Chaney v. Southern Ry. Co., 87-7436

• Decision Date: 16 June 1988
• Docket Number: No. 87-7436,87-7436
• Citation: 847 F.2d 718
• Parties: 47 Fair Empl.Prac.Cas. 124, 46 Empl. Prac. Dec. P 38,054, 57 USLW 2026 Willie F. CHANEY, Jr., Plaintiff-Appellant, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 718

847 F.2d 718

47 Fair Empl.Prac.Cas. 124,

46 Empl. Prac. Dec. P 38,054, 57 USLW 2026

Willie F. CHANEY, Jr., Plaintiff-Appellant, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellee.

No. 87-7436.

United States Court of Appeals Eleventh Circuit.

June 16, 1988.

Gordon, Silberman, Wiggins & Childs, Robert L. Wiggins, Jr., Ann K. Norton, Birmingham, Ala., for plaintiff-appellant.

Sydney F. Frazier, Jr., Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before KRAVITCH, Circuit Judge, HENDERSON ^* and HENLEY ^**, Senior Circuit Judges.

KRAVITCH, Circuit Judge:

Willie F. Chaney was dismissed from employment by Southern Railway Company after a urinalysis indicated that he had used marijuana. Chaney brought this Title VII action claiming that he was discharged on the basis of his race, alleging theories of disparate impact and disparate treatment. At the conclusion of the plaintiff's evidence, the district court granted the defendant's Rule 41(b) motion, ¹ entering judgment in favor of Southern Railway. Chaney has appealed. We affirm in part and reverse in part.

I.

Chaney, a black man, was employed as a special agent by Southern Railway Company in its Police and Special Service Department. On March 8, 1984, Chaney's immediate supervisor, Lieutenant Presley, climbed the stairs to the tenth floor of Southern Railway's Transportation Building. ² The tenth floor was vacant and had not been used by railway personnel for some time. When Presley entered the tenth floor hallway, he noticed the smell of smoke, which he first suspected to be burning rags or some other kind of fire. Tracing the odor to its source, he entered a vacant room and noticed that the door to that room's inner office was nearly closed, although he knew that it had been open earlier in the day. At this point, Presley recognized the smoke scent as marijuana. As Presley started to open the door, Chaney came out of the smoke-filled room. Presley asked Chaney what he had been burning, and Chaney replied that he had been smoking a cigarette. Chaney and Presley walked to the elevator and descended to the first floor. Presley testified that Chaney was nervous and talking at an accelerated pace, but that Chaney did not mention the marijuana smoke. Although Chaney lit a cigarette, Presley continued to notice the smell of marijuana. Chaney returned to his duties on the first floor and left at the end of his shift.

Presley took another supervisor to the tenth floor, but because the window had been left open, much of the smoke in the inner office was gone. Presley presented a written report of the incident to railway management the same day.

Chaney contends that it would have been physically impossible for him to have smoked a marijuana cigarette in the inside office before Presley discovered him there. Chaney asserts that he was sitting at his desk on the first floor when Presley started climbing the stairs to the tenth floor shortly before 4:00. After a few minutes. Chaney contends that he needed a cigarette break and wanted to check on logistics for a stakeout of the parking lot intended to curb vandalism. The parties agreed that Chaney did not leave his desk until sometime around 4:05. Chaney states that when he stepped out of the elevator onto the tenth floor, he smelled the odor of burning rags and went to look for its source. When he was in the room with the strongest stench, he ran into Presley. Chaney states that he then rode the elevator with Presley back to the first floor, helped another employee take a movie projector to the seventh floor, and washed his hands in the rest room, where Presley saw him at 4:15. Accordingly, Chaney contends that he could have been on the tenth floor no more than 60 seconds before he saw Presley. The district court, however, did not credit this testimony.

Although Chaney was off-duty the next day, he was summoned to the office to meet with Presley and Presley's supervisor, Chief Jim Wilson. When asked what he had been doing on the tenth floor, Chaney replied that he had "just been up there walking around and smoking." When asked if he had smelled anything burning, he responded, "you mean like a rug burning or marijuana?", although neither Presley nor Wilson had mentioned marijuana prior to that time. Chaney offered to undergo a drug test and, recognizing that Presley and Chaney had been the only two people on the tenth floor at the time of the incident, Wilson asked both of them to have their blood and urine tested for the presence of drugs. Both men agreed to be tested.

Both Chaney's and Presley's urine samples were analyzed by Med Lab in Birmingham. To test the samples, Med Lab employed an enzyme immunoassay, the EMIT Cannabinoid Urine Assay (EMIT test) manufactured by Syva Company. The urinalysis results indicated that Chaney was positive for marijuana use but Presley was not. Although Med Lab performed a second EMIT test on Chaney's sample, it did not use a different type of follow-up test to confirm Chaney's positive result. There is no evidence that either man's blood test indicated drug use.

Shortly after Southern Railway received the urinalysis results, Wilson called Chaney into his office. When told that the test indicated that he had used marijuana, Chaney asserted that a previously unreported incident could explain the result. He stated that about two or three weeks prior to the March 8 incident, while he was off-duty, he had visited a nightclub in Birmingham, where he was accosted by an individual he had encountered in a police investigation approximately two years before. The man thought he recognized Chaney as a police officer, and insisted that Chaney disprove that suspicion by smoking some marijuana cigarettes with him and his friends. Chaney explained that he took several "tokes" from two marijuana cigarettes in order to avoid compromising his identity as an undercover agent.

After this meeting, Southern Railway discharged Chaney. Chaney obtained a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC) and filed this suit against Southern Railway, alleging that he was discharged on the basis of his race.

At trial, Chaney presented evidence that the EMIT test is unreliable and racially biased. Chaney's expert, Dr. Woodford, testified that the EMIT test is nonspecific and ideally used as an initial screening test because it serves as an indicator that fragments of THC, ³ the chemical which gives marijuana its intoxicating effect, could be in the urine, but does not directly measure or identify the presence of THC. He also testified that the scientific community, and the manufacturer of the test itself, recognize that the EMIT test is not entirely reliable and that once a positive result is obtained, a follow-up test which specifically identifies the THC metabolites, such as a gas chromatography mass spectrometer test, should be used. He claimed that studies have shown that the EMIT test has about a twenty-five percent false negative and false positive rate, and that the false positive rate could be so high because normal body substances can mimic the THC metabolites and be picked up by the test. ⁴

Dr. Woodford also testified that the EMIT test manufacturer does not warrant the test if performed on a urine sample over eight hours old, because of an "assay drift" that gradually results in a sample that, although containing no THC, nevertheless tests positive for THC. He opined that the fact that Chaney's sample was not tested for 75 hours could have had a "devastating" effect on the test, causing the result to be erroneous.

Dr. Woodford further testified that black people disproportionately obtain false positives for drug use on the EMIT test because they have higher levels of melanin, the substance responsible for dark skin tone, in their urine than do white people. According to Dr. Woodford, the EMIT test misreads melanin fragments as ingested THC fragments. Dr. Woodford further stated that alternative tests, such as the gas chromatography and GC-Mass Spec tests, do not have the EMIT test's racial impact.

After Chaney rested his case, the district court granted Southern Railway's motion under Fed.R.Civ.P. 41(b), ⁵ concluding that under the facts presented and the applicable law, Chaney had not stated grounds for relief. In granting judgment for Southern Railway, the trial court squarely outlined appellant's disparate treatment claim. The court found that although Chaney had stated a prima facie case of disparate treatment, Southern Railway articulated a valid nondiscriminatory reason for the discharge. Determining that Chaney had not shown that the articulated reason was a pretext for discrimination, the court concluded that Southern Railway had the right to dismiss Chaney.

In granting the Rule 41(b) motion, however, the district court did not thoroughly discuss Chaney's disparate impact claim. During appellant's argument in response to the Rule 41(b) motion, the court had stated that the disparate impact issue was not squarely presented in appellant's statement of position in the pretrial order. The statement of position read:

The plaintiff contends that he was discharged because of his race. White employees in similar circumstances were treated more leniently than the plaintiff. The plaintiff denie [sic] the validity of the test used to detect marijuana and denies he used marijuana. The plaintiff contends that the defendant discriminates generally against black employees in discipline and discharge situations.

Appellant argued to the district court that the first sentence in the statement, concerning racial discrimination, in addition to the third sentence, which specifically questioned the validity of the test, sufficiently presented the question of disparate impact, and that under the law of this circuit, he should be allowed to present...