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Owens v. CPS Energy

United States District Court, W.D. Texas, San Antonio Division

October 24, 2019

CPS ENERGY, Defendant



         On this date, the Court considered Defendant CPS Energy's Motion for Summary Judgment (ECF No. 32). After careful consideration, the Court GRANTS summary judgment in favor of Defendant for the reasons stated below.


         This case arises out of the termination of Plaintiff's employment following his violation of Defendant's drug-free workplace policy. Defendant is a municipally owned gas and electric utility operating in Bexar County, Texas and seven other surrounding counties. Plaintiff was employed as a Utility Worker from July 2010 until his discharge on May 11, 2018. At the time of his discharge, Plaintiff worked in Defendant's Northwest Service District Overhead Maintenance Customer Construction Department, and his role required him to obtain a commercial driver's license (“CDL”) to perform some of his duties.

         Defendant's “CPS Energy Alcohol and Drug-Free Workplace Policy” (ECF No. 32-8) (“Drug-Free Policy”) applies to all employees, and provides for termination in the event an employee refuses to submit to drug testing, which is defined to include “failing to provide a urine specimen, ” “failing to provide an adequate urine specimen … without a valid medical explanation, ” and “failing to remain at the testing site until the testing process is complete, ” among others. The Drug-Free Policy requires supervisors who know an employee has engaged in conduct prohibited by the Policy to immediately remove the employee from performing job functions. The Drug-Free Policy provides for several types of testing, including random testing conducted at “any interval determined by the company” on all “Covered Positions” regulated by the U.S. Department of Transportation (“DOT”). Defendant maintains an additional “DOT - Alcohol and Drug-Free Workplace Policy, ” which applies to all employees in Covered Positions, and which is supplemented by the Drug-Free Policy where applicable (ECF No. 32-7) (“DOT Policy”). Some of Defendant's employees perform work on gas pipelines and so are also considered covered employees under DOT's Pipeline and Hazardous Materials Safety Administration (“PHMSA”), which has its own regulations regarding drug testing. See generally 49 C.F.R. § 199.100 et seq.

         Defendant conducts random drug testing of its employees on a quarterly basis. Every quarter of the calendar year, Defendant's Program/Project Manager and Certified Designated Employer Representative, Clevette Hall (“Hall”), uses a scientifically validated computer software program[1] to generate a list of employees to be tested during that three-month period. The software generates a list of employees identified only by their employee identification number - neither Hall nor any other manager or supervisor has input into which employees are selected for random drug testing (ECF No. 32-5 ¶ 4, 13). Hall imports the software's list into a spreadsheet, adds employee names and other necessary information, and divides the list into thirds - one third to be tested each month of the quarter.[2] The day before a random drug test, Hall notifies the supervisor of each selected employee, verifies the employee's availability to be tested at the scheduled time, and provides the supervisor with a notification form.[3]

         On the day of the test, each supervisor informs each selected employee and gives them their notification form. The employee must then report for testing with the collection provider, ARCpoint Labs (“ARCpoint”), a third-party company engaged by Defendant. At the conclusion of a drug test, ARCpoint sends the preliminary results to a Medical Review Officer (“MRO”) to be verified. If the result of the drug test is anything but “negative, ” the MRO makes a reasonable effort to contact the employee and give them an opportunity to discuss the result. When the MRO completes his review, he notifies ARCpoint and Hall of his determination or verification of the results. If the outcome of the test requires further action under Defendant's policies, Hall notifies the appropriate management or human resources personnel.

         In the second quarter of 2018, Plaintiff's employee number was included in the random pool of employees to be tested (ECF No. 32-12). Since Plaintiff had already been tested in the first quarter of 2018, [4] Hall ensured he was placed in the May (rather than the April) group for testing, pursuant to her usual practice. On the morning of May 8, 2018, Plaintiff reported for his shift beginning at 6:30 a.m. His supervisor, Customer Construction Manager David Miller (“D. Miller”) informed Plaintiff he had been selected for testing that day, which Plaintiff did not think was anything out of the ordinary at the time (ECF No. 32-3, Pl. Dep. 122:18-20). Plaintiff received and signed his notification form (ECF No. 32-13) and reported for testing with ARCpoint.

         Plaintiff made his first attempt to provide a urine specimen at 6:33 a.m. but was unsuccessful. Plaintiff made a second unsuccessful attempt about two hours later. ARCpoint personnel explained to Plaintiff the DOT's “shy bladder” regulations, and that if he failed to provide a sample within three hours it could be considered a refusal to test (ECF No. 32-3, Pl. Dep. 136:2-5). Plaintiff did not make any additional attempts before the three-hour mark, despite being given the opportunity to do so (ECF No. 32-3, Pl. Dep. 164:14-21). Plaintiff left the ARCpoint testing site and returned to his jobsite briefly. Meanwhile, ARCpoint personnel informed Hall that Plaintiff “did not want to make a final attempt to provide a urine sample” before the three-hour period had expired (ECF No. 32-20). Hall advised D. Miller of Plaintiff's refusal to test, and D. Miller then instructed Plaintiff to leave the jobsite and return to the Northwest Service District offices. Once there, Plaintiff met with D. Miller, Manager Gilbert Brown, and Director Richard Lujan, with Hall joining by phone. Hall explained the applicable regulations, that an MRO would be contacting Plaintiff to discuss the results, [5] and that the potential outcome was a refusal to test (ECF No. 32-3, Pl. Dep. 146:13-25). Plaintiff was sent home and suspended with pay awaiting the final results of his drug test.

         After Plaintiff was sent home, he called the MRO, Dr. Paschall of National Medical Review, who conducted a “Donor Interview” with Plaintiff. Dr. Paschall asked Plaintiff if he had any preexisting conditions or other medical reason he could not produce a urine specimen during his three-hour testing window. Plaintiff admitted (and continues to admit) that he has no such medical condition (ECF No. 32-21; ECF No. 32-3, Pl. Dep. 151:7-20). According to Plaintiff, Dr. Paschall suggested that Plaintiff call Defendant and ask for a retest (ECF No. 32-3, Pl. Dep. 151:21-152:2). Plaintiff called Lujan, who told Plaintiff to call HR; and so, Plaintiff called Hall and told her about his conversation with Dr. Paschall (Id. at 149:22-150:14). Hall was at lunch and asked if she could call Plaintiff back (Id. at 150:7-14). Before calling Plaintiff back, Hall called Dr. Paschall to confirm what Plaintiff had told her (ECF No. 32-15). According to Hall, Dr. Paschall denied instructing Plaintiff to call Defendant to schedule a retest. Hall called Plaintiff back and disputed that Dr. Paschall had told Plaintiff to request a retest (ECF No. 32-3, Pl. Dep. 150:22-151:4).

         In an attempt to conduct his own retest independently, Plaintiff then went to Texas MedClinic and requested a DOT drug test. When Plaintiff stated he wanted the results to be sent to Defendant, the clinic called Defendant to request authorization (Id. at 154:21-155:4). Lisa Jarzombek Balcar (“Balcar”), an employee in Defendant's Employee Benefits department, answered the clinic's call and then asked Hall if she had sent Plaintiff to the clinic for a random drug test. Hall told Balcar that she had not, and instructed Balcar not to approve the request (ECF No. 32-15). Balcar informed the clinic, who told Plaintiff and then asked him to leave, which he did (ECF No. 32-3, Pl. Dep. 155:23-156:11).

         Later that day, Dr. Paschall sent his final determination/verification of Plaintiff's results as “REFUSAL TO TEST” to ARCpoint (ECF No. 32-21), who sent it to Hall, who notified HR. In accordance with Defendant's policy requiring termination for a refusal to test, HR began the discharge process. Plaintiff's termination was approved by six decisionmakers.[6] On May 11, Lujan called Plaintiff to inform him that his employment was being terminated. Plaintiff was also issued a letter dated May 11, 2018, which states that the decision to terminate Plaintiff was “based on your failure to provide urine sample for testing without a valid medical explanation after receiving notice for testing under the CPS Energy DOT Alcohol-Drug-Free Workplace Policy.” (ECF No. 32-24).

         On June 18, 2018, Plaintiff dual-filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission and the Texas Workforce Commission Civil Rights Division, alleging Defendant discriminated against him based on race (ECF No. 32-25). The Charge described Plaintiff's May 8 drug test, failure to provide a specimen, and subsequent termination. Other than his post-termination Charge, Plaintiff never made any complaint of discrimination to Defendant during his employment.[7] Plaintiff admits that the only complaint he ever made during his employment concerned a confrontation he had with a co-worker in February 2018, which Plaintiff did not allege was related to his race or color.

         After the EEOC dismissed Plaintiff's Charge and issued a Notice of Right to Sue, Plaintiff filed the present lawsuit in the District Court for Bexar County, Texas, alleging that Defendant discriminated against him on the basis of his race and color in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. After removing the case to this Court, Defendant filed the present Motion for Summary ...

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