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Guy v. Spader Freight Services

United States District Court, N.D. Ohio, Western Division

June 19, 2018

Roosevelt Guy, Plaintiff,
v.
Spader Freight Services, Defendant.

          MEMORANDUM OPINION AND ORDER

          JACK ZOUHARY, U.S. DISTRICT JUDGE.

         Plaintiff 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.

         Background

         This 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).

         The 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).

         In 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.

         Findings of Fact

         Guy, an 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).[1] 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).

         The DOT 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.).

         DOT 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.

         During 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).

         The 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.[2] 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).[3] 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).

         Guy's 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 phone conversation.

         Five 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 ...


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