Radick v. Union Pac. Corp.

• Decision Date: 25 January 2016
• Docket Number: CIVIL ACTION NO. 4:14-cv-02075
• Parties: CURTIS R. RADICK, Plaintiff, v. UNION PACIFIC CORPORATION d/b/a UNION PACIFIC RAILROAD Defendant.
• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas

CURTIS R. RADICK, Plaintiff, v. UNION PACIFIC CORPORATION d/b/a UNION PACIFIC RAILROAD Defendant.

CIVIL ACTION NO. 4:14-cv-02075

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

January 25, 2016

MEMORANDUM AND RECOMMENDATION ON MOTION FOR SUMMARY JUDGMENT

This matter was referred by United States District Judge Lee H. Rosenthal, for full pre-trial management, pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket Entry #27). In this action, Curtis Radick ("Plaintiff," "Radick") complains that his employer, Defendant Union Pacific Corporation ("Defendant," "Union Pacific," "the company") discriminated against him due to his disability, and "retaliated" against him for his failure to comply with the company's drug and alcohol policy. Pending before the court is a motion for summary judgment that was filed by Union Pacific. (Defendant Union Pacific Railroad Company's Motion for Summary Judgment ["Motion"], Docket Entry #16). Plaintiff has responded in opposition to the motion, and Defendant has replied. (Plaintiff's Memorandum in Response to Defendant's Motion for Summary Judgment ["Response"], Docket Entry #22; Defendant Union Pacific Railroad Company's Reply Brief in Support of Its Motion for Summary Judgment ["Reply"], Docket Entry #23). Having reviewed the pleadings, the evidence, and the applicable law, it is RECOMMENDED that Defendant's motion for summary judgment be GRANTED.

Background

Defendant Union Pacific is a railroad company headquartered in Nebraska. (Plaintiff's Amended Complaint ["Amended Complaint"], Docket Entry #10, at 1). In February 1982, Plaintiff Curtis Radick was hired by Union Pacific's predecessor, Southern Pacific, as a "signal" worker in Houston, Texas. (Curtis Radick Deposition Excerpts ["Radick Depo."], Docket Entry #16-1, at 11). Plaintiff currently works for Union Pacific as an electrician. (Id. at 15). This action arises from Radick's complaints about the discipline that he received after he was found sleeping on the job on July 7, 2013. Radick claims that the railroad company discriminated against him, because of his status as a recovering alcoholic. (Amended Complaint at 2, 3; Response at 8). He contends that other, non-disabled employees were also found sleeping on the job, but were given less severe discipline, or were not reprimanded at all. (Id.). While Plaintiff has not identified any similarly situated employees, he states that he cannot do so, because the company has refused to comply with certain discovery requests. (See Response at 7-8). Radick also alleges that the punishment that he received for sleeping on the job was in "retaliation" for testing positive on an alcohol breath test. (Amended Complaint at 4; Response at 7). His punishment included a thirty-one day suspension, without pay; eighteen months of probation; and the prospect of possible termination. (Amended Complaint at 3; Radick Depo. at 45; Motion at Exhibit ["Ex."] 3, 2, 3 ). Plaintiff consented to that disciplinary scheme, however, in a written agreement that he signed on August 7, 2013. (Motion at Ex. 3, 3).

The facts show that, in November 2012, Plaintiff was working as a road electrician at the Strang Yard in La Porte, Texas. (Radick Depo. at 20). This assignment required him to "chase down [broken-down locomotives] . . . and attempt to repair them." (Id. at 20, 21). On November 27, 2012,Radick was randomly selected for a drug and alcohol assessment. (Radick Depo. at 20). Following that assessment, he tested positive for the presence of alcohol, in violation of the Union Pacific Rail Road Drug and Alcohol Policy and General Code of Operating Rules. (Radick Depo. at 19, 24; Motion at Ex. 2, 1). Although the test was administered at the beginning of Radick's shift,¹ he claims that he had not been drinking "on the job."² (Radick Depo. at 20). After the test, he was immediately "pulled out of service," and sent home. (Id. at 23). Apparently, the proposed discipline for violating this provision of the company policy requires termination. (Id. at 25). A disciplinary hearing was scheduled for December 12, 2012, to investigate the circumstances surrounding Radick's test results. (Radick Depo. at 24; Motion at Ex. 2, 1). Plaintiff waived his right to a disciplinary hearing, however, and, instead, opted to adhere to the terms of a probation in a "Companion Agreement." (Radick Depo. at 25-26; Motion at Ex. 2, 2, 5). Under that agreement, Radick was eligible to return to work if he successfully completed a rehabilitation program, and counseling, or any follow-up treatment that was deemed necessary by the Employee Assistance manager. (Radick Depo. at 26; Motion at Ex. 2, 2). Other conditions to the probation included negative drug and alcohol test results for up to sixty months from the date of his return to service, adherence to a rehabilitation plan, and permanent abstention from the use of prohibited substances. (See id.). Should Radick fail to comply with the terms of that agreement during the twelve-month probationary period, he was subject to immediate dismissal. (Motion at Ex. 2, 5).

Radick and John Wolff ("Wolff"), his union representative, signed the CompanionAgreement on November 29, 2012. (Radick Depo. at 29,30; Motion at Ex. 2, 5). Shortly after signing the agreement, Plaintiff began attending Alcoholics Anonymous (AA) meetings. (Radick Depo. at 28). In December 2012, he sought treatment at Cornerstone of Recovery ("Cornerstone"), a residential alcohol and drug addiction rehabilitation facility in Tennessee. (Id. at 27-29). Plaintiff was a patient at Cornerstone for thirty-five days. (Id. at 27).

On April 1, 2013, Radick obtained another, temporary position as a road electrician with Union Pacific. (Id. at 35, 36). He was assigned to work the 10 p.m. to 6:00 a.m. shift³ at the Strang Yard. (Id. at 36). In an email, dated July 6, 2013, Plaintiff's immediate supervisor, Cyrus Holiday ("Holiday"), complained that a manager of yard operations reported that he had "been having problem[s] [with] the phone being answered [during] midnights [on] Fridays and Saturdays [] at Strang [Yard]." (Id. at 36, 38; Motion at Ex. 2, 7). Holiday agreed that he had been having similar difficulty, so he decided to investigate the problem. (Id. at 39, Motion at Ex. 2, 7). The next day, Holiday arrived at the yard and found Radick "asleep in [his] office [in] a portable [] outdoor chair[.]" (Radick Depo. at 40; Motion at Ex. 2, 9). Holiday observed that Plaintiff had lined up two other chairs to form a rectangle, and was also equipped with blankets and a pillow. (Motion at Ex.2, 9.). Holiday then called David Walder ("Walder"), a shift manager, who instructed Radick to submit to another drug and alcohol assessment. (Amended Complaint at 3). Those test results were negative. (Id.; Motion at Ex. 2, 10-11). Nevertheless, Plaintiff was removed from that shift for exhibiting an "indifference to duty[,]" sleeping during his shift, and bringing bedding from his home. (Radick Depo. at 40; Motion at Ex. 2, 8).

Because he was still on probation, Union Pacific managers recommended variousdisciplinary actions toward Plaintiff following that incident.⁴ The most lenient proposal was that Radick be placed on another probation for sixty days. (Amended Complaint at 3, Ex. 1; Radick Depo. at 42-42). The most severe proposal was termination. (Amended Complaint at 3, Ex. 1; Radick Depo. at 44). Again, however, Plaintiff chose to relinquish his right to a hearing, and, instead, elected to have his union representative negotiate another compromise ("the Second Agreement") on his behalf. (Amended Complaint at 3; Motion at 3). Under the terms of the Second Agreement, Plaintiff was subject to a thirty-one day suspension, without pay, and was prohibited from holding a road truck position for eighteen months. (Amended Complaint at 3; Radick Depo. at 45; Motion at Ex. 3, 2). He was allowed to exercise his seniority rights in the Houston Locomotive Shop, only, and he was subject to immediate dismissal if he was found to be "indifferent to duty" during the eighteen month probationary period. (Motion at Ex. 3, 2). Radick and his union representative signed the Second Agreement on August 7, 2013. (Motion at Ex. 3, 3).

In this litigation, Radick was deposed on November 24, 2014, and he admitted not only that he had slept at work on July 7, 2013, but that he had slept at work on multiple occasions prior to that date. (Radick Depo. at 40, 61). He said that it is also "possible" that he "intentionally" slept at work on five, or more, occasions as well. (Id. at 61). Likewise, Radick confirmed that, on July 7, 2013, he brought items to work to "make a bed[.]" (Radick Depo. at 40). Plaintiff said that bringing the bedding items to work, and using them to sleep, is a "bad habit." (Id. at 41). However, he claims that the punishment that he received is "extreme for what [he] did." (Radick Depo. at 47). He further claims that he signed the Second Agreement "under [] duress[,]" because he was not made aware of all of its terms until he was asked to sign it. (Amended Complaint at Ex.1; Radick Depo. at 47-48).

Plaintiff also testified that he suffers from a general "addiction problem[,]" and that he is in remission from "alcohol dependence." (Radick Depo. at 17, Amended Complaint at 2). In describing his condition, Radick stated that he is addicted to food, alcohol, and drugs, including marijuana and cocaine. (Radick Depo. at 17-18). Radick admitted that he used cocaine and marijuana while he was employed by Union Pacific, but he denied consuming those substances while he was "on the job." (Id. at 19). As of the date of his deposition, Radick testified that he had been sober for twenty-three months, and that he had been attending AA meetings twice a week. (Id. at 18).

On April 3, 2014, Radick filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Amended Complaint at Ex. 1). In that charge, he...