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Schubbe v. Derrick Corporation

United States District Court, W.D. New York

March 5, 2015

LARRY C. SCHUBBE, Plaintiff,


HUGH B. SCOTT, District Judge.


Chief Judge Skretny referred this case to this Court under 28 U.S.C. § 636. (Dkt. No. 12.) Pending before the Court is a motion (Dkt. Nos. 11, 24) by defendant Derrick Corporation to dismiss the amended complaint of plaintiff Larry Schubbe ("Schubbe") under Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP"). Schubbe claims that defendant regarded him as an alcoholic and subjected him to suspension, unnecessary drug and alcohol testing, changes in work assignments, and ultimately termination as a result. Schubbe alleges that defendant's conduct violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213; the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601-2654; and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law §§ 290-301. Defendant urges dismissal on the basis that it disciplined and fired Schubbe for misconduct, and that other events that he alleges do not rise to the level of adverse actions that warrant a remedy.

The Court held oral argument on February 24, 2015. For the reasons below, the Court respectfully recommends granting defendant's motion.


This case concerns allegations that defendant targeted Schubbe for harassment and intimidation after it perceived that he was an alcoholic. According to the amended complaint, defendant designs and manufactures equipment used in mining and drilling and employs over 600 people. Schubbe is 55 years old and worked for defendant for over 18 years. Subtracting 18 years from Schubbe's May 6, 2014 termination date, Schubbe appears to have begun working for defendant around 1996. The amended complaint contains no information about Schubbe's employment history between 1996 and 2012, except to note briefly that Schubbe began in the welding department and worked his way up to complex repair work with overtime opportunities by 2012. The amended complaint says nothing about any flexibility that supervisors had in assigning employees to different tasks or departments. The amended complaint also says nothing about any drug or alcohol policies that defendant had, including when and how defendant might require drug and alcohol testing for its employees.

The events that gave rise to plaintiff's action allegedly began in September 2012. Schubbe suffered an unspecified injury at work that month, missed two days, and then returned to work. The amended complaint appears to list two overlapping reasons why Schubbe missed two days. Defendant told Schubbe the day after the injury that he could not return until he was medically cleared to do so, and the process of medical evaluation and clearance seems to have taken a day. At the same time, defendant "suspended plaintiff for failure to take a drug or alcohol test immediately after the injury at work." (Dkt. No. 22 at 2 ¶ 15.) Schubbe pleads that defendant never ordered him to take a drug or alcohol test at the time of the injury, but Schubbe does not place this allegation in the context of any company policies regarding drug and alcohol testing. When Schubbe returned to work, he complained to defendant about the demand for alcohol and drug testing. "Shortly after plaintiff complained about defendant's demand that plaintiff be screened for alcohol and drugs, defendant terminated plaintiff's son. Defendant claimed that this termination was based on layoff." (Id. at 3 ¶ 21.) Schubbe asserts that defendant "terminated plaintiff's son as retaliation against plaintiff despite the fact that defendant kept less senior workers in the department." (Id. ¶ 22.) This assertion in the amended complaint lacks context such as what Schubbe's son did on the job, which department is being referenced, exactly when the termination occurred, and whether any supposed layoff affected any other employees.

Schubbe's return to work in September 2012 also brought about a change in his work duties. Schubbe previously performed mechanical and electrical repair work. After Schubbe returned, defendant assigned him to a tool repair area apparently nicknamed the "cage." Schubbe does not plead whether any particular company policies applied to work in the tool repair area. Nonetheless, Schubbe pleads that defendant became "hypervigilant" about supervising him in the tool repair area, even to the point of challenging his use of the restroom. When Schubbe had no assignments to perform in the tool repair area, defendant either directed him to stay there anyway or deployed him to labor-intensive and menial tasks such as installing drain tile; painting on a roof in June 2013; installing plastic slats in a chain-link fence; and unplugging toilets. Schubbe lost opportunities for overtime because the tool repair area offered none. In November 2013, defendant moved Schubbe to a job assignment involving motor assembly, which Schubbe describes as both physically intensive and requiring fine motor skills.

During the last two years of his employment, Schubbe endured several disciplinary actions that bear on this case. As noted above, defendant suspended Schubbe in September 2012 for not undergoing drug and alcohol testing at the time of his injury. Defendant suspended Schubbe on October 22, 2012 for falling asleep in the tool repair area. Defendant directed Schubbe to undergo alcohol and drug testing that day. Schubbe did so and returned to work the same day but does not say what the result was. Defendant allegedly told Schubbe that he would remain permanently suspended until he enrolled in an alcohol or drug rehabilitation program, but Schubbe does not plead any context or any proposed theory as to why falling asleep on the job would have anything to do with alcohol or drugs, let alone rehabilitation. Schubbe also does not plead what became of the threat of permanent suspension given that he also appears to have returned to work the same day when he fell asleep. On May 2, 2014, Schubbe injured his wrist on the job, took the weekend off, and returned to work Monday morning, May 5, 2014. That morning, defendant directed Schubbe to undergo a portable breath test for alcohol. Schubbe pleads that he took the test twice and that a doctor for defendant "fumbled" with the breath test device, but that the breath test did detect the presence of alcohol. Schubbe denies "intoxication" but does not deny the positive breath test result. The positive breath test result led to a letter, dated May 13, 2014, from defendant to Schubbe terminating him. Defendant terminated Schubbe as of May 6, 2014.

Schubbe sought remedies for the events leading to his termination once it occurred. On July 24, 2013, Schubbe filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). In a letter dated April 3, 2014, the EEOC informed Schubbe that "[t]he evidence uncovered in this investigation fails to show any complaint of employment discrimination made to Respondent against which they could retaliate. With regard to the medical exam (alcohol test) and your suspension, the evidence shows that Respondent submitted you to that exam because of reasonable concern caused by your behavior at work; and since you failed that exam, Respondent had a legitimate, non-discriminatory reason to suspend you." (Dkt. No. 24-6 at 1.) The EEOC issued a Dismissal and Notice of Rights the same day. (Dkt. No. 24-5.) Schubbe filed his original complaint on July 1, 2014. After obtaining permission from the Court to make amendments, Schubbe filed his amended complaint on October 31, 2014. The amended complaint recites the events of Schubbe's last two years of employment as noted above. The amended complaint also mentions four former coworkers by name who supposedly have a history of alcohol abuse but who nonetheless have remained employed with defendant. The amended complaint proceeds to list seven claims. In the first three claims, Schubbe accuses defendant of discrimination, retaliation, and a hostile work environment in violation of the ADA. Schubbe asserts that defendant perceived him as having the disability of alcoholism and subjecting him to several adverse actions based only on that perceived disability: suspensions, unnecessary drug and alcohol tests, medical examinations, treatment, changes in work assignments, denial of overtime, and termination. Schubbe's complaints about drug and alcohol testing and his communications with the EEOC constituted protected activities for which defendant punished him. The adverse actions also created a hostile work environment, according to Schubbe. In the fourth claim, Schubbe accuses defendant of retaliation under the FMLA. Specifically, Schubbe claims that defendant suspended him after his injury in September 2012 to dissuade him CFfrom exercising his rights under the statute, and that the concerns about testing and medical clearance were pretextual only. The fifth, sixth, and seventh claims contain analogous allegations about discrimination, retaliation, and hostile work environment, except under the NYHRL.

Defendant seeks dismissal of the amended complaint on multiple grounds. Defendant argues that any claims based on discrimination should fail because they rest on defendant's reactions to Schubbe's misconduct. According to defendant, each alleged act of discrimination corresponds to a specific instance of failure to submit to drug and alcohol testing, falling asleep at work, or a positive alcohol test. To call workplace discipline discrimination would, in defendant's opinion, mean that employers could not take action against unprofessional behavior on the job. Defendant argues that the claims for hostile work environment fail also because the work reassignments were not severe or pervasive and because lawful requests for drug and alcohol testing cannot constitute harassment. Finally, defendant wants the Court to dismiss the retaliation claims because they challenge permissible drug and alcohol testing and because the work reassignments did not change Schubbe's pay or constitute demotion. To the extent that Schubbe alleges retaliation for the filing of his EEOC complaint, defendant notes that 10 months passed between the filing of the charge and Schubbe's termination. Such a long interval between events, according to defendant, undermines any charge of retaliation.

Schubbe opposes defendant's motion in all respects. Schubbe argues that, for a motion to dismiss, defendant relies too much on inferences or outside information. Schubbe urges the Court to reject defendant's characterizations of "lateral" work reassignments and legitimate, non-discriminatory reasons for termination. Schubbe has pled a discriminatory motive and argues that the Court should assess the amended complaint on its face. With respect to drug and alcohol testing, Schubbe argues that he bears no burden to show generally that drug and alcohol testing is permissible. Rather, Schubbe has pled that defendant imposed testing subjectively and in a discriminatory manner, which would make otherwise legal testing procedures illegal. Finally, Schubbe contends that defendant has ignored allegations in the amended complaint that support his claims and has tried to introduce outside information through its motion papers. Specifically, defendant included with its motion papers what appears to be a transcript of proceedings from Schubbe's appearance before the New York State Unemployment Insurance Appeal Board on August 25, 2014. (Dkt. No. 24-7.) Defendant attempts to draw the Court's attention to the testimony from that proceeding that Schubbe's two breath alcohol tests on May 5, 2014 yielded blood-alcohol levels of 0.139% and 0.155%. ( See id. at 19-20.) Defendant contends that the rising levels indicated that Schubbe consumed alcohol only a short time before the tests occurred. Schubbe argues that the Court should reject the transcript in its entirety because Schubbe made no mention of blood-alcohol levels or of the unemployment insurance proceeding in his amended complaint.


A. Motions to Dismiss ...

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