Lewis v. Ashland, Inc.
Filing
25
ORDER granting 15 Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 8/9/2011. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 09-3515(DSD/FLN)
Brandon Lewis,
Plaintiff,
ORDER
v.
Ashland, Inc., doing
business as Valvoline
Instant Oil Change,
Defendant.
Celeste E. Culberth, Esq., Leslie L. Lienemann, Esq. and
Culberth & Lienemann, LLP, 444 Cedar Street, Suite 1050,
St. Paul, MN 55101, counsel for plaintiff.
Charles M. Roesch, Esq., Elizabeth A. Simmons, Esq. and
Dinsmore & Shohl, 255 East Fifth Street, Suite 1900,
Cincinnati, OH 45202 and Mark J. Girouard, Esq., Matthew
E. Damon, Esq. and Nilan, Johnson & Lewis, 120 South
Sixth Street, Suite 400, Minneapolis, MN 55402, counsel
for defendant.
This matter is before the court upon the motion for summary
judgment by defendant Ashland, Inc. d/b/a/ Valvoline Instant Oil
Change (Valvoline).
Based on a review of the file, record and
proceedings herein, and for the following reasons, the court grants
the motion.
BACKGROUND
This employment dispute arises out of the termination of
plaintiff Brandon Lewis by Valvoline on December 1, 2008.
Lewis
began working for Valvoline as a technician in May 2008. Valvoline
has a substance abuse policy stating that “[e]mployees who ...
refuse to cooperate fully with the drug and/or alcohol screening or
search provision of the policy will be terminated except where
prohibited by law.”
Lewis Dep. 94:8-96:9; id. Ex. 9.
Lewis states
that he received a written copy of the policy during his employment
orientation and signed a form acknowledging receipt.
92:22-93:9.
Id. 91:8-16,
Lewis also understood that either he or Valvoline
could terminate the employment relationship “at anytime, with or
without notice, for any reason, at will.”
Id. Ex. 8.
On December 1, 2008, shortly after Lewis arrived to work
another employee, D.J., called for a ride to work.
Sean Fautsch,
Valvoline Store Manager, gave Lewis permission to drive to pick up
D.J.
Id. 101:3-22; Fautsch Dep. 36:16-25.
Lewis did so, and D.J.
smoked a Black & Mild cigar while driving back to the Valvoline
store.
Lewis Dep. 102:19-103:13.
Fautsch smelled a strong odor of what he believed to be
marijuana on Lewis and D.J. when they arrived. Fautsch Dep. 40:2425.
Fautsch approached Lewis and asked him if he had been smoking
“weed.”
Lewis responded that he had not, and Fautsch asked Lewis
if he would be willing to take a drug test.
Dep. 104:22-105:4.
Lewis agreed.
Lewis
Fautsch separately approached D.J. and asked
him if he had been using marijuana, and D.J. said no.
2
Fautsch Dep.
45:24-46:6.
Fautsch
then
called
Valvoline’s
human
resources
department and spoke to Ginger Childress who advised Fautsch to
take Lewis and D.J. to be tested.
Id. at 50:21-51:9.
Fautsch drove Lewis and D.J. to the testing center, but
neither Lewis nor D.J. had proper photo identification.
returned to work.
They
Id. at 59:7-61:8; Lewis Dep. at 113:12-114:6.
They later returned to the testing facility with Valvoline Regional
Office Manager Amy Kinne, who identified Lewis and D.J. Lewis Dep.
118:25-119:7.
Test center staff member Deborah Stich instructed Lewis to
urinate into a cup up to a certain line.
Lewis urinated in the
cup, but did not fill it up to the line as instructed.
121:22-123:11.
Lewis Dep.
Stich heard Lewis urinate “a lot” in the toilet.
Stich Dep. 27:23-25. Lewis contends that he did not urinate in the
toilet a substantial amount, but only “tinkled” or “finished” in
the toilet.
Lewis Dep. 123:13-124:5.
Stich then gave Lewis a form stating that he had three hours
to submit another sample and that failure to do so would be taken
as a refusal to test.
Lewis signed the form.
Stich disposed of the sample. Id. at 162:4-7.
produce a sufficient sample.
Id. at 128:13-21.
D.J. also failed to
Id. at 130:19-22.
While seated in the waiting room, Lewis and D.J. were giggling
and laughing, and Lewis asked Fautsch “why don’t you take a drug
test with us.” Fautsch Dep. 71:21-72:2; see Kinne Dep. 28:24-28:8;
3
Lewis Dep. 131:2-10.
room
and
uniforms.
some
of
Another person was present in the waiting
the
Valvoline
employees
were
in
Valvoline
Fautsch Dep. 72:3-17; Lewis Dep. 113:1-5.
Fautsch approached Stich to find out why both employees had to
submit a second sample.
Fautsch Dep. 79:25-80:3.
Stich told him
that Lewis and D.J. submitted insufficient samples and that she
heard Lewis urinating in the toilet.
Id. at 80:4-82:17.
Fautsch
then called Todd Greene, Manager of Occupational Medicine. Fautsch
explained that Lewis was being disruptive and failed to follow
instructions and asked Greene “how much do we let this continue”?
Id. at 88:12-89:11; see Kinne Dep. 28:21-29:5. Greene advised
Fautsch to have the original sample tested if possible and to
cancel
Lewis’s
second
test
if
Stich
were
statement explaining her observations.
willing
sign
a
Fautsch Dep. 90:5-13,
96:20-23; Greene Dep. 26:6-10; Kinne Dep. 21:23-22:8.
told Stich to cancel the second test.
to
Kinne then
Fautsch Dep. 93:17-22.
Fautsch told Lewis that his first sample was going to be
tested and that he couldn’t submit another sample.
134:1-7.
Lewis Dep.
Fautsch testified that, at that point, he did not know
that Stich had disposed of the sample. Fautsch Dep. 96:10-17. D.J.
4
submitted another sample1 and received a copy of his chain-ofcustody form.
Lewis Dep. 134:16-21.
The employees then left the
test facility.
Lewis
asked
to
see
his
chain-of-custody
form.
Fautsch
discovered that he did not have the form and returned to get it.
While the employees were walking to the elevator to exit the
building, Lewis received his form and learned that his test had
been canceled “due to disruption” and that the original sample
would not be tested.
Lewis Dep. 134:21-135:22.
his test had been canceled.
Lewis asked why
Lewis contends that Fautsch then said
“shut up about it or you will be fired.”
Id. at 135:21-24.
Lewis
repeatedly stated that he was upset about being lied to and used
profanity as the employees exited the building.
141:4.
Fautsch fired Lewis.
Id. at 136:21-
Fautsch Dep. 126:19-21.
On November 19, 2009, Lewis filed this action in Minnesota
state court alleging that Valvoline violated the Minnesota Drug and
Alcohol Testing in the Workplace Act (MDATWA), Minnesota Statutes
§§ 181.950–181.957. Valvoline timely removed and moved for summary
judgment.
The court heard oral argument on May 20, 2011, and now
addresses the motion.
1
D.J.’s test result was positive for marijuana, and after an
opportunity to undergo drug treatment, he again tested positive for
marijuana and was terminated. Fautsch Dep. 33:5-36:1.
5
DISCUSSION
I.
Summary Judgment Standard
Summary
judgment
is
appropriate
“if
the
pleadings,
the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
See
id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
See id. at 255.
The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.
See
The evidence must be more than merely
colorable; the nonmovant “must do more than simply show that there
is some metaphysical doubt as to the material facts.”
Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see
Anderson, 477 U.S. at 249–50.
If a plaintiff cannot support each
essential element of his claim, the court must grant summary
judgment because a complete failure of proof regarding an essential
6
element necessarily renders all other facts immaterial.
Id. at
322-23.
II.
MDATWA
Employers need not request or require drug or alcohol testing
of employees.
Minn. Stat. § 181.951 subdiv. 7.
If an employer
does request or require drug or alcohol testing, the employer must
do so pursuant to a written policy and testing must be conducted by
an approved laboratory.
Id. § 181.951 subdiv. 1.
The employer
must give written notice of the policy to affected employees.
§ 181.952 subdiv. 2.
employees
“on which
Id.
The employer must also provide a form to
to
acknowledge
that
the
employee
or
job
applicant has seen the employer’s drug and alcohol testing policy.”
Id. § 181.953 subdiv. 6(a).
An employer may not arbitrarily or capriciously request that
an employee undergo testing.
Id. § 181.951 subdiv. 1(c). However,
“[a]n employer may request or require an employee to undergo drug
and alcohol testing if the employer has a reasonable suspicion that
the employee ... is under the influence of drugs or alcohol.”
Id.
§ 181.951 subdiv. 5.
Additionally, an employer may not discharge an employee “on
the basis of a positive test result from an initial screening
test.”
Id. § 181.953 subdiv. 10(a).
In order to discharge an
employee on the basis of a positive test result, an employee must
first be “given the opportunity to participate in ... a drug or
7
alcohol counseling or rehabilitation program.”
Id. § 181.953
subdiv. 10(b).
A.
Reasonable Suspicion
Lewis first argues that Valvoline lacked reasonable suspicion
to request a drug test.
Valvoline responds that the odor of
marijuana on Lewis and D.J. fulfills the reasonable suspicion
requirements of the MDATWA.
Reasonable suspicion is “a basis for
forming a belief based on specific facts and rational inferences
drawn from those facts.”
Id. § 181.950 subdiv. 12. Fautsch
testified that Lewis and D.J. smelled strongly of marijuana.
The
smell of marijuana is a specific, articulable fact that supports
the rational inference that the employees were either under the
influence of drugs or had violated Valvoline’s substance abuse
policy. No witnesses dispute that Fautsch smelled what he believed
to be marijuana after the employees returned to work, and Kinne and
Stich were not present until hours after Valvoline requested a
test.
waiting
Additionally, the giggling and disruptive behavior in the
room
further
support
the
reasonableness
of
Fautsch’s
suspicion. Therefore, no reasonable jury could find that Valvoline
lacked reasonable suspicion to test.
Lewis also argues that several of defendant’s actions were
arbitrary and capricious, including the cancellation of Lewis’
test.
An employer may not require testing on an arbitrary or
capricious basis.
(Minn. Stat. § 181.951 subdiv. 1(c).
8
“A
decision is arbitrary and capricious ‘only where the decision lacks
any rational basis.’”
Sledge v. Minneapolis Pub. Hous. Auth.,
A04-2479, 2006 WL 463542, at *4 (Minn. Ct. App. Feb. 28, 2006)
(quoting Kise v. Prod. Design & Eng’g, Inc., 453 N.W.2d 561, 564
(Minn. Ct. App. 1990)).
“[A]ny rational basis” is a lower standard than “specific
facts and rational inferences.”
The court has already determined
that Valvoline had reasonable suspicion to request testing.
As a
result, Valvoline’s actions were not arbitrary and capricious.
Moreover, the record shows that Valvoline’s actions were deliberate
and
reasonable.
Fautsch
called
Valvoline’s
human
resources
department after he formed reasonable suspicion. After Fautsch was
instructed to test the employees, he took Lewis to be tested.
Valvoline ultimately decided not to test Lewis after he provided an
inadequate sample despite urinating in the toilet and exhibited
other disruptive behavior.
In short, Valvoline had a rational
basis to test and a rational basis to cancel the test.
Therefore,
Valvoline’s actions were not arbitrary and capricious, and summary
judgment is warranted.
B.
Unlawful Termination
In Minnesota, employment is assumed to be at will, absent a
specific agreement otherwise.
Martens v. Minn. Min. & Mfg. Co.,
616 N.W.2d 732, 741 (Minn. 2000).
An “employer can summarily
dismiss [an at-will] employee for any reason or no reason.”
9
Pine
River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn. 1983).
Lewis concedes that he was an at-will employee and could be fired
“for any reason.”
Lewis Dep. 60:8-21; 91:8-16; see id. Ex. 8.
The MDATWA limits an employer’s ability to terminate an
employee, but it is not an anti-discrimination statute.
The
statute only limits termination “on the basis of a positive test
result.”
Minn. Stat. § 181.953 subdiv. 10(a).
The MDATWA sets
procedural requirements for employers to request or require drug
testing.
It does not create a legal duty for employers to test or
a legal right for
employees to demand a test.
Minn. Stat.
§ 181.951 subdiv. 7.
Nothing in the record suggests that Valvoline terminated Lewis
on the basis of a positive test result.
Lewis was disruptive in
the waiting room, and the test-center staff determined that he had
disrupted the test.
employees
were
Valvoline decided to cancel the test.
returning
to
work
when
insubordination led to his termination.
Lewis’s
could
have
terminated
Lewis
continued
Thus, there was no “test
result” to form the basis of an unlawful termination.
Valvoline
The
for
Moreover,
insubordinate
or
disruptive actions even if he were allowed to complete the test.
See In re Copeland, 455 N.W.2d 503, 506 (Minn. Ct. App. 1990)
(finding MDATWA does not prohibit discharge for conduct independent
of positive test result even where “inextricably intertwined with
10
the use of illegal drugs”); see also City of Minneapolis v.
Johnson, 450 N.W.2d 156, 160 (Minn. Ct. App. 1990).
Therefore,
summary judgment is warranted.3
C.
Notice and Acknowledgment
Lewis also argues that Valvoline failed to provide him with a
written copy of its testing policy and an acknowledgment form.
Lewis’s
deposition
allegations.
genuine
testimony
directly
issue
Lewis Dep. 91:1-96:9.
of
material
deposition testimony.
fact
contradicts
these
A plaintiff may not create a
by
contradicting
his
sworn
Dotson v. Delta Consol. Indus., Inc., 251
F.3d 780, 781 (8th Cir. 2001).
Therefore, no genuine dispute of
material fact exists, and summary judgment is warranted.
D.
Contents of Valvoline’s Policy
Lewis also argues that Valvoline’s drug-testing policy does
not
contain
the
elements
required
under
Minnesota
Statutes
§ 181.952. Lewis did not raise this issue in his complaint and did
not seek to amend his complaint.
Lewis first raised this new claim
in his memorandum in response to the instant motion.
does not consider the claim.
The court
See Rodgers v. City of Des Moines,
3
The record shows that Lewis refused to “cooperate fully with
[Valvoline’s] drugs and/or alcohol screening or search provision”
by urinating into the toilet and not giving a full sample. See
Lewis Dep. Ex. 9. This behavior provided an independent basis to
terminate Lewis.
11
435 F.3d 904, 910 (8th Cir. 2006) (holding that district court
“properly refused to consider unpled allegations” on a motion for
summary judgment).
Therefore, summary judgement is warranted.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that the
motion for summary judgment [ECF No. 15] is granted.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
August 9, 2011
s/David S. Doty
David S. Doty, Judge
United States District Court
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