IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30135

TERRY ALLEN PARKS, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

January 3, 2019

Lyle W. Cayce

Clerk

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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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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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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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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 posttermination 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 posttermination 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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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

 

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

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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