### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 30 020

JESSE J. BRYANT , Plaintiff

- Appellant

v. CITY OF MONROE; DON HOPKINS , Defendant s
- Appellee s

Appeal from the United States District Court for the Western District of Louisiana USDC No. 3 :1 2

- 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 C ity and departmental drug

- testing polic ies after a n on
- the

- job vehicular accident . He was terminated after testing positive for marij uana use. Bryant filed a lawsuit against the Ci ty and his supervisor alleging , as relevant to this appeal, that the urine test was an unreasonable search in violat ion of the

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

* * Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 19, 2014 Lyle W. Cayce Cle rk Case: 14-30020 Document: 00512842561 Page: 1 Date Filed: 11/19/2014No. 14

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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 d ismiss ed his claims on summary judgment , finding n o 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 worke d for the City as a l abor crew leader in its P ublic W orks
D epartment. 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 Fa ult,” 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 obj ect.” 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 Poli cy”) 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 d rove a C ity

- owned pickup truck carrying crew members and equipment to clear a n overgrown vacant lot . As Bryant turned into the lot , the side of the truck brushed up against what is describe d 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.
T hre e days later , one of the crew members brought this incident to the attention of Bryant’s supervisor, Defendan t

- Appellant Don Hopkins

. Following a b rief investigation and several delays, eight days after the
accident Bryant underwent a n 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 law suit 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. T he drug test in this case was not “random [and] rout ine” 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. M agistrate J udge 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. 3 Case: 14-30020 Document: 00512842561 Page: 3 Date Filed: 11/19/2014No. 14

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consented to proceed before a U.S. M agistrat e J udge , who granted defendants’ motion for summary judgment . The U.S. Magistrate Judge conclud ed 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 judgm ent 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.” V e rnonia Sch.
Dist. 47J v. Acton , 515 U.S. 646, 652 (1995) (citing Skinner v. Rwy. Labor
Exec s. Ass’n , 489 U.S. 602, 617 (1989)). “ To be reasonable under the F ourth 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 par ticularized exceptions to the main rule are sometimes warranted based on ‘ special needs, beyond the no rmal need for law enforcement.’” Id. (quoting Skinner , 489 U.S. at 619). Ac c ordingly, “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 impr actical to require a warrant or some level of

2 The U.S. Magistrate Judge also granted s ummary 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. 4 Case: 14-30020 Document: 00512842561 Page: 4 Date Filed: 11/19/2014No. 14

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individualized suspicion in the particular context.” Nat’l Treasury Emps

. Union v. V on Raab , 489 U.S. 656, 665

- 66 (1989)

. The Supreme Court’s decision in Skinner is illustrative . In Skinner , the Federal Rail road 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 test ing of safety

- sensitive railroad employees as a way of enforc ing rest rictions on workplace drug and alcohol use. See id. at 620

- 21.
T he Supreme Court then examined the reasonableness of the drug testing program by balanc ing the employees’ privacy interests against the government’s need to test without individualized suspicion. See id. at 624. On the privacy side of the balanc ing analysis , the Supreme Court concluded that the unobserved urine test s required by the regulations w ere not a severe privacy intrusion , see id. at 626, particularly because the expectations o f privacy of the subject employees w ere 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 , ” i d. at 627. On the other side of the balanc ing 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 test s would help the

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railroads investigat e and respond to accidents by confirming or excl uding 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 s erious 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 co ncerns. ” Id. at 633. Accordingly, the drug tests were constitutionally reasonable pursuant to the Fourth Amendment. See id.
at 634. Applying this “special needs” framework, t he Supreme Court h as upheld rules or regulations authorizing suspicionless dru g tests of C ustoms employees applying for positions requir ing 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 ha s 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 emplo yees

. S ee Aubrey v. School Board of Lafayette Parish , 148 F.3d 559,

3 The testing regulations at issue i n 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 regulatio ns “defined this category of employees more broadly than is necessary” to address the special need for suspicionless testing. See id. at 678. 6 Case: 14-30020 Document: 00512842561 Page: 6 Date Filed: 11/19/2014No. 14

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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. M agistra te J udge 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
lik ewise frame the issues in terms of the “special needs” analysis. We begin by clarifying the issue s 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 Polic y was triggered because Bryant ’s City

owned vehicle hit the bush as a result of his inadvertence . Second, a lthough 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 67 8

- 7 9. 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 conside r 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. 7 Case: 14-30020 Document: 00512842561 Page: 7 Date Filed: 11/19/2014No. 14

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Brya nt 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 Categor y II of the City Policy. 6 The first question in the Skinner analysis is whether the City h as 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 t he Supreme Court has held that

p ublic safety is a legitimate, non

- law

- enforcement interest that justif ies drug testing of safety

- sensitive employees to enforce prohibitions on drug use

. See Skinner , 489 U.S. at 620 ( testing justified to protect “ s afety 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 dama ge threshold for post

accident drug testing, is not convincing. See Q uarles 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 pr ovision

. 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 ide ntified 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”). 8 Case: 14-30020 Document: 00512842561 Page: 8 Date Filed: 11/19/2014No. 14

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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 , operat ing heavy groundskeeping equipment , handl ing 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 t he school custodian in Aubrey who performed groundskeeping and used cleaning chemicals, which we held to be sufficient ly safety

- sensitive to justify drug testing. See 148 F.3d at 56 1, 563 ; see also Tanks , 930 F.2d at 480 (hol ding 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

9 We also note that Category I of the City Policy states that “positions where the health, welfare and/or safety of the publ ic, 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 Cit y Policy

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circumstances [] where the privacy interest s 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 privac y 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 th e test administered in Aubr ey , which we characterized as minimally intrusive. See 148 F.3d at 5 64; 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.”). L ike the custodian in Aubrey , Bryant knew (or should have known) that he w as 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 tes ting pursuant to that Policy

. While Bryant ’s expectation of privacy may be

grea ter than that of the heavily

- regulated railroad workers in Skinner , s ee

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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 W e conclude that t he City has a strong interest in the deterrent effect of suspicionless mandatory testing of safety

- sensitive employees after a fault

based vehicular colli sion 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] signifi cantly increase[s] the deterrent effect” of the City’s penalties for drug or alcohol use. See id. at 630. Th is is no less the case after a “Simple Fault” vehicular accident which posed minimal danger, because “[t]esting drivers after a fault

- based accide nt 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 r equir ement 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

. I n Skinner , the difficult y 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 63 0

- 3 1. 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 d etermin ing 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 ha d an interest in “determining the cause of” a collision with a stationary object even if only minor property damage result ed ); see also Skinner , 489 U.S. at 63 1 (explaining that even after less serious accidents, “objective in dicia 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

. T he 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, m uch 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 test ing by concealing

a triggering event from his employer. Balancing these considerations in the context of the particular facts of this case, we concl ude that the City’s strong interest in applying a drug

testing policy to a safety

- sensitive employee after a vehicular collision with a
stat ionary object outweighs the minimal intrusion on such an employee’s reduced expectation of privacy. A ccordingly, 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 al so asserts that the drug test violated Article I, § 5 of th e 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 invasion s 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 circ umstances. Bryant reads too much in to 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 S o. 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 ana lysis 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 Loui siana Supreme Court casually overrule d a Louisiana statute expressly allow ing 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 ho lding to the Louisiana Supreme Court without a more clear statement

. W e 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 constitutionall y reasonable, th e 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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