Bailey v. Real Time Staffing Servs., Inc.

• Decision Date: 07 August 2012
• Docket Number: No. 2:11–cv–02055V.,2:11–cv–02055V.
• Parties: Gaylus BAILEY, Plaintiff, v. REAL TIME STAFFING SERVICES, INC. d/b/a Select Staffing, Defendant.
• Court: U.S. District Court — Western District of Tennessee

927 F.Supp.2d 490

Gaylus BAILEY, Plaintiff,

v.REAL TIME STAFFING SERVICES, INC. d/b/a Select Staffing, Defendant.

No. 2:11–cv–02055V.

United States District Court,

W.D. Tennessee,

Western Division.

Aug. 7, 2012.

Jessica Farris Salonus, Jonathan L. Bobbitt, Justin Gilbert, Gilbert Russell McWherter PLC, Jackson, TN, for Plaintiff.

James R. Mulroy, II, Pamela R. Irons, Robbin W. Hutton, Jackson Lewis LLP, Memphis, TN, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

DIANE K. VESCOVO, United States Magistrate Judge.

This is an employment discrimination action in which the plaintiff, Gaylus Bailey (“Bailey”), alleges that the defendant, Real Time Staffing Services, Inc. d/b/a Select Staffing (“Select Staffing”), violated the Americans with Disabilities Amendments Act (“ADA”), 42 U.S.C. § 12101 et seq., as amended by the ADA Amendment Act of 2008 (“ADAAA”), “by terminating his employment for a manifestation of his disability.” (Compl., D.E. 1, at 5.) Select Staffing filed a motion for summary judgment. (Def.'s Mot. for Summ. J., D.E. 21.) Bailey filed a response, (Pl.'s Resp. to Def.'s Mot. for Summ. J., D.E. 32), and Select Staffing filed a reply. (Def.'s Reply, D.E. 34.) The parties have consented to the jurisdiction of the United States Magistrate Judge. For the reasons set forth below, Select Staffing's motion is granted in part and denied in part.

I. FACTS

The following facts are undisputed for purposes of the motion for summary judgment.

Select Staffing services is a staffing agency that supplies temporary workers to client companies. (Def.'s Statement of Facts, D.E. 27–2, at 1.) Bailey started working for Select Staffing around 2005 to 2007 and was placed on numerous assignments. ( Id.) Peggy Franklin (“Franklin”) is the human resources manager of the Select Staffing branch where Bailey worked. ( Id.) Bailey was diagnosed with HIV in 2006. ( Id. at 2.) Select Staffing was unaware that Bailey was HIV positive while he was employed at Select Staffing. ( Id.) Bailey's employment file reviewed by Select Staffing did not contain any medical information. ( Id.)

In December 2009, Bailey was assigned to Sergeant's Pet Care Products (“Sergeant's”). ( Id.) Sergeant's reviewed its policies with Bailey that included a policy supporting a drug-free workplace. ( Id.) Select Staffing policy also dictates termination when a temporary associate fails a drug test. ( Id. at 4.) Around March 11, 2010, Sergeant's conducted a random drug test of all Sergeant's employees and Select Staffing temporary associates. ( Id. at 2.) The drug testing is contracted out to a medical testing lab, National Diagnostics, Inc., a non-party to this case. ( Id. at 2–3; Pl.'s Resp. to Def.'s Statement of Facts and Add'l Statement of Facts, D.E. 32–1, at 4.) Bailey tested positive for marijuana. (Def.'s Statement of Facts, D.E. 27–2, at 2.) Bailey's employment was terminated due to the failed drug test.¹ ( Id. at 4; Pl.'s Resp. to Def.'s Statement of Facts and Add'l Statement of Facts, D.E. 32–1, at 3.)

After he tested positive, Bailey was advised to talk with the Medical Review Officer (“MRO”) and was told that an MRO would be contacting him. (Def.'s Statement of Facts, D.E. 27–2, at 4.) Immediately after testing positive, Bailey obtained a letter from his doctor dated March 11, 2010 that explained that his prescription medicine “may cause a positive drug screen.” (Exhibit B, D.E. 32–3) Bailey obtained a second letter from his doctor dated March 15, 2010, indicating that he takes prescription medication that “may result in a false positive for marijuana on a urine drug screen.” (Exhibit C, D.E. 32–4.) The letters do not reveal or refer to any medical condition which Bailey has or what prescription medication Bailey was taking to cause the false positive. Bailey was actually taking atripla to treat his HIV, which medication causes false positives for cannabis. (Pl.'s Resp. to Def.'s Statement of Facts and Add'l Statement of Facts, D.E. 32–1, at 4.)

Franklin told Bailey that she could not accept the letters from Bailey's doctor and that she is directed by Select Staffing to direct all communications regarding false positives to the MRO. ( Id. at 3; Def.'s Statement of Facts, D.E. 27–2, at 4.) Franklin further told Bailey that Select Staffing's policy dictates termination when a temporary associate fails a drug test. (Def.'s Statement of Facts, D.E. 27–2, at 4.)

Bailey submitted a statement of additional facts to which Select Staffing never responded. ( See generally Pl.'s Resp. to Def.'s Statement of Facts and Add'l Statement of Facts, D.E. 32–1, at 4–8.) Because Select Staffing never responded, the court treats these facts as undisputed for the purposes of summary judgment to the extent they are not inconsistent with Bailey's response to Select Staffing's undisputed facts and to the extent that Bailey's additional facts are supported by admissible evidence.

Bailey testified that he anxiously began waiting for the call from an MRO but did not receive one after five to six days. ( Id. at 6.) Bailey claims that no MRO contacted him, and as a result, Bailey testified that he went directly to Franklin with his doctor's letter. ( Id.) Franklin indicated that no change would occur regarding Bailey's employment status without action from the MRO. ( Id.)

Bailey testified that, after waiting five to six days, he called a phone number for the MRO. ( Id.) Instead of reaching an MRO, Bailey stated that an unidentified female employee answered the phone. ( Id. at 7.) Bailey advised the woman of his doctors' notes. ( Id.) Bailey could not remember what his medications were when questioned by the medical lab employee as to what medications he was taking. (Def.'s Statement of Facts, D.E. 27–2, at 3.) Bailey stated in his deposition that he did not feel comfortable disclosing or discussing his HIV positive status with the medical lab employee. (Pl.'s Resp. to Def.'s Statement of Facts and Add'l Statement of Facts, D.E. 32–1, at 2.) Bailey read the letters from his doctors to the medical lab employee. (Def.'s Statement of Facts, D.E. 27–2, at 3.) The employee from the medical testing lab advised Bailey that the disposition of his test would remain the same. (Pl.'s Resp. to Def.'s Statement of Facts and Add'l Statement of Facts, D.E. 32–1, at 7.) The medical facility that conducted the drug testing performed the testing on the urine specimen in accordance with Department of Health and Human Services Substance Abuse and Mental Health Services Administration (“SAMHSA”) guidelines. ( Id. at 4; D.E. 32–7, Ex. F.)

Bailey disputes several facts. Select Staffing claims Franklin was never aware of Bailey's medical condition or any details of it. (Def.'s Statement of Facts, D.E. 27–2, at 2.) Bailey disputes this assertion and asserts that Franklin was told by two other Select Staffing employees that he had told them that he suffered from “some sort of kidney illness that would cause a false positive.” (Pl.'s Resp. to Def.'s Statement of Facts and Add'l Statement of Facts, D.E. 32–1, at 1.) Select Staffing also claims that Franklin never saw the content of the letters from Bailey's doctors and that Franklin instructed Bailey to either answer or return the call to the MRO to clarify the drug test. (Def.'s Statement of Facts, D.E. 27–2, at 4.) Bailey disputes this as well and claims that Franklin was advised of the contents of the letters. (Pl.'s Resp. to Def.'s Statement of Facts and Add'l Statement of Facts, D.E. 32–1, at 3.) In addition, an “MRO Verification Worksheet” states that Bailey declined the opportunity to speak with an MRO, ( Id. at 7–8.) Bailey, however, testified that he never declined to speak with an MRO. ( Id.)

Bailey also insists that National Diagnostics, Inc. was required to follow SAMHSA guidelines for Medical Review Officers. In support of his response to Select Staffing's motion for summary judgment, Bailey has proffered The Medical Review Officer Manual for Federal Agency Workplace Drug Testing Programs. (D.E. 32–8, Ex. G.) This manual, however, has not been properly authenticated and therefore Bailey's assertion that National Diagnostics, Inc. was required to adhere to the Manual cannot be accepted as undisputed.²

II. CONCLUSIONS OF LAW

A. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, the court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56; see also LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction & Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir.1992). The moving party has the burden of showing that there are no genuine issues of material fact in the case. LaPointe, 8 F.3d at 378. This may be accomplished by pointing out to the court that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989).

In response, the non-moving party must go beyond the pleadings and present significant probative evidence to demonstrate that there is more than “some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir.1993); see also LaPointe, 8 F.3d at 378. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); LaPointe, 8 F.3d at 378.

In deciding a motion for summary judgment, the “[c]ourt must determine whether ‘the evidence presents a sufficient disagreement to require submission to a...