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Parks v. Terrebonne Parish Consolidated Government

United States District Court, E.D. Louisiana

January 10, 2018

TERRY ALLEN PARKS
v.
TERREBONNE PARISH CONSOLIDATED GOVERNMENT, ET AL.

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE.

         Before the Court is Terrebonne Parish Consolidated Government's motion for summary judgment. For the reasons that follow, the motion for summary judgment is GRANTED.

         Background

         This civil rights litigation arises from a former Terrebonne Parish employee who alleges that he was forced into early retirement after failing a drug test.

         Terry Allen Parks has a bachelor's degree in computer science. He began working for Terrebonne Parish Consolidated Government (TPCG, or the Parish) on April 5, 1982 and, after a probationary period, he became a permanent employee of the Parish. He ultimately worked in a safety-sensitive position in Pollution Control, where his duties included working on computers that operated the sewer system, providing technical support to all phases of the waste water division, maintaining the sewer record drawings file system, periodically reviewing sewer construction plans for private development and public projects, and providing all primary phases of activity necessary for maintaining the division's SCADA (supervisory control and data acquisition) and GIS systems. In addition to operating the SCADA system, Mr. Parks also conducted field and survey work.

         As a tenured and permanent public employee, Parks could only be terminated for cause. During his 33 years of employment, Parks had only one reprimand. Parks planned to retire at the age of 62, in 2021, despite having the necessary retirement credits to have done so since April 2014. Parish employees who retire are entitled to post retirement group health benefits provided by the Parish. On the other hand, Parish employees who are terminated for cause are not entitled to post retirement group health benefits.

         Throughout Parks's employment, the Parish had in effect a drug testing policy under section 13 of the TPCG personnel manual, which called for random drug testing of safety-sensitive employees, [1] as well as a grievance procedure, under section 8 of the TPCG personnel manual.[2] The drug testing policy provides that “all [Parish] drug screens shall be submitted in accordance with the guidelines set out by the United States Department of Transportation at 49 CFR Part 40.” Pursuant to Parish policy, “[t]he confirmed presence of a controlled...substance in a urine sample...shall result in termination of said individual.” The Parish's drug policy mandates that “[a] urine sample of a[n] employee which has been confirmed as having the presence of a controlled dangerous substances must be retained by the laboratory in properly secured, long-term, frozen storage for at least one year.” Any employee who has been informed that his urine sample tested positive for a controlled substance “shall have the right to arrange for a retesting of a portion of his/her original urine specimen if the employee makes a written request for retesting within sixty days of receipt of the final test result from the MRO [medical review officer].” The drug testing policy states that “[a]ll Terrebonne Parish drug screens shall be submitted in accordance with the guidelines set out by the United States Department of Transportation at 49 CFR Part 40.” Finally, the drug testing policy states that “[e]mployees who have been disqualified from employment due to positive drug...test results...shall be ineligible for employment with TPCG for a period of one year.”

         As a safety-sensitive employee, Mr. Parks was required to submit to random drug tests as a condition of employment. Since 2003, Mr. Parks submitted to seven random drug screens. On October 12, 2015, Parks, as he had done in the past, was required to submit to a random drug test as a condition of his employment as an Instrumentation Technician. Parks's immediate supervisor, Michael Ordogne, informed Parks that he had been randomly selected to take a drug test. The drug testing process consists of three parts: the drug test was administered and the sample collected by Multi-Management Services, Inc. (MMSI); the sample was tested by Alere Toxicology Services, Inc.; and it was reviewed by Brian N. Heinen, a Professional Medical Corporation.

         Sometime before 8:30 a.m. that day, Parks drove to MMSI. MMSI's Kevin LeCompte, who as part of his training was familiar with the Parish's drug screening procedures, handled the urine collection. LeCompte used the Non-Federal Four-Part Drug Testing and Control Form. One copy of the form goes with the collector, MMSI, one goes to the medical review officer, one goes to the employee submitting the specimen, and the fourth goes to the lab, Alere. One of those sheets contains the labels which are put on the vials containing the urine to seal them for chain of custody purposes. Parks's specimen ID number provided by the drug testing and control form was 202232929. With LeCompte standing outside the restroom, Parks urinated in the cup, and returned the cup to LeCompte, who never lost visual contact with the specimen. LeCompte, in Parks's presence, then poured the urine into two vials. Then, Parks accompanied LeCompte to his office, where they finished the paperwork.

         LeCompte documented the time and temperature of the specimen. LeCompte completed the Drug Testing and Control Form in Parks's presence. Parks signed the form. In so signing, Parks certified that the specimen he provided was his, and that it was not adulterated in any manner, that the specimen was sealed with a tamper-evidence seal in his presence, and that the information provided on the form and the label affixed to each specimen was correct. As is standard procedure, LeCompte sealed the vials with a tamper proof seal while Parks sat in front of him. LeCompte then put the sealed vial next to a pen in front of Parks for him to initial. While LeCompte completed his paperwork, he saw that Parks had a pen in his hand and LeCompte saw Parks moving the pen; LeCompte thought that Parks was initialing the vials. But Parks did not initial the vials. Parks did not complain to anyone at MMSI that there was any issue with his specimen or with the sealing of the vials.

         For chain of custody purposes, the number of the label placed on the specimen vial (here, 202232929) coincides with the number on the drug testing and control form. LeCompte then puts the vials in a plastic bag which is to be sent to the lab and completes the paperwork. The lab's, Alere's, chain of custody matches that of MMSI's.

         As a forensic toxicology laboratory, Alere tests urine samples for federally mandated drug tests as well as those required by private employers. Alere verified the chain of custody concerning Parks's urine by comparing the seal number on the vial to that of the Drug Testing and Control Form. After chain of custody was verified, Alere checked the sample for any fatal flaws. A fatal flaw would prevent it from performing the testing. For example, a fatal flaw would be the specimen ID numbers not matching, or the seal on the vial not being intact, or if there was an insufficient amount of urine. Alere also follows a chain of custody once the vials enter the laboratory. Alere verified chain of custody. Parks's urine sample that Alere received was sealed with the lab number certified by Parks. Alere followed its protocol for testing. Once verifying chain of custody and ruling out fatal flaws, Alere personnel broke the seal on the vial, poured into a bar coded tube the aliquot (a small portion of the sample), and sent the tube to the screening department. The sample certified by Parks contained 31 nanograms per milliliter of THC. There were no flaws that prevented testing of the sample, and personnel from Alere testified that “[t]here were no errors in this testing.”[3] That Parks neglected to initial the specimen label -- the specimen sample sealed with a specimen identification number that he certified was his -- is not considered a flaw, nor is it the sort of flaw that is required to be corrected.

         Because the sample tested positive for marijuana, the results were sent to the medical review officer (MRO), Dr. Heinen, on October 14, 2015. The MRO received the results and chain of custody from Alere, which showed the positive indication for marijuana. Brittany Comeaux, who assists Dr. Heinen on non-DOT tests, attempted to call Parks to collect information such as what type of medications he was taking at the time of testing, to determine whether it contained THC. Comeaux attempted to contact Parks several times before they spoke on the morning of October 15, 2015 at 9:16 a.m. Comeaux informed Parks that his sample had tested positive for marijuana and then, consistent with protocol, asked him about any medications he takes and whether he has had any recent medical procedures. Parks told Comeaux what medications he takes and confirmed that he had not recently undergone any medical procedures. Comeaux then asked if he currently or has recently used marijuana, to which Parks responded no. Comeaux asked whether he had ever used it in the past. Parks responded that he had used it in the past, but that “it's been a while.” Comeaux then asked whether he had been given a prescription for marijuana use; he had not. Comeaux then informed Parks that he could have the same sample re-tested at a different lab, but he declined. Parks also declined to speak with Dr. Heinen. Comeaux submitted the paperwork to Dr. Heinen, who checked the chain of custody and confirmed that the form matched the lab report.[4]

         When an employee submits a urine specimen that tests positive for a controlled substance, Parish policy calls for termination subject to retest of the same urine sample and the right to appeal to the personnel board. On October 15, 2015, when Parks was advised that his urine sample had indicated positive for marijuana metabolites, he explored his options. Throughout the day, he spoke with an attorney, his wife, as well as the Parish human resources director, J. Dana Ortego, his supervisor, Michael Ordogne, and Parish Manager Al Levron.

         The first person Parks called after he was informed of the positive drug screen was TPCG's human resources director, J. Dana Ortego. Parks informed Ortego that he had just been advised that his drug test indicated positive for marijuana. Ortego explained that Parks could have the same sample retested at his expense.[5]Mindful of parish policy and knowing that employees who had failed drug tests in the past had been “terminated quickly, almost immediately, ” Parks asked Ortego how the positive drug test would impact his employment. Parks specifically “asked him if [the positive drug test] would affect my retirement.” Parks testified that he was “asking if [it was possible for him to] retire[, which would allow him to] maintain [his] group health insurance.” Ortego said he would have to talk to administration.

         At some point during the day after he was notified of the positive drug test, Parks called an attorney that had previously represented him in another matter to see if she could take his case. More than once that day, Parks called his wife, Althea Parks, who was also employed by TPCG. Mrs. Parks testified that she told her husband if he had the option, he should probably retire.

         Parks called and spoke with Dr. Hans Heinen (another doctor at Dr. Brian Heinen's office) because he wanted to find out the drug collection procedures. Parks then spoke with Michael Ordogne in Ordogne's office; Parks informed him that he failed the drug test. Parks spoke with Ordogne in his office at least one other time later that day. Ordogne told Parks that he would have to call parish administrators to discuss with them whether retirement was an option, but that otherwise he would have to be terminated.[6]When Parks left Ordogne's office, he called Parish Manager Al Levron. Levron testified that they discussed appeal rights, retesting the urine sample, and issues concerning termination or retirement. Parks told Levron he failed a drug test and said, “Looks like I'm going to be fired.” Levron testified that he told Parks that “there are appeal procedures that are available to you in the parish code” and offered to send them to him. Parks said he already had the manual, but Levron said he would send it anyway. Parks says Levron asked Parks how old he was. Parks explained he was 55, but that he was eligible for retirement because he was already in the DROP program. Levron and Parks discussed the possibility of retirement, but Levron could not offer Parks that option without speaking to the parish president. Parks says Levron told him he should retire. Levron also emailed Parks the Parish's drug testing policy even though it was available on the intranet. When Parks spoke to Levron a second time later that day, Parks testified that Levron told him that he “needed to retire or that I would in all likelihood be terminated tomorrow.”

         At some point during the day, Ortego participated in a meeting with parish manager Al Levron, parish president Michel Claudet, and parish attorney Courtney Alcock to discuss Parks's status.[7] During the meeting, Ortego alluded to the procedures in the manual and said that termination subject to appeal was the likely course of action. According to Ortego, they discussed how Parks had been a longstanding employee of the Parish and as a result Parish officials considered allowing him to retire instead of firing him. Everyone agreed that Parks should be given the option of retirement, which would allow him to maintain the insurance benefits. The parish president had no objection to administration allowing Parks to request retirement instead of processing his termination.

         Sometime after the meeting, Levron called Ortego and told him that when Parks gets off work, he will be going to Ortego's office; Levron advised Ortego to accept Parks's retirement letter. Parks called Levron again and asked him whether or not he would be allowed to retire. Levron conveyed the administration's decision to Parks, who was advised that he would be permitted to take early retirement. When Parks arrived at Ortego's office to finalize his retirement, he asked if there was a retirement form he could complete. Ortego told him no, and gave him a pad of paper, in which Parks wrote:

Please accept this as my request for retirement effective today (10/15/15) 4:00pm. I would also like to take advantage of any retirement benefits I am entitled to.

         Parks signed and dated the request, and it was stamped Received by TPCG Human Resources that same day, October 15, 2015. Parks never had the urine sample retested, never had another drug screen, and never applied for reemployment following the one year period of separation.[8]

         On October 12, 2016, Parks sued Terrebonne Parish Consolidated Government, Multi-Management Services, Inc., Alere Toxicology Services, and Brian N. Heinen, a professional medical corporation, alleging that the positive test result was due to procedural errors made by MMSI, Alere, and Heinen in administering the test, and that the positive drug test, which was done and taken in violation of the Fourth Amendment, cannot support the termination of a tenured public employee like him. After three of the defendants filed motions to dismiss, the plaintiff amended his complaint.[9] Parks alleges in his amended complaint that the drug test was unreasonable under the Fourth Amendment because it was not conducted in accordance with minimum procedural requirements and standards, and that MMSI, Alere, and Heinen were acting under color of state law and in accordance with official municipal policy. He alleges that TPCG, acting in accordance with its municipal policy, relied solely on the procedurally defective and unconstitutional drug test in presenting Parks with the ultimatum to either take early retirement, or be terminated. As a result of the defendants' conduct, culminating in his constructive discharge, Parks alleges he suffered financial losses including past lost wages, lost future earnings, lost life insurance premium benefits, lost long-term and short-term disability benefits, and lost deferred retirement benefits; he also claims that he has suffered mental anguish, emotional distress, and loss of enjoyment of life. Parks seeks reinstatement as well as damages.

         On February 22, 2017, the Court granted MMSI's motion to dismiss the plaintiff's claims against it. On that same day, the Court granted in part and denied in part the Parish's motion to dismiss or for summary judgment: the motion was granted insofar as the Parish requested dismissal of the plaintiff's Section 1983 claim based on the Fourth Amendment; the motion was denied in part insofar as the Parish sought dismissal of the plaintiff's Section 1983 claim based on the Fourteenth Amendment, insofar as it sought dismissal of the plaintiff's state law claims (due to inadequate briefing), and insofar as it alternatively sought summary judgment or a more definite statement. In March 2017, Alere's motion for judgment on the pleadings was granted, and the plaintiff's claims against Heinen were dismissed without prejudice due to the plaintiff's failure to obtain a responsive pleading or entry of default. The Parish now seeks summary relief dismissing the plaintiff's remaining claims.

         I.

         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). "[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence." Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal quotation marks and citation omitted). Ultimately, "[i]f the evidence is merely colorable . . . or is not significantly probative, " summary judgment is appropriate. Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are improper as summary judgment evidence.”).

         Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must "resolve factual controversies in favor of the nonmoving party, " it must do so "only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation marks and citation omitted).

         II.

         A.

         Section 1983, which was enacted pursuant to Congress's authority to enforce the Fourteenth Amendment, prohibits interference with federal rights under color of state law. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). It creates a private right of action for violations of federally-secured rights under color of state law:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured ...

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