Price v. Pitt Ohio Express LLC

Filing 23

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 3/15/2012.Mailed notice(sct, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY PRICE,
Plaintiff,
vs.
PITT OHIO EXPRESS, LLC,
Defendants.

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11 C 8548

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This case comes before the Court on Defendant Pitt Ohio Express, LLC’s (“Pitt
Ohio”) motion to dismiss the complaint of Plaintiff Anthony Price (“Price”) pursuant
to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion
is denied.
BACKGROUND 1
Pitt Ohio terminated Price’s employment as a truck driver after he failed a
random drug test mandated by the Omnibus Transportation Employee Testing Act of

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For purposes of the motion to dismiss, the Court accepts the allegations of the complaint
as true. Warth v. Seldin, 422 U.S. 490, 501 (1975). Additionally, the Court considers facts alleged
in Price’s opposition to Pitt Ohio’s motion to dismiss to the extent such facts are consistent with
Price’s complaint. Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir. 2002);
Gutierrez v. Peters, 111 F.3d 1364, 1367 n.2 (7th Cir. 1997).

1991 (the “Act”), 49 U.S.C. § 31306, and the United States Department of
Transportation’s (“DOT”) regulations, 49 C.F.R. §§ 40.1 et seq.
The Act and DOT regulations require the random testing of operators of
commercial motor vehicles, or safety-sensitive transportation employees, for the use of
a controlled substance or alcohol in violation of the law. See 49 U.S.C. § 31306(b)(1);
see also 49 C.F.R. §§ 40.1 et seq. An employer who receives a verified positive drug
test result “must immediately remove the employee involved from performing safetysensitive functions.” 49 C.F.R. § 40.23(a). The employee cannot thereafter perform
any DOT safety-sensitive duties for any employer without fulfilling certain obligations,
including an evaluation by a substance abuse professional (“SAP”) and any treatment
prescribed by the SAP. 49 C.F.R. § 40.285. Employers are not required to provide a
SAP evaluation or any education or treatment for an employee who has violated a DOT
drug and alcohol regulation. 49 C.F.R. § 40.289(a).
In December 2011, Price filed a complaint against Pitt Ohio, alleging race
discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and
42 U.S.C. § 1981. Price generally alleges that he was subjected to different terms and
conditions of employment, including a “more rigorous federal drug test.” Price’s brief
clarifies his claim that Pitt Ohio discriminated against him when it fired him for failing
his drug test instead of continuing to employ him in a non-safety-sensitive position

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while allowing him to complete a SAP evaluation and any other requirements for
reinstatement as a truck driver. Price asserts that Pitt Ohio did not similarly terminate
a white employee who was intoxicated at work. Pitt Ohio now moves to dismiss Price’s
complaint.
LEGAL STANDARD
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to
dismiss, the complaint must contain sufficient facts to state a facially plausible claim
for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In ruling on a motion
to dismiss, a court accepts the well-pleaded allegations in the complaint as true,
construes the allegations of the complaint in the light most favorable to the plaintiff, and
draws all reasonable inferences in favor of the plaintiff. Hentosh v. Herman M. Finch
Univ. of Health Scis./The Chi. Med. Sch., 167 F.3d 1170, 1173 (7th Cir. 1999). A court
construes pro se pleadings liberally. Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.
2011). When evaluating a pro se complaint, the court may also consider facts in the
plaintiff’s opposition to a motion to dismiss as long as the facts are consistent with the
complaint’s allegations. Thompson, 300 F.3d at 753; Gutierrez, 111 F.3d at 1367 n.2.
DISCUSSION
Pitt Ohio moves to dismiss Price’s complaint, arguing that Price fails to plead
sufficient facts to state a race discrimination claim under Title VII or Section 1981.
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Title VII and Section 1981 prohibit an employer from discharging or otherwise
discriminating against an individual because of such individual’s race. 42 U.S.C.
§ 2000e-2(a); 42 U.S.C. § 1981. A plaintiff alleging race discrimination may establish
a prima facie case of discrimination directly or indirectly. Petts v. Rockledge Furniture
LLC, 534 F.3d 715, 720 (7th Cir. 2008); Andonissamy v. Hewlett-Packard Co., 547 F.3d
841, 849-50 (7th Cir. 2008). Price’s complaint cannot survive under the direct method
because Price alleges no facts pointing directly to a discriminatory reason for his
termination, such as an admission of discrimination by Pitt Ohio. See Koszola v. Bd.
of Educ. of Chi., 385 F.3d 1104, 1119 (7th Cir. 2004) (“Direct evidence essentially
requires an admission by the decision-maker that his actions were based on the
prohibited animus.”) (citation omitted). Accordingly, the Court will evaluate whether
Price has alleged discrimination under the indirect method.
A plaintiff establishes a prima facie case of discrimination under the indirect
method by proving that he (1) belongs to a protected class, (2) was satisfying the
employer’s legitimate expectations, (3) suffered an adverse employment action, and
(4) was treated worse than similarly situated employees outside the protected class.
Rodgers v. White, 657 F.3d 511, 517 (7th Cir. 2011) (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973)). If the plaintiff establishes a prima facie case and
the defendant articulates a non-discriminatory reason for the adverse action, the plaintiff

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must then prove that the stated reason is merely a pretext for discrimination. Id. Price
states facts satisfying the first element of the prima facie case because he alleges in his
brief that he is African American and thus belongs to a protected class. Pitt Ohio
contends that Price has not alleged facts that could satisfy the second, third, and fourth
requirements of the prima facie case.
The second element of the prima facie case requires Price to demonstrate that he
was satisfying Pitt Ohio’s legitimate expectations. Price cannot establish that he was
meeting his employer’s legitimate expectations since he concedes that he failed a drug
test which required Pitt Ohio to immediately remove him from his position as a truck
driver. However, when a black employee alleges that he was disciplined more severely
than a white employee who also failed to meet the employer’s expectations, the plaintiff
need not show that he met the employer’s expectations. Rodgers, 657 F.3d at 517;
Curry v. Menard, Inc., 270 F.3d 473, 477-78 (7th Cir. 2001). In this instance and as
discussed below, the second and fourth elements of the indirect method merge.
Rodgers, 657 F.3d at 517. Here, although Price admittedly failed his drug test, Price
claims that he was disciplined more harshly than a white employee who was intoxicated
at work. Thus, Price’s failure to meet his employer’s legitimate expectations is not fatal
to his claim.

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The third element of the prima facie case requires Price to demonstrate that he
suffered an adverse employment action. Pitt Ohio argues that Price cannot establish that
he was subject to an adverse employment action because the Act and DOT regulations
mandated the drug test and Price’s removal from the safety-sensitive position. While
true, the Act and DOT regulations did not require Pitt Ohio to terminate Price’s
employment and his termination unquestionably constitutes an adverse employment
action. See Andonissamy, 547 F.3d at 850. Pitt Ohio contends that an employer’s
decision to terminate an employee for failing a random drug test is not an adverse
employment action, citing Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1002 (7th
Cir. 2000). Pitt Ohio’s reliance on Stockett is misplaced, as the plaintiff in Stockett only
claimed that his employer subjected him to an adverse employment action by requiring
him to take a drug test. Id. at 1000. The court in Stockett held that requiring an
employee to submit to a drug test pursuant to the employer’s regular and legitimate
practices did not constitute an actionable adverse employment action. Id. at 1002.
Stockett therefore does not foreclose Price’s argument that he suffered an adverse
employment action when he was terminated from employment.
The fourth element of the prima facie case requires Price to demonstrate that he
was treated worse than similarly situated employees outside the protected class. Pitt
Ohio maintains that Price has not identified a similarly situated individual outside of the

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protected class who was not terminated. Price, however, complains in his brief that Pitt
Ohio did not terminate a white truck driver who was intoxicated at work. While Pitt
Ohio disputes Price’s allegation, the Court must accept Price’s allegation as true at this
stage. Although Pitt Ohio also contends that any such employee would not be similarly
situated to Price because Price failed a random drug test, the materiality of this
distinction needs further development. Price’s allegation that a white truck driver who
violated the Act and DOT regulations received less severe punishment is sufficient to
satisfy the fourth element of the prima facie case. At this stage, we cannot determine
whether the white employee is similarly situated to Price in all material respects.
For these reasons, Price has sufficiently alleged a prima facie case of
discrimination. Even though Pitt Ohio can proffer a non-discriminatory reason for
Price’s termination (i.e., that he failed his drug test), Price has alleged facts which could
demonstrate that Pitt Ohio’s justification for his termination is merely a pretext for
discrimination. Namely, Price has alleged that he received harsher punishment than a
white employee who was intoxicated at work. See, e.g., Rodgers, 657 F.3d at 520-21
(finding evidence of pretext where plaintiff received harsher punishment than similarly
situated employee). Ultimately, Price’s case hinges on whether similarly situated
employees outside of the protected class received the option to continue working for Pitt

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Ohio in a non-safety-sensitive position while completing a substance abuse program.
The Court cannot resolve this issue at this stage.
CONCLUSION
For the foregoing reasons, the Court denies Pitt Ohio’s motion to dismiss.

Charles P. Kocoras
United States District Judge
Dated: March 15, 2012

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