Synopsis: The Seventh Circuit affirmed a summary judgment decision in favor of the employer on the plaintiff's race discrimination and civil conspiracy claims where the employer did not hire the plaintiff after the plaintiff tested positive for marijuana at orientation.
Last month, in Turner v. Hirschbach Motor Lines, the Seventh Circuit affirmed the district court's granting of summary judgment in favor of Hirschbach Motor Lines (Hirschbach) on plaintiff, Robin Turner's claims of race discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and civil conspiracy under state law.
Mr. Turner, an African American, was initially offered a job at Hirschbach as a commercial truck driver on the condition that he complete both the company orientation and a drug test. During orientation, Turner tested positive for marijuana. Pursuant to Department of Transportation (DOT) regulations, Turner's drug test was carried out at an independent medical facility, the urine sample was split into two, and the results of the first half of the sample were given to Turner through Hirschbach's independent medical review officer.
Once Turner was given his results, Hirschbach's safety officer explained to Turner that he had the right to request that the second half of his urine sample be tested at different laboratory. Turner told the safety officer that he wanted the second split test, but for disputed reasons, the second split test never happened. Turner alleged at deposition that the safety officer cancelled the second split test.
Hirschbach ended up not hiring Turner. Pursuant to DOT regulations, Hirschbach reported Turner's positive drug test "to an industry consortium from which future employers could, with Turner's permission, seek his previous test results." In turn, Turner filed race discrimination and conspiracy claims against Hirschbach. Specifically, Turner alleged that: (1) Hirschbach did not hire him because of his race; (2) Hirschbach reported his drug tests to the industry consortium because of his race; and (3) Hirschbach conspired with the independent medical review officer to cancel the second split test.
Hirschbach moved for summary judgment on all of Turner's claims. Turner argued that he could withstand Hirschbach's summary judgment motion on a "cat's paw theory." Said otherwise, Turner argued that Hirschbach's safety officer, who was not a decision-maker in Turner's hiring, had racial animus towards Turner, which was a proximate cause of the decision to not hire Turner. The district court was unpersuaded. The court held that Turner did not put forth any evidence that: (1) the initial drug test was unreliable; (2) the second test would have been negative; or (3) the decision-maker based her decision on race rather than the positive drug test. Further, the court held that reporting Turner's negative drug test to the consortium was non-discriminatory because it was required by federal regulations. Finally, the district court held that Turner's conspiracy claim failed because there was no evidence on the record that Hirschbach and the independent medical review officer had an agreement to cancel the split test.
On appeal, Turner challenged the district court's decision, and argued that he should have defeated summary judgment based on the simple assertion that the cancellation of the second split test violated DOT regulations. However, the Seventh Circuit held that Turner's burden is greater than demonstrating a mere violation of a federal regulation. Rather, given that the employer had put forth evidence that Hirschbach would not have hired someone who failed a drug test, Turner had "to support his cat's paw theory with evidence casting doubt on the reliability of the initial drug test." Turner's lack of evidence that the first test was a "false positive," or that a second test would have come back negative, is fatal to Turner's discrimination claim. Regardless, the court held that Turner has not put forth evidence that Hirschbach actually violated any federal regulations.
The Seventh Circuit's decision in Hirschbach is a big win for employers, especially those employers who are subject to DOT or other onerous regulations. Employers should rejoice in the Seventh Circuit's willingness to hold Turner accountable for his burden of establishing a connection between the alleged racial animus and the adverse action. However, employers should remain cautious and vigilant when taking adverse action against employees for hot-button issues such as failed drug tests. Although the employer prevailed in Hirschbach, the court reminded employers that employees could prevail on a race discrimination claims where there is evidence of similarly situated employees of other races being treated differently.
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