Phillips v. PPG Industries Inc
***VACATED and STRICKEN*** MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 11/24/2015. (JLC) Modified on 11/24/2015 (JLC).
2015 Nov-24 PM 02:27
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EDWARD E. PHILLIPS,
PPG INDUSTRIES, INC.,
Civil Action No.:
This employment discrimination action was originally filed on July 1, 2014, by
the plaintiff, Edward E. Phillips, against the defendant, PPG Industries, Inc. (“PPG”).
(Doc. 1). In the five counts of his complaint, the plaintiff alleges that PPG, his former
employer, subjected him to disparate treatment, on account of his disability, in
violation of the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. (the
“ADA”). The case comes before the court on the defendant’s motion for summary
judgment. (Doc. 13). For the reasons stated herein, the motion will be GRANTED.
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary judgment always bears
the initial responsibility of informing the court of the basis for its motion and
identifying those portions of the pleadings or filings that it believes demonstrate the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the
moving party has met its burden, Rule 56(e) requires the non-moving party to go
beyond the pleadings in answering the movant. Id. at 324. By its own affidavits – or
by the depositions, answers to interrogatories, and admissions on file – it must
designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the non-movant to rebut the moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment
may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden
of proof on the given issue or issues at trial, then it can only meet its burden on
summary judgment by presenting affirmative evidence showing the absence of a
genuine issue of material fact – that is, facts that would entitle it to a directed verdict
if not controverted at trial. Id. (citation omitted). Once the moving party makes such
an affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance,
the non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant
may no longer rest on mere allegations; instead, it must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.
PPG's Huntsville Facility and Personnel Pertinent to This Action
PPG operates a manufacturing facility in Huntsville, Alabama. This facility is
in PPG’s Aerospace Division and manufactures windshields and windows for the
commercial, regional, and military aviation sectors. Phillips was hired by PPG, on
February 10, 1997. At all times material to the events described in the complaint,
Phillips worked in the “Finishing Department Seniority Sub-Unit” of PPG (the
“Finishing Department”). This action is in part based on the denial of the plaintiff’s
request to be transferred to the “Pre-Finish Inspector” position. That position is in
the “Inspection Department Seniority Sub-Unit” (the “Inspection Department”) of
The Plaintiff, Edward E. Phillips
Phillips lost his hearing in 1978 when he was 20 years old. He has complete
hearing loss. Phillips’s employment with PPG began February 10, 1997. During his
employment, PPG communicated with the plaintiff in writing. The plaintiff received
his work instructions in writing, and it is undisputed that he understood them.
Throughout his employment, the plaintiff received training on many different
jobs, and he received pay raises. At all times material to the Complaint, Phillips
worked as a “Finisher,” on Second Shift, in the Finishing Department.
Chester Woodard was the supervisor over the second-shift in the Finishing
Department during the last year or two of the plaintiff's employment. Woodard was
Phillips’s direct supervisor. Phillips does not claim Woodard took any action against
him because of his hearing loss.
During the plaintiff's employment, Jamie Stephens was the first shift supervisor
over the “Airbus Military Area” in the Finishing Department. Stephens was never the
plaintiff's direct supervisor. Stephens always worked on the first shift.
Tom Meyer has been employed by PPG for almost 27 years, and has been the
Huntsville Plant Manager since February 2013. Meyer handled Phillips’s appeal of
his discharge. Phillips does not accuse Mr. Meyer of taking any action against him
because of Phillips’s hearing loss.
Rose Smith is a Personnel Manager and has been employed by PPG since
March 5, 2012. Phillips does not accuse Smith of taking any action against him
because of Phillips’s hearing loss. Phillips never told Smith that Phillips believed he
was being treated differently by anyone due to his hearing loss.
Jose Vega was the Human Resources Manager at PPG from October 15, 2012,
through January 31, 2015. Vega made the decision to discharge Phillips after
Phillips’s second failed drug screen. Phillips does not allege in this case that Vega
took any action against Phillips because of Phillips’s hearing loss.
Deborah Jackson is the occupational heath nurse at PPG.
PPG’s EEO Policy
PPG is an equal opportunity employer and is committed to “equal consideration
to all applicants for employment regardless of . . . disability,” and “[t]his same
non-discriminatory consideration will apply to all employment actions such as
promoting, disciplining or demoting employees.” (Doc. 13-1 at 7). Phillips had
access to PPG’s Human Resources Department to address any perceived disability
discrimination, and the Huntsville facility also utilizes an ethics hotline for employees
to call if they believe they are being harassed. The hotline number is posted on
posters which are hanging on the two bulletin boards at the facility.
PPG’s Alcohol, Drug, and Other Intoxicants Policy
PPG has an alcohol, drug and other intoxicants (“ADI”) policy. The policy
The possession, use, distribution, sale, purchase or manufacture or
illegal drugs by Company employees while on Company premises or
while engaged in Company business is strictly prohibited. An employee
who reports to work with illegal drugs in his or her system or who has
a positive drug screen is in violation of this Policy, This also includes,
but is not limited to, the operation of a Company owned or leased
Any employee who reports to work or engages in work with prohibited
concentrations of alcohol in his or her blood is in violation of this
Policy. This also includes, but is not limited to, the operation of a
Company owned or leased vehicle. Management may prohibit the
possession of all alcohol on Company premises at designated locations.
(Doc. 13-1 at 11). Under the ADI policy, employees are subjected to random drug
testing. (Doc. 13-1 at 13). The policy provides that “[u]nder the random drug testing
process, an employee might not be tested at all or might be tested more than once
during the year.” (Doc. 13-1 at 13). All employees at the Huntsville facility are
subject to random drug testing from the plant manager all the way down; no one is
The first time an employee fails a Company drug screen, they are required to
enter into a “Rehabilitation Agreement” with PPG in order to remain employed.
Pursuant to the Rehabilitation Agreement, the employee
agrees to be placed in a FAA compliant follow-up testing regimen of at
least six follow-up tests in the first twelve (12) calendar months
following Employee’s return to active work. Employee will be subject
to additional periodic intoxicant follow-up testing after Employee’s
return to duty for up to and including sixty (60) months. Any refusal to
consent or cooperate fully with screening, or any positive screening
result will result in immediate discharge.
(Doc. 13-2 at 43). Phillips was familiar with PPG's ADI policy because he failed a
PPG drug screen in 2000. Phillips was asked in his deposition if “[a]t the time you
entered into the [R]ehabilitation [A]greement, you understood that if you failed
another drug screen with PPG, you would be discharged, correct?” (Doc. 13-2 at
10(38)). He answered, “Right. That's why I quit smoking pot.” (Doc. 13-2 at
Employees are selected for drug screens by an entity that is external to the
company. PPG uses a third party vendor, a company called “First Advantage,” to
randomly select employees for drug testing. (Doc. 13-6 at 3(10); doc. 13-3 at 5(17)).
Meyer testified at his deposition that “[n]o one in the facility including myself can
manipulate that system.” (Doc. 13-3 at 5(17)).
Deborah Jackson is involved in PPG’s drug testing process. The following
discussion took place during her deposition:
What is your role?
I'm the occupational health nurse there. And my job is to secure
[from First Advantage] the listing of the people to be tested each month
and to test them.
Do you contact First Advantage to ask for a list, or does First
Advantage contact you to give you a list?
They contact me.
How are you contacted?
They send me an E-mail that the list is ready.
And do you get one of those E-mails every day?
No. Usually, once a month.
Do you ever contact First Advantage to recommend individuals
to them for testing?
Would that be inappropriate?
Do you have any knowledge as to how or what criteria First
Advantage uses to select the employees for random drug testing?
When you get that list, is it E-mailed to you?
What if anything do you do with the list once you get it?
Once I get the list, I set up appoint -- set up a time for employees
to be tested.
And how many employees will you test on a given day?
Depends on the work load. We have a whole month to get them
tested. So, it depends on the work load of the clinic.
So, if you get a list on May 1st--
-- are all of those employees to be tested on May 1st?
Would it be your testimony that if you get a list of employees on
May 1st that you have 30 days to test them?
The whole month, whatever days are in a month.
And how do you go about selecting what employees are tested on
the 1st versus what employees are tested on the 10th?
Well, generally, I go by, me personally, I like to do all my day
shifters first. Because on second shift I may have to stay over, and third
shift I have to come in.
Okay. How much notice do you give to these individuals before
Very little. It's a random drug screen.
Right. So, when you get this list on May 1st, if you're going to test
somebody on May 10th, when will you notify them that they are going
to be tested?
On May 10th.
Will you call them on May 10th to set up the appointment?
Generally, we contact the supervisor and have them to send the
Okay. Does the supervisor get any input on the day that the
employee's going to be tested?
That’s in your sole discretion, subject to the list that you’re sent
on May 1st?
Right, I decide when to test those.
(Doc. 13-6 at 3(4)-4(14)).
Because the selection process is random, some employees are selected more
often than others. Phillips is not the only employee who believes he was selected
more frequently than others. Other employees have complained to Jackson they feel
like they are being selected more often than others.
Phillips admits he has no knowledge of any connection between First
Advantage and PPG. Phillips admits he has no knowledge of any connection between
First Advantage and Jamie Stephens. Phillips admits Stephens never told him she was
making the decisions to have him drug tested. Stephens never recommended Phillips
for drug testing, asked that he be drug tested, or had any role in the selection of
employees for drug testing.
Jackson has a list of instructions to follow when administering a drug test. She
usually follows the instructions on the front page. The back page is a chain of
custody form. In order to insure accuracy and reliability, employees are required to
sign the envelope containing the sample. If an employee fails to properly sign the
envelope, the specimen will not be tested. (Doc. 13-6 at 6(21)).
It usually takes PPG 2 to 3 days to get results back from drug tests. The
medical department keeps a list of everyone who has been tested, along with their test
results, for five years.
Stephens's Alleged Remark
Phillips claims that, on one occasion, Stephens said to him, “the problem is you
can’t hear.” Phillips stated in his deposition that this statement was made “a couple
of years before [Phillips] got fired.” (Doc. 13-2 at 5(5)). Stephens did not
communicate this to Phillips in writing, and neither did anyone else. Although
Phillips admits he did not communicate with Stephens enough to be able to read her
lips, he claims to have been able to read her lips on this occasion.
Stephens never told Phillips he should not be working at PPG. Stephens could
not demote Phillips. Phillips has no evidence Stephens was involved in the decision
to terminate his employment. Stephens was not involved in his termination appeal.
Phillips’s Job Transfer Requests
Pre-Finish Inspector Position
It is undisputed that, in April 2013, a Pre-Finish Inspector position in the
Inspection Department was available on the third shift. Phillips applied for this job.
The position was a third shift position. PPG granted Phillips’s request to transfer to
the Pre-Finish Inspector position. Phillips, however, then declined the transfer.
Phillips was told he would have to train on third shift for about five weeks or
three months and would be allowed to transfer to second shift when an opening
became available. Phillips claims he turned down PPG’s transfer offer because he
believed he should have been allowed to bump the Pre-Finish Inspector on Second
Shift based on his plant seniority, instead of waiting for a position on second shift to
Employees have “plant seniority” and “department seniority.” Each department
has its own seniority unit. The Finishing Department, where the plaintiff worked, is
a separate department from the Inspection Department. Each has its own separate
seniority unit. It is undisputed that Phillips would not have been able to replace or
“bump” an employee on the second shift in the Inspection Department because he had
no seniority in that unit.
Application to the Production Fixer Job
In April of 2013, Phillips and other PPG employees applied for the “Production
Fixer” job. A committee was convened to interview the qualified applicants for the
job. On May 14, 2013, Phillips was selected for random drug testing, but the results
of that testing were not immediately available. On May 15, 2013, Phillips was
interviewed for the Production Fixer Position. The interview committee gave Phillips
the interview questions in writing and Phillips admits the committee was fair.
Phillips does not believe anyone during this interview process held his hearing
impairment against him in anyway, and he is not making that claim now.
The selection decisions for the Production Fixer positions were not made until
after Phillips’s employment was terminated. Phillips was discharged for failing the
May 14, 2014, drug test, his second failed drug test, before he found out who was
selected for the position. It is undisputed that Phillips has no evidence he was denied
the Production Fixer position because of his hearing loss.
Phillips’s Communication Device
When Jose Vega became Human Resources Manager in October 2012, he
became aware that Phillips needed a communication device to create a better-suited
work environment for Phillips at PPG. In his deposition, Vega agreed that it would
it have been within his “realm of duties and responsibilities to make sure that if in fact
a communication device had been requested by Mr. Phillips that it would have been
obtained by PPG.” (Doc. 13-3 at 4(16)). Vega testified that PPG never obtained a
communication device for Phillips “because we were waiting on him to propose [it].
I never received that proposal or that request from Mr. Phillips in the type of device
that was necessary for him.” (Doc. 13-4 at 4(16)-5(17)).
Phillips’s Failed Drug Tests
According to Phillips, PPG did not drug screen prior to 2000. Phillips admits
failing his first PPG drug screen in 2000 when he tested positive for marijuana.
Phillips admits he smoked marijuana on numerous occasions during his PPG
employment from 1997 to 2000. On July 21, 2000, after he failed the first drug
screen, Phillips was required to enter into a Rehabilitation Agreement with PPG to
remain employed. As noted previously, the Rehabilitation Agreement provided that
Phillips would be subject to additional periodic testing after his return to duty, for a
period up to, and including sixty (60) months. 1 The Rehabilitation Agreement also
provided that “any future positive screening result . . . may result in immediate
termination.” (Doc. 13-2 at 43). Phillips knew that any subsequent failed drug screen
would result in immediate termination.
After the 60 month period expired, Phillips, like all PPG employees, continued
to be selected, under the ADI policy, for random drug testing, throughout the
remainder of his employment.2 On May 14, 2013, Phillips was selected for random
drug testing and a hair sample was collected. Claudier Layne, the independent
contractor who performed Phillips’s test later told Jackson that “she had forgot to get
him to sign the bag, and asked him to come back up.” (Doc. 13-6 at 7(27)).3 In her
Again, as noted previously, pursuant to the Rehabilitation Agreement, the employee
agrees to be placed in a FAA compliant follow-up testing regimen of at least six follow-up
tests in the first twelve (12) calendar months following Employee's return to active work.
Employee will be subject to additional periodic intoxicant follow-up testing after
Employee's return to duty for up to and including sixty (60) months. Any refusal to
consent or cooperate fully with screening, or any positive screening result will result in
(Doc. 13-2 at 43).
In his deposition, Meyer explained that company policy was “open-ended” drug screening for
all employees. (Doc. 13-3 at 6(23)). When asked if the “60-month time limit is just a moot, meaningless
reference,” he stated, “I don't have information to give you an answer on that one, to be honest.” (Doc.
13-3 at 6(23)).
As noted previously, in order to insure accuracy and reliability, employees are required to sign
the envelope containing the sample. If an employee fails to properly sign the envelope, the specimen will
not be tested. (Doc. 13-6 at 6(21)). As noted below, the “bag” to which Layne refers is the “shipping bag”
into which the sealed envelope containing the sample is placed.
deposition, Jackson identifies “a note that Claudier typed up regarding what happened
with her and Eddie.” (Doc. 13-6 at 7(27)). It reads:
I performed a random hair drug screen on Eddie Phillips on May 14,
2013. After I completed the test I realized Eddie did not initial the
sealed bag. The integrity seal which is used to seal the envelope was
placed on the envelope and Eddie initialed the envelope. Everything
was completed Eddie just forgot to initial the outside of the sealed
shipping bag. I immediately called his supervisor[,] Jamie Stephens
and asked that she send him back to medical to sign the sealed bag.
Eddie came back up and signed the outside of the sealed bag. The bag
was then shipped with 5 other samples to Psychemedics for testing.
Psychemedics would have notified PPG if the drugs screens were not
properly initialed or if the integrity seal had been tampered with and the
hair samples would not have been tested.
(Doc. 13-6 at 17). This document was signed by Layne and Jackson.
Phillips tested positive for the narcotic pain medication, Hydrocodone. Phillips
does not dispute the results of the drug test in May 2013, and admits he took
Hydrocodone at the time of his May 2013 drug screen. He did not have a prescription
for Hydrocodone on the day of his drug test on May 14, 2013.
Phillips has no basis to believe Stephens had any connection to his failed drug
screen in May 2013.
Within about a week, Vega was informed that Phillips failed the May 14, 2013,
drug test. On June 5, 2013, PPG informed Phillips he was being suspended for failing
a drug test. Phillips was initially suspended by PPG from June 5, 2013, to June 11,
2013, for failing the drug test. At some point after being informed of the positive
results, Vega, reviewed Phillips’s personnel file for any prior positive drug screens,
and discovered Phillips’s Rehabilitation Agreement. Vega made the decision to
terminate the plaintiff's employment as a result of the second failed drug test because
it was a direct violation of his Rehabilitation Agreement. Phillips does not know of
any employee who failed a second drug screen whose employment was not
Phillips's Termination Appeal
PPG provides employees an internal appeal process to allow them to request
a review of a discharge decision. Meyer handles termination appeals. Meyer is not
involved in the recommendation stage of a termination decision so he is able to
maintain impartiality in case the employee appeals the decision.
Phillips appealed Vega's discharge decision, and met with Meyer for the
appeal. Meyer communicated with Phillips in writing. During the termination appeal
hearing, Meyer told Phillips that if he could get documentation from his doctor
verifying either that he had a valid prescription for the Hydrocodone when his hair
sample was taken or verifying that the doctor had advised Phillips to take his
Mother's medication without a prescription, Meyer would consider it in the appeal.
Phillips admits he was unable to get the requested documentation.
On July 17, 2013 Plaintiff's termination appeal was denied. Meyer upheld the
termination based on the rehabilitation agreement Phillips signed after failing the first
drug test. Phillips admits that Meyer was the final decision maker regarding his
Vega and the Plaintiff
Vega testified at his deposition that it was never reported to him (Vega) that
the plaintiff had ever “appeared at work under the influence or intoxicated.” (Doc.
13-4 at 6(24)). However, the following exchange also took place in his deposition:
And, to your knowledge, were there any occasions which Mr.
Phillips tested positive?
First time I knew about it was during the second positive. Part of
the HR Manager, if there is a positive, they will notify myself, and I will
check the personnel file of that employee to see if there's been any
priors. So, that’s when I found out.
(Doc. 13-4 at 7(25)).
Vega was only drug tested one time between October of 2012, and January of
2015. Drug testing records are not maintained in the Human Resources Department.
Drug testing records are not part of the employee's personnel file. According to
Vega, information concerning an employee’s participation in the PPG rehabilitation
program is maintained in the employee’s personnel file. Phillips is the only PPG
employee ever terminated by Vega for a failed drug screen.
Meyer and the Plaintiff
Meyer met Phillips within a few days of Meyer becoming the PPG plant
manager in February 2013. Meyer was selected for drug testing by PPG one time
between February 2013, and April 27, 2015.
Stephens and the Plaintiff
According to Jamie Stephens, Phillips’s inability to hear presented a challenge
for her and his coworkers. The following exchange took place in her deposition:
It was a challenge with him not being able to – with his not being
able to hear. But, you know, we wrote down whenever we needed to say
anything, we wrote something down.
When we needed to communicate.
What kind of challenges did that present, Mr. Phillips’[s] inability
Well, just, you just couldn't walk up to him and just start talking
to him. You would have to either already have it written down what you
wanted to say to him, or write it down as you were talking to him.
And did that ever pose any problems for you in supervising Mr.
I don't think so.
And what if anything other than writing things down did you
and/or Mr. Phillips do to try to overcome those challenges?
Nothing that I know of.
(Doc. 13-5 at 4(13-14)). Stephens has been drug tested by PPG three times in the last
Phillips states that he “knew” he was going to have problems with Jamie
Stephens as soon as she came to his department. Stephens would ignore Phillips
when he spoke to her and at times she would not even look at him when she came into
his work cell. On one occasion, when Stephens was trying to resolve a problem with
a casting machine, Phillips walked over to help and said he thought he knew what the
problem was. Stephens responded by saying “I know what the problem is, the
problem is you can't hear.” (Doc. 13-2 at 5 (17)). Stephens claims she merely walked
up to talk to Phillips once and said “Oh, shoot, he can't hear.” (Doc. 13-5 at 4(16)).
Phillips worked on casting for ten years. One day Phillips commented that he
hated working “Z-bars.” The next day, Stephens took Phillips off of casting and put
him on Z-bars, which was a more strenuous job.
Counts One and Two
Count One of the complaint alleges that PPG “discriminated against [the]
[p]laintiff by denying him a transfer to a Pre-Finish Inspector position on the basis of
his disability and/or perceived disability in violation of the ADA.” (Doc. 1 at 4). In
Count Two, the plaintiff references the same denial as in Count One, and states that,
although the defendant in fact offered him the Pre-Finish Inspector position for which
he applied, a third-shift position, the defendant “[d]iscriminated against [the]
[p]laintiff by denying him an assignment to the . . . position on second shift on the
basis of his disability and/or perceived disability in violation of the ADA.” (Doc. 1
at 5) (emphasis added). Both counts reference a position which came open in “April
2013.” (Doc. 1at 4, ¶¶ 28, 34).4
The ADA provides that “[n]o covered entity shall discriminate against a
qualified individual on the basis of disability in regard to job application procedures,
the hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §
12112(a). The familiar McDonnell Douglas circumstantial evidence framework
applies to ADA discrimination cases. Cleveland v. Home Shopping Network, Inc., 369
F.3d 1189, 1193 (11th Cir. 2004) (see also generally McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). The Eleventh Circuit
has noted that
[u]nder this burden-shifting analysis, [the plaintiff has] the initial burden
of establishing a prima facie case of disability discrimination. Wascura
The parties also discuss a 2012 position in their briefs. The plaintiff is clear that he “does not
have a timely claim against PPG for denying him [that position]. (Doc. 21 at 19).
v. City of South Miami, 257 F.3d 1238, 1242 (11th Cir.2001). To
establish a prima facie case of ADA discrimination, [the plaintiff has]
to show (1) a disability, (2) that [he] was otherwise qualified to perform
the job, and (3) that [he] was discriminated against based upon the
disability. Williams v. Motorola, Inc., 303 F.3d 1284, 1290 (11th
Cir.2002); Gordon v. E.L. Hamm & Assoc., Inc., 100 F.3d 907, 910
(11th Cir.1996). Once [the plaintiff puts] forth a prima facie case, which
establishes a presumption of discrimination, the burden then [shifts to
the defendant] to articulate a legitimate, non-discriminatory reason for
[his] termination. Wascura, 257 F.3d at 1242. [The defendant] simply
[has] the burden of production, and [does not] need to persuade the court
that it was motivated by the reason. Id. After the articulated reason [is]
given, the inferential presumption of discrimination [is] eliminated, the
McDonnell Douglas framework disappear[s], and [the plaintiff is] left
with the ultimate burden of proving that [the defendant] intentionally
discriminated against [him] because of [his] disability. [Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43, 120 S. Ct.
2097, 147 L. Ed. 2d 105 (2000).] In order to prove this intentional
discrimination, [the plaintiff is] allowed to show [the defendant’s]
reason was “unworthy of credence” and a pretext for discrimination. Id.
Cleveland, 369 F.3d at 1193; see also, Ward v. United Parcel Serv., 580 F. App'x
735, 740 (11th Cir. 2014) (“To establish a prima facie case, a plaintiff may show that
(1) he was disabled, (2) he was qualified to perform the job, and (3) he was subjected
to an adverse employment action because of his disability.”).5
The Eleventh Circuit has also stated:
We have also cautioned that “establishing the elements of the McDonnell Douglas
framework is not, and never was intended to be, the sine qua non for a plaintiff to survive
a summary judgment motion in an employment discrimination case.” Smith v.
Lockheed–Martin Corp., 644 F.3d 1321, 1328 (11th Cir.2011). A plaintiff also may defeat
a summary judgment motion by presenting “a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination by the decisionmaker.”
Id. (quotation marks omitted).
The statute protects only “qualified individual[s]” with a disability. 42 U.S.C.
§ 12112(a). But “a qualified individual with a disability shall not include any
employee or applicant who is currently engaging in the illegal use of drugs, when the
covered entity acts on the basis of such use.” 42 U.S.C.A. § 12114(a).
Counts One and Two fail because there is no evidence of discrimination. It is
undisputed that the position for which the plaintiff applied, the Pre-Finish Inspector
position, was a third shift position. It is undisputed that, after he applied, the
defendant offered the plaintiff the position. Finally, it is undisputed that the plaintiff
declined the position because he only wanted the position if he could work in that
position on second shift. Refusing to change the shift for this position, a position for
which the plaintiff applied knowing that it was a third shift position, is not
discrimination. The plaintiff offers no evidence that this refusal occurred because he
In the statement of facts set out above, it is noted that, at the time the job was
offered to him, the plaintiff felt that his seniority rights should have given him the
right to “bump” someone off second shift in favor of himself. In his brief, the
plaintiff makes no argument on this point (a point which the defendant disputes), and
so the court treats it as abandoned. “‘There is no burden upon the district court to
Ward v. United Parcel Serv., 580 F. App'x 735, 740 (11th Cir. 2014)
distill every potential argument that could be made based upon the materials before
it on summary judgment. Rather, the onus is upon the parties to formulate
arguments.’” McIntyre v. Eckerd Corp., 251 F. App'x 621, 626 (11th Cir. 2007)
(quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995);
see also, McMaster v. United States, 177 F.3d 936, 940-41 (11th Cir. 1999) (claim
may be considered abandoned when district court is presented with no argument
concerning a claim included in the plaintiff's complaint); Road Sprinkler Fitters Local
Union No. 669 v. Independent Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994)
(concluding that a district court "could properly treat as abandoned a claim alleged
in the complaint but not even raised as a ground for summary judgment").
Regardless, the plaintiff now admits that he had no seniority rights to a second shift
position. (See doc. 14 at 10 (fact 51); doc. 21 (no dispute of fact 51)).
The plaintiff’s only argument in support of his position is as follows:
[T] here is no evidence in the record that the individual selected [for the
position instead of the plaintiff] was actually assigned to third shift.
Therefore, there is sufficient evidence to support a finding that PPG
merely told Phillips he would have to work on third shift to discourage
him from accepting the position, in effect, denying him the position
(Doc. 21 at 19). This argument fails to acknowledge that, in order to make his prima
facie case, the plaintiff must first put forth evidence that he was discriminated against
because of his disability. Simply stating that “there is no evidence” that the person
who was hired for the third shift position was actually made to work third shift is not
evidence of anything. Counts One and Two will be dismissed.
Count Three alleges that the defendant “discriminated against [the] [p]laintiff
by denying him a promotion to the Production Fixer position on the basis of his
disability and/or perceived disability in violation of the ADA.” (Doc. 1 at 5-6). As
to this claim, the plaintiff argues only:
Phillips applied for a promotion to Production Fixer in April 2013.
Phillips was interviewed for the position. However, Phillips was
terminated as a result of PPG’s discriminatory policies, practices, and
procedures before the Production Fixer position was filled.
(Doc. 21 at 20). The plaintiff also vaguely cites to “Phillips Depo., p. 55.” (Doc. 21
at 20). This conclusory and underdeveloped argument appears to be arguing that, had
the plaintiff not been fired illegally, he would have been hired into the Production
Fixer position. There is no evidence to support that the plaintiff would have received
the position if he had not been fired.6 Even if there were, because the court holds
It is unclear at this time the exact state of the causation test to be applied here. Judge Acker, in
this district, has recently noted that the action taken against the plaintiff must be “solely because of” his
disability, stating: “Given the ADA's ‘but-for’ requirement . . . in order to state a claim of disability
discrimination [the plaintiff] must specifically allege that her disability was the ‘but-for’ cause of her
adverse treatment.” Savage v. Secure First Credit Union, No. 2:14-CV-2468-WMA, 2015 WL 2169135,
at *4 (N.D. Ala. May 8, 2015) (Acker, J.). In that case he wrote:
below that the plaintiff’s termination was not discriminatory, this count fails. Count
Three will be dismissed.
Before the [Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174
L.Ed.2d 119 (2009)] and [Univ. of Texas Sw. Med. Ctr. v. Nassar, ––– U.S. ––––, 133
S.Ct. 2517, 186 L.Ed.2d 503 (2013)] decisions, the Eleventh Circuit held that “the
‘because of’ component of the ADA liability standard imposes no more restrictive
standard than the ordinary, everyday meaning of the words would be understood to imply
... convey[ing] the idea of a factor that made a difference in the outcome ... a ‘but-for’
liability standard.” McNely v. Ocala Star–Banner Corp., 99 F.3d 1068, 1077 (11th
Cir.1996). While recognizing that the ADA's statutory text requires “but-for” causation,
the Court in McNely found that “but-for” causation was “not to mean ‘solely because of’
... [but rather] liability whenever the prohibited motivation makes the difference in the
employer's decision.” Id. at 1076. However, in light of the Supreme Court's Gross,
Nassar, and [Burrage v. United States, ––– U.S. ––––, 134 S.Ct. 881, 187 L.Ed.2d 715
(2014)] decisions rejecting the mixed-motive possibilities, under statutes that employ
virtually the same language, “reliance on McNely for this point is of dubious merit.” July
v. Bd. of Water & Sewer Comm'rs of City of Mobile[,] 2012 WL 5966637, at *12
(S.D.Ala. Nov. 29, 2012) (Steele, J.); Parsons v. First Quality Retail Servs., LLC, 2012
WL 174829, at *8 (M.D.Ga. Jan. 20, 2012) (Royal, J.) (“whether a mixed motive theory
is cognizable under the ADA is still an open question in this circuit ... [and] [w]hile the
Eleventh Circuit has not addressed the issue, several circuits have expanded the reasoning
of Gross to the ADA because it contains very similar language”). When in 2012 Judge
Royal of the Middle District of Georgia said that the question is open in the Eleventh
Circuit, he did not have available to him what the Supreme Court said 2 years later in
Burrage, which eliminated any lingering doubt about whether the reasoning in Gross and
Nassar applies to the ADA. The props under McNely have been removed, so that the
Eleventh Circuit cannot rely on McNely. The governing jurisprudential principle is
expressed as recently as April 30, 2015 by Chief Judge Carnes in Santiago–Lugo v.
Warden, 785 F.3d 467, 471–72 (11th Cir.2015), in which the Eleventh Circuit recognizes
that a prior precedent is only binding “unless and until it is overruled or undermined to the
point of abrogation by the Supreme Court ...” (quoting United States v. Lopez, 562 F.3d
1309, 1312 (11th Cir.2009)). Like the ADEA in Gross, “the ADA renders employers
liable for employment decisions made ‘because of’ a person's disability, and Gross
construes ‘because of’ to require a showing of but-for causation ... [therefore] a plaintiff
complaining of discriminatory discharge under the ADA must show that his or her
employer would not have fired him but for his actual or perceived disability.” Serwatka
v. Rockwell Automation, Inc., 591 F.3d 957, 962 (7th Cir.2010) (emphasis added); see also
Bolmer v. Oliveira, 594 F.3d 134 (2d Cir.2010).
Savage, 2015 WL 2169135, at *4. Judge Acker’s decision is currently under appeal to the Eleventh
Counts Four and Five
Count Four alleges that the defendant “discriminated against [the] [p]laintiff
by subjecting him to disparate treatment on the basis of his disability and/or perceived
disability in violation of the ADA by: (1) subjecting him to drug tests more frequently
than employees outside the protected class, and (2) terminating [the] [p]laintiff for
failing a drug test when similarly situated employees outside [the] [p]laintiff’s
protected class have not been terminated for engaging in substantially similar
conduct under similar conditions.” (Doc. 1 at 6-7). Count Five alleges that the
defendant “discriminated against [the] [p]laintiff by terminating him on the basis of
his disability and/or perceived disability in violation of the ADA.” (Doc. 1 at 7).
As to the frequency of drug testing, even assuming that the plaintiff was drug
tested more frequently than non-disabled employees, PPG is not responsible for
determining who is tested. It is undisputed that employees are randomly selected for
drug screens by a third party vendor, a company called "First Advantage." (Doc. 13-6
at 3(10); doc. 13-3 at 5(17)). Meyer testified at his deposition that "[n]o one in the
facility including myself can manipulate that system." (Doc. 13-3 at 5(17)). The
plaintiff has offered no evidence that PPG, in any way, controlled how often he was
selected for testing. Accordingly, the plaintiff cannot make out a prima facie case
because he cannot show that PPG discriminated against him.7
As to his termination, the plaintiff cannot make out a prima facie case under
either Count Four or Five because he is not a qualified individual with a disability.
As noted above, “a qualified individual with a disability shall not include any
employee or applicant who is currently engaging in the illegal use of drugs, when the
covered entity acts on the basis of such use.” 42 U.S.C.A. § 12114(a). Phillips tested
positive for the narcotic pain medication, Hydrocodone. Phillips does not dispute the
results of the drug test in May 2013, and admits he took Hydrocodone at the time of
his May 2013 drug screen. It is undisputed that he did not have a prescription for
The best the plaintiff can do is argue that he was discriminated against because, on May 1, 2013,
Jackson was provided a list of names for drug testing, which included the plaintiff, and she did not test the
plaintiff until May 14, 2013–one day before he was to be interviewed for the Production Fixer position.
First, when Jackson chose to administer the test has nothing to do with how frequently the plaintiff was
chosen for testing–which is his claim. Second, there is no evidence that testing him the day before he
interviewed for the position affected him in any way. On May 15, 2013, Phillips was interviewed for the
Production Fixer Position. There is no evidence that the results of that test were available at that time.
Phillips admits the committee which interviewed him was fair. Phillips does not believe anyone during
this interview process held his hearing impairment against him in anyway. It is undisputed that Phillips
has no evidence he was denied the Production Fixer position because of his hearing loss.
PPG also proffers the “third party vender” reason as its legitimate non-discriminatory reason for
the frequency of testing. (Doc. 14 at 20). Count Four also fails because the plaintiff has failed to rebut
Also, to the extent that the plaintiff bases any part of this action on the fact that he was tested after
the 60 month period of the Rehabilitation Agreement expired (see doc. 21 at 21), he has failed to show
discrimination. The Rehabilitation Agreement provided for 60 months during which the plaintiff was
subject to “additional periodic testing.” After that period, under the ADI, the plaintiff was still subject to
regular random drug testing, just like every other employee of PPG.
Hydrocodone on the day of his drug test on May 14, 2013.8
Even if the plaintiff was a qualified individual, he still has the ultimate burden
of proving that the defendant intentionally discriminated against him because of his
disability. Reeves, 530 U.S. at 142-43. In this case, Vega made the decision to
terminate Plaintiff's employment, and that decision was upheld by Meyer. Phillips
admits that Meyer was the final decision maker regarding his termination appeal.
Phillips does not allege in this case that Vega took any action against Phillips because
of Phillips’s hearing loss. Phillips also does not accuse Meyer of taking any action
against him because of Phillips’s hearing loss.
Further the plaintiff could cite no other employee of PPG who had ever failed
a second drug screen and was not terminated.9 Indeed, in her affidavit, Smith stated
The plaintiff argues that the proper procedures for testing his sample were not followed. (Doc.
21 at 22-23). If an employee fails to properly sign the envelope containing the specimen, the specimen
will not be tested. (Doc. 13-6 at 6(21)). The evidence clearly established that the envelope into which the
plaintiff’s specimen was placed was signed by him. The plaintiff argues, incorrectly, that both the bag and
the envelope must be signed or the specimen will not be tested, and that the plaintiff did not sign the bag
at the time he gave the specimen. Even if the plaintiff was correct, he does not explain what difference
such a mistake should make in this case, especially when he admits that the test results are correct.
The plaintiff argues that “Phillips is the only PPG employee ever terminated by Vega for a failed
drug screen. (Doc. 21 at 23) (emphasis added). He writes:
Vega claims he checked Phillips’ personnel file prior to terminating Phillips to see if
Phillips had previously failed a drug test even though, according to Vega, drug testing
records are not maintained in the Human Resources Department and are not part of the
employee’s personnel files. [Vega Dep., p. 25, 30, 31-32.] According to Vega, information
concerning an employee’s participation in the PPG rehabilitation program is maintained
in the employee’s personnel file.
It is interesting to note, the PPG Medical Department only keeps a list of everyone
that “[s]ince [she] has worked in Human Resources for PPG . . . every employee who
has failed a second . . . drug screen has been discharged.” (Doc. 13-1 at 5).10
Finally, the entirety of the plaintiff’s argument regarding PPG’s alleged failure
to provide the plaintiff reasonable accommodations (doc. 21 at 15-17) is irrelevant
to any issue in this case. As the plaintiff notes, he “has not filed an enumerated claim
against PPG for failure to accommodate his disability.” (Doc. 21 at 17).11
Based on the foregoing, the defendant’s motion for summary judgment will be
GRANTED, and this case will be DISMISSED. A final order will be entered.
DONE this the 24th day of November, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
who has been tested, along with their test results, for five years. [Jackson dep., p. 44.] This
is, consequently, the same length of time provided for periodic testing under the
Rehabilitation Agreement utilized by PPG.
(Doc. 21 at 23-24). Exactly what any of this discussion adds to the plaintiff’s claim is unclear. Similarly,
there is no relevance to the plaintiff’s argument that there is no evidence that the plaintiff ever came to
work under the influence of any drugs. (Doc. 21 at 24).
The court has read, and considered, the plaintiff’s attempt at establishing pretext. (Doc. 21 at
24-25). Even if the plaintiff had established a prima facie case of discrimination, nothing the plaintiff
states in that short section rebuts the defendant’s legitimate non-discriminatory reasons for terminating
him–i.e. that he failed his second drug test.
Phillips claims that this alleged conduct “is indicative of PPG’s attitude, animus, intent, and
disregard for Phillips and his impairment.” (Doc. 21 at 17). Phillips does not explain how these
“indications” make a difference to his case.
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