Polak v. Sterilite Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANTHONY POLAK, §

§

Plaintiff, §

§ Civil Action No. 3:19-CV-2972-D

VS. §

§

STERILITE CORPORATION, §

§

Defendant. §

MEMORANDUM OPINION

AND ORDER

This suit brought under the Americans with Disabilities Act of 1990 (“ADA”), 42

U.S.C. § 12101 et seq., arises from a positive random drug test that resulted in the plaintiff’s

termination and from the defendant’s failure to rehire the plaintiff. The court must decide

whether the plaintiff has raised a genuine issue of material fact that precludes summary

judgment on his discrimination and retaliation claims. Concluding that he has not, the court

grants defendant’s motion for summary judgment and dismisses this action with prejudice

by judgment filed today.

I

Defendant Sterilite Corporation (“Sterilite”) is a company that produces various

plastic products using injection molding.1 From September 2002 until April 2019, plaintiff

1In deciding Sterilite’s motion for summary judgment, the court views the evidence

in the light most favorable to Polak as the summary judgment nonmovant and draws all

reasonable inferences in his favor. See, e.g., Owens v. Mercedes-Benz USA, LLC, 541

F.Supp.2d 869, 870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l Ass’n v.

Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).

Anthony Polak (“Polak”) worked at Sterilite’s Ennis, Texas plant. At the time of his

termination, Polak was employed as an assistant supervisor.

Sterilite maintains a Substance Abuse Policy (“Policy”) that applies to all employees.

The Policy, inter alia, prohibits “[a]ny use of drugs which are illegal under federal or state

law, whether on or off Sterilite time, if the use results in drugs being present in an

employee’s system while at work.” D. App. 55. It provides for post-accident drug and

alcohol testing, for testing “if there is a reasonable suspicion of employee impairment while

on Sterilite’s premises or during the hours of employment based on specific facts and

rational[] inferences,”2 and for “[r]andom testing, as allowed by state or local statute, at

periodic intervals to maintain safety and productivity.” Id. at 56.

Under the heading “Testing Procedures,” the Policy states that “Sterilite will use a

variety of testing methods . . . [which] may include urinalysis, saliva, hair follicle and breath

or blood alcohol,” id.; that “urinalysis or saliva testing are the preferred methods of testing,”

2Under the Policy,

specific facts and rational[] inferences . . . may include, but are

not limited to observations concerning the appearance, behavior,

speech, or body odors of the employee. For example,

reasonable suspicion determinations may be indicated by,

among other things, the smell of alcohol, decreased cognitive

function, slurred speech, bloodshot eyes, pinpoint or dilated

pupils, impairment of coordination, changes in personality,

erratic behavior, disorganized speech patterns, and if the

employee statement does not rationally explain what was

observed.

D. App. 56.

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id.; and that “Sterilite will use urinalysis to test for drug abuse,” id. at 57. In cases where

saliva testing is used, the Policy provides:

Sterilite at any time may utilize rapid oral testing swabs. The

Occupational Health Nurse will administer the test and collect

the specimen following the guidelines in appendix A and submit

presumptive the positive specimen samples and chain of custody

forms to third party laboratory. A third party service may also

be utilized for saliva rapid testing.

Id.

Under the Policy, an employee who tests positive for illegal drugs “will be subject to

disciplinary action, up to and including termination.” Id. Nevertheless,

[e]mployees are entitled, upon written request to Sterilite, to

obtain a copy of their test results. Employees are also entitled,

upon request, to explain in a confidential setting their positive

test results with a designated Sterilite representative. An

employee may request to have a confirmed positive saliva or

urine sample retested by another certified lab at their own

expense.

Id. at 58.

On March 26, 2019 Polak and five other employees were randomly selected for drug

testing. Sterilite used the saliva-testing method. With a swab, Polak swabbed his own cheek

and under on his tongue, placed the swab in a vial and sealed it, and placed the vial in an

envelope that he also sealed. Polak returned to his work following the drug test and

continued to work until April 1, 2019.

Sterilite submitted Polak’s saliva to Quest Diagnostics (“Quest”), a third-party lab,

to perform an enzyme immunoassay (also referred to as a “rapid test”). Sterilite maintains

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that, when the sample tested positive for THC3 using the rapid test, Quest tested the sample

again using gas chromatography and mass spectrometry to confirm the results.4

On March 31, 2019 Quest allegedly contacted one of Sterilite’s Human Resources

Managers, Ada Jack (“Jack”), and requested that Jack have Polak contact Quest’s Medical

Review Officer (“MRO”). Polak contacted the MRO, who informed Polak that his saliva

sample had tested positive for THC.

The following day, Jack received Polak’s positive drug test results and discussed them

with him over the telephone. Polak told Jack that he had not used marijuana in over 30 years.

Polak requested to speak with a Sterilite representative about the positive test result, but no

one whom he contacted responded. Polak maintains that he was never given a copy of his

positive test result. Sterilite terminated Polak’s employment on April 1, 2019, allegedly

because Jack believed that Polak had violated the Policy.5

3Tetrahydrocannabinol.

4Polak contends that he was notified of only one test, not a confirmatory second test,

and that, when he sought employment benefits, Sterilite did not offer evidence of a

confirmatory second test. Polak also objects under Fed. R. Evid. 801 and 403 and moves to

strike Sterilite’s evidence that it obtained a confirmatory test of Polak’s saliva sample.

Because the court does not rely on evidence of a confirmatory second test in granting

Sterilite’s motion for summary judgment, it denies Polak’s motion to strike this evidence as

moot.

5Polak objects to Sterilite’s evidence that Polak violated the Policy and that his

employment was terminated on that ground. He maintains that this is improper lay opinion

testimony that violates Fed. R. Evid. 701. The court disagrees and overrules this objection.

Rule 701 provides:

[i]f a witness is not testifying as an expert, testimony in the form

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On April 5, 2019 Polak took a hair follicle drug test at LabCorp, a different third-party

lab. He sent the test results to Jack and to Sterilite’s occupational health nurse, the Vice

President of Human Resources, the Ennis facility plant manager, and the Sterilite corporate

Human Resources Manager. Sterilite maintains that Polak’s April 5, 2019 test did not

comply with the Policy and that Sterilite did not reinstate Polak upon receipt of the hair

follicle test because Polak did not follow the proper procedures for obtaining a retest of a

confirmed positive sample.

of an opinion is limited to one that is: (a) rationally based on the

witness’s perception; (b) helpful to clearly understanding the

witness’s testimony or to determining a fact in issue; and (c) not

based on scientific, technical, or other specialized knowledge

within the scope of Rule 702.

Jack, a Sterilite Human Resources Manager, and Richard Murphy (“Murphy”), Sterilite’s

Vice President of Human Resources, both testified on the basis of their personal knowledge

that Sterilite terminated Polak’s employment based on a belief that he had violated the

Policy. Neither Jack’s nor Murphy’s testimony is prohibited by Rule 701 because each

testified based on personal knowledge that this is the reason Sterilite terminated Polak’s

employment. See, e.g., Everett Fin., Inc. v. Primary Residential Mortg., Inc., 2018 WL

2441829, at *3 (N.D. Tex. May 31, 2018) (Fitzwater, J.) (Under Rule 701, “the witness must

have personalized knowledge of the facts underlying the opinion and the opinion must have

a rational connection to those facts.” (citing Tex. A&M Research Found. v. Magna Transp.,

Inc., 338 F.3d 394, 403 (5th Cir. 2003))). Neither Jack nor Murphy was offering an opinion

about why Sterilite terminated Polak’s employment.

Nor does this testimony violate Fed. R. Evid. 1002. Polak posits that the best

evidence of the reason for Polak’s termination is the Policy itself, which does “not even

recogniz[e] termination as an option for a positive marijuana test, and [does not] dictat[e]

termination for a positive drug test under a variety of circumstances.” P. Mot. Strike 2.

Polak appears, however, to misunderstand the best evidence rule. Rule 1002 provides that

“[a]n original writing, recording, or photograph is required in order to prove its content

unless these rules or a federal statute provides otherwise.” Sterilite is not attempting to prove

the content of the Policy; it is offering deposition testimony explaining why Sterilite

terminated Polak’s employment, which does not violate (or even implicate) Rule 1002.

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After Polak exhausted his administrative remedies, he filed the instant suit against

Sterilite. In his amended complaint, he alleges claims under the ADA for discrimination “on

the basis that he was regarded as disabled,” Am. Compl. ¶ 11, and for retaliation.

Sterilite moves for summary judgment on all of Polak’s claims. Polak opposes the

motion. The court has heard oral argument.6

II

When a party moves for summary judgment on claims on which the opposing party

will bear the burden of proof at trial, the moving party can meet its summary judgment

obligation by pointing the court to the absence of admissible evidence to support the

nonmovant’s claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the

moving party does so, the nonmovant must go beyond his pleadings and designate specific

facts showing there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence

is such that a reasonable jury could return a verdict in the nonmovant’s favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant’s failure to produce proof

as to any essential element of a claim renders all other facts immaterial. See TruGreen

Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.).

Summary judgment is mandatory if the nonmovant fails to meet his burden. Little, 37 F.3d

at 1076.

6Polak requested oral argument, which the court granted.

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III

The court turns first to Polak’s ADA discrimination claim.

A

The ADA mandates 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). To prevail on his

discrimination claim, Polak must present direct or circumstantial evidence that his disability

or perceived disability was the reason for Sterilite’s adverse employment action. See, e.g.,

Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999). “Direct evidence is evidence that,

if believed, proves the fact of discriminatory animus without inference or presumption.”

West v. Nabors Drilling USA, Inc., 330 F.3d 379, 384 n.3 (5th Cir. 2003) (quoting Sandstad

v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)) (age discrimination case). “If

an inference is required for the evidence to be probative as to [defendant’s] discriminatory

animus in firing [plaintiff], the evidence is circumstantial, not direct.” Sandstad, 309 F.3d

at 897-98.

When a plaintiff does not present direct evidence of discrimination, the court applies

the modified McDonnell Douglas7 paradigm. See Seaman, 179 F.3d at 300 (holding that

McDonnell Douglas framework, which is used in Title VII cases, applies to ADA cases when

7McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

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only circumstantial evidence of discrimination is offered). As modified, the McDonnell

Douglas framework consists of three stages. First, Polak must establish a prima facie case

of discrimination, which “creates a presumption that [Sterilite] unlawfully discriminated

against [him].” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). To

establish a prima facie case of discrimination based on a disability under the ADA, Polak

must show that (1) he suffers from a disability or is regarded as disabled; (2) he is qualified

for the job despite the disability; (3) he was subjected to an adverse employment action due

to his disability; and (4) he was replaced by a non-disabled person or treated less favorably

than nondisabled employees. See, e.g., Milton v. Tex. Dep’t of Crim. Justice, 707 F.3d 570,

573 (5th Cir. 2013) (quoting Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir.

1995)).

Second, if Polak establishes a prima facie case, the burden shifts to Sterilite to

articulate a legitimate, nondiscriminatory reason for the employment actions taken against

him. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). Sterilite’s burden

is one of production, not proof, and involves no credibility assessments. See, e.g., West, 330

F.3d at 385.

Third, if Sterilite meets its production burden, Polak must show that the legitimate

reasons proffered by Sterilite “were not its true reasons, but were a pretext for

discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (quoting

Burdine, 450 U.S. at 253); see also EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615

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(5th Cir. 2009).8 Therefore, to survive summary judgment, Polak must “offer sufficient

evidence to create a genuine issue of material fact . . . that [Sterilite’s] reason is not true, but

is instead a pretext for discrimination.” Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312

(5th Cir. 2004) (internal quotation marks and citation omitted) (describing standard in context

of age discrimination case).

“Although intermediate evidentiary burdens shift back and forth under this

framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all times with the plaintiff.’”

Reeves, 530 U.S. at 143 (alteration in original) (quoting Burdine, 450 U.S. at 253).

B

The court first considers Polak’s argument that there is direct evidence of

discrimination “since Defendant explicitly terminated him for a positive drug test result,

representing, based on Defendant’s drug testing policy, a perception of him as disabled . . .

even though, under the circumstances, he was erroneously so regarded[.]” P. Br. 21. Polak

contends that his termination on the basis of a positive drug test constitutes direct evidence

8As this court has previously observed, it is unclear whether the mixed-motive

alternative to rebutting a defendant-employer’s proffered legitimate reason is still viable in

ADA discrimination cases after the Supreme Court’s decision in Gross v. FBL Financial

Services, Inc., 557 U.S. 167, 175 (2009) (holding that mixed-motives theory is unavailable

under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.). See

Bennett v. Dall. Indep. Sch. Dist., 936 F.Supp.2d 767, 776 n.6 (N.D. Tex. 2013) (Fitzwater,

C.J.). But the court need not decide in this case whether a mixed-motive argument is

available under the ADA because, assuming arguendo that it is, Sterilite is still entitled to

summary judgment. See infra note 14.

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of discrimination because the reason for the termination was tied directly to the Policy,

“explicitly based, as it is, on Defendant’s perception of disability associated with positive

drug test results and thus related to the protected class of persons of whom Plaintiff was a

member, those perceived to be disabled based upon the receipt of a positive drug test,” id. at

22; because the termination based on a positive drug test was contemporaneous, not merely

close in time; and because the justification for termination was given by the exclusive

decisionmaker with respect to Polak’s termination.

The court holds that Polak has not presented direct evidence of discrimination. Polak

has failed to produce any evidence that anyone at Sterilite regarded him as disabled or

believed that he was substantially limited in any major life activity. And for the reasons

discussed below, see infra § III(C), given the undisputed evidence that Polak was not

selected for reasonable suspicion drug testing, he cannot rely on the Policy’s provisions

relating to reasonable suspicion drug and alcohol testing to support his argument that he was

regarded as disabled. Polak’s termination based on the results of a random drug test does

not, under the circumstances, constitute direct evidence of discrimination.

C

Having concluded that Polak has not presented direct evidence of discrimination, the

court next applies the McDonnell Douglas burden-shifting framework. The court first

considers whether Polak has established a prima facie case of discrimination under the ADA.

1

Sterilite maintains that Polak cannot establish an essential element of his prima facie

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case: that he was regarded as disabled.

Polak responds, inter alia, that, under the 2008 amendments to the ADA, an employee

need only demonstrate that he was subjected to an action prohibited by the ADA “because

of actual or perceived physical or mental impairment regardless of whether the impairment

limits or is perceived to limit a major life activity,” P. Br. 25, and that he has submitted ample

summary judgment evidence that Sterilite’s Policy assumed the existence of an impairment

substantially limiting him based on a positive drug test alone. Polak maintains that his denial

of marijuana use and subsequent negative drug test raise a triable issue of fact as to his

protected status under the ADA; that Sterilite has admitted that its Policy is based on a desire

to avoid having employees who test positive remain working for it because Sterilite equates

a positive drug test to a disability even if the employee denies using illegal drugs and the test

result is a false positive; that Sterilite’s representatives justify the Policy based on a fear that

those using illegal drugs will be substantially impaired in major life activities or major bodily

functions; and that the Policy “not only assumes, but treats, an employee receiving a positive

test as disabled, and that is sufficient to call for a determination that [Polak] may pursue a

claim of wrongful discriminatory termination precisely because he was terminated solely on

the basis of a policy that regarded him as disabled,” id. at 30.

Sterilite argues in reply that there is no evidence that Jack (the decisionmaker)

“regarded” him as having any kind of impairment; that Polak’s “regarded as” argument relies

on the reasonable suspicion testing provision of the Policy, but that there is simply no basis

to assume that because reasonable suspicion testing may have been indicated under the

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Policy by any listed factors, Sterilite’s decisionmakers believed that someone who was

randomly selected for testing, and tested positive for marijuana, would in every instance have

the reasonable suspicion factors on a non-transitory and non-minor basis; that, by Polak’s

own argument, “whatever issue was present when he tested positive for marijuana on March

26, 2019, was no longer present when he had a new sample tested ten days later [and]

accordingly, any perceived disability would have been, by the ADA’s definition, transitory,”

Reply 10; that to the extent Polak relies on the list of indicators for reasonable suspicion

testing under the Policy, he does not allege which, if any, impairments Sterilite perceived him

to have; and that all of the relevant testimony supports the fact that no one at Sterilite

perceived or believed Polak to have any impairment whatsoever, nor did they believe him

to be addicted to drugs.

2

The ADA defines disability as: “(A) a physical or mental impairment that

substantially limits one or more major life activities of such individual; (B) a record of such

an impairment; or (C) being regarded as having such an impairment[.]” 42 U.S.C. §

12102(1). Under the 2008 amendments to the ADA, an individual is “regarded as” disabled

when he is perceived as having a physical or mental impairment, regardless of whether the

impairment actually exists or is perceived to limit a major life activity. Id. § 12102(3)(A).

Although the ADA excludes from the definition of qualified individual with a

disability “any employee or applicant who is currently engaging in the illegal use of drugs,”

it does not exclude an individual who “is erroneously regarded as engaging in such use, but

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is not engaging in such use.” 42 U.S.C. § 12114(a), (b)(3). The erroneous perception that

an employee is an illegal drug user, however, is to be treated like any other perception of a

disability, and is only to be considered a qualifying disability if the employer perceives the

employee to have a physical or mental impairment as a result. See, e.g., Vestal v. Heart of

CarDon, LLC, 2018 WL 3008638, at *9 (S.D. Ind. June 15, 2018) (“[A]s the statutory text

and case law indicate, the erroneous perception of drug use is relevant only as an exception

to the rule that current illegal drug use is not a qualifying disability. [Plaintiff] must still

demonstrate that [her employer] regarded her as having an impairment due to drug usage.”);

Bailey v. Real Time Staffing Servs., Inc., 927 F.Supp.2d 490, 499 (W.D. Tenn. 2012) (“While

[an employee erroneously regarded as engaging in current drug use] is not excluded from the

protection of the ADA, an employee is not automatically protected or a ‘qualified person

with a disability’ when the employer makes such an erroneous determination[.] The

employee must still satisfy the statutory definitions in order to proceed under the ADA.”

(citations omitted)), aff’d, 543 Fed. Appx. 520 (6th Cir. 2013); E.E.O.C. v. Exxon Corp., 973

F. Supp. 612, 613-14 (N.D. Tex. Aug. 11, 1997) (Sanders, J.) (“An individual who falls

under one of the subcategories of 42 U.S.C. § 12114(b) is not automatically a ‘qualified

individual with a disability’ for purposes of protection under the ADA. Rather, plaintiffs

must prove they suffer from a ‘disability’ as that term is defined in [the statute].” (citations

omitted)). As one district court explained,

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an erroneous belief about drug use will only be a qualifying

disability if the employer regarded the perceived drug use as an

impairment and took action against the employee because of that

perceived impairment. It is not enough that the employer

perceived the employee to simply be an illegal drug user to

receive ADA protection; perceiving someone as having an

impairing substance abuse problem is very different from

perceiving them to be a casual or recreational drug user.

Bailey, 927 F.Supp.2d at 499-500 (footnote and citations omitted). In other words, the

erroneous perception that an employee is an illegal drug user is insufficient of itself to

establish a “disability” under the ADA. The individual must also show that his employer

regarded him as having a physical or mental impairment due to his drug usage9 and took

action against him because of that perceived impairment.

3

Polak has failed to adduce any evidence that anyone at Sterilite perceived that he had

a physical or mental impairment due to his drug use or terminated his employment based on

such a perception. He maintains that Jack “was the exclusive decisionmaker with respect to

[his] termination,” P. Br. 22, but he does not point to any proof, nor does he argue, that Jack

9Prior to the 2008 amendments, an employee had to demonstrate that the employer

perceived the drug use as substantially limiting a major life activity. See, e.g., Nielsen v.

Moroni Feed Co., 162 F.3d 604, 610 (10th Cir. 1998) (“[T]he erroneous perception of being

an illegal drug user is to be treated like any other perception of a disability, and is only to be

considered a qualifying disability if the employer perceives the disability to substantially

limit a major life activity.”). The 2008 amendments, however, broadened the “regarded as”

definition for disability under 42 U.S.C. § 12102(1)(C). An employee need now demonstrate

only that he was subjected to an action prohibited by the ADA because of actual or perceived

physical or mental impairment, regardless of whether the impairment limits or is perceived

to limit a major life activity. 42 U.S.C. § 12102(3)(A).

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ever perceived him to be physically or mentally impaired. In fact, Jack testified during her

deposition that Polak was randomly selected for a drug test and “was not test[ed] . . . for drug

abuse,” P. App. 116; that she did not think Polak was a marijuana user or marijuana abuser10;

that although, in some instances, she had directed Sterilite employees to call the Employee

Assistance Program for substance abuse, she did not direct Polak to do this; and that Polak

was permitted to return to work after his drug test because “[i]t was a random drug test” and

Jack “didn’t have any reason to think that [Polak] would be unsafe,” id. at 124. The evidence

on which Polak relies permits only the reasonable inference that Jack did not believe that

Polak was physically or mentally impaired either before or after the random drug test and that

her sole reason for terminating his employment was because she believed that he had

received a positive drug screen for marijuana, in violation of the clear terms of the Policy.

Polak maintains that the Policy “equates a positive drug test to a disability (defined

by Defendant itself both in its drug testing policy and through its witnesses to consist of the

risk of having employees with a substantial impairment of major life activities and bodily

functions),” P. Br. 28, and that Sterilite regarded Polak as disabled because the Policy

assumes that an employee using marijuana is disabled. See id. at 30 (arguing that the Policy

“clearly not only assumes, but treats an employee receiving a positive test as disabled, and

10Polak objects to this evidence under Fed. R. Evid. 701 and 1002. But whether Jack

regarded Polak as a drug user or abuser is a fact question about which Jack has personal

knowledge. It is a question that is distinct from whether Jack had, and was offering, the

opinion that Polak was in fact drug user or abuser. The court therefore overrules Polak’s

objections. See supra note 5.

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that is sufficient to call for a determination that Plaintiff may pursue a claim of wrongful

discriminatory termination precisely because he was terminated solely on the basis of a

policy that regarded him as disabled.”). The court disagrees that the Policy regards as

“disabled” an employee who fails a random drug test.

The Policy states that its purpose is “to promote a healthy, safe and productive

workplace for all employees.” D. App. 55. To this end, the Policy prohibits, inter alia,

“[a]ny use of drugs which are illegal under federal or state law, whether on or off Sterilite

time, if the use results in drugs being present in an employee’s system while at work.” D.

App. 55. The Policy explicitly permits drug testing “if there is a reasonable suspicion of

employee impairment while on Sterilite’s premises or during the hours of employment based

on specific facts and rational[] inferences,” including “observations concerning the

appearance, behavior, speech, or body odors of the employee” or, for example, “the smell of

alcohol, decreased cognitive function, slurred speech, bloodshot eyes, pinpoint or dilated

pupils, impairment of coordination, changes in personality, erratic behavior, [or]

disorganized speech patterns.” Id. at 56. The Policy also permits random testing, which by

its very nature is not based on reasonable suspicion of employee impairment. Id. It is

undisputed that Polak was selected for random testing, not reasonable suspicion testing, and

there is no evidence that anyone at Sterilite harbored “a reasonable suspicion” that Polak was

impaired while on Sterilite’s premises.

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Polak contends that Sterilite, through its witnesses,11 has admitted “that its entire drug

testing policy is based on a desire to avoid having employees who test positive remaining

working for it because it equates a positive drug test to a disability,” and that Sterilite

justifies the Policy “based precisely on its fear that those using illegal drugs will be

substantially impaired in major life activities or major bodily functions, including

neurologically and otherwise.” P. Br. 28. The court again disagrees. Although, as described

above, the Policy does provide for reasonable suspicion testing in the event that a Sterilite

employee appears to be physically or mentally impaired as a result of using drugs, it also

permits random testing “to maintain safety and productivity.” D. App. 56. Sterilite’s

apparent conclusion that the presence of illegal drugs in an employee’s system is inconsistent

with its goal of maintaining safety and productivity does not, without more, support the

reasonable finding that Sterilite’s decisionmakers regarded Polak as having a physical or

mental impairment as a result of his alleged drug use or that they terminated Polak’s

employment on this basis.

Accordingly, the court concludes that Polak has failed meet his prima facie burden

with respect to the first element, i.e., that he was regarded as disabled.

11Murphy’s deposition testimony does not support the reasonable finding that the

Policy regarded Polak as disabled. Murphy testified that the presence of marijuana in an

individual’s system “can impair [him] in any number of ways,” but he also stated that “a

trace amount in the system would not necessarily equate to impairment,” P. App. 149, and

that Polak was tested for drugs on March 26, 2019 as “part of a random test.” Id. at 150.

Nothing in the cited portions of Murphy’s deposition supports the reasonable finding that

Murphy, Jack, or any other Sterilite employee regarded Polak as impaired.

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D

Even assuming arguendo that Polak could make a prima facie showing with respect

to his ADA discrimination claim, the court would nevertheless grant Sterilite’s motion for

summary judgment because Sterilite has met its production burden of articulating a

legitimate, nondiscriminatory reason for Polak’s termination, and Polak has not created a

genuine issue of material fact on the issue of pretext.

1

Sterilite has adduced evidence of a legitimate, nondiscriminatory reason for

terminating Polak’s employment: that Polak failed a random drug test, in violation of the

Policy. See, e.g., Kitchen v. BASF, 952 F.3d 247, 253 (5th Cir. 2020) (“apparent positive

results of [plaintiff’s] alcohol test and violation of company policy” constituted legitimate,

nondiscriminatory reason for discharging plaintiff). Because Sterilite has met its burden of

production, the burden shifts back to Polak to present evidence that would enable a

reasonable trier of fact to find that Sterilite’s reason is pretextual.

2

Polak maintains that there is a genuine issue of material fact at to whether Sterilite’s

stated basis for his termination is pretextual. He contends that his denial of the use of

marijuana and the presentation of a negative drug test raise an issue of fact on the falsity of

Sterilite’s reason for his termination; that Sterilite’s own multiple significant violations of

the Policy support an inference of pretext; that the lack of documentation of any basis for

Sterilite’s departing from its own drug testing policy in regard to the testing method used

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(saliva instead of urine), especially when hair follicle testing is conclusive, is additional

evidence of pretext; that the speed with which a decision was made to terminate Polak’s

employment constitutes “effective predetermination of the issue of Plaintiff’s termination

based upon his being regarded as disabled,” P. Br. 39; and that Sterilite’s “non-

communication” with Polak even after he sought to communicate regarding his positive test

both before and after his termination “reflects that Defendant was not willing to stand behind

the stated reason for termination or address it with him as required by the governing drug

testing policy, and thereby constitutes additional evidence of pretext,” id.

Sterilite argues in reply that Polak has failed to present any evidence that the decision

to terminate his employment was motivated by unlawful discriminatory animus; that Polak’s

complaints about Sterilite’s drug-testing process do not show discriminatory intent; that

Polak has failed to provide any admissible scientific or medical evidence in support of his

contention that the March 26, 2019 test returned a “false positive”; that evidence that Polak

tested negative in a subsequent test is not evidence that his saliva sample taken ten days

earlier was negative for discernible amounts of marijuana; that even if Polak’s saliva test did

return a false positive, the evidence consistently demonstrates that Sterilite believed that

Polak had tested positive and its decision to terminate Polak’s employment was based on that

belief; and that Polak has not adduced any evidence that any employee of Sterilite ever

expressed animus toward him or any disabled person and offers no evidence that any other

employee (disabled or not) was ever permitted to remain employed under nearly identical

circumstances.

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3

It is undisputed that the Policy prohibits “[a]ny use of drugs which are illegal under

federal or state law, whether on or off Sterilite time, if the use results in drugs being present

in an employee’s system while at work,” D. App. 55; that under the Policy, any employee

who tests positive for illegal drugs “will be subject to disciplinary action, up to and including

termination,” id. at 57 (emphasis added); and that Polak’s March 26, 2019 random drug test

returned a positive result. It is also undisputed that Sterilite had a practice of terminating the

employment of any employee who failed a drug test.12 Polak has failed to point to any

evidence that would permit a reasonable trier of fact to find that Sterilite’s proffered reason

for terminating his employment—i.e., Jack’s belief, based on the positive random drug test,

that Polak had violated Sterilite’s Policy—is not its real reason but is, instead, a pretext for

disability discrimination.

Neither Polak’s denial of marijuana use nor his presentation of a negative drug test

creates a genuine issue of material fact on the issue of pretext. “[U]nder the McDonnell

Douglas framework, a plaintiff cannot prove that an employer’s proffered reason is

pretextual merely by disputing the truth of the underlying facts for that reason.” Haverda v.

Hays Cty., 723 F.3d 586, 596 n.1 (5th Cir. 2013) (addressing retaliation); see also, e.g.,

12Polak objects under Rules 1002 and 403 to Jack’s testimony that it was Sterilite’s

standard practice to terminate employees who tested positive for drugs. For the reasons

explained supra in footnotes 5 and 10, the court overrules the objection. Neither Rule 1002

nor Rule 403 prohibits Sterilite from offering Jack’s testimony, based on personal

knowledge, as evidence of Sterilite’s practice with regard to Policy violations.

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Kitchen, 952 F.3d at 253 (“The focus of the pretext inquiry is not whether the alcohol test

was accurate but whether BASF reasonably believed its non-discriminatory reason for

discharging Kitchen and then acted on that basis.”); Arrieta v. Yellow Transp., Inc., 2008 WL

5220569, at *9 (N.D. Tex. Dec. 12, 2008) (Fitzwater, C.J.) (“The inquiry is not whether [the

plaintiff] actually committed the alleged infraction, but whether [the employer] believed that

he had and based its decision to discharge him on that belief” (citation omitted)), aff’d sub

nom. Hernandez v. Yellow Transp., Inc., 670 F.3d 644 (5th Cir. 2012). Instead, “a plaintiff

must offer evidence to support an inference that the employer had a [discriminatory] motive,

not just an incorrect belief.” Haverda, 723 F.3d at 596 n.1. Here, Polak merely disputes the

facts underlying his termination. He denies having used marijuana and presents evidence

that an independent hair follicle test returned a negative result. But a plaintiff’s “self-serving

statements that he did not commit [the underlying act] are insufficient to create a triable issue

of fact[.]” Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010). Polak has

failed to provide any evidence that would enable a reasonable trier of fact to find that Sterilite

did not reasonably believe its non-discriminatory reason for discharging him. See Kitchen,

952 F.3d at 253.

Nor does Sterilite’s alleged violation of its own policy raise a genuine issue of

material fact on the question of pretext.13 As a preliminary matter, the court disagrees that

13Polak contends that Sterilite violated the Policy by failing to provide him the

opportunity to raise an issue of the validity of the saliva testing method or evidence of

tampering; by using a saliva test when the Policy dictates a urine test; by failing to obtain a

confirmatory test after an initial rapid results positive test; by terminating Polak when the

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Polak has adduced evidence sufficient to permit a reasonable jury to find that Sterilite

violated the Policy with respect Polak’s random drug test or termination. Although the

Policy states that “Sterilite will use urinalysis to test for drug abuse,” D. App. 57 (emphasis

added), it explicitly permits saliva testing where, as here, no drug abuse is suspected but,

rather, the employee is randomly tested, see id. at 56 (providing that “Sterilite will use a

variety of testing methods . . . [which] may include urinalysis, saliva, hair follicle and breath

or blood alcohol,” and that “urinalysis or saliva testing are the preferred methods of

testing.”). The Policy also clearly permits the termination of any employee who tests

positive for illegal drugs. See id. at 57. To the extent that Polak contends that he was not

given a sufficient opportunity to challenge or explain his positive test results, the summary

judgment evidence permits only the reasonable inference that Jack and Polak spoke over the

telephone and in person regarding his test results; that Polak told Jack he had not used

marijuana in over 30 years; and that Jack told Polak that he could challenge the results of his

drug test by filling out a chain-of-custody form and calling the number on that form. But

even assuming arguendo that Sterilite failed to follow its own Policy with regard to Polak’s

random drug test or termination, such a failure, without more, would not enable a reasonable

jury to find pretext. See, e.g., Davis v. RealPage, Inc., 2020 WL 1325201, at *13 (N.D. Tex.

Mar. 20, 2020) (Fitzwater, J.) (“[A]ssuming arguendo that [the employer] failed to follow

Policy does not dictate termination; by failing to provide Polak a copy of his test result or

testable sample of his saliva even after he requested a sample; and by not allowing Polak to

explain in a confidential setting his positive test result.

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its own procedures and did not document [the employee’s] poor performance, such failures,

without more, do not demonstrate pretext”).

The only other evidence on which Polak relies to establish pretext is the close

temporal proximity between the positive drug test result and his termination, and the fact that

various upper-level employees of Sterilite refused to communicate with him after his

termination. This evidence, however, is insufficient, without more, to create a genuine issue

of material fact on the question of pretext. As explained above, “[t]he ultimate question is

whether the employer intentionally discriminated, and proof that ‘the employer’s proffered

reason is unpersuasive, or even obviously contrived, does not necessarily establish that the

plaintiff’s proffered reason is . . . correct.’” Reeves, 530 U.S. at 146-47 (alteration in

original) (quoting St. Mary’s Honor Ctr., 509 U.S. at 524). “In other words, ‘[i]t is not

enough . . . to disbelieve the employer; the factfinder must believe the plaintiff’s explanation

of intentional discrimination.’” Id. at 147 (alterations in original) (quoting St. Mary’s Honor

Ctr., 509 U.S. at 519). Here, not only has Polak failed to point to evidence that would permit

a reasonable jury to find that Sterilite’s proffered reason for its adverse employment action

is pretextual, he has also failed to introduce evidence that would permit a reasonable jury to

find the ultimate fact of discrimination based on physical or mental disability. See, e.g.,

Bailey v. Real Time Staffing Servs., Inc., 543 Fed. Appx. 520, 524 (6th Cir. 2013) (“Even if

the positive result was in fact false, an employer’s reliance on an erroneous result does not

create a claim under the ADA absent an independent showing that the real reason for the

firing was a disability.”). Polak has failed to adduce any evidence that any employee of

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Sterilite even regarded him as disabled, much less that he was terminated on that basis.

Accordingly, the court grants Sterilite’s motion for summary judgment dismissing

Polak’s ADA discrimination claim.14

IV

The court now turns to Polak’s retaliation claim, which is based on Sterilite’s alleged

failure to rehire him after he was terminated.15

14Polak maintains that he can show a genuine fact issue as to discrimination via the

mixed-motives alternative for overcoming Sterilite’s proffered legitimate, nondiscriminatory

reasons. He posits that “[g]iven the undisputed evidence that the drug testing policy of

Defendant was based on perceived disability associated with a positive drug test, summary

judgment is equally improper here given the availability of a [mixed-motives] theory of

liability.” P. Br. 43. The court disagrees.

Assuming that the mixed-motives argument is viable for an ADA discrimination

claim, Polak has failed to point to evidence that would enable a reasonable jury to find that

his disability was a motivating factor in any of Sterilite’s alleged adverse employment

actions. To be a motivating factor, discrimination “must actually play a role in the

employer’s decision making process and have a determinative influence on the outcome.”

Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (citation omitted). “Under a

mixed-motive framework [the defendant-employer] can defend against liability by showing

that it would have taken the same action in the absence of any alleged discriminatory

animus.” Crouch v. J C Penney Corp., 337 Fed. Appx. 399, 402 (5th Cir. 2009) (per

curiam); see also Leach v. Mansfield, 2010 WL 707382, at *5 (S.D. Tex. Feb. 24, 2010).

Even assuming that a reasonable jury could find that Sterilite (either through its human

resources employees or through the Policy) regarded Polak as disabled, Polak has failed to

adduce sufficient evidence from which a reasonable jury could find that Sterilite would not

have taken the same action, i.e., terminated his employment, based solely on the positive

random drug test.

15Although Polak’s response brief is somewhat unclear, his counsel clarified during

oral argument that he is relying only on Sterilite’s failure to rehire him—not his initial

termination—as the basis for his retaliation claim.

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A

The ADA provides that “[n]o person shall discriminate against any individual because

such individual has opposed any act or practice made unlawful by this chapter or because

such individual made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). Because

Polak relies on circumstantial evidence16 in support of his ADA retaliation claim, the court

proceeds under the McDonnell Douglas burden-shifting analysis. See Miller v. Metrocare

Servs., 2015 WL 477233, at *15 (N.D. Tex. Feb. 5, 2015) (Fitzwater, J.), aff’d, 809 F.3d 827

(5th Cir. 2016). “To establish a prima facie case of retaliation under the ADA . . . a plaintiff

must show that (1) [he] participated in an activity protected under the statute; (2) [his]

employer took an adverse employment action against [him]; and (3) a causal connection

exists between the protected activity and the adverse action.” Feist v. La. Dep’t of Justice,

Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013) (citing McCoy v. City of

Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007); Seaman, 179 F.3d at 301). “If the

employee establishes a prima facie case, the burden shifts to the employer to state a

legitimate, non-retaliatory reason for its decision. After the employer states its reason, the

16Polak states in his brief that “[a]rguably, Plaintiff has direct evidence of retaliation

in his favor, avoiding the need to establish a triable case of retaliation by circumstantial

evidence, given Defendant’s complete failure to respond to his efforts to have

communications with representatives of Defendant to avoid termination contrary to his own

practice and the practice of its representatives.” P. Br. 45. The court disagrees. Sterilite’s

failure to respond to Polak’s post-termination communications does not constitute direct

evidence of retaliation under the ADA because the trier of fact would be required to draw the

inference that the failure to respond was based on retaliatory animus.

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burden shifts back to the employee to demonstrate that the employer’s reason is actually a

pretext for retaliation,” LeMaire v. Louisiana, 480 F.3d 383, 388-89 (5th Cir. 2007) (internal

citation omitted), which the employee accomplishes by showing that the adverse action

would not have occurred “but for” the employer’s retaliatory motive, Seaman, 179 F.3d at

301. To avoid summary judgment, the plaintiff must show “a conflict in substantial

evidence” on the question whether the employer would not have taken the action “but for”

the protected activity. Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996) (citation and

internal quotation marks omitted).

B

The court will assume arguendo that Polak has made a prima facie showing of

retaliation based on Sterilite’s alleged failure to re-hire him after he disputed the results of

his random drug test. The burden of production therefore shifts to Sterilite to produce

evidence of a legitimate, non-retaliatory reason for failing to reinstate Polak’s employment

or re-hiring him after his termination. Sterilite has satisfied this obligation by producing

evidence that Polak did not make any demand for reinstatement or apply for a position after

his termination. The burden now shifts to Polak to raise a fact issue on whether retaliation

was the but-for cause of Sterilite’s failure to re-hire him.

In Polak’s brief, the entire pretext argument that he offers in support of his retaliation

claim is this: “For the reasons stated in Section IV(D) in connection with Plaintiff’s

discrimination claim, Plaintiff’s proof of pretext is also sufficient in the context of his

retaliation claim.” P. Br. 49. Section III (D), however, to which the court assumes Polak

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intends to refer, addresses only the question of pretext with respect to Polak’s termination.

Polak does not address pretext with respect to what he acknowledged at oral argument is the

basis for this claim: Sterilite’s failure-to-rehire him. See supra note 15. And he certainly

does not present sufficient evidence to enable a reasonable jury to find that the real reason

Sterilite did not reinstate him after his termination is because he disputed the results of his

positive drug test.17 In fact, although Polak challenges Sterilite’s argument that Polak never

requested reinstatement or applied for a position—see P. Br. 43 (“Plaintiff offers summary

judgment evidence that he sought to remain employed by communicating to numerous

representatives that he wanted to ‘resolve the issue’ and remedy the situation created by his

positive drug test, which could only mean retaining his employment.”)—Polak adduces no

evidence that, “but for” his disputing the results of his drug test, Sterilite would have re-hired

him.18

Accordingly, because Polak has failed to raise a genuine issue of material fact on the

question whether Sterilite’s proffered reason for failing to rehire him (i.e., he did not apply

17The court assumes arguendo that Polak engaged in protected activity, as required

to make out a prima facie case. The court expresses no opinion on whether Polak’s conduct

with respect to his positive drug test (i.e., telling Jack that he had not used marijuana in the

past 30 years, and attempting to communicate with various Sterilite employees after his

termination) constitutes “protected activity” under the ADA.

18To the extent that Polak also intends to bring an ADA discrimination claim based

on Sterilite’s failure to rehire him, this claim also fails for the reasons explained: i.e., Polak

has failed to adduce any evidence that Sterilite’s legitimate, nondiscriminatory reason for not

re-hiring him (because he did not apply for any position or request reinstatement) is a pretext

for disability discrimination.

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for any position or request reinstatement) is pretextual, the court grants Sterilite’s motion for

summary judgment as to Polak’s retaliation claim.

□□ * □□

For the reasons explained, the court grants Sterilite’s motion for summary judgment

and dismisses this action with prejudice by judgment filed today.”

SO ORDERED.

May 4, 2021.

SpNEt A. bP

SENIOR JUDGE

'°Polak’s January 29, 2021 motion to strike based on evidentiary objections in support

of response to defendant’s motion for summary judgment is denied in part on the merits and

denied in part as moot for the reasons explained in this memorandum opinion and order.

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