Beltran v. Union Pacific Railroad Company
ORDER GRANTING 42 Motion for Summary Judgment; DISMISSING 50 Motion for Hearing. Signed by Judge Robert Pitman. (rf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
UNION PACIFIC RAILROAD COMPANY,
Before the Court is Defendant Union Pacific Railroad Company’s Motion for Summary
Judgment. (Dkt. 42) Having reviewed the pleadings, factual record, and relevant law, the Court finds
that Defendant’s motion should be granted.
Plaintiff Rolando Beltran is a Hispanic male over the age of forty-five. He asserts that he is
morbidly obese. Defendant Union Pacific Railroad Company (“Union Pacific”) is a common carrier
operating in the State of Texas. Plaintiff was formerly an employee of Union Pacific for
approximately eleven years. He began working for Union Pacific as a carman in 2004, later receiving
a promotion to car foreman in 2014. In this latter capacity he was responsible for supervising the
carmen at the railroad yard.
In 2010, Union Pacific terminated Plaintiff’s employment after a random drug test returned a
positive result for cocaine metabolites. Plaintiff concedes that he was using cocaine at the time.
Union Pacific reinstated Plaintiff’s employment in April 2011. Conditions placed on his
reinstatement included that Plaintiff was to complete a 28-day rehabilitation program and submit to
random drug testing over the course of sixty months.
Union Pacific directed Plaintiff to submit to a drug test on or around November 14, 2014,
and again on November 20, 2014. The results of the first test were negative, but the second test
yielded a positive result for methamphetamines. On or around November 25, 2014, Medical Review
Officer Dr. Randy Barnett 1 called Plaintiff to inquire about the prescription medication he was
taking. Plaintiff provided Dr. Barnett with information about his prescriptions but, according to
Plaintiff, Dr. Barnett refused to hear about the over-the-counter medication Plaintiff was taking at
the time. Dr. Barnett determined that none of the disclosed prescription medications would cause a
false positive and thus confirmed the test’s positive result. Plaintiff exercised his right to request a
second test of his urine sample. A second lab performed the retesting and reported a second positive
Union Pacific held an investigation hearing on January 7, 2015. At this hearing, Plaintiff
presented the testimony of David Neff, General Chairman of Plaintiff’s labor union. Neff testified
that the medications Plaintiff was taking at the time would have caused a false positive. Neff based
his testimony on the written medical opinion of Dr. Michael Zeitlin, a physician recommended to
Plaintiff by his brother. Two days later, Union Pacific terminated Plaintiff’s employment.
Plaintiff thereafter filed charges of discrimination with the Texas Workforce Commission
and the Equal Opportunity Employment Commission. After receiving a right-to-sue letter, Plaintiff
filed this suit against Union Pacific alleging that Union Pacific violated the Texas Labor Code by
discriminating against him on the basis of his sex, ethnicity, age, and disability.
Union Pacific filed its Motion for Summary Judgment on December 15, 2016. Its principal
arguments are that Plaintiff has not demonstrated that (1) he is disabled; (2) he was terminated due
to his disability; (3) he was treated less favorably than other similarly situated employees outside the
Dr. Barnett is not an employee of Union Pacific. Rather, he is employed by or contracts with University Services,
which itself contracts with Union Pacific to handle its drug testing.
protected class; and (4) Plaintiff cannot show that Union Pacific’s reason for terminating him—his
positive drug test—was pretextual.
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure
only “if the movant shows there is no genuine dispute as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine only if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). “A fact issue is ‘material’ if its resolution could affect the
outcome of the action.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
The party moving for summary judgment bears the initial burden of “informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). “[T]he moving party may [also] meet its burden by simply pointing to an absence of
evidence to support the nonmoving party’s case.” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544
(5th Cir. 2005). The burden then shifts to the nonmoving party to establish the existence of a
genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87
(1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). After the non-movant
has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for
the non-movant, summary judgment will be granted. Miss. River Basin Alliance v. Westphal, 230 F.3d
170, 175 (5th Cir. 2000). The court will view the summary judgment evidence in the light most
favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).
Plaintiff’s claims arise under the Texas Commission on Human Rights Act (“TCHRA”),
which prohibits discrimination in employment on the basis of race, disability, sex, and age, among
other bases. Tex. Lab. Code § 21.051. The TCHRA is analogous to federal anti-discrimination laws,
and courts thus look to federal precedent in interpreting the Texas law. Rodriguez v. Con Agra Grocery
Prods. Co., 436 F.3d 468, 473–74 (5th Cir. 2006). Where, as here, direct evidence of discrimination is
lacking, 2 courts analyze TCHRA discrimination claims under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Jesperson v. Sweetwater Ranch
Apartments, 390 S.W.3d 644, 654 (Tex. App. 2012).
Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of
discrimination by showing that: (1) he was a member of a protected class; (2) he was qualified for the
job; (3) he was subject to an adverse employment action; and (4) he was either replaced by someone
outside the protected class or treated less favorably than others similarly situated. Id. If the plaintiff
makes such a showing, the burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the adverse employment action. Id. If the employer provides such a reason, the burden
shifts back to the plaintiff to establish that the employer’s justification is merely a pretext for
Plaintiff alleges discrimination on several bases: sex (male), ethnicity (Hispanic), age (over
forty-five), and disability (morbid obesity). Rather than examining whether a prima facie case has been
established on each basis, the Court will assume that such a showing has been made and move to
the second part of the analysis—whether the employer has articulated a legitimate, nondiscriminatory reason for the adverse employment action. Here, Union Pacific has offered Plaintiff’s
positive drug test as the reason for Plaintiff’s termination. Neither side has disputed that failing a
drug test can provide a legitimate basis for termination. See Hunter v. Union Pac. R. Co., No. CIV.A.
H-11-3408, 2013 WL 3229910, at *7 (S.D. Tex. June 25, 2013) (“[I]t is well settled that an
2 Plaintiff asserts in his brief that he had previously reported racial slurs to Union Pacific management, citing his
deposition as evidence. (Pl.’s Resp., Dkt. 48, at 11). The deposition, however, only states that he reported a coworker’s
comment that he was a “drug addict.” (Beltran Dep., Dkt. 42-1, at 77:13–78:9).
employer’s decision to deny employment or discipline employees based on positive drug test results
constitutes a non-discriminatory business reason for the adverse employment action . . . .”). Indeed,
Union Pacific has argued that, as a federally regulated common carrier, it was legally required to take
action following the drug test. In light of this justification, the burden shifts back to Plaintiff to
establish a genuine dispute of material fact that Union Pacific’s justification was a pretext for
discrimination. See Jesperson, 390 S.W.3d at 654.
Plaintiff’s primary argument concerning pretext is that the positive result for
methamphetamine was not accurate. To support this proposition, he argues that the medications he
was taking caused a false positive and that Dr. Barnett’s testimony to the contrary cannot be trusted
because a prior conviction undermines his credibility. Plaintiff bases the argument about the test’s
reliability on a brief note from Dr. Zeitlin suggesting that Plaintiff’s medication could cause a false
positive if the test employed by University Services could not distinguish between the use of lawful
medication and the illegal drug. Dr. Zeitlin recommended retesting Plaintiff’s urine using a method
that could distinguish between the various methamphetamine isomers, allowing a more accurate
result. The Court ordered this retesting over Union Pacific’s objection; it produced a third positive
result confirming the prior two.
Even if the third test had undermined the prior positive results, creating a fact dispute as to
the accuracy of the test result does not suffice to create a fact dispute as to pretext. “The existence
of competing evidence about the objective correctness of a fact underlying a defendant’s proffered
explanation does not in itself make reasonable an inference that the defendant was not truly
motivated by its proffered justification.” Little v. Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir.
1991). 3 This principle applies with equal force to Plaintiff’s attempt to undermine the accuracy of the
test by arguing that Dr. Barnett’s prior conviction makes his confirmation of the test result
unreliable. Even if Dr. Barnett’s testimony ruling out an innocent cause of the positive result was
not credible, nothing in the record suggests that the decision-makers at Union Pacific were not
genuinely motivated by that testimony. Indeed, nothing indicates that Union Pacific had any
knowledge of Dr. Barnett’s conviction or any other reason to doubt his credibility.
Plaintiff next suggests that Union Pacific’s justification is not credible because it has shifted
over time. According to Plaintiff, Union Pacific first “stated unequivocally that it was a positive test
result,” but then later explained in a letter to the chairman of Plaintiff’s union that if Plaintiff “truly
had a legitimate reason to be on medication or illicit drug [sic] he should have and could have
revealed that to MRO Barnett . . . and [Plaintiff] would have had a prescription for such.” (Pl.’s
Response, Dkt. 48, at 8). Plaintiff does not explain how this constitutes a shift in Union Pacific’s
justifications. Nothing in the letter suggests that Plaintiff’s failure to present a prescription was an
additional reason for his termination. The letter merely states that Plaintiff had not provided a valid
justification for the positive test result that remained the reason for his termination. No reasonable
fact-finder would infer from this statement that Union Pacific’s justifications had shifted. 4
For this reason, Plaintiff’s rebuttal to the third test also fails to create a fact dispute sufficient to avoid summary
judgment. (See Dkt. 51). Plaintiff’s rebuttal features a supplemental affidavit of Dr. Zeitlin in which he avers that certain
testing methods cannot distinguish between l- and d-methamphetamine isomers and points out that it is not clear what
testing methodology was used for the third test. In the absence of proof that the testing facility used a specific method
known as chiral chromatography, Dr. Zeitlin avers that he finds no medical basis to conclude that Plaintiff was using
illicit substances as opposed to lawful medications. This is contrary to testimony of Dr. Barnett that the methodology
used for confirmatory testing is, in fact, sensitive to the differences between isomers. (Barnett Dep., Dkt. 42-3, at 35:10–
18). However, this fact dispute over testing methodology does not give rise to a fact dispute as to Union Pacific’s
motivations. See Little, 924 F.2d at 97.
4 Plaintiff also notes that the chairman of an arbitration panel recommended that Plaintiff should be returned to work
given the “unique circumstances” of the case. (Pl.’s Response, Dkt. 48, at 8). It is not clear how this is relevant to the
issues before the Court. To the extent Plaintiff seeks to tie it to Union Pacific’s allegedly shifting justifications, he has
not shown that the arbitration panel spoke on behalf of Union Pacific. To the extent he uses the evidence to cast doubt
on the wisdom of terminating Plaintiff’s employment, the Court simply notes that “[e]mployment discrimination laws
are ‘not intended to be a vehicle for judicial second-guessing of business decisions, nor . . . to transform courts into
personnel managers.’” Bryant, 413 F.3d 471, 478 (5th Cir. 2005) (quoting Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503,
1507–08 (5th Cir. 1988)).
Plaintiff has produced no other evidence from which pretext could be inferred. Accordingly,
no genuine dispute of material fact exists and Union Pacific has demonstrated that it is entitled to
For the foregoing reasons, Defendant Union Pacific’s Motion for Summary Judgment is
hereby GRANTED. (Dkt. 42). Plaintiff’s claims under the TCHRA are therefore DISMISSED
WITH PREJUDICE. Defendant’s Request for Hearing is DISMISSED AS MOOT. (Dkt. 50).
SIGNED on February 21, 2017.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?