United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
ZOUHARY, U.S. DISTRICT JUDGE.
pro se Roosevelt Guy claims Defendant Spader Freight Services
discriminated against him based on his race when it
terminated him from his position as a truck driver following
his refusal to take a random drug test. This Court held a
bench trial on liability on May 1-2, 2018.
case has a convoluted procedural history. It was originally
assigned to Judge David Katz, who dismissed the Complaint
under 28 U.S.C. § 1915(e) (Doc. 3). On appeal, the Sixth
Circuit affirmed dismissal of the claims under 42 U.S.C.
§§ 1981, 1985, and 1986 (Doc. 7 at 3-5), but
reversed and remanded for further consideration of the Title
VII claim and related damages under 28 U.S.C. § 1981(a)
(id. at 5-6). On remand, the district court granted
in part Spader Freight's Motion to Dismiss the Amended
Complaint, which attempted to add a retaliation claim and
other allegations beyond the scope of the EEOC charge (Doc.
47). The court also denied Spader Freight's Motion for
Summary Judgment on whether the EEOC charge was timely
(id.). Guy appealed, but the Sixth Circuit dismissed
for lack of a final order (Doc. 57).
case was then reassigned to this Court in July 2016 (Doc.
67). This Court denied Guy's request to further amend the
Complaint to add a retaliation claim (Doc. 71) and granted
Spader's Motion for Summary Judgment (Docs. 87-88) after
concluding that Guy failed to establish a prima facie case of
discrimination. The Sixth Circuit reversed and remanded for
trial (Doc. 93). By agreement of the parties, trial was
bifurcated into liability and damages phases (Doc. 100).
setting the case for trial, this Court appointed the law firm
of Widman & Franklin as pro bono counsel for Guy. When
Guy expressed his preference to represent himself, however,
his pro bono attorneys remained on the case as stand-by
counsel at this Court's request (see Docs. 95, 97). Guy
chose to utilize his stand-by counsel -- or not -- at various
points throughout the remainder of the litigation, as was his
right. For example, stand-by counsel served a trial subpoena
(Doc. 104) and filed a Motion in Limine (Doc. 114) on
Guy's behalf, and Guy consulted with stand-by counsel as
he wished during the course of the two-day bench trial. But
Guy chose to question witnesses and present argument himself,
and he appeared well prepared for trial.
African American, worked at Spader Freight as a truck driver
for six years, from 2006 to 2012. He had no disciplinary
history and no previous complaints of harassment or
discrimination (Tr. Vol. I at 105-06). During this time
period, Vice President John Spader supervised the driver work
force, which included overseeing hiring and firing decisions
(Tr. Vol. I at 101-02). Safety Director Steve Schwiebert was
responsible for ensuring compliance with U.S. Department of
Transportation (DOT) regulations, which included drug
testing, accident reporting, and maintenance issues (Tr. Vol.
I at 8).
requires regulated motor carriers to randomly drug test a
certain percentage of their employees each year. 49 C.F.R.
§ 382.305. Spader Freight contracts with a third party,
HireRight, to administer the drug testing (Tr. Ex. 7). Spader
Freight provides the driver names and Social Security No. to
HireRight, and HireRight randomly selects which drivers to
test each quarter (id.; see also Tr. Vol. I at 26). When Guy
was first hired, he was provided a copy of the DOT
regulations and the Spader Freight employee handbook (Tr. Vol
I at 18; see also Tr. Ex. 14 at 12-13; Tr. Exs. 16-17). The
handbook explains the various types of drug testing required
by the DOT (Tr. Ex. 16 at 7). It also explains that refusing
to comply with a random drug test is treated the same as a
failure, and both are grounds for termination (id.).
best practices advise against providing advance notice of
selection for random drug screenings (Tr. Vol. I at 16). Once
notified, every action the driver takes must lead to a
collection, and any conduct that does not directly lead to a
collection could be considered a refusal to test (Tr. Vol. I
at 15-16). If a driver refuses to immediately submit to a
random drug test, the employer is prohibited from allowing
the driver to continue performing safety sensitive duties. 49
C.F.R. §§ 382.211, 382.305.
his six-year employment at Spader Freight, Guy took and
passed multiple drug screens, including a pre-employment test
and at least one random test (Tr. Vol. I at 10; Tr. Ex. 34 at
1). Guy was selected for a random drug test for third quarter
2012 (Tr. Vol. 1 at 26-27). He was also due for a mandatory
DOT physical exam, so Schwiebert scheduled both appointments
for the same day and location: September 12, 2012, at Toledo
OccuHealth (Tr. Vol. I at 28-29; Tr. Ex. 7). Schwiebert's
usual practice was to personally notify employees that they
were selected for a random drug screen on the day of the test
(Tr. Vol. I at 13-14). But because Guy was already scheduled
to report to OccuHealth for his physical exam, Schwiebert
instructed the clinic to inform Guy about the drug test upon
arrival (Tr. Vol. I at 28-30).
parties dispute exactly what happened when Guy arrived at
OccuHealth on September 12. Neither Guy nor Betsy Jurvus, the
OccuHealth employee who spoke with him at the clinic,
testified at trial. But Guy called Schwiebert at around 3 PM,
after he left the clinic. Schwiebert was in a staff meeting
at the time, and he stepped out to speak with Guy (Tr. Vol. I
at 104). Guy told Schwiebert that the clinic wanted
to do a drug screen, and Schwiebert confirmed that Guy had
been randomly selected to test (Tr. Vol. I at 33-34). Guy
responded that he was “not prepared” (Tr. Vol. I
at 34). Schwiebert tried to ask what Guy meant by that, but
Guy hung up the phone (Tr. Vol. I at 34). At some point
during the conversation, which lasted about a minute,
Schwiebert told Guy advance notice of a random drug test was
not required (Tr. Vol. I at 35-36). Schwiebert also told Guy
not to report for work that day (Tr. Vol. I at 37).
version of events is less clear, in part because he did not
testify at trial. This Court asked Guy several times if he
was sure he did not wish to testify (Tr. Vol. I at 119-20),
and in fact adjourned early on the first day of trial to give
him an opportunity to think about it and consult with his
stand-by counsel. When the trial resumed the next day, Guy
confirmed he did not wish to take the stand (Tr. Vol. II at
4). Nevertheless, Guy concedes that the clinic informed him
of the drug test when he arrived (Tr. Vol. II at 29). He also
concedes that he did not take a drug test that day (Tr. Vol.
II at 29). But he argues that he “felt like something
was going on, ” that he was “either being
discriminated against or OccuHealth had it wrong, ”
because in the past he had always received notice of his
selection for a drug screen by a Spader Freight official (Tr.
Vol. II at 30). Regardless of Guy's suspicions,
Schwiebert's testimony about what happened next is
credible and unrefuted. This Court finds that Guy received
notice of the drug test twice: first, by clinic staff upon
arrival at OccuHealth, and second, by Schwiebert during their
days later, Spader Freight sent Guy a letter informing him
that, due to his refusal to test, he was prohibited from
performing any DOT safety-sensitive duties until he completed
a substance abuse evaluation (Tr. Ex. 23). Based on its
policy, Spader Freight considered this a termination letter
(Tr. Vol. I at 55-56). Following his termination, Guy
complained to the Ohio DOT that he had not been properly
notified of the random drug test. An Ohio DOT representative
contacted Schwiebert and questioned whether the notification
was proper because it was initially provided by the clinic,
rather than Spader Freight. The Ohio DOT ...