Potts v. Am. Castings, LLC, Case No. 20-CV-00243-GKF-CDL

• Decision Date: 01 February 2021
• Docket Number: Case No. 20-CV-00243-GKF-CDL
• Parties: JERI POTTS, a/k/a CHARLY POTTS, Plaintiff, v. AMERICAN CASTINGS, LLC, an Oklahoma corporation, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

JERI POTTS, a/k/a CHARLY POTTS, Plaintiff, v. AMERICAN CASTINGS, LLC, an Oklahoma corporation, Defendant.

Case No. 20-CV-00243-GKF-CDL

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

February 1, 2021

OPINION AND ORDER

Before the court is the Motion for Summary Judgment [Doc. 12] filed by defendant American Castings, LLC ("Castings"). For the reasons set forth below, the motion is granted.

I. Background

Plaintiff Jeri Potts (also known as Charly Potts) filed this lawsuit in the District Court for Mayes County, Oklahoma on May 7, 2020. [Doc. 2, p. 1 ¶ 1]. She claims that her termination by Castings: (1) violated the Americans with Disabilities Act ("ADA") and the Oklahoma Anti-Discrimination Act ("OADA") [Doc. 2-1, pp. 3-4 ¶¶ 17-27]; and (2) violated Oklahoma Public Policy [Doc. 2-1, pp. 4-5 ¶¶ 28-33]. Castings removed the action to this court. [Doc. 2]. Castings seeks summary judgment in its favor on all claims asserted by Potts.

II. Summary Judgment Standard

Pursuant to Federal Rule of Civil Procedure 56(a), "[t]he 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(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. Further, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

In considering a motion for summary judgment, "[t]he evidence and reasonable inferences drawn from the evidence are viewed in the light most favorable to the nonmoving party." Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004). "A 'judge's function' at summary judgment is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson, 477 U.S. at 249). Summary judgment is appropriate only "where 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Stover, 382 F.3d at 1070 (quoting Fed. R. Civ. P. 56(c)).

III. Undisputed Material Facts

On February 6, 2019, Potts began working at Castings on a 90-day probationary basis. She successfully passed a urine drug test at that time. At the end of her probationary period, Castings offered Potts a full-time position. On May 24, 2019, Potts was drug-tested and her sample tested positive for THC. Potts did not have an Oklahoma medical marijuana license in 2019. Potts' sample was retested, and Potts was notified on May 28, 2019 that the second test was positive as well.

While meeting with Castings' Human Resources Director on May 30, 2019, Potts explained that she had been diagnosed with lupus in 2015 and was taking CBD products as analternative medicine.¹ This was the first time Potts informed anyone at Castings that she had lupus; she had not identified as disabled on the AAP/EEO self-disclosure form she completed with Castings, she never requested any accommodation for her lupus, and she later testified that she does not consider herself disabled. During that meeting, Castings' Human Resources Director suggested that Potts have her split urine sample tested, but Potts declined.² Castings' Human Resources Director suggested that if Potts could provide a negative hair follicle test, they could move forward with Potts' full-time employment. Potts agreed, and the hair follicle test came back positive for THC on June 5, 2019. On June 6, 2019, Castings decided not to hire Potts as a full-time employee.

IV. Summary Judgment Analysis

A. ADA and OADA Claims

The ADA prohibits employers from discriminating against "a qualified individual on the basis of disability . . . ." 42 U.S.C. § 12112(a). To establish a prima facie discrimination claim under the ADA, Potts must establish that: "(1) she is disabled within the meaning of the ADA; (2) she is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) she was discriminated against because of her disability." Winston v. Ross, 725 F. App'x 659, 663 (10th Cir. 2018) (quoting Mason v. Avaya Commc'ns, Inc., 357 F.3d1114, 1118 (10th Cir. 2004)); see also Murphy v. Samson Res. Co., No. 10-CV-694-GKF-TLW, 2012 WL 1207210, at *13 (N.D. Okla. Apr. 10, 2012) (same). Pursuant to the OADA, Oklahoma also statutorily prohibits employment discrimination against the disabled. Okla. Stat. tit. 25, § 1302. "The Tenth Circuit has determined that a plaintiff's OADA claim fails if her [ADA] discrimination claims fail." McCully v. Am. Airlines, Inc., 695 F. Supp. 2d 1225, 1246 (N.D. Okla. 2010) (citing cases); see also Hamilton v. Oklahoma City Univ., 911 F. Supp. 2d 1199, 1206 (W.D. Okla. 2012) ("Because the protections provided by the OADA are 'co-extensive with the protections provided by federal law under the ADA,' a plaintiff's OADA claim fails 'if her federal discrimination claims fail.'" (quoting McCully, 695 F. Supp. 2d at 1246-47)).

In the summary judgment context, Potts initially must raise a genuine issue of material fact on each element of her prima facie case. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 2005) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)). If she does so Castings must state a legitimate, nondiscriminatory reason for the alleged adverse employment action. Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1259 (10th Cir. 2001) (citing McDonnell Douglas, 411 U.S. at 802). If Castings meets this burden, then summary judgment is warranted unless Potts can show a genuine issue of material fact as to whether the proffered reason for the employment action is pretextual. Id. at 1260.

Castings first argues that Potts cannot show she was terminated because of her disability. In response, Potts focuses on Castings' Drug/Alcohol Use and Testing Policy ("the Policy") [Doc. 12-3]. Specifically, Potts argues that Castings has construed her "testing result to be a violation of [its] Drug and Alcohol Policy and terminated her employment and withdrew her job offer," but "[i]t is disputed that Plaintiff's drug test results were a factual violation of the Policy" because "[n]owhere does the Policy define 'drugs,' 'controlled substances,' nor 'marijuana.'" [Doc. 23, p.3]. Potts contends that summary judgment is not warranted because if a trier of fact finds that her positive drug test was not a "factual violation" of the Policy, then she "may very well be able to prove that her termination was due to her disclosure of her disability." [Id. p. 5].

Upon review of the arguments raised and evidentiary materials submitted, the court finds and concludes that Potts has failed to show a genuine issue of material fact exists as to whether Castings terminated her because of her disability. The undisputed evidence is that Castings rescinded Potts' employment offer after she tested positive for THC, as is required by the Policy. The Policy specifies the action Castings will take if an employee has a positive test. For instance, the section of the Policy titled "No Working While Under the Influence" states:

It is the policy of the Company to prohibit employees from reporting to work with detectable amounts of alcohol or any non-prescribed, controlled substances in their blood/urine. It is also the policy of the Company to conduct appropriate testing to verify whether such levels are present. When an employee's test result has been confirmed positive, he or she will be terminated from employment.

[Doc. 12-3, p. 1 ¶ 1.a. (emphasis added)]. In the section regarding testing applicants for substances "[p]rior to assuming any job," the Policy states that "[i]f the test shows a positive result for the presence of drugs or alcohol, and such test results are confirmed, then such test results shall be grounds for refusal of employment." [Doc. 12-3, p. 2 ¶ 3.a. (emphasis added)]. Further, regarding positive test results, the Policy states:

If an applicant has a positive test result, the Company reserves the right to immediately withdraw the employment offer unless the applicant can provide a satisfactory explanation of the positive test and, thereafter, can take and pass another drug/alcohol test. If an employee's test result is positive, the employee may be temporarily suspended while a confirmation test is conducted. On receipt of the confirmation test results, an employee who tests positive is subject to immediate discharge.

[Doc. 12-3, p. 3 ¶ 8 (emphases added)]. In addition to the text of the Policy, both parties state that their understanding of the Policy was that it was a "zero tolerance" policy; Castings' Director of Human Resources describes the Policy as "zero tolerance" in her affidavit [Doc. 12-1 pp. 1-2 ¶¶ 2-4], as does Potts during her deposition testimony [Doc. 12-2, pp. 37:9-39:16, 43:15-21, 60:19-61:1].

Potts argues about the ambiguity of the term "drug," and the effects of recent changes to controlled substances laws on her situation. However, her arguments regarding the legality of CBD products or the levels of THC now excluded from certain federal and state controlled substance laws are irrelevant because it is undisputed that Potts had positive tests, which are grounds for dismissal under the Policy. Second, Potts relies on a section of the Policy where it states that Castings will not "take action solely based upon the results of a drug test showing...