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Employee Believed To Have Tampered With Drug Test Cannot Prove Disability Discrimination

A federal district judge in Oregon ruled that a Boeing employee who was terminated from his employment for tampering with his drug test could not advance his claims for disability discrimination and retaliation past summary judgment.  The case, Kelly v. The Boeing Company (D. Or. Aug. 15, 2019), reaffirms the general principle that an employer is not liable for discrimination where it holds a good faith belief of a lawful basis for its termination, regardless of whether it is later revealed that that basis rests on a misunderstanding or factual mistake.

Employee Michael Kelly had been required by Boeing, pursuant to a Last Chance Agreement,  to submit to random periodic drug tests by providing urine samples. As part of the Agreement, Kelly acknowledged that a positive drug test, confirmed alcohol result, or refusal to test (which included tampering with a test) would be grounds for termination.

When a urine collection request was made of Kelly in January 2017, he initially provided a sample that was cold—a telltale sign of a fake sample.  After Kelly was asked to provide a second sample, a  test conductor observed Kelly picking up a tube with a blue lid containing a yellow liquid and quickly trying to conceal that tube up his shirt sleeve.  A second testing representative subsequently saw Kelly grab a tube with his left hand and pour liquid from the tube into the second testing cup.  Kelly was subsequently terminated for violating his Last Chance Agreement.

Kelly sued Boeing, alleging disability discrimination and retaliation, violations of federal and state family medical leave acts, wrongful discharge, and intentional infliction of emotional distress.  Kelly denied tampering with either urine sample and instead claimed that his celiac disease and enlarged prostate were disabilities that caused him to have difficulty urinating, and that Boeing discriminated against him on the basis of these disabilities.

The court found that, even assuming that Kelly’s medical conditions constituted protected disabilities, Boeing could not be liable for terminating his employment as a matter of law.  Boeing acted lawfully, the court concluded, because the individuals conducting the test had an honest and reasonable belief that Kelly had tampered with a urine sample.

Although Kelly contended that the test supervisor had observed him hold a blue coin holder, rather than a tube containing a fake urine sample, he provided no evidence showing that his employer lacked the belief that Kelly was tampering with his drug test.  The court reaffirmed that an employer who acts in good faith for legitimate business reasons in firing an employee is not liable for discrimination or retaliation, even if the employer’s rationale for the firing turns out to have been based on a factual mistake or misunderstanding.  Even if Kelly had actually been holding a roll of coins, in other words, Boeing’s good faith belief that Kelly was attempting to game the drug test was sufficient to grant summary judgment in the employer’s favor.

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