The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
Presently before the Court is Defendant's Motion for Summary Judgment.
Del-Jen, Inc. operates a Job Corps Center in Little Rock, Arkansas. Del-Jen hired Plaintiff on March 23, 2000, as a Driver at the Little Rock Job Corps Center ("LRJCC"). Plaintiff's primary responsibility as a Driver was to provide general transportation to LRJCC students. Del-Jen's "No Harassment Policy" explicitly prohibits harassment on the basis of sex, as well as other protected classifications.
As a federal contractor, Del-Jen must comply with the Federal Drug-Free Workplace ("DFWA") Act of 1988, which provides, in part, that employees in positions covered by the United States Department of Transportation ("DOT") regulations are subject to random drug tests. Plaintiff's driver position, which required Plaintiff to possess a Commercial Driver's License, was a DOT-regulated position, and therefore, Plaintiff was subject to random drug testing. Del-Jen's Employee Handbook also includes a "Drug/Alcohol Use" policy, which provides that as a condition of employment, each employee "is required to cooperate with DelJen's efforts to provide a drug and alcohol-free workplace."
Plaintiff received certification and training on Del-Jen's Drug & Alcohol-Free Workplace Procedure ("Del-Jen's Procedure") at various intervals throughout her employment. Del-Jen's Procedure prohibits "[t]esting positive for . . . illegal drugs on a test that has been requested in accordance with this policy." Del-Jen's Procedure also provides that Del-Jen will inform the employee in writing of the positive test result, the consequences of the test result, and the employee's available options within 5 working days after receipt of a positive confirmed test result from the Medical Review Officer (MRO). "[Del-Jen] will provide a copy of the test results to the employee . . . if he or she requests a copy." "[Del-Jen] will not discharge, discipline, refuse to hire, discriminate against, or request or require rehabilitation of an employee . . . on the basis of a positive test result that has not been verified by a confirmation test and by a MRO." Plaintiff, as a DOT covered employee, had the right to contest a positive test result within 72 hours. This 72 hour time limit is not discretionary, as it is established by DOT regulations. Plaintiff had the right to have the sample re-tested at her expense, and if the second result negated the first result, Del-Jen would pay for the second test.
On March 29, 2006, Plaintiff submitted a urine specimen for a random drug test to Concentra Medical Centers in North Little Rock, Arkansas. Concentra sent Plaintiff's urine specimen to Advanced Toxicology Network for initial testing. The initial test was reported as positive for Cannabinoid (marijuana). Plaintiff asserts that the initial test was a false positive because she never used a drug with Cannabinoid in it. The specimen was then sent to Medical Review Officer, Dr. H.D. Belk with National Diagnostics, Inc. in Charlotte, North Carolina for confirmation testing. On April 6, 2006, Dr. Belk confirmed that Plaintiff's specimen was positive for Cannabinoid, and informed Plaintiff by telephone of the positive test result and that he had to report the results to Del-Jen. Dr. Belk also explained to Plaintiff that the sample is divided into half and that she could challenge the findings by having the other half tested at her own expense. On April 6, 2006, Plaintiff told her immediate supervisor, Darnell McClinton, that she received notice that she had tested positive for illegal drugs. Mr. McClinton told Plaintiff to report the results to former Human Resources Manager, Henry Akins.
A memorandum dated April 13, 2006, prepared by Mr. Atkins states: Ms. Lloyd made a visit to my office on Thursday 6, 2006 explaining her concerns about testing positive on her random CDL drug screening. She explained how a lady called her house and spoke to her mother on the 5th of April explaining that Ms. Lloyd needed to call the doctor of the testing facility for her results on 4/6/06. On 4/6/06 Ms. Lloyd did that on her break while at work. She said the doctor explained that the test she took on 3/29/2006 had tested positive for marijuana. . . .
She also asked could she be retested, and his response was, at her own expense and it would be very expense. Ms. Lloyd tried to get this accomplished.
I called Sergio after this for advice on 4/6/2006, he referred me to Mark Gapetz who I tried to contact but he was tied up on emergency business, but did manage to give me a short email on the procedures of drug testing. Mark stated in the email that we should get test results within a day or two, this didn't happen. The employee was informed before employer.
Ms. Lloyd informed me on 4/10/2006 that she was looking for a test facility and I instructed her to make sure it was the same type of facility and that it could only test the same sample she gave at that time according to our policy. She said she would do this.
On 4/12/2006 Ms. Lloyd informed me that she tried to contact the testing facility to pay for the sample to be shipped; they informed her it was too late. A retest has to occur within 72 hours of the initial testing and after 72 hours the sample is destroyed.
I was referred to Mr. Bob Clemans CDL contractor for Del-Jen, Inc. by Ann Gapetz on 4/13/2006. He informed me of the 72 hour window and said that He should have been notified as well. He also said that Mr. White and McClinton have been trained on the 72 hour policy as well and given material on the subject.
Mr. McClinton provided me with the information the Mr. Clemans left with him. It failed to mention the 72 hour DOT policy.
I spoke with the MRO Dr. Belk and he informed me that he may no have explained all of the DOT policies to Ms. Lloyd, but he replied that he did explain the 72 hour DOT policy to her.
The Mr. McClinton, Safety Manager, his employee Ms. Lloyd and I were not made aware of this policy nor is it in our employee hand book for employees to reference. It is a DOT policy that is not incorporated into our policy.
After talking to Ms. Beverly Lovett she agree as well as I, to retest Ms. Lloyd today 4/14/06. Ms Lovett stated that if her test is negative this time we should retest Ms. Lloyd more often according to DOT regulations.
Defendant submits an affidavit from Sergio Bautista, Senior Director of Human Resources, which discusses the events leading up to Plaintiff's termination:
15. Mr. Atkins, however, mistakenly allowed Ms. Lloyd to submit an entirely new urine sample for testing on April 14, 2006. That urine sample was negative for illegal drugs.
16. Del-Jen's past practice has been to terminate employees who test positive for illegal drugs. Indeed, we have terminated the employment of other employees, both male and female, at the Little Rock Job Corps Center, because of positive drug tests.
17. I spoke with Beverly Lovett, Director of Job Corps Operations for Del-Jen, Inc. and Mr. Gapetz to discuss what action to take in response to Ms. Lloyd's positive drug test. Consistent with Del-Jen's policy and Del-Jen's past practices, Ms. Lovett, Mr. Gapetz, and I decided to terminate Ms. Lloyd's employment on April 26, 2006.
18. In June 2006, I learned from Ms. Lovett that Ms. Lloyd's employment had not been terminated as we decided. I also learned that Mr. Atkins had allowed Ms. Lloyd to resume driving duties following receipt of the negative results from Ms. Lloyd's second test.
19. Ms. Lovett and I agreed that we needed to meet in Little Rock, Arkansas at the Job Corps site to investigate why Mr. Atkins had not terminated Ms. Lloyd's employment. However, because of conflicts between my travel schedule and Ms. Lovett's travel schedule, we were not able to meet in Little Rock until July 5, 2006.
20. During my visit to Little Rock, Ms. Lovett and I met with Mr. Atkins and asked him why Ms. Lloyd had not been fired. Ms. Atkins explained that he was reluctant to terminate Ms. Lloyd's employment because she tested negative for drugs on April 14, 2006. Mr. Atkins also indicated that he thought Ms. Lloyd's failure to timely request a retest of her original sample should be excused because Ms. Lloyd mistakenly believed that her original control sample had been destroyed.
21. Before making a final determination concerning Ms. Lloyd's employment, I confirmed that Del-Jen has consistently terminated the employment of employees who test positive for illegal drugs. I also reviewed Plaintiff's performance history and discovered that Plaintiff had been involved in multiple traffic accidents while operating Del-Jen vehicles. I also confirmed the earlier position that Ms. Lovett, Mr. Gapetz and I reached--that Ms. Lloyd's second test of an entirely new sample did nothing to negate the positive test from her first urine sample. Based on this further evaluation, I concluded that there were no circumstances sufficient to reverse our earlier decision to terminate Ms. Lloyd's employment because she failed the random drug test. Ms. Lovett agreed with my conclusion. Ms. Lovett and I collectively decided that the initial termination decision should stand and that Ms. Lloyd's employment should be terminated immediately.
22. On July 17, 2006, I sent an e-mail to DeMoyn McCoy, the newly-hired Center Director at the Little Rock Job Corps Center, instructing him to terminate Plaintiff's employment because of her positive drug test.
23. Ms. Lovett and I made the decision to terminate Ms. Lloyd's employment based on her failed drug test, and for no other reason.
24. I did not learn that Ms. Lloyd had filed a discrimination complaint with the EEOC until sometime after I made the decision to terminate her ...