Brooks v. Aaa Cooper Transp.

• Decision Date: 18 March 2011
• Docket Number: Civil Action No. H–10–0818.
• Parties: Warren BROOKS, Plaintiff,v.AAA COOPER TRANSPORTATION, Defendant.
• Court: U.S. District Court — Southern District of Texas

781 F.Supp.2d 472

Warren BROOKS, Plaintiff,

v.AAA COOPER TRANSPORTATION, Defendant.

Civil Action No. H–10–0818.

United States District Court, S.D. Texas, Houston Division.

March 18, 2011.

Fransheneka Jane Watson, Law Office of Fransheneka Watson, Houston, TX, for Plaintiff.L. Traywick Duffie, Wesley Earl Stockard, Stefanie R. Moll, Littler Mendelson, PC, Atlanta, GA, for Defendant.

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

Plaintiff Warren Brooks is a former employee of Defendant AAA Cooper Transportation (“ACT”). This wrongful termination suit is before the Court on Defendant's Motion for Summary Judgment [Doc. # 25] to which Plaintiff has responded [Doc. # 39] and Defendant has replied [Doc. # 41]. Having considered the full record and applicable legal authorities, the Court grants Defendant's Motion for Summary Judgment.

I. BACKGROUND

ACT is a motor carrier and delivery company that employs drivers and other employees to ship freight. As such, it is subject to United States Department of Transportation (“DOT”) regulations, which require drug testing as a condition of employment for certain classifications of employees, including drivers transporting goods in interstate commerce.¹ ACT hired Plaintiff on June 19, 2000, as a Dockworker/Linehaul Driver at its Houston terminal.²

The Drug Test.—On Friday, February 1, 2008, Plaintiff was selected for a random drug test by ACT's computerized random selection program.³ Mike Garza (“ACT's Personnel Manager”), then the Personnel Training Manager at ACT's Houston Terminal, was responsible for administering ACT's drug testing program for employees at the Houston terminal. ACT's Personnel Manager notified Plaintiff that he had one hour to report for drug testing to NOVA Humble Medical Center (“NOVA”), an independent drug testing collection facility regularly used by ACT.⁴ Plaintiff's drug test did not go smoothly. Cecilia Resendez (“Resendez”), then the Medical Center Administrator at NOVA, called ACT's Personnel Manager several times to relay what was transpiring during that test. Resendez later provided Michael Garza (“Terminal Manager Garza”), Terminal Manager of the Houston terminal, with a written statement of what transpired during Plaintiff's drug test.

Although Plaintiff hotly disputes portions of Resendez's account of what happened during the drug test on February 1, 2008, he admits that he has no personal knowledge of what Resendez reported to ACT.⁵ It is undisputed that NOVA reported to ACT orally and in writing the following information regarding Plaintiff's drug test.

In Resendez's first telephone call to ACT's Personnel Manager, she reported that Plaintiff's first urine sample had a foreign substance floating in it, which made it invalid for DOT drug testing purposes.⁶ Resendez informed Plaintiff that his first sample was invalid, and that he would need to provide a second sample, observed by a male Specimen Collector in order to ensure accuracy and to ensure against any tampering with the sample.⁷ Plaintiff provided a second sample that was not observed.⁸ Accordingly, as mandated by federal regulations, Resendez told Plaintiff that under the circumstances she would not be able to accept the second sample because it had not been observed, and that she would try to get another observed urine sample from Plaintiff.⁹

Resendez called ACT's Personnel Manager again a few minutes later. She informed him that while she had been on the phone in her office, Plaintiff had said to Fernando Aguilar (“Aguilar”), a Specimen Collector at NOVA, “I have a family, please do it for me, because I smoked pot and I will not pass,” and that Aguilar had informed Plaintiff that he could not assist him.¹⁰ Although Plaintiff disputes that he made such a statement,¹¹ he admits he has no personal knowledge of what Resendez reported to ACT.¹²

Resendez called ACT's Personnel Manager a third time and reported that she told Plaintiff again that he would need to provide a new observed urine sample; that Plaintiff indicated to her that he could not urinate again so she instructed him to sit in the waiting room and drink water; ¹³ and that Plaintiff did not drink water as instructed and kept falling asleep.¹⁴ Resendez also informed ACT's Personnel Manager that it was nearing 6 p.m., when NOVA closed for the day. She indicated that NOVA could have someone stay after-hours to attempt to get an observed sample from Plaintiff but that it would cost an additional fee of $175 per hour.¹⁵ After speaking with Terminal Manager Garza, who approved the additional cost,¹⁶ ACT's Personnel Manager informed Resendez that someone at NOVA should stay late with Plaintiff to attempt to get an observed sample.¹⁷

Resendez later made a fourth telephone call to ACT's Personnel Manager. ACT's Personnel Manager put Resendez on speaker phone because Terminal Manager Garza was also in the office.¹⁸ Resendez reported at that time that it had been almost three hours since Plaintiff was first asked to provide a urine sample for his drug test, and that per DOT drug testing regulations, a person was to be given three hours to provide a valid specimen for the test. ¹⁹ Terminal Manager Garza told Resendez that she should let Plaintiff leave at the three hour mark.²⁰

Resendez called ACT's Personnel Manager a fifth time. Again, he put the call on his speaker phone so Terminal Manager Garza could hear the conversation. ²¹ Resendez reported that NOVA could take a blood sample from Plaintiff. She reported that a blood sample would be valid in court although it was not recognized as a valid testing method under DOT regulations. ²² ACT's Personnel Manager told Resendez that ACT did not want NOVA to take a blood sample, as he did not want to use testing methods not recognized by the DOT.²³ Resendez reported she would let Plaintiff leave because the three hour time limit was expiring.²⁴

The Investigation.—On Monday, February 4, 2008, Terminal Manager Garza called Resendez and requested a written explanation of what had occurred during Plaintiff's February 1, 2008, drug test.²⁵ Later that same day, Terminal Manager Garza called Plaintiff into his office to discuss the test. According to Terminal Manager Garza, Plaintiff told him that NOVA would not accept the first sample because there was something in it, that NOVA requested a second sample, and that Plaintiff provided a second sample.²⁶ Terminal Manager Garza told Plaintiff that he needed to investigate further and that Plaintiff should go home.²⁷

On Tuesday February 5, 2008, Resendez faxed Terminal Manager Garza her written statement.²⁸ This written statement contained the previously described account plus additional information about Plaintiff's February 1, 2008, drug test. Resendez's written statement detailed that Resendez had asked Plaintiff a final time if he could provide a third urine sample, to which Plaintiff said “yes.” ²⁹ Resendez's written statement further reported that Aguilar told Plaintiff that he would go into the restroom with him and observe him providing a urine sample, at which point Plaintiff became angry and upset and told Aguilar and Resendez that he “couldn't go on his own as it was” and that he was not going to have anybody go into the restroom with him. ³⁰ Resendez then informed Plaintiff he could leave. As Plaintiff was leaving, she asked Aguilar to write down Plaintiff's earlier request for Aguilar to “help him.” Upon hearing Resendez say this, Plaintiff said “I told him that so I could see what type of a person he was.” Plaintiff then turned away laughing as he left NOVA.³¹ Resendez testified that she explained to Plaintiff that although his first urine sample was not valid due to the presence of a foreign substance floating in it, NOVA would be sending the first sample to the lab to be tested.³² This sample tested negative for drugs.³³

Later on February 5, 2008, Terminal Manager Garza spoke with Plaintiff again about his drug test. During this conversation, Plaintiff mentioned for the first time that he had informed NOVA that he had a prostate condition that made urinating difficult.³⁴ Terminal Manager Garza again asked Plaintiff to give a written statement about what had occurred at the drug test, ³⁵ and to get a written statement from his doctor confirming the prostate condition.³⁶ Plaintiff provided a doctor's note later that same day. The doctor's note stated that Plaintiff had “urinary retention.” The note did not say this condition would make it difficult or impossible for Plaintiff to provide urine samples. The note also indicated that Plaintiff was taking medication to treat this condition.³⁷

Plaintiff's written statement to Terminal Manager Garza provides his version of what happened during Plaintiff's February 1, 2008, drug test, an account different from Resendez's. Specifically, Plaintiff indicated that he told Resendez prior to giving the second sample that he had a prostate problem which made it difficult to urinate and that he was taking medication for this problem. Plaintiff further stated that after giving the second sample, no one from NOVA said anything to him regarding that sample and that he just sat there drinking water. Plaintiff indicated that around 6:30 to 6:45 p.m., he still couldn't urinate and he received a call from “John” saying that NOVA was going to accept the first sample, so Plaintiff signed off on the first sample and left NOVA.³⁸

Plaintiff does not and cannot dispute, however, what Resendez reported to ACT both verbally and in writing.³⁹ Furthermore, to the extent Plaintiff now argues factual inconsistencies concerning what occurred during his drug test,⁴⁰ these inconsistencies are not material given the nature of Plaintiff's legal claims.

Later on February 5, 2008, Terminal Manager Garza went to NOVA to investigate the situation further. Terminal Manager Garza stated he wanted to ensure that DOT testing procedures had been followed and that there were no misunderstandings...