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FRANK ANTON Plaintiff
vs.
PALUMBO BROTHERS INC. a.k.a. PALUMBO BROTHERS CONSTRUCTION and BROTHERS ENTERPRISES LTD. Defendants.
 
Case:
No. 96 C 1108
 
Location:
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
 
Date:
June 13 1997 Decided
 
Attorneys:
For FRANK ANTON plaintiff: Karen Lynn Spence Cynthia Lynne Hackerott Herbert H. Victor Chicago IL. Herbert H. Victor Attorney at Law Chicago IL.
For PALUMBO BROTHERS INC. aka Palumbo Brothers Construction aka Palumbo Brothers Construction defendant: James Raymond Dashiell McNeela & Griffin Ltd. Chicago IL. Paul Arthur Brocksmith Griffin Hoeffier Riordan & Dashiell Chicago IL. For BROTHERS ENTERPRISES LTD. defendant: James Raymond Dashiell (See above). Paul Arthur Brocksmith (See above).
 
Court:
JAMES F. HOLDERMAN United States District Judge
 
Author:
The Hon. Justice James F. Holderman
 

Plaintiff Frank Anton has filed an amended one-count complaint against defendants Palumbo Brothers Inc. a.k.a. Palumbo Brothers Construction and Brothers Enterprises Ltd. alleging that he was discriminated against by defendants on the basis of his national origin in violation of Title VII of the Civil Rights Act of 1964 as amended in 1991 42 U.S.C. SEC. 2000e et seq. Defendants have filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons defendants' motion is granted.

STATEMENT OF FACTS *fn1

Plaintiff was born in Cuba and is of Cuban descent. Plaintiff worked for defendants as a seasonal truck driver beginning in June 1992. Subject to seasonal layoffs plaintiff continued to work for defendants on a seasonal basis until his termination on July 20 1995.

At all relevant times defendants had in effect a policy of random drug testing for its truck driver employees. Plaintiff was aware of this policy and knew that failure of a random drug test would result in termination in accordance with defendants' policy. On July 17 1995 plaintiff took a random drug test at one of defendants' plants. Plaintiff tested positive for marijuana. On July 20 1995 plaintiff was terminated by defendants for the stated reason that plaintiff tested positive for marijuana.

On August 2 1995 plaintiff filed a grievance with his union. The grievance was denied. On October 10 1995 plaintiff filed a charge of discrimination against defendants alleging that he was discriminated against by defendants on the basis of his national origin because he alleges non-Cuban truck drivers have been allowed to return to work after failing drug tests.

STANDARD OF REVIEW

Under Rule 56(c) summary judgment is proper "if 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." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant's favor. Anderson v. Liberty Lobby Inc. 477 U.S. 242 255 106 S. Ct. 2505 2513 91 L. Ed. 2d 202 (1986). This court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.

A party who bears the burden of proof on a particular issue however may not rest on its pleadings but must affirmatively demonstrate by specific factual allegations that there is a genuine issue of material fact which requires trial. Celotex Corp. v. Catrett 477 U.S. 317 324 106 S. Ct. 2548 2553 91 L. Ed. 2d 265 (1986). There is no issue for trial "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson 477 U.S. at 249 106 S. Ct. at 2511.

ANALYSIS

Plaintiff alleges that he was discriminated against by defendants on the basis of his national origin in violation of Title VII of the Civil Rights Act. Title VII states that "It shall be an unlawful employment practice for an employer . . . to discharge any individual . . . because of such individual's . . . national origin." 42 U.S.C. SEC. 2000e-2(a). In order to ultimately prevail in a national origin disparate treatment case the plaintiff must prove that he or she was a victim of intentional discrimination. Hong v. Children's Mem'l Hosp. 993 F.2d 1257 1261 (7th Cir.1993) cert. denied 511 U.S. 1005 114 S. Ct.1372 128 L. Ed. 2d 48 (1994). The plaintiff has the burden of first proving a prima facie case of national origin discrimination. The plaintiff must show that: (1) he or she is a member of a protected class; (2) his or her performance met his or her employer's legitimate expectations; (3) despite such performance he or she was terminated; and (4) the employer sought a replacement for him or her. Id. If the plaintiff is unable to establish all of the elements of the prima facie case summary judgment is required. Id. (quoting Randle v. LaSalle Telecomms. Inc. 876 F.2d 563 568 (7th Cir. 1989)). If the plaintiff succeeds in proving the prima facie case the burden shifts to the defendant to articulate some legitimate nondiscriminatory reason for the employee's treatment. Id. If the defendant succeeds in carrying this burden then the plaintiff must show that the legitimate reasons offered by the defendant were not the true reasons but were a pretext for discrimination. Id.

Defendants in this case argue that plaintiff cannot meet the second element of his prima facie case of national origin discrimination. The critical issue in determining whether an employee's performance was adequate is whether the employee was performing his or her job well at the time of termination. Id. at 1262. Defendants state that plaintiff was not meeting their legitimate job expectations at the time of plaintiff's termination since plaintiff tested positive for marijuana in his drug test.

Defendants had legitimate business expectations and reasons to ensure that its truck driver employees be drug-free. Plaintiff was aware that he was subject to random drug tests and that he would be terminated if he ever tested positive for drugs at one of these tests. On July 17 1995 plaintiff tested positive for marijuana during one of defendants' random drug tests. On July 20 1995 defendants terminated plaintiff because of the drug test result. Therefore plaintiff did not meet defendants' legitimate expectations for the job at the time of his termination. See Corley v. Metra Metro. Rail N.E. Ill. Reg'l Commuter R.R. Corp. 1996 U.S. Dist.10571 No. 95 C 3710 1996 WL 420302 at *3 (N.D. Ill. July 25 1996) (finding that the plaintiff did not perform his job pursuant to the defendant's legitimate expectations when he tested positive for drugs).

Even if this court was to find that plaintiff met the burden of establishing a prima facie case plaintiff cannot show that defendants' legitimate nondiscriminatory reason for terminating him due to a positive drug test was a pretext for national origin discrimination. Pretext is defined as "a lie specifically a phony reason for some action." Russell v. Acme-Evans Co. 51 F.3d 64 68 (7th Cir. 1995). To establish pretext the plaintiff must show that either: (1) the employer was more likely motivated by a discriminatory reason or (2) the employer's proffered reason is unworthy of credence. McCoy v. WGN Continental Broad. Co. 957 F.2d 368 372 (7th Cir. 1992).

Plaintiff argues that several facts support his position that defendants lied in stating that plaintiff was discharged because of his positive drug test. Plaintiff claims that the drug test on July 17 1995 was the first time that he had ever tested positive for drugs and that he took a subsequent drug test on July 21 1995 that resulted in a negative drug finding. Plaintiff claims that he never smoked or ingested marijuana during the year preceding the July 17 1995 test. The facts that plaintiff never before tested positive for drugs that he later tested negative for drugs and that he claims that he did not smoke or ingest marijuana do not serve either individually or collectively to counter defendants' honest belief that on July 17 1995 plaintiff's drug test showed the presence of marijuana. The issue in this case of alleged employment discrimination is not whether plaintiff did or did not actually ingest drugs. The issue is whether defendants honestly believed that plaintiff tested positive for drugs or whether defendants intended to discriminate against plaintiff due to his national origin. There is no dispute as to the material fact that plaintiff's random drug test came back positive for marijuana. Defendants relied on this test result and chose to terminate plaintiff a result that plaintiff was aware would occur if he ever tested positive for drugs. Plaintiff's arguments are insufficient to establish that defendants' reason for termination was pretext for national origin discrimination.

Plaintiff also argues that the person who conducted his drug test improperly handled his urine sample and thus took inadequate precautions to ensure that his drug test was accurate. The issue of whether the drug test result was valid does not address defendants' position. The drug testing was performed by an independent contractor. Defendants themselves did not perform any of the drug tests and relied on the medical review officer's determination of whether an employee tested positive or negative for drugs. Plaintiff admits that he has no reason to believe that any alleged irregularities in the drug test were motivated by plaintiff's national origin or that they were deliberate or malicious. The fact that the drug test result may have been erroneous does not make defendants liable for national origin discrimination. See Friedel v. City of Madison 832 F.2d 965 973 (7th Cir. 1987) (stating that Title VII does not make an employer liable for simply erroneous decisions). Plaintiff's argument does not address defendants' honest belief that plaintiff tested positive for drugs and that defendants were justified in terminating plaintiff due to this test result. Plaintiff cannot show that his national origin entered into defendants' decision to terminate and not reinstate him.

Plaintiff next claims that he once overheard some other employee who was not involved in the decision to terminate plaintiff make a derogatory comment relating to plaintiff's national origin not directed toward or about plaintiff himself. Plaintiff also claims that he was not allowed to use a certain water cooler and that he believes that the reason was due to his national origin. Plaintiff however cannot show that alleged remarks made by defendants' personnel or allegedly not allowing plaintiff to use a certain water cooler in any way related to defendants' decision to terminate and not reinstate plaintiff. Evidence of a sporadic slur directed at an employee's national origin is generally not enough to support a claim under Title VII. Hong 993 F.2d at 1266. If the actions are not related to the decision to terminate the employee the evidence is insufficient to demonstrate that the employer relied on illegitimate criteria in making its decision. Id. Plaintiff in this case cannot show that there is any nexus between the alleged racial comment and the inability to use a water cooler and defendants' decision to terminate plaintiff due to plaintiff's positive drug test. Plaintiff fails to show how these alleged acts related to the decision to terminate and not reinstate plaintiff. The alleged acts did not occur contemporaneously with plaintiff's termination. Plaintiff's evidence does not give rise to an inference of national origin discrimination in defendants' decision to terminate and not reinstate plaintiff.

Plaintiff also claims that non-Cuban employees were treated differently than he was since he alleges that at least two other non-Cuban employees were warned about the July 17 1995 drug test beforehand. Plaintiff however does not argue that his test results would have been any different had he received any warning of the drug test before the test occurred. Plaintiff merely posits that warning employees who were not of Cuban descent demonstrates differential treatment on the part of defendants. Whether any of defendants' other employees received warning of the drug test is not material to this case. Plaintiff states that his drug test would have been the same whether or not he received advance warning that the test was going to be administered. There is no evidence to suggest that the alleged warning to some employees was motivated by an intent to discriminate against plaintiff due to his national origin. There has been no showing that the alleged notice played any part whatsoever in defendants' decision to terminate plaintiff and not reinstate plaintiff due to plaintiff's positive drug test result. Plaintiff acknowledges that the individual who allegedly warned certain employees played no part in defendants' decision to terminate plaintiff. Plaintiff has not shown that defendants' legitimate nondiscriminatory reason for terminating him was a pretext for national origin discrimination.

Plaintiff's final argument in his attempt to demonstrate that defendants discriminated against him due to his national origin is his belief that defendants treated non-Cubans differently than he was treated. Plaintiff states that two non-Cuban employees were reinstated after they tested positive for drugs. *fn2 Plaintiff and defendants all agree to the following facts regarding both Employee A and Employee B.

Employee A tested positive for morphine after a random drug test on June 13 1994 and was terminated by defendants. Employee A however filed a union grievance and was represented by an attorney at the grievance. Employee A contended that the medical review officer did not follow proper procedure for the review of the drug test the positive laboratory test result was so low that it could have been due to the legitimate use of medication or the ingestion of certain foods and that had a proper medical review been performed the test result would have been reported as negative. The union grievance committee found in favor of Employee A. The union grievance committee's finding was binding on defendants and defendants reinstated Employee A.

Employee B tested positive for morphine following a random drug test on August 23 1993 and was terminated by defendants on August 30 1993. Employee B filed a union grievance that resulted in a deadlocked decision. Employee B's case then went to arbitration in accordance with the union agreement with defendants. At the arbitration hearing Employee B provided evidence that he was taking medication pursuant to a prescription at the time of the drug test which could have led to the positive drug test result in the concentration of morphine that was indicated in his test result. Employee B presented expert testimony in support of his position. Employee B also testified that the medical review officer did not contact him to advise him of his positive drug test result and that he was not aware of his drug test result until he was terminated by defendants which is contrary to federal Department of Transportation regulations. Furthermore the medical review officer that conducted Employee B's test would not return the phone calls of defendants' attorney. Defendants' attorney was advised by independent experts that Employee B's position was correct. Therefore defendants settled Employee B's claim before the arbitration was completed. As part of the settlement agreement defendants agreed to rehire Employee B.

After plaintiff was terminated by defendants he filed a union grievance and was given a hearing. The union grievance committee denied plaintiff relief. Plaintiff argues that due to scheduling conflicts he was unable to attend the hearing and that somehow the result of the hearing was not correct because all of plaintiff's facts were not presented at the hearing. A union representative however did represent plaintiff's position. Plaintiff points to several facts that were presented in support of his position. The union grievance committee however chose not to accept plaintiff's version and denied plaintiff's grievance. The decision of the union grievance committee was binding on all of the parties. Plaintiff therefore was in a vastly different situation than Employee A and Employee B. Employee A was successful with his union grievance and defendants were bound to reinstate Employee A. Employee B's grievance was deadlocked went to arbitration and there was compelling evidence presented that led defendants to settle with Employee B and reinstate him. Plaintiff however was unsuccessful with his union grievance. Whether plaintiff attended or did not attend the hearing is not the issue in this case. Defendants relied on the result of plaintiff's unsuccessful union grievance and did not reinstate plaintiff. Plaintiff has not presented any evidence that defendants did not rely on this decision in good faith in deciding to not reinstate plaintiff. Plaintiff cannot establish that other non-Cuban employees were treated more favorably under similar circumstances. Twenty other non-Cuban employees who tested positive for drugs during the years 1993 1994 and 1995 were terminated and never reinstated. The reinstatement of Employee A and Employee B has been shown to be exceptions to defendants' policy of terminating employees who have tested positive for drugs. Defendants have given legitimate reasons as to why Employee A and Employee B were reinstated and plaintiff has not raised any inference that these decisions were the result of any discriminatory intent on the part of defendants. Plaintiff has not shown that defendants acted with any bias in deciding to terminate him and not reinstate him after his unsuccessful union grievance. Plaintiff has not demonstrated that defendants chose to reinstate Employee A and Employee B because they are not Cuban or that plaintiff was not reinstated because he is Cuban. Plaintiff's evidence does not show any pretext on the part of defendants in defendants' decision to not reinstate plaintiff. Plaintiff fails to raise a genuine issue of fact as to disparate treatment since plaintiff has produced insufficient evidence that other non-Cubans were similarly situated and reinstated by defendants

There is no evidence that defendants terminated plaintiff for any reason other than their stated reason that plaintiff had a positive drug test result. Plaintiff cannot show that defendants improperly discriminated against him due to his national origin when defendants legitimately non discriminatorily terminated plaintiff for testing positive for marijuana during a random drug test. Plaintiff's evidence is insufficient to raise any doubt as to the veracity of defendants' explanation for plaintiff's termination. Accordingly defendants' motion for summary judgment is granted.

CONCLUSION

Based on the above stated reasons defendants' motion for summary judgment is GRANTED. This case is dismissed in its entirety. All other pending motions are moot.

ENTER:

JAMES F. HOLDERMAN

United States District Judge

 
Notes:

*fn1 The following statement of facts comes from the parties' Local Rule 12(M) and (N) statements of material facts and accompanying exhibits.

*fn2 Because of the filings under seal the court has designated each of these two employees who are not parties to this litigation "Employee A" and "Employee B" to maintain their privacy.