Hunter v. Union Pac. R.R. Co.
| Decision Date | 25 June 2013 |
| Docket Number | CIVIL ACTION NO. H-11-3408 |
| Parties | STEVEN HUNTER, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Steven Hunter sued his former employer, Union Pacific Railroad Company, alleging race discrimination under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Hunter, who is African-American, contends that Union Pacific discriminated when it removed him from service after he went home instead of taking a scheduled drug test and, after reinstating him, fired him several months later when he took and failed a second drug test. Union Pacific has moved for summary judgment on Hunter's discrimination claims under both Title VII and § 1981. (Docket Entry No. 20). Based on the pleadings; the motion, response, reply, and surreply; the record; and the relevant law, Union Pacific's motion for summary judgment is granted. Final judgment is entered by separate order. The reasons are explained below.
Union Pacific's written drug and alcohol policy prohibits employees from using alcohol while on duty and from using controlled substances at all times. (Docket Entry Nos. 20, Ex. D at 4; 21, Ex. 2). The policy incorporates federal Department of Transportation regulations. Employees are subject to both random and reasonable suspicion drug testing. (Id. at 8-10). An employeeselected to take a random drug test "must provide the required breath and urine specimens." (Id. at 10). Compliance is excused only if there is "a documented medical or family emergency." (Id.). Every laboratory-reported drug test result is reviewed by a Medical Review Officer (MRO). The MRO verifies the result, makes a reasonable effort to contact the employee tested, and gives the employee an opportunity to discuss the result. If the MRO finds that there is a legitimate medical explanation for a positive test result, the MRO reports the result as negative. If the MRO verifies a positive result, the MRO instructs the employee not to report for service and gives that result to Union Pacific. (Id. at 11).
Employees who refuse to take a drug test are removed from service and subject to discipline "up to and including dismissal." (Id. at 13). An employee is considered to have refused a drug test if the employee "fails to remain at the testing site until the testing process is complete" or "fails to provide a urine specimen" within three hours. (Id. at 12). An employee who has been dismissed for violating the drug and alcohol policy is allowed a one-time return to service after completing a rehabilitation program approved by Union Pacific's Employee Assistance Program (EAP). An employee who has been granted a one-time return to service and who violates the drug and alcohol policy a second time within a ten-year period is dismissed permanently. An employee dismissed for refusing a test is not allowed to take part in the Employee Assistance Program. (Id. at 13, 16). Reinstated employees are subject to return-to-duty and follow-up testing during a probationary period.
Hunter was a car foreman who had worked for Union Pacific since September 1989. (Docket Entry No. 20, Ex. A at 4-5). On October 10, 2009, Hunter was told to report to a manager's office just before midnight. When he arrived, a person who identified himself as a drug tester told Hunterthat he would be required to take a urinalysis test. (Docket Entry No. 21, Ex. A at 2). Hunter refused to take the drug test, stating that he did so because no manager was present. (Id., Ex. A at 2).
When Hunter left the building, he saw a supervisor, Jason Wood. Hunter told Wood that he was not feeling well and planned to leave. (Id., Ex. A at 2). According to Hunter, Wood said that he could leave and did not tell him that he would be disciplined if he did not take the drug test. (Id.). Wood testified in a deposition that he saw Hunter as he was in his truck about to leave. Hunter told Wood that the company was "trying to set me up." (Id., Ex. B at 10). Wood did not tell Hunter the consequences of not taking the drug test. (Id., Ex. A at 2). Hunter alleges that Wood was later disciplined for making a racially offensive remark at a company function. (Id., Ex. B at 7-8).
Union Pacific removed Hunter from service for refusing to take the October 10 drug test. (Id. at 3). On October 13, 2009, Hunter obtained a doctor's note stating that he had been suffering from "flu-like symptoms" for the previous four days. . Hunter independently took another drug test and tested negative for all substances. (Id., Exs. A, 4). Hunter then filed a grievance with his union alleging that Union Pacific had discriminated against him on the basis of his race. He alleged that Union Pacific had failed to follow its drug-testing policies and did not inform him of the consequences of declining to take the test. (Docket Entry No. 21, Ex. 5 at 39). A disciplinary hearing was scheduled for October 22, 2009. (Docket Entry No. 26, Ex. A at 1). The hearing was postponed to November 18, 2009, at the union's request. (Id. at 2).
Before the rescheduled hearing date, Union Pacific negotiated a "last chance" agreement with Hunter and his union representative. (Docket Entry No. 20, Ex. A at 8-10). Under the agreement, Hunter agreed to "waive his right to an investigation" of Union Pacific's allegations thathe had refused to take a drug test "and accept dismissal from service as discipline for the rule violations . . . and his personal record will be corrected to so reflect." After completing testing and, if necessary, treatment, Hunter could return to work on a probationary basis for 18 months. If Hunter violated the company's drug and alcohol policy during the probationary period, he could be removed from service with no right to a formal investigation. Hunter also agreed that if he violated company policies in the future, he would not be able to take advantage of the "one-time return to work companion agreement." (Docket Entry No. 20, Ex. A at 17- 18). Hunter agreed to submit to follow-up drug testing. (Id. at 3).
Hunter has submitted the deposition testimony of Drew Duncan, another African-American Union Pacific employee. Duncan testified that he believed that Union Pacific's drug-testing was not random. Duncan said that he and another African-American employee met with two managers, Sal Perez and Ronald Lewis, and complained that they were being tested more frequently than white employees. Lewis told them that they had been tested because their "number was coming up in the computer." (Docket Entry No. 21, Ex. C at 20). At the meeting, one of the two managers said, "Look at it this way, you guys are clean." (Id. at 21). Duncan interpreted this statement as "a roundabout way of saying" that African-Americans were tested more frequently because they would pass. (Id. at 22). After the meeting, Duncan was not tested again. (Id. at 26).
Ronald Lewis stated in an affidavit that he "play[s] no role in deciding which of my employees is selected for a random drug test" and that Union Pacific's Drug and Alcohol Testing group in Omaha, Nebraska decides which employees are selected for random drug testing. (Docket Entry No. 20, Ex. C). Lewis also testified that he did not make the decision to remove Hunter from service in October 2009 or to offer him the "last chance" agreement. Hunter testified that beforeOctober 2009, Union Pacific had never called him to take a random drug test.
On April 28, 2010, after Hunter was reinstated, he was called in for a drug test. Hunter acknowledges that the test was performed according to Union Pacific's policies and procedures. (Docket Entry No. 21, Ex. A at 3). On May 5, 2010, a Medical Review Officer (MRO) verified a positive result for cocaine. (Docket Entry No. 20, Ex. B at 5). The MRO notified Hunter of the positive result. (Docket Entry No. 20, Ex. A at 12).
Hunter stated that he has not used cocaine since 1974 and that the positive result was due to his drinking Inca tea, a legal substance. (Docket Entry No. 20, Ex. A at 16; Docket Entry No. 21, Ex. A at 4-5). After his positive test, Hunter went to another laboratory and took drug tests both before and after drinking Inca tea, while under observation. (Id. at 4). Before drinking the tea, he tested negative for all substances. (Id., Ex. 8). After drinking the tea, he tested positive for cocaine. (Id., Ex. 9). Hunter submitted a toxicology report by Dr. Amitava Dasgupta stating that Hunter's test results were consistent with drinking Inca tea. (Docket Entry No. 21, Ex. 12). Hunter called the MRO to explain that the positive result was due to the Inca tea. (Docket Entry No. 21, Ex. A at 4); (Docket Entry No. 21, Ex. 10 at 50-51). The MRO declined to change the positive test result. She stated in an affidavit that she was prohibited by federal regulations from accepting an explanation that coca-tea consumption accounted for the positive cocaine test as the basis to verifying that the test was in fact negative. (Docket Entry No. 20, Ex. B). Union Pacific terminated Hunter's employment because his positive drug test violated the drug and alcohol policy and the parties' "last chance" agreement. (Docket Entry No. 21, Ex. A at 4).
Hunter contends that by firing him for failing the drug test, Union Pacific treated him differently than other non-black employees. Hunter points to two white Union Pacific employeeswho he contends were treated less severely. Those employees' names have been redacted, and they are referred to in the record as Employee X and Employee Z. Employee Z was found to have violated Union Pacific's policy for alcohol use in 2007 and cocaine use in 2008, and was fired after his second violation. (Docket Entry Nos. 21, Exs. 7; 26 Ex. D). Employee X was found to have violated Union Pacific's policy for alcohol use in both 1991 and 2003, but was not fired. (Docket Entry No. 21, Ex. 11).
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