Summary
granting transit authority's motion for summary judgment on bus operator's ADA claim because an employee who fails a drug test and does not successfully complete treatment is not a "qualified individual" for purposes of making a prima facie ADA claim, stating that "[e]ven if Plaintiff's status as a recovering drug addict is viewed as a protected disability status, the employer is unquestionably entitled to take action on the basis of her use of drugs or failure to complete a drug abuse program"
Summary of this case from Opinion No. 2008-098Opinion
No. 99 C 1082.
September 28, 2000
MEMORANDUM OPINION AND ORDER
This matter originates out of the termination of an employee who tested positive for cocaine pursuant to a mandatory drug test, and then repeatedly failed to successfully complete rehabilitation programs required before her return to work. Plaintiff Elois Redding ("Redding") filed this action against her former employer, the Chicago Transit Authority ("CTA"), alleging that the CTA discriminated against her on the basis of her cocaine addiction, in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"). Plaintiff's ADA claim charges the CTA with wrongfully terminating her employment based on her cocaine addiction, and with failing to reasonably accommodate her condition. Now before the court is Defendant's motion for summary judgment. Defendant contends that it is entitled to summary judgment because Plaintiff is not a qualified individual with a disability, and because it offered a legitimate, non-discriminatory reason for discharge. For reasons set forth below, the court grants CTA's motion for summary judgment.
FACTUAL BACKGROUND
The CTA is a public transportation agency located in Chicago, Illinois. (Defendant Chicago Transit Authority's Local 12(M)(3) Statement of Material Facts as to Which There is No Genuine Issue (hereinafter "CTA Facts") ¶ 1.) As a recipient of federal funding, CTA is required to follow Department of Transportation ("DOT") regulations concerning the drug testing of persons engaged in safety sensitive positions. (CTA Facts ¶ 8.) At times pertinent to this matter, CTA had a collective bargaining agreement with the Amalgamated Transit Union Local 241 (the "union"). (Appendix to Defendant Chicago Transit Authority's Motion for Summary Judgment (hereinafter "CTA Append."), Ex. G-1.) Pursuant to the DOT regulations and the CTA's collective bargaining agreement with the union, employees who test positive for illegal drugs are barred from returning to work unless they successfully complete a drug treatment program. ( Id., Ex. G-6; Elois Redding's LR 56.1(b)(3) Combined Response to CTA's Local Rule 12(m)(3) Statement of Material Facts as to Which There is No Genuine Dispute and Statement of Additional Facts That Require Denial of Summary Judgment (hereinafter "Redding Facts") ¶ (a)(8).)
Redding worked as a bus operator for the CTA from June 20, 1985 until her discharge on September 25, 1995. (Redding Facts ¶ (a)(1).) For some time prior to November 2, 1994, Redding had been off duty due to a non-work-related injury. (Redding Facts ¶ (a)(4).) Under the terms of the collective bargaining agreement, employees undergoing a return-to-work examination must be tested for illegal drugs. (Redding Facts ¶ (a)(5).) Redding's urine test, performed on November 4, 1994, was positive for the presence of cocaine. ( Id.; see Smith-Kline Beecham Lab Report, Ex. G-2 to CTA Facts.) As a result, DOT regulations and the collective bargaining agreement dictated that she be removed from service.
Pursuant to the collective bargaining agreement, in recognition of her more than five years of service, Redding was permitted to remain employed by the CTA and enter the employee assistance program ("EAP") on January 9, 1995. (Affidavit of Robert Gierut (hereinafter "Gierut Aff.") ¶ 14; Redding Facts ¶ (a)(9).) As set forth in the collective bargaining agreement, in order to avoid discharge and return to service, Redding was required to actively and successfully participate in the six month program towards resolution, and to report to designated drug testing locations. (Redding Facts ¶ (a)(10).) In August 1997, Redding's EAP counselor, Thaddeus Williams, reported that Redding actively participated for only one month, and that she was discharged from the program on August 7, 1995. (Gierut Aff. ¶ 17, citing August 7 and September 5, 1995 letters from Thaddeus Wilson.) Unsatisfied by Redding's explanations for her inactivity in the EAP program, Gierut discharged her from employment with the CTA on September 25, 1995. (Gierut Aff. ¶¶ 18, 19.)
Redding filed a union grievance which was settled nearly two years later, on August 27, 1997, when she entered into an Agreement and General Release of All Claims ("Release") with CTA. (Redding Facts ¶¶ (a)(16), (a)(17).) Under the Release, Redding was once again allowed to participate in the EAP, although this time as a non-employee, and as an admitted rule violator. (Redding Facts ¶ (a)(18).) The agreement included in part:
Redding acknowledges and agrees that notwithstanding any of the provisions of Attachment H, she shall have no right to return to service, and shall not be returned to service, in any capacity until she has successfully completed the prescribed treatment program, but in no event sooner than six months after entering the EAP unless the EAP counselor determines that an earlier return serves the interests of both Redding and the Authority. (CTA Facts ¶ 19; Ex. A, ¶ 24.)
On October 7, 1997, Redding was evaluated by Terri Petersen ("Petersen"), an EAP counselor, to determine the proper treatment plan. (Redding Facts ¶ (a)(20).) It is undisputed that at this meeting, Redding signed several documents, including the Employment Assistance Program — Participant Guidelines ("Participant Guidelines"), CTA Employee Assistance Program Addendum to Participant Guidelines, Memorandum of Understanding Employee Assistance Program ("Memorandum"), and Consent for Periodic Medical Examination. (Redding Facts ¶ (a)(21).) In clear language on the only side of the agreement, the Participant Guidelines set forth rigid requirements for periodic urine testing, warning Redding that "Any deviation from this procedure must be authorized in writing by your counselor. Any violation of this procedure or failure to progress towards resolution of problems is likely to result in discharge." (Participant Guidelines ¶ 4.) Redding signed the Memorandum of Understanding, by which she acknowledged, "I understand that to continue participation in the Program, I must follow the Program's prescribed guidelines. I understand that failure to follow the prescribed Program or any violation of Rules will result in disciplinary action, including possible discharge." (Memorandum.) Petersen decided that Redding must participate in a two week intensive outpatient care program, and then be reevaluated. (Affidavit of Teresa Petersen (hereinafter "Petersen Aff.") ¶ 8.)
Although Redding was instructed to begin the outpatient treatment on or before November 10, 1997, she requested and received an extension of the start date. On December 2, 1997, she began treatment at the Behavioral Health Services of Central DuPage Hospital. (CTA Facts ¶ 26; Redding Facts ¶ (b)(9).) On December 8, 1997 Redding failed to provide her mandatory urine specimen. (Redding Facts ¶ (a)(29).) Although the CTA could have terminated Redding's employment at this time, Gierut decided to allow her to remain in the program, and granted her a "one-time exception" in writing. (Gierut Aff. ¶ 35.) A December 16, 1997 letter from Terri Petersen told Redding, "If you miss any more tests for any reason, or are not fully compliant in any other area of the EAP Participant Guidelines, an irreversible letter of non-participation will be sent to Human Resource Program Compliance." (Letter from Petersen to Redding of December 16, 1997, Ex. D to Redding Facts.)
On December 10, 1997 Redding advised her drug treatment counselor at Central DuPage Hospital, Judy LaCoste ("LaCoste"), that she would be missing treatment because she had injured her leg and back and needed to see a doctor. (CTA Facts ¶ 31.) LaCoste later advised Terri Petersen that she reminded Redding to let her doctor know that she was chemically dependent (Petersen Aff. 1, 16), but Plaintiff denies this. (Redding Facts ¶ (b)(12), citing Declaration of Elois Redding ("Redding Decl."), at ¶ 13.) The doctor prescribed Tylenol IV, a narcotic painkiller. (Redding Decl. ¶ 14.) Redding took the medication, and on December 11, 1997 her urine tested positive for opiates. (CTA Facts ¶ 31.) On December 15, 1997, Redding's urine tested positive for the presence of morphine. ( Id.) On December 18, 1997, again failed to provide a mandatory urine sample. ( Id.) LaCoste reported that on December 22, 1997, Redding had met with and counseled a chemically dependent friend, activity that LaCoste believed violated instructions that she not be involved with addicted persons until she had achieved sobriety. ( Id.) On December 22, 1997, LaCoste unsatisfactorily discharged Redding from the treatment program. ( Id.)
On January 20, 1998, Gierut met with Redding and her union representative. (Redding Facts ¶ (a)(35).) At this meeting, Gierut indicated verbally and in writing that the Release was being terminated based on Redding's violations of the treatment plan guidelines. (Redding Facts ¶ (a)(35).) The letter that Gierut gave Redding at this meeting set forth five reasons for her discharge. (Letter from Gierut to Redding on January 20, 1998, Ex. C to Redding Facts.) They included the December 8, 1997 missed urine test, the December 11, 1997 positive test for opiates, the December 15, 1997 positive test for opiates, the December 18, 1997 missed urine test, and "for not following your prescribed treatment recommendations." ( Id.)
Nearly nine months later, on November 10, 1998, Redding filed a charge with the EEOC alleging that her discharge from the CTA violated her rights under Title I of the ADA. This lawsuit followed.
DISCUSSION
Summary judgment is proper if the evidence shows 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). Plaintiff Redding cannot merely allege the existence of a factual dispute to defeat summary judgment. McPhaul v. Board of Commissioners of Madison County, ___ F.3d ___, 2000 WL 1156427, at *2 (7th Cir. 2000) (citing Skorup v. Modern Door Corp., 153 F.3d 512, 514 (7th Cir. 1998)). She must supply evidence sufficient to allow a jury to render a verdict in her favor. Ross v. Indiana State Teacher's Ass'n, 159 F.3d 1001, 1012 (7th Cir. 1998).
The ADA proscribes discrimination "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, . . . and other terms, conditions and privileges of employment." 42 U.S.C. § 12112 (a). The Act also provides that an employer discriminates against a qualified individual with a disability by "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability. . . ." 42 U.S.C. § 12112 (b)(5)(A). To establish that CTA discriminated against her on the basis of her disability, Plaintiff must offer evidence that she is disabled as defined under the ADA and that she suffered an adverse employment action as a result of her disability. See Conley v. Village of Bedford Park, 215 F.3d 703 (7th Cir. 2000) (setting forth elements of proof of discrimination based upon alcoholism disability). To set forth a prima facie case for failure to accommodate under the ADA, Redding must show that: (1) she was disabled; (2) the CTA was aware of her disability; and (3) she was a qualified individual who, with or without reasonable accommodation, could perform the essential functions of the employment position. Feldman v. American Memorial Life Ins. Co., 196 F.3d 783, 789 (7th Cir. 1999). In order to proceed under either theory, Plaintiff bears the burden of demonstrating that she is "qualified" to perform the essential functions of the job she holds or seeks, with or without reasonable accommodation. Bay v. Cassens Transport Co., 212 F.3d 969, 973 (7th Cir. 2000) (citing Best v. Shell Oil Co., 107 F.3d 544, 547-48 (7th Cir. 1997)).
Defendant argues that it is entitled to summary judgment because Plaintiff can not demonstrate that she was a qualified individual with a disability under the ADA. The Act specifically excludes from that definition "any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." 42 U.S.C. § 12114. The ADA also requires that entities operating under the jurisdiction of the Department of Transportation may "test employees . . . in positions involving safety-sensitive duties for illegal use of drugs . . . and remove such persons who test positive for illegal use of drugs . . . from safety-sensitive duties." 42 U.S.C. § 121 14(c)(5)(C). Federal regulations identify that operating a bus is a safety-sensitive duty. 49 C.F.R. § 653.7 It is undisputed that Redding tested positive for cocaine on November 2, 1994. (Redding Facts ¶ (a)(6).) Federal regulations also mandate that an employee who tests positive for an illegal drug shall "cease performing a safety-sensitive function." 49 C.F.R. § 653.35. Therefore, Redding was not qualified under the ADA to perform her duties as a bus driver after she tested positive for cocaine.
Federal regulations command that prior to return of service to a safety-sensitive function, "the employer shall ensure that the covered employee meets the requirements of this part for returning to duty . . ." 49 C.F.R. § 653.35 (b). Furthermore, in order to be qualified to return to service under the regulations, an employee must have "been evaluated by a substance abuse professional to determine whether the covered employee has properly followed the recommendations for action by the substance abuse professional, including participation in any rehabilitation program." 49 C.F.R. § 653.49. Therefore, in order for Redding to be a "qualified individual," she must have successfully completed a drug rehabilitation program, and be cleared to return to service by a substance abuse professional.
Plaintiff Redding was terminated in 1995 and, so far as this record reflects, has never been cleared to return to work by a substance abuse professional. With respect to her first rehabilitation effort in 1997, her EAP counselor reported she had not participated actively. Plaintiff insists she did in fact participate "to some degree" but asserts that she had "concerns about confidentiality." (Redding Facts ¶ (a)(11).) Whatever those concerns were, Plaintiff offers nothing that suggests that her concerns trump the requirement that she participate satisfactorily in a drug rehabilitation program. Defendant asserts that Plaintiff's failure to participate in treatment was the reason for her termination (CTA Facts ¶¶ 13, 14, 15); Plaintiff denies this assertion but cites to no record evidence in support of her suggestion that some other motivation was at work. Redding Facts ¶¶ (a)13, (a)14, (a)15.)
Nor does Plaintiff seriously contend that she participated successfully in the second EAP program, the "last chance" program to which she was assigned in December 1997. Plaintiff's drug treatment counselor, Judy LaCoste, terminated her from that program, based on several incidents of failures to comply with the requirements of the program. Unable to challenge the record of these failures, Plaintiff instead offers explanations, and contends that her violations were excused or misinterpreted. She missed a December 8, 1997, drug test, but contends this was "excused." (Redding Facts ¶ (a) 30.) In fact, however, as reflected by the December 16, 1997 letter from Terri Petersen, which Plaintiff herself cites, the missed test was grounds for terminating her participation in the program, but Petersen agreed to make a "one-time exception." (Petersen letter of Dec. 16, 1997, Ex. P-1 to CTA Facts, emphasis in original.) The letter offered Redding "one last chance" and reminded her that the agreement would be terminated "If you miss any more tests for any reason, or are not fully compliant in any other area of the EAP Participant Guidelines." ( Id., emphasis added.)
Redding admits that she met a chemically dependent friend on December 22, 1997 but claims she "thought she was doing something good" and points out (without explaining the relevance) that LaCoste had encouraged members of her therapy group to "help each other." (Redding Decl. ¶ 21.) She acknowledges that she failed to attend evening "12 step meetings" as required by her patient contract, but characterizes those sessions as optional and asserts that Petersen excused her attendance due to transportation difficulties. ( Id. ¶ 32.) She denies that Judy LaCoste directed her to notify her doctor that she was chemically dependent and contends that her December 11 and December 15 positive drug tests were the result of prescription medication which Gierut and Petersen (not LaCoste) had assured her she could take and that both were excused orally by Petersen. ( Id. ¶¶ 19, 33.) Thus, Redding contends that drug abuse professionals communicated an "erroneous conclusion" — that she had abused drugs — to the CTA. (Elois Redding's Response to CTA's Motion for Summary Judgment ("Redding's Response"), at 7.) She believes it is "not fair" to penalize her for these test results, but she does not and cannot seriously contest CTA's contention that she did not successfully complete treatment to the satisfaction of a "substance abuse professional" as required by DOT regulations.
In fact, rather than respond directly to CTA's argument that she is not a "qualified individual with a disability," Plaintiff instead resorts to a contract law theory. She urges that there was no "meeting of the minds when it came to Redding's use of prescribed medications" and that the August 1997 agreement must, therefore, be "rescinded." (Elois Redding's Response, at 8.) This case is an employment discrimination case, however, not a state law contract dispute. In any event, if the agreement is rescinded, Plaintiff is returned to the position she was in prior to the agreement: terminated by the CTA after having failed to participate in her first EAP program.
In Bay, the Seventh Circuit concluded that plaintiff, a truck driver who suffered from a heart condition, was not a "qualified individual" under the ADA during period when he did not possess Department of Transportation certification. The employer was prohibited by DOT regulations from permitting plaintiff to resume driving until he produced a doctor's certificate indicating he was physically qualified to drive. 212 F.3d at 974. In affirming summary judgment in favor of the employer, the Court of Appeals observed the employer was "not only entitled to rely on [the doctor's] judgment, but was legally required to refuse [plaintiff]'s request to return to driving a commercial motor vehicle until he presented the proper certification." Id. Here, similarly, Plaintiff did not complete a drug treatment program to the satisfaction of the drug abuse treatment professional, Judy LaCoste. Until she completed such a program, Plaintiff was not qualified within DOT regulations to return to work as a bus driver. Because she did not complete her drug treatment program, Plaintiff is not a qualified individual within the meaning of ADA.
Plaintiff urges here that her violations were excused and that her counselor's discharging her from that program was therefore unfair. Those arguments do not, however, support an ADA claim under either theory of liability. With respect to the argument that CTA discriminated against her on the basis of her disability, it is undisputed that CTA had a legitimate, non-discriminatory reason for refusing to rehire her: her positive drug tests. Even if Plaintiff's status as a recovering drug addict is viewed as a protected disability status, the employer is unquestionably entitled to take action on the basis of her use of drugs or failure to complete a drug abuse program. The issue of pretext addresses the honesty of the employer's reasons and not the "correctness . . . of reasons offered for employment decisions." McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992). The fact that the employer may be mistaken about the employee's compliance or that the employer misunderstands the reasons for or circumstances of a positive drug test does not render suspect its reliance on the employee's failure as a reason for refusing to rehire her.
Although Plaintiff characterizes the positive drug tests as "the principal reasons for her discharge from the EAP," the court notes that there were other undisputed violations. Plaintiff missed a December 8, 1997 urine test completely, a violation that justified termination of the agreement. (Participant Guidelines, ¶ 4.) She admits that she missed a second drop, as well, but claim that this was excused "in a telephone conversation" by Petersen (Redding Facts, ¶ (b)(3)), ignoring plain language in the agreement she signed that required that any exceptions to the requirements be in writing. (Participant Guidelines ¶ 4.) She admits she did not attend 12-step evening programs and did not isolate herself from other known drug users, and she acknowledged in writing that "any violation of Rules will result in . . . possible discharge." (Participant Guidelines.) Certainly the positive test for morphine on December 15, 1997 was a factor in the determination that she had failed to comply with her program. Plaintiff has offered evidence that the opiates in the prescription pain reliever she was taking converted to morphine (GOODMAN GILMAN PHARMACOLOGICAL BASIS OF THERAPEUTICS, 9th Ed., Ex. D(2)to Redding Facts), but she offers no evidence that CTA officers knew this. In essence, her argument challenges the wisdom of Defendant's decision. But evidence "that merely shows that the employer made a mistake or a bad business judgment," Shultz v. General Elec. Capital Corp., 37 F.3d 329, 334 (7th Cir. 1994) does not constitute evidence of pretext.
Nor can the facts here reasonably be interpreted as a failure to accommodate Redding's disability. Defendant provided comprehensive drug treatment to Plaintiff not once but on two occasions. On the second occasion, Plaintiff was not an employee of the CTA, but was provided an opportunity to qualify to return to work by successfully completing a rehabilitation program. She requested a delayed entry in that program and missed a urine drop only days after beginning. Still, CTA personnel permitted her to continue.
An employer is required only to make reasonable efforts to accommodate an employee's (or, in this case, a potential employee's) disability. The fact that the employer's good faith efforts were unsuccessful does not render those efforts unreasonable. See Equal Employment Opportunity Commission v. Humiston-Keeling, Inc., No. 99-3281, ___ F.3d ___ 2000 WL 1310519, at *3 (7th Cir. 2000). Even if Plaintiff could meet the burden of demonstrating that she is a qualified person with a disability, the court concludes that the law would require no further effort on the part of her employer to accommodate her.
CONCLUSION
For the reasons set forth above, Defendant's motions for summary judgment (Doc. No. 14-1, 16-1) are granted. Judgment is entered in favor of Defendant CTA and against Plaintiff.