Villarreal v. JE Merit Constructors, Inc.

• Decision Date: 07 August 1995
• Docket Number: Civ.A. No. G-95-200.
• Citation: 895 F. Supp. 149
• Parties: Maria A. VILLARREAL v. J.E. MERIT CONSTRUCTORS, INC.
• Court: U.S. District Court — Southern District of Texas

895 F. Supp. 149

Maria A. VILLARREAL v. J.E. MERIT CONSTRUCTORS, INC.

Civ.A. No. G-95-200.

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

August 7, 1995.

John F. Nichols, Houston, TX, for plaintiff.

Sharon Stagg, Kathleen Reilly Richards, Hays McConn Price & Pickering, Houston, TX, for defendant.

ORDER

KENT, District Judge.

Pending before the Court is Defendant's Motion to Dismiss Plaintiff's claims brought under the American's with Disabilities Act (hereinafter "ADA") pursuant to Fed. R.Civ.P. 12(b)(6). For the reasons set forth below, Defendant's Motion to Dismiss Plaintiff's claims brought under the ADA is GRANTED.

I. Background

Plaintiff brings this action for damages resulting from Defendant's alleged discriminatory employment practices. On September 26, 1990, Plaintiff began her employment with the Defendant, when Defendant purchased the company for which Plaintiff had been working for the previous three and a half years. Plaintiff began as a janitor and worked her way up to crew chief of a janitorial crew earning $9.90 per hour.

Plaintiff worked regularly until the fifth month of her pregnancy in 1993, when she miscarried. It was medically required that she be absent from work for four months. On January 11, 1994, Plaintiff allegedly announced her pregnancy to the Defendant. The following day, January 12, 1994, Plaintiff was allegedly informed by Defendant's Safety Director, Colleen Fisk, that she would need to submit to a drug test. Plaintiff allegedly had no objection to such drug test because she had been tested on four prior occasions: September 14, 1990 as a condition of her employment; October 15, 1992; January 12, 1993; and August 10, 1993. On all four occasions, Plaintiff allegedly tested negative for any nonprescription drugs.

Plaintiff allegedly gave her urine sample directly to Ms. Fisk. At that time, Ms. Fisk allegedly told Plaintiff that she would probably fail the test because she was pregnant. On January 13, 1994, Plaintiff worked her regular shift without incident or comment from the Defendant.

On January 14, 1994, Plaintiff was told by her supervisor, Randy Carroll, that she had tested positive on the drug test for cocaine. The test was conducted on-site at the Exxon-Mont Belvieu Plastics Plant. Plaintiff allegedly requested that she be given another opportunity to submit to a drug test, but she was refused. Subsequently, Defendant fired Plaintiff over the telephone.

Upon the direction of her physician, Plaintiff submitted to another drug test at the San Jacinto Medical Center, which tested negative. Plaintiff showed the results of the latest drug test to Defendant's Human Resources Director, Billie Roberts, but she was allegedly refused re-employment.

According to Plaintiff, defendant had no independent basis for suspecting drug use on the part of Plaintiff. However, she was allegedly selected for a "random" drug screen on January 12, 1994 immediately following her announcement that she was pregnant. Plaintiff asserts that her urine sample was tampered with by either Ms. Fisk or other agents, servants or employees of Defendant. Specifically, Plaintiff contends that Ms. Fisk conducted her own drug screening on Plaintiff's urine sample, resealed it, and forwarded to Roche Laboratories for testing. Plaintiff alleges that Ms. Fisk and/or other of Defendant's representatives violated standard testing procedures which mandate a confirmatory test when a positive test result is obtained in order to avoid a false positive.

According to Plaintiff, the Director of Toxicology for Roche Laboratories admitted that it was possible that the sample submitted by Plaintiff to Ms. Fisk could have been contaminated or tampered with by Defendant or its laboratory when they unsealed the sample for testing prior to forwarding it to Roche Laboratories.

Plaintiff asserts that she was terminated because she had informed Defendant of her pregnancy. Plaintiff further asserts that Defendant sought to fire her because of her prior miscarriage and prolonged absence from work. Alternatively, Plaintiff argues that Defendant knew that its employment Contract with Exxon's Mont Belvieu Plastics Plant would not be renewed in August, 1994, (the approximate time Plaintiff was to deliver her baby) and Defendant would be exposed to government rules and regulations as a consequence of Plaintiff's pregnancy. However, Defendant would not be exposed to such regulations if Plaintiff were terminated on the basis of testing positive for cocaine use.

Plaintiff brings claims under the following statutes: (1) Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) and the Texas Commission on Human Rights Act of 1983; (2) Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e-(k); (3) Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12117; (4) Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654; and (5) common law causes of action for intentional infliction of emotional distress, negligent employment, fraud, and conspiracy to defraud.

On March 3, 1995, Plaintiff filed suit in the 344th Judicial District of Chambers County, Texas. On April 13, 1995, Defendant removed this case to this Court pursuant to Title 28 U.S.C. § 1331 and § 1441(b) given that this case is a civil action founded on claims or rights arising under the Constitution and laws of the United States. On April 18, 1995, Defendant filed the present Motion to Dismiss Plaintiff's claims under the ADA. Plaintiff did not file a Response to Defendant's Motion to Dismiss.

II. Discussion

Plaintiff brings this action for damages resulting from the alleged wrongful termination of employment by Defendant. Defendant moves this Court to dismiss Plaintiff's claims brought pursuant to the ADA.

Title I of the ADA prohibits discrimination by a covered employer against

a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a). A "qualified individual with a disability" is defined by the ADA to mean "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).

In order for Plaintiff to establish a prima facie case of employment discrimination under the ADA, the Plaintiff must show that (1) she was "disabled" as defined by the ADA; (2) she was qualified with or without accommodation, to do her job; (3) she was discharged; and (4) she was replaced by a non-disabled person. Aikens v. Banana Republic, Inc., 877 F.Supp. 1031, 1036-37 (S.D.Tex.1995); Rosen v. CSC Credit Services, 1995 WL 318507 (N.D.Tex.1995); Stradley v. Lafourche Communications, Inc., 869 F.Supp. 442, 443 (E.D.La.1994).

In the present case, Plaintiff asserts that Defendant terminated her employment soon after she announced her pregnancy. Plaintiff contends that Defendant tampered with her urine sample in order to ensure that Plaintiff would test positive for the use of cocaine. According to Plaintiff, Defendant terminated her employment because she was pregnant. Plaintiff argues that her pregnancy constitutes a disability under the ADA.

An individual with a disability is defined as a person with: (1) a physical or mental impairment that substantially limits one or...