United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
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.
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.
“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.
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 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. 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
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
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,  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.
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,  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.
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.
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.
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. 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).
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. 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.
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