Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 In this employment discrimination case, Plaintiff alleges that he was terminated from 18 his employment at the United States Postal Service while two younger employees were 19 given more favorable treatment under similar circumstances. He is seeking relief under t he 20 Age Discriminat ion A ct of 1967 as amended, 29 U.S.C. § 621, et. seq.; also, Title VII of the 21 Civil Rights Act of 1964, as amended 42 U .S.C. § 2000e, et. seq., and the Rehabilitation Act 22 of 1973, as amended, 29 U.S.C. §§ 791, 794 (c). [Dkt. 1] 23 Pending before the Court is D efendant's motion for summary judgment. [Dkt. 42] 24 The Plaintiff filed a response [D kt . 47] and Defendant filed a reply. [Dkt. 61] Defendant 25 argues that Plaintiff's age discrimination claim s hould be denied because Plaintiff has not 26 established 27 Defendant's stated reason for terminating Plaintiff was simply a pretext for a discriminatory 28 a prima facie case for age discrimination and has further failed t o s how that ) ) Plaintiff, ) ) ) vs. ) ) John Potter, Postmaster General, United) ) States Postal Service, ) Defendant. ) ) ) M ark Sather, No. 03-2195-PHX-EHC ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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purpose.

D efendant also argues that Plaintiff's Rehabilitation Act claim should be denied

because Plaintiff did not exhaust his administrative remedies before the EEOC. Background Plaintiff worked for the United States Postal Service as a tractor-trailer operator at the General M ail Facility in Phoenix. [Dkt. 1] Plaintiff drove a heavy duty tractor-trailer t hat weighed in excess of 26,000 pounds. [Dkt. 43] order to drive the tractor-trailer. [Dkts. 1, 42] Plaintiff was subject to the regulations of the Department of Transportation for safety-sensitive employees . [D kt s. 43, 57] Safety-sensitive employees are those who hold a Commercial Driver's License and drive vehicles weighing in exces s of 26,000 pounds. [Dkt. 42] The Department of Transportation regulations also require random drug and H e held a Commercial Driver's License in

alcohol testing for safety-sensitive positions. [Dkt. 42] On January 29, 1998, Plaintiff was selected for a random drug test p urs uant to the Department of Transportation regulations. [Dkts. 1, 57] Plaint iff gave a urine sample.

[Dkts. 1, 57] On February 6, 1998, Plaintiff was notified that the drug t es t res ult s w ere positive for amp het amines. [Dkt. 1] He requested that his split sample be sent away for reexamination.1 [Dkt. 57 at pg. 26] The samp le w as sent to Northwest Toxicology in Salt Lake City, Utah for further testing. [Dkts. 43, 57 at p g. 26] The split sample also tested positive for amphetamines. [Dkt. 43] On February 17, 1998, Plaintiff was given an opp ort unity to explain his positive drug test results. [Dkts. 43, 57 at pg. 28] He submitt ed a s t atement indicating that he had

received a prescription for diet medication, Phentermine, before the random drug test. [Dkt s . 43, 57 at pg. 29] The Postal Service later discovered that Phentermine was not the explanation for Plaintiff's positive drug test results. Plaintiff's physician had alt ered the

Urine samples are subdivided into two bottles labeled as "primary and a split specimen." [Dkt. 43] The split specimen remains sealed at the laboratory for reexamination if needed. [Dkt 43] -2Filed 09/21/2006

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Plaintiff's medical records to indicate that he had received the prescription before the drug test. [Dkts. 43, 57 at 29] Additionally, PHARM CHEM Laboratories and Walter L. O'Hayre, M .D., confirmed that nothing would mimic amphetamines in the confirmation process that the Plaintiff's sample underwent. [Dkt. 43] According to United States Postal Service Employee Relations Conduct 661.55, illegal use of drugs may be grounds for removal from the Postal Service. [Dkt. 57 at pg. 8] On February 25, 1998, Jerry Imgarten, Plaintiff's s up ervisor, informed Plaintiff that he would be terminated because of his positive drug test pursuant to Phoenix General M ail Facility Policy . [Dkts. 42, 57] The Postal Services removed Plaintiff on April 5, 1998. [Dkts. 1, 42] Plaintiff was 42 years old. [Dkt. 1] Plaintiff alleges that some time after his t ermination he became aware of two

younger p ostal employees working as mail-handlers who had also tested positive for illegal drugs. [Dkt. 56 at pg. 6] Thes e younger employees were not terminated. [Dkt. 56 at pg. 6] Instead, they were given Last Chance Agreement s . [Dkt. 56 at pg. 6] On April 2, 1999, Plaintiff filed an EEO complaint alleging age discriminat ion. [D kt. 1] On July 20, 2001, the EEO investigator found t hat P laintiff had not been discriminated against on the basis of age and that similarly situated employees were not treated differently under the same or similar circumstance. [Dkts. 1, 43, 57] On November 10, 2003, Plaintiff filed a complaint with this Court alleging that Defendant subjected him to disparate treatment because of his age. [Dkt. 1] Discussion I. S TANDARD FOR GRANTING S UMMARY JUDGMENT Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be ent ered if the pleadings, depositions, affidavits, answers to interrogatories, and admissions on file show that t here is no genuine dispute regarding the material facts of the case and the moving party is entitled to a judgment as a mat t er of law. See Fed. R. Civ. P. 56(c) (2004); Ander s on v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The Court must

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evaluate a party's mot ion for summary judgment construing the alleged facts with all reasonable inferences favoring t he nonmoving party. See Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001). The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, w hich it believes demonstrate the absence of any genuine issue of material fact . See

Celotex Cor p. v . Catr ett, 477 U.S. 317, 323 (1986). Where the moving party has met its initial burden with a properly s up p ort ed motion, the party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts s how ing t hat there is a genuine issue for trial." Anderson, 477 U.S. at 248. Summary

judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id., 477 U.S. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The nonmoving party need not "produce evidence in a form t hat would be admissible at trial in order to avoid summary judgment." Celotex, 477 U.S. at 324. However, "Rule 56(e)...requires the nonmoving party to go beyond the pleadings and by [their] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. II. Age Discrimination Defendant argues that Plaintiff's age discrimination claim fails because Plaintiff has not es t ablished a prima facie case for age discrimination and has further failed to show

that Defendant's stated reason for terminating Plaintiff was simply a pretext for a discriminatory purpose. [Dkts. 42, 61] In an age discrimination case, a Plaintiff seeking to overcome Defendant's motion for summary judgment mus t "first establish a prima facie case of discrimination, and, if

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they

do so, the burden then shift s

t o the defendant to articulate a legitimate

nondiscriminatory reason for its employ ment decision." Coleman v. Quaker Oats Co., 232 F.3d 1271, 1280-1281 (9th Cir. 2000). If the Defendant provides a legitimate

nondis criminatory reason, the Plaintiff "must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory." Id. A. Prima Facie Case For Age Discrimination Plaintiff has not offered any direct evidence of age discrimination by any postal supervisor involved in his t erminat ion. So in order to establish a prima facie case, the

Plaintiff must demonstrate that he was: (1) a member of a protected class; (2) that he was performing to his employer's legitimate expectations; (3) that he suffered an adverse employment action; and (4) that he was treated differently than others outside the protected class. See Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006).2 P laint iff was a member of a protected class. See Colem an, 232 F .3d at 1281 ( "at least age 40"). [Dkt. 1] Plaintiff was terminated. [Dkt. 1] M oreover, p rior to the positive drug test, it appears that Plaintiff performed his t ractor-trailer duties satisfactorily. [Dkt. 56 at pg. 4] Nevertheless, Plaintiff has failed to establish a prima facie case because he did not demonstrate that he was treated differently than other similarly situated employees. i. employees. Plaintiff has alleged that he was treated different ly than two younger employees who also tested positive for illegal drug use, but were given the option to enter into a Last M ail handlers and tractor-trailer operators are not similarly situated

The Supreme Court used the framew ork s et forth in McDonnell Douglas Corp v. Green, 411 U .S. 792 (1973), to review an Age Discrimination case. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). -5Filed 09/21/2006

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Chance Agreement. [Dkt. 1]

T he evidence presented to the Court demonstrates that

Plaintiff was not similarly situated to these two younger employees. T he minimal showing necessary to establish that co-workers are similarly sit uat ed to the Plaintiff requires a demonstration that those employees are similarly s it uat ed in "all material res p ect s ." Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006). Similarly situated Vasquez v. County of Los

employees have similar jobs and display similar conduct. Angeles, 349 F.3d 634, 641 (9th Cir. 2004).

T he two younger employees that Plaintiff claims were given more favorable treatment worked as mail-handlers and not as tractor-trailer operators. [Dkt. 56 at pg. 5] They also had different supervis ors . [Dkt. 56 at pg. 5] Tractor-trailer operators have five duties and responsibilities that deal with the p ick up and delivery of bulk quantities of mail. [Dkt. 43] involved The tract or-t railer operator drives 26,000 pound vehicles. [Dkt. 43] He is

in over-the-road service, city shuttle service or trailer spotting operations. [Dkt.

43] He picks up mail from airports, train stations, and postal installations. [Dkt. 43] M ail handlers do not drive tractor-trailers. [Dkt. 43] unloading bulk mail. [D kt . 43] M ail handlers w ork on site loading and

M ail handlers are not safety-sensitive employees as are

tractor-trailer operators, and thus are not subject to the Department of Transportation's random drug testing requirements. [Dkt. 43] Plaintiff argues that these distinctions are "immaterial." [Dkt. 1] He argues that

postal emp loyees ­ tractor-trailer operators and mail handlers ­ should be treated the same when it comes t o discipline for illegal drug use. [Dkt. 56 at pg. 5] Plaintiff's response to Defendant's motion for summary judgment merely asserts allegations and denials. 47] [Dkt.

He has not put forth evidence that would demonstrate that Plaintiff and the mail Based on the facts before the

handlers were similarly s it uated in all material respects.

Court, the Court finds that Plaintiff was not similarly sit uat ed t o the two younger mail handlers in "all material respects."

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ii. Plaintiff was treated s imilarly to others in his position who tested positive for illegal drug use. D efendant submitted evidence of three other tractor-trailer drivers who failed a random drug test and were removed from the Postal Service. [Dkt. 43] In 1997, the y ear before Plaintiff w as removed, the Postal Services removed two tractor-trailer drivers for positive drug tests: one 39 y ears old and the other 46. [Dkt. 43] In 1998, the Postal Service removed two more tractor-trailer drivers for positive drug tests: P laintiff at age 40 and another at age 36. [Dkt. 43] Plaintiff has not set forth any evidence t hat would create a genuine issue of material fact with respect to Defendant's evidence. The Court finds t hat P laintiff was treated Plaintiff has,

similarly to others in his position who tested positive for illegal drug use. therefore, failed to establish a prima facie case for age discrimination. B. Rebuttal Of The Legitimate Excuse for Employment Decision

D efendant argues that even if Plaintiff had established a prima facie case, his claim cannot survive a motion for summary judgment because Defendant has p rovided a legitimate excuse for its employment decision that the Plaintiff failed to show was a pretext for a discriminatory motive. The Court agrees. The Defendant argues that it terminated Plaintiff because of his positive drug test [Dkt. 42] Defendant has demonstrated that it had the option to terminate [Dkts. 43, 57 at pg. 8] Furthermore, Plaintiff's

Defendant for positive drug test results.

positive drug test for Amphetamines made him a safety risk to the public and to the Postal Service if he were to cont inue t o drive a tractor-trailer under the influence of illegal drugs. Defendant has substantial, incontroverted evidence that the positive drug test was the reason for Plaintiff's removal. Because Defendant has proffered a legitimat e reason for Plaintiff's termination, Plaintiff must show that Defendant's reason is just a pret ext for a discriminatory purpose. Coleman, 232 F.3d at 1281. Plaintiff could satisfy this burden by showing that a s imilarly

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situated emp loyee outside Plaintiff's protected class was treated more favorably would be probative of pretext. See Vasquez, 349 F.3d at 641. However, as discussed above, the

employees that were similarly situated to Plaintiff w ere also terminated for illegal drug use. Furt her, Plaintiff has not offered any direct evidence that his supervisor's or anyone involved with his termination was motivated by discriminatory intent. See id. at 642. T hus , even assuming that Plaintiff could establish a prima facie case for age discrimination, his claim would fail because he did not show that the reason given by Defendant for his termination was pretext for a discriminatory purpose. summary judgment is appropriate as to Plaintiff's age discrimination claim. III. Rehabilitation Act Claim The Defendant argues that summary judgment should be granted as to Plaintiff's Rehabilitation A ct claim because Plaintiff failed to exhaust his Administrative Remedies with the EEOC before pursuing his claim before the Court. The Court agrees. A plaint iff must exhaust his administrative remedies with the EEOC before pursuing a Rehabilitation Act claim with the District Court. See Leong v . Potter, 347 F.3d 1117, 1121 (9th Cir. 2004). The scope of a court action brought by a plaintiff is dependant on the Id. at 1122. Charges of discrimination not Accordingly,

scope of the EEOC charge and investigation.

included in the EEOC case may be considered by the federal court if the claims "are 'like or reasonably related to' the allegations made before the EEOC, as well as the charges that are within the scope of an EEOC invest igat ion t hat reasonably could be expected to grow out of the allegations." Leong, 347 F.3d at 1122 (cit ing Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990)). In Leong, a former postal emp loy ee's a age discrimination claim was found to be substantially different from his Rehabilitation Act claim because t he claims relied on different theories and statutes. Leong, 347 F.3d at 1122. Plaintiff filed a complaint with the EEOC and checked off only age discrimination. [Dkt . 43, 57] The investigation and review by the EEOC only addressed the claim of age discrimination. [Dkt. 43, 57] There is no evidence that disability was ever discussed.

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P laint iff alleged his Rehabilitation Act discrimination for the first time in this case. [D kt . 1] Plaintiff's only response is that he is "an individual with a disability." Further, as in Loeng, Plaintiff's claims rest on different statutes and theories. The Court finds that Plaintiff failed to exhaust his administrative remedies. [Dkt. 47, pg. 18]

Consequent ly , the Court lacks subject mater jurisdiction over Plaintiff's Rehabilitation Act claim and will grant Defendant's motion for summary judgment. Accordingly, IT IS ORDERED that Defendant's M otion for Summary Judgment [Dkt. 42] is GRANTED. IT IS FURTHER ORDERED that judgment be entered in favor of Defendant and that Plaintiff takes nothing by this action. DATED this 19th day of September, 2006.

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