Gaylus Bailey v. Real Time Staffing Services, I

Filing

OPINION filed : the judgment of the district court is AFFIRMED, decision not for publication. Gilbert S. Merritt, Circuit Judge; Eric L. Clay, Circuit Judge; and William H. Stafford, Senior U.S. District Judge for the Northern District of Florida, sitting by designation.

Case: 13-5221

Document: 006111866244

Filed: 10/29/2013

Page: 1

NOT RECOMMENDED FOR PUBLICATION
File Name: 13a0927n.06
No. 13-5221
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Gaylus Bailey,
Plaintiff-Appellant,
v.
Real Time Staffing Services, Inc., dba Select
Staffing,
Defendant-Appellee.

Before:

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FILED
Oct 29, 2013
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE

MERRITT and CLAY, Circuit Judges, and STAFFORD, District Judge*.

MERRITT, Circuit Judge. Plaintiff Gaylus Bailey appeals from summary judgment in
favor of defendant Real Time Staffing Services on his claim that Real Time violated the Americans
with Disabilities Act (“ADA”) by firing him. For the following reasons, the judgment of the district
court is affirmed.
I. Background
Real Time is a temp agency that employed Bailey for a period of several years. The agency
assigned Bailey to a pet store that required random drug tests. Bailey was administered a drug test
that returned positive for marijuana. The same day he learned of the positive test, Bailey obtained

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The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern
District of Florida, sitting by designation.

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a note from his doctor explaining that Bailey “is prescribed a medication that may cause a positive
drug screen.” Bailey took this note to Real Time intending to give it to Peggy Sue Franklin, his
supervisor. Franklin was away, so he left it with someone else at the office. When Franklin
returned, a Real Time employee gave her the letter and informed her that Bailey had a medical issue
that caused the false positive, though the employee incorrectly characterized it as a kidney problem.
In fact, Bailey has HIV. According to Bailey, he never specified the nature of his problem to anyone
at Real Time and reported only that he had a “medical condition.” No one disputes that Bailey
claimed a general medical condition as the reason for the positive test.
Under Real Time’s drug-testing protocol, materials from a positive drug test are sent to a
medical review officer for further analysis. Bailey expected to hear from the medical review officer
within 72 hours but never received a call. Four days after the positive test, he obtained another
doctor’s note—this one stating that he “has been prescribed a medication that may result in a false
positive for marijuana on a urine drug screen”—and brought it to Franklin. Neither this note nor the
previous note specified that Bailey’s medicine was meant to treat HIV. Franklin told him he needed
to give the information to the medical review officer.
Eventually Bailey decided to call the medical review officer himself and reached a person
whom Bailey characterizes as a “receptionist” and whom Real Time characterizes as a
“representative.” The receptionist/representative asked for the name of the medication, which
Bailey could not remember. When Bailey told the receptionist/representative about the doctor’s
notes, she said, “Whatever disposition they told you, that’s what it is.” This call ended Bailey’s

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attempts to clear himself. After Franklin consulted with the medical review officer, Real Time fired
Bailey, pursuant to company policy, for failing a drug test.
The parties do not dispute the above factual account. However, they contest several details
of the interaction between Bailey, Franklin, and the medical review officer. According to Franklin,
the medical review officer asked Bailey about the positive drug test, but Bailey reported no
medication. According to Bailey, he never spoke to the medical review officer at all, only the
receptionist/representative. There is a document in the record from the medical review company
stating that Bailey declined to talk to a medical review officer. Bailey says this is false. The parties
also contest whether Franklin ever looked at the doctor’s notes.
Bailey brought the instant suit for ADA discrimination, and Real Time moved for summary
judgment. The district court granted the motion in part and denied it in part. The court construed
the papers to allege discrimination on the basis of three different disabilities: HIV, kidney illness,
and drug use. The court held that Real Time did not discriminate on the basis of HIV because it
neither knew nor had reason to know Bailey was HIV positive. It also held that no reasonable jury
could find that Real Time discriminated against Bailey because of a perceived kidney condition.
However, the court ordered a trial on the question of whether Real Time discriminated against
Bailey because it perceived his drug use to cause him an impairment.
Bailey informed the court that it had misconstrued his allegations. His argument was not that
illegal drug use rendered him impaired, or even that Real Time fired him because of HIV or kidney
illness, but rather that Real Time fired him for “manifestation of a disability”—namely, a false
positive on a drug test. See R. 1, Compl. ¶ 25, at 4 (“The false positive is a clear manifestation of
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Plaintiff’s disability and the mitigating measure of medications taken for his disability. By
terminating Plaintiff for a manifestation of his disability, Defendant has violated the [ADA].”).
Faced with this clarification, the district court granted summary judgment to Real Time in full. The
court summarily dismissed Bailey’s “manifestation of a disability” argument, stating that it was “not
prepared to find that terminating an employee who takes prescription medicine and failed a drug test
is a violation of the [ADA].” R. 55, Order at 14. The district court also held that, even if Bailey
could make out a prima facie case of discrimination, the positive drug test was a legitimate,
nonpretextual reason for the firing. This appeal followed.
II. Analysis
We review a grant of summary judgment de novo. Tucker v. Tennessee, 539 F.3d 526, 531
(6th Cir. 2008). Summary judgment is appropriate if there is no genuine dispute as to any material
fact and if the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A successful
showing of discriminatory discharge under the ADA requires proof of three elements: 1) that the
plaintiff was “disabled”; 2) that the plaintiff is qualified and able to perform the essential functions
of the job; and 3) that the employer terminated the defendant because of the disability. See Gantt
v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998). The parties agree that Bailey
is qualified and able to perform his job, so only the first and third elements are at issue here.
Bailey spends significant effort attempting to establish that he is disabled under recent
amendments to the ADA because he was “regarded as having [] an impairment.” 42 U.S.C. §
12102(1)(c). The Supreme Court formerly interpreted the ADA to state that a person is disabled
only if she actually has or is regarded as having an impairment that substantially limits one or more
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major life activities. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489-90 (1999). In 2008,
Congress broadened the class of ADA-eligible persons by amending the law to provide that a person
is regarded as disabled if she has an “actual or perceived physical or mental impairment whether or
not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A).
Even under the relaxed standard of the 2008 amendment, we have some doubt that a plaintiff who
merely informs his employer of an unspecified “medical condition” can prove that he has a
perceived “impairment” and is thus “disabled.” However, we need not resolve this question because
there is no set of facts on this record that would allow a jury to find causation.
In order to make a successful ADA claim, the plaintiff must show that the defendant took
an adverse action against him “on the basis of disability.” 42 U.S.C. § 12112(a). In the Sixth
Circuit, this language requires the plaintiff to show that his disability was a but-for cause of the
adverse action. See Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 321 (6th Cir. 2012) (en
banc). Plaintiffs lacking direct evidence of the defendant’s discriminatory motive must show
causation through the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). The initial burden is on the plaintiff to make out a prima facie case, which under
the ADA requires a showing that 1) the plaintiff was protected under the ADA; 2) the defendant
knew the plaintiff was protected; 3) the defendant took an adverse action against the plaintiff; and
4) there was a causal connection between the adverse action and the plaintiff’s protected status. See
A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 697 (6th Cir. 2013). If the plaintiff can
make out this prima facie case, the defendant must show that it had a legitimate, non-discriminatory

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reason for the adverse action. The burden then shifts back to the plaintiff to show that the proffered
legitimate reason was a pretext for discrimination. Id.
Bailey argues that we need not employ the McDonnell Douglas standard because there is
direct evidence of discrimination—Real Time firing him for “manifestation of a disability.” This
theory follows a framework established by the Second Circuit in Teahan v. Metro-North Commuter
Railroad Co., 951 F.2d 511 (2d Cir. 1991). According to this framework, a plaintiff in an ADA suit
can prove causation by showing the defendant fired her for conduct that resulted from a disability.
See id at 515-17. Say, for example, that a employee falls asleep at work because of a disability.
Assuming this action does not render the employee unqualified to perform her job and the employer
knows of the connection between the employee’s sleeping and the disability, an employer cannot
avoid a charge of discrimination by claiming that it fired the employee because she fell asleep.
Bailey argues that, under this framework, his false positive drug test was a manifestation of
HIV for which he cannot be fired. We think Bailey is trying to fit a square peg into a round hole.
Bailey was not fired for “conduct” in the usual sense—he was fired for failing a drug test. The ADA
allows employers to perform drug testing. See 42 U.S.C. § 12114. Moreover, Bailey’s argument
assumes facts with little support in the record—namely, that the drug test was actually false and that
Real Time knew it was false. If Bailey is to prove causation, he must do so through the traditional
McDonnell Douglas standard.
Applying that standard, it is apparent that Bailey cannot overcome Real Time’s proffered
legitimate reason for firing him—failure of a screen for illegal drugs. Real Time could not have
fired Bailey because of his HIV because it simply did not know he had HIV. Nor are there facts in
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the record to suggest Real Time fired him for some unspecified, perceived impairment rather than
the positive drug test. Though the doctor’s note said Bailey was taking some sort of medication that
perhaps could cause a positive drug screen, this medication might have been Tylenol for all Real
Time knew. The note gave Real Time no information that could motivate a discriminatory firing.
Furthermore, though there is some factual dispute regarding Bailey’s interactions with the
medical review officer, no evidence suggests that Real Time acted in bad faith or had any reason
other than the drug test to fire Bailey. Bailey cannot show pretext if Real Time had an honest belief
that he used illegal drugs—that is, if it made a reasonably informed decision before firing Bailey and
if its deliberation was not marred by “an error too obvious to be unintentional.” See A.C. ex rel.
J.C., 711 F.3d at 705. It is not clear that there was an error in the drug test at all, and Real Time
went through a reasoned process by consulting with its medical review officer. Real Time had to
decide whether to credit Bailey’s story or to credit the medical review officer’s. Its decision to
credit the medical review officer’s does not support an inference of discriminatory animus. Even
if the positive result was in fact false, an employer’s reliance on an erroneous result does not create
a claim under the ADA absent an independent showing that the real reason for the firing was a
disability.
III. Conclusion
Bailey cannot show that Real Time fired him because of a disability. Accordingly, the
judgment of the district court is affirmed.

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