id.;
Delaware v. Prouse, 440 U.S. 648, 654 (1979); United States v. Martinez-Fuerte, 428 U.S. 543 (1976). “In
limited 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, a search may be reasonable despite the absence of such suspicion.” Chandler,
No. 03-5600                 Relford v. Lexington-Fayette Urban County Gov’t                                             Page 5


520 U.S. at 314 (quoting Skinner, 489 U.S. at 624). Thus, not all suspicionless testing violates the Fourth
Amendment.
        Evaluating reasonable suspicion “involves a twofold inquiry: first, one must consider whether the
action was justified at its inception; second, one must determine whether the search as actually conducted
was reasonably related in scope to the circumstances which justified the interference in the first place.” New
Jersey v. T.L.O., 469 U.S. 325, 341 (1985) (citations omitted). In justifying an intrusion, the government
“must be able to point to specific and articulable facts which, taken together with rational inferences from
those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 20-21 (1968). “[I]t is imperative
that the facts be judged against an objective standard: would the facts available to the officer at the moment
of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was
appropriate?” Id. at 21-22.
        Relford argues, without contest, that all EAP participants undergo drug testing in random order. We
must therefore determine whether the County had a reasonable suspicion that Relford was involved in illegal
drug-related activities when it ordered him to take part in its substance abuse assistance program. In this
case, Relford was arrested for criminal trespass and possession of drug paraphernalia. He then failed to
report his arrest to his employer. When it became apparent that his incarceration would result in his absence
from work, he elicited the help of a friend, with whom he concocted a false excuse in an unsuccessful effort
to cover up his absence. Upon his supervisor learning of the arrest and the actual reason for his absence
from work, he issued Relford a notice to submit to RCT. Relford refused.
         In directing Relford to participate in the drug and alcohol abuse EAP, the Commission found that
he had been arrested for possession of drug paraphernalia, falsely called in sick, abused sick leave, and
falsified a report. The nature of Relford’s employment misconduct, i.e., his dishonesty to his employer
exemplified by his efforts to cover up the reasons for his work absence, when accompanied by his arrest for
criminal trespass and possession of drug paraphernalia, reasonably suggests his use of the paraphernalia for
the consumption of illegal narcotics. Whether a mere allegation of possession of drug paraphernalia,
standing alone, would support reasonable suspicion sufficient to justify employee drug-testing is not before
us. In the present controversy, however, the undisputed   facts sufficiently establish reasonable suspicion that
Relford was probably using controlled substances.1 As such, the order of the Commission directing Relford
to participate in the drug and alcohol abuse EAP does not constitute an unreasonable search for Fourth
Amendment purposes.
        Relford advances several additional arguments in support of his Fourth Amendment claim. He
contends that the district court erred by failing to adhere to the determination of the Fayette Circuit Court,
which found that the County had ordered the drug testing arbitrarily. A review of the record, however,
reveals that the State court did not consider the reasonableness of the drug test on Fourth Amendment
grounds. In this regard, the State court declined to rule upon the constitutional issue stating that “[w]hether
or not the constitutional concerns are satisfied in this case is not really relevant because the respondent
[County] has failed to follow its own drug testing policies.” J.A. at 97. Although the County may have
arbitrarily strayed from its internal policies, that conduct does not conclusively establish a Fourth
Amendment violation. See Guest v. Leis, 255 F.3d 325, 334 (6th Cir. 2001) (citing State v. Klemm, 536
N.E.2d 14, 16 (Ohio Ct. App. 1987) for the proposition that a violation of state law does not make a search
unreasonable in a constitutional sense).
        Relford also contends the district court improperly concluded that he had not suffered a
constitutional violation because he did not actually submit to the first test. Because Relford refused to
submit to the notice of RCT, we agree with the district court that he did not suffer any cognizable injury

    1
      Inasmuch as we conclude that the search of Relford was supported by reasonable suspicion, we need not address whether
Relford was employed in a safety sensitive position nor whether some other justification necessary for suspicionless drug testing
existed. See Skinner, 489 U.S. at 619; Knox County Educ. Ass’n v. Knox County Bd. of Educ., 158 F.3d 361, 373 (6th Cir. 1998).
No. 03-5600             Relford v. Lexington-Fayette Urban County Gov’t                                Page 6


from that notice. Moreover, even if he had submitted to the RCT, our finding that the Commission’s order
that he participate in the drug and alcohol abuse EAP was supported by reasonable suspicion is rooted in
circumstances that occurred prior to his employer’s issuance of the RCT notice. Thus, the same facts
constitute a reasonable suspicion that would have been equally applicable to the testing required by the RCT
notice.
                                                      II.
       We now turn to Relford’s complaint that the County violated his due process rights under the Fifth
and Fourteenth Amendments of the United States Constitution. In evaluating a claim for a violation of due
process rights, this court applies a two-step analysis. First, we determine whether the claimant has a
property interest that entitles him to due process protection. Leary v. Daeschner, 228 F.3d 729, 741-42 (6th
Cir. 2000) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985)). Under state law,
government and civil service employees may have a property right in their continued employment. See
Loudermill, 470 U.S. at 538. Second, if the claimant has such an interest, this Court must determine “what
process is due.” Id. at 541.
        The County concedes that Relford possessed a property interest in his continued employment
because Kentucky law provides for dismissal or suspension only upon certain showings. See K.R.S.
§ 67A.280 (“No employee in the classified service of urban-county government, . . . shall be dismissed,
suspended, or reduced in grade or pay for any reason except inefficiency, misconduct, insubordination, or
violation of law involving moral turpitude.”). The district court, however, determined that Relford could
not maintain his claim for a due process violation because he voluntarily resigned from his job with the
County. In addition, the district court held that Relford received notice of the County’s intent to seek his
termination but declined to use the administrative appeals process, which would have entitled him to a
hearing and an opportunity to be heard. Relford argues that he was constructively discharged.
          On January 21, 1998, after he tested positive for the use of unlawful drugs, Relford resigned in a
letter, stating, “I Robert Relford having found another job with better [and] less stressful working conditions
do resign effective Wendsday [sic], Jan 21[,] 1998.” J.A. at 93. Thus, the record supports the conclusion
that Relford resigned because he found other employment. In addition, Relford received two notices that
the County was seeking his termination; first, after he refused the RCT, and second, after he tested positive
as an EAP participant. In the instance of the RCT, Relford received a hearing before the Commission during
which he was given an opportunity to present evidence. With regard to the EAP testing, however, Relford
resigned before a hearing date had been established. “An essential principle of due process is that a
deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to
the nature of the case.’” Loudermill, 470 U.S. at 542 (quoting Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 313 (1950)). Here, Relford was provided both notice and an opportunity to be heard.
         We similarly must reject Relford’s claim that the RCT notice did not apprise him in a manner that
was sufficient to protect his due process rights because it inaccurately accused him of having been arrested
for “possession” of narcotics. Relford contends that, in the absence of the defective RCT notice, the
Commission would not have directed his participation in the drug and alcohol abuse EAP. The County
concedes the inaccuracy of the notice. This technical deficiency, however, did not so totally mislead
Relford as to have resulted in a deprivation of his constitutional rights to due process of law. Surely Relford
knew that he had recently been arrested and what charges had been lodged against him. Indeed, the
evidence suggests that Relford was fully aware of the intent of the challenged notice. In particular, the
Fayette Circuit Court noted in its opinion that “[a]t his attorney’s suggestion, Relford requested that the
reasonable cause notice be reissued to reflect the correct charges.” J.A. at 94. Upon our consideration of
all of these circumstances, we conclude that the RCT notice was sufficient to place Relford on notice and
to protect his constitutional rights to due process of law.
No. 03-5600            Relford v. Lexington-Fayette Urban County Gov’t                               Page 7


                                                    III
        We find that the County did not violate Relford’s right to be free from an unreasonable search under
the Fourth Amendment or his rights to due process of law under the Fifth and Fourteenth Amendments of
the United States Constitution. Accordingly, we AFFIRM the district court’s order of summary judgment
in favor of the Defendant.
