United States District Court, W.D. North Carolina, Charlotte Division
TARA Y. JONES, Plaintiff,
CON-WAY FREIGHT, INC., Defendant.
GRAHAM C. MULLEN, District Judge.
THIS MATTER is before the Court on Defendant Con-way's Motion for Summary Judgment (Doc. No. 37) and Memorandum in Support (Doc. No. 38), Plaintiff Tara Jones' Response in Opposition (Doc. No. 43), and Con-way's Reply (Doc. No. 49). For the reasons stated below, Defendant's Motion is GRANTED.
II. LOCAL RULES
As a preliminary matter, the Court begins by noting that Plaintiff's Response in Opposition (Doc. No. 43) violates, in several respects, Local Rule 7.1(D). That Rule provides that, absent standing orders to the contrary, "the page limit for any brief is 25 pages, the font size is a minimum of 12 point, lines are double spaced, margins are one inch, and each page is numbered." Plaintiff's brief appears to be in a font smaller than 12 point with margins under one inch, and it also appears to be "compressed" such that the text is pushed closer together than normal. Otherwise, the brief is largely devoid of indentation-each section is just one paragraph, with some paragraphs spanning several pages. All this appears to have been done with the goal of fitting as much text as possible on the allotted twenty-five pages, perhaps in the belief that this would strengthen Plaintiff's argument. In truth, the brief simply lends credence to the adage that more is not always better. The brief does not violate the rules in order to say something especially helpful or profound; instead, it is a wordy, disjointed, difficult-to-follow twenty-five pages ridden with typographical errors and incomplete (if not missing) citations. At many points throughout the brief, the Court is unable to determine what precisely Plaintiff means to say. Rather than strike the brief from the record, the Court will simply note that these rules are in place for a reason, and violating them does little more than frustrate the Court and court staff, who must grapple with non-conforming filings on top of the many pages of filings submitted in each case. In the future, however, counsel is warned that the Court will strike non-conforming briefs from the record and proceed to decide the matter as if no response had been filed.
Defendant Con-way Freight, Inc. is a trucking company that operates throughout the United States and Canada. One of its many terminals is located in Charlotte, North Carolina, where Plaintiff Tara Jones worked as a truck driver from February 2007 until August 23, 2011. Con-way conducts random drug tests of its drivers who have, or are studying for, commercial drivers' licenses (CDLs). These tests are required by federal law and are governed specifically by the Federal Motor Carrier Safety Regulations (FMCSR), 49 C.F.R. Part 382, as well as regulations issued by the Department of Transportation (DOT), 49 C.F.R. Part 40. The company is required to test at least fifty percent of its workforce every year for illegal drugs and ten percent every year for alcohol.
Con-way employs an outside contractor, DSI, Inc., to make random selections of its employees for drug testing. (Declaration of Paul Frayer ¶ 4). The DOT regulations require that employees who are randomly selected during each testing cycle must be tested unless they are on vacation or taking a leave of absence-in that case, the employee is excused from testing, but no other exceptions are allowed. See 49 C.F.R. Part 40. The regulations also require that the testing for drugs be done by urine specimen, which is sent to a laboratory. Id. The laboratory communicates the result of the test to Con-way's medical review officer (MRO), and not directly to Con-way. Id. If the result is negative, meaning no illegal drugs were found, the result is communicated to the MRO, who advises Con-way that the test was negative. Id. If the result is positive, or if the specimen has been tampered with, the laboratory informs the MRO, who contacts the employee to determine if there is some valid medical reason for the result. Id. The MRO then determines if the test should be ruled negative if there was a valid medical reason, or positive if there was not, and communicates only the final result to Con-way. Id.
In the event that the employee completely fails to provide a urine specimen, it is typically treated as a refusal to test. The employee has three hours from the time the test begins to produce the sample, and is urged to drink up to forty ounces of fluid to facilitate the process. 49 C.F.R. § 40.193. If the employee ultimately fails to produce a sufficient sample, it is provisionally considered a refusal. Id. From that point, the employee has five days to be evaluated by a licensed physician who is acceptable to the MRO. Id. The physician then sends his findings to the MRO, who determines if there was a valid medical excuse for the refusal. Id. If so, the MRO communicates to Con-way that the test was negative; if not, the MRO informs Con-way that the failure to test was simply a refusal. In the event of a verified refusal, Con-way is required to remove the employee from safety-sensitive duties. 49 C.F.R. § 382.211; 49 C.F.R. § 382.107.
Con-way's policy throughout Jones' term of employment was to discharge employees who had verified positive results or who were verified refusals. (Frayer Decl. ¶ 8). Con-way made limited exceptions in states where employers were required to give employees a "last chance" before termination, but Con-way understands that North Carolina has no such policy. ( Id. ) Jones was first tested when she was hired in February 2007, and tested negative. (Declaration of Joni McCurdy ¶ 9). She was selected again in January of 2010 and tested negative then as well. ( Id. ) Jones was again tested in March 2011, and while it took her the full three hours to produce a specimen, she tested negative again. (Declaration of Aaron Mills ¶ 6). On August 11, 2011, Jones was selected for testing once more and was unable to produce a urine specimen within the three-hour window. ( Id. ¶¶ 8-10). As required by DOT regulations, Con-way arranged for Jones to be evaluated by a physician within the five-day window. (Frayer Decl. ¶¶ 11-13). The following day, the MRO told Con-way that Jones was a verified "refusal, " indicating that she had no valid medical excuse for failing to produce the specimen. ( Id. ¶ 14). On August 23, 2011, Con-way terminated Jones' employment. ( Id. )
Jones timely filed a charge of discrimination with the EEOC on December 20, 2011 alleging violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) and received a Right to Sue notice on September 25, 2012. Plaintiff also received a Right to Sue notice from the North Carolina Department of Labor on July 2, 2012. On September 28, 2012, Jones filed suit against Con-way, alleging causes of action for violations of Title VII, the ADA, the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), the North Carolina Wage and Hour Act (NCWHA), the North Carolina Retaliatory Employment Discrimination Act (REDA), Wrongful Discharge, and Negligent Infliction of Emotional Distress. ( See Doc. No. 1 Ex. B). On August 20, 2013, with leave of the Court, Jones filed an Amended Complaint, adding claims for negligence and defamation (Doc. No. 40). After a period of discovery, Con-way filed the instant Motion on August 15, 2013 (Doc. No. 37). This matter is now ripe for disposition.
IV. LEGAL STANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 47 U.S. 242, 248 (1986). The mere existence of a scintilla of evidence in support of the non-movant's position is not sufficient to establish a genuine dispute. Id. at 252. A material fact affects the outcome of the suit under the applicable substantive law. See id. at 248. When determining whether a dispute is genuine or a fact is material, courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion. Scott v. Harris , 550 U.S. 372, 378 (2007). Unsupported speculation, however, is insufficient to defeat a motion for summary judgment. Evans v. Techs. Applications & Serv. Co. , 80 F.3d 954, 960 (4th Cir. 1996).
The crux of Jones' claims stems from allegations that Con-way discriminatorily or retaliatorily selected her for drug tests and denied her a number of accommodations for an alleged "shy bladder" condition. As discussed below, the Court finds that these contentions are meritless.
A. Failure to Accommodate under the ADA
Jones' first cause of action is based both on Title VII and the ADA, and the Court will address them separately. Jones' ADA claim is premised on the assertion that she has a disability within the meaning of the ADA because she suffers from "shy bladder." Thus, she reasons, she was entitled to a number of accommodations including testing by alternate means, being allowed multiple attempts to test, being given more than five days to get an evaluation, or being ...