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Kollmer v. Jackson Tennessee Hospital Company, LLC

United States District Court, W.D. Tennessee, Eastern Division

November 9, 2016

DENISE KOLLMER, Plaintiff,
v.
JACKSON TENNESSEE HOSPITAL COMPANY, LLC, d/b/a REGIONAL HOSPITAL OF JACKSON, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          J. DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiff, Denise Kollmer, brought this action against Defendant, Jackson Tennessee Hospital Company, LLC, d/b/a Regional Hospital of Jackson ("Regional"), alleging employment discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et. seq. (Docket Entry ("D.E.") 1.) Before the Court is Regional's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (D.E. 27.) Plaintiff has filed a response, (D.E. 30), to which Defendant filed a reply, (D.E. 32), and Plaintiff filed a surreply, (D.E. 36), making the motion ripe for disposition.

         I. FACTS

         The following relevant facts are undisputed for purposes of summary judgment unless otherwise noted. Kollmer accepted a position with Regional as an Insurance Follow-Up Representative at its Tennessee Revenue Service Center on April 9, 2014. (D.E. 27-1 at PageID 86-87; D.E. 31 at PageID 516.) Plaintiff took a pre-employment drug test, pursuant to Defendant's substance abuse policy, which she passed. (D.E. 27-1 at PageID 88; D.E. 31 at PageID 516.) That drug screen did not test for barbiturates. (D.E. 27-2 at PageID 181; D.E. 31 at PageID 516.) Kollmer was provided with an employee handbook, which included Regional's substance abuse policy and stated that Defendant conducted random drug tests. (D.E. 27-1 at PageID 129; D.E. 31 at PageID 517.) Plaintiff agrees that she received this information but insists that Regional deviated from its stated policy when conducting the drug test that resulted in her termination. (D.E. 31 at PageID 517.)

         On a monthly basis, Regional conducted random drug tests to screen for illegal drug use. (D.E. 27-7 at PageID 274; D.E. 31 at PageID 518.) These tests were administered by Cathy Miles, Defendant's employee health nurse. (D.E. 27-7 at PageID 274; D.E. 31 at PageID 518.) On July 29, 2014, Plaintiff was notified that she had been selected for a drug test via a computerized random selection process. (D.E. 27-7 at PageID 274; D.E. 31 at PageID 518-19.) On that same day, Kollmer signed a consent form for the test and was then asked to provide a urine sample. (D.E. 27-1 at PageID 91-92; D.E. 31 at PageID 519.) However, even after drinking fluids over a two-hour period, Plaintiff was unable to urinate. (D.E. 27-1 at PageID 94; D.E. 31 at PageID 519.) Miles told Kollmer that she could come back the next morning to take the drug test. (D.E. 27-1 at PageID 94; D.E. 31 at PageID 519.) Regional's substance abuse policy did not specifically allow for an employee to come back on another day to provide a sample for drug testing, however, Miles was aware that Plaintiff had a bladder issue and thought leniency was appropriate under the circumstances. (D.E. 27-3 at PageID 235; D.E. 31 at PageID 519-20.) Kollmer reported at 7:00 a.m. the next day to take her drug test. (D.E. 27-1 at PageID 95; D.E. 31 at PageID 520.) After she was again unable to provide a urine sample, Plaintiff consented to a blood draw. (D.E. 27-1 at PageID 96; D.E. 31 at PageID 520.) Although Kollmer does not dispute that she consented, she nevertheless argues that one cannot consent "to ADA violations, " and she contends that the blood draw in this instance violated the federal statute. (D.E. 31 at PageID 520.)

         Kollmer's blood sample was sent to MedTox Laboratories ("MedTox") for testing, after which the results were sent to i3screen[1] for review. (D.E. 27-2 at PageID 159; D.E. 31 at PageID 521.) MedTox determined that Plaintiffs blood tested positive for amphetamines, alprazolam, and phenobarbital. (D.E. 27-2 at PageID 164; D.E. 31 at PageID 521.) Also, a small amount of butalbital was found in Kollmer's blood, but it was present in a lower level, below the "cut-off to qualify as a positive result. (D.E. 27-2 at PageID 167-68; D.E. 31 at PageID 523.) Dr. Janelle Jaworski is a Medical Review Officer ("MRO") who works for i3screen. (D.E. 27-2 at PageID 156; D.E. 31 at PageID 520-21.) Her duties as an MRO include reviewing drug screen results that are submitted to i3screen from outside laboratories, and she was primarily responsible for reviewing the outcome of Plaintiff s test. (D.E. 27-2 at PageID 159-60; D.E. 31 at PageID 521.) After confirming the results transmitted by MedTox, Dr. Jaworski contacted Kollmer to inform her of the positive drug test and ask whether Plaintiff had a medical explanation for the findings. (D.E. 27-2 at PageID 163-64; D.E. 31 at PageID 522.) Upon receiving information from Plaintiff, the MRO confirmed that she had valid prescriptions for amphetamine, alprazolam and Fioricet, which contains butalbital. (D.E. 27-2 at PageID 166; D.E. 31 at PageID 522.) However, she did not have a prescription for medication containing phenobarbital. (D.E. 27-2 at PageID 166; D.E. 31 at PageID 522.) Based on these facts, Dr. Jaworski changed the test results for amphetamine and alprazolam to negative and verified the test as positive for phenobarbital. (D.E. 27-2 at PageID 167-68; D.E. 31 at PageID 522-23.)

         Dr. Jaworski called Miles and told her that Plaintiffs drug test was positive for phenobarbital. (D.E. 27-2 at PageID 170-71; D.E. 31 at PageID 523.) Miles then contacted Barbara Euler, Regional's Human Resources Director, and informed her of Kollmer's test results. (D.E. 27-3 at PageID 239; D.E. 31 at PageID 523.) Euler reviewed Regional's substance abuse policy and determined that the circumstances required termination.[2] (D.E. 27-4 at PageID 261; D.E. 31 at PageID 524.) Euler was solely responsible for making this decision, (D.E. 27-4 at PageID 257; D.E. 31 at PageID 525), and did not have any knowledge of Kollmer's alleged disability at that time (D.E. 27-4 at PageID 252-53; D.E. 31 at PageID 525). Euler informed Cindy Gilmore, interim director of the Tennessee Revenue Service Center, that Plaintiff tested positive for phenobarbital and would need to be fired. (D.E. 27-4 at PageID 255; D.E. 31 at PageID 526.) On August 13, 2014, Gilmore informed Kollmer that her drug test was positive and that she was being discharged effective immediately for violating the substance abuse policy. (D.E. 27-1 at PageID 53-54; D.E. 31 at PageID 526.)

         Two days after she was laid off, Plaintiff visited her primary care doctor, Andy Coy, and asked why she had tested positive for phenobarbital, which she contends she never ingested. (D.E. 27-1 at PageID 100; D.E. 31 at PageID 526.) Dr. Coy told her that Fioricet, which contains butalbital, could cause the positive result. (D.E. 27-1 at PageID 101; D.E. 31 at PageID 526.) Dr. Coy called i3screen and talked to the MRO on call, expressing his opinion about the false positive. (D.E. 27-1 at PageID 103.) The MRO advised Dr. Coy and Plaintiff, who was also on the phone call, that it was not possible for butalbital to test positive as phenobarbital with the testing process employed by MedTox. (D.E. 27-2 at PageID 171-72.) Likewise, with respect to the possibility of butalbital causing a false positive, in her deposition, Dr. Jaworski agreed with the other MRO, stating unequivocally that it "is not possible, absolutely not, with this kind of testing." (D.E. 27-2 at PageID 187; D.E. 31 at PageID 526.) According to Dr. Jaworski, the test used to analyze Kollmer's sample can identify a drug's chemical structures; therefore, even though they are both barbiturates, because butalbital and phenobarbital have different chemical structures, it was not possible for butalbital to test positively as phenobarbital. (D.E. 27-2 at PageID 172-73; D.E. 31 at PageID 527.) Kollmer accepts that Dr. Coy and Dr. Jaworski disagree on this point but disputes the latter's conclusion. (D.E. 31 at PageID 527.) Plaintiff also conceded that she "does not know the 'chemical structures'" of the drugs. (D.E. 31 at PageID 527.)

         Kollmer called Miles "not long after" she was terminated to tell her that Dr. Coy told Plaintiff "one of her prescriptions would cause the drug screen to have a false positive." (D.E. 30-4 at PageID 480.) According to Plaintiff, she also informed Miles that she suffered from migraine headaches. (D.E. 30-2 at PageID 359.) Miles informed Kollmer that she could pay to have her specimen retested and that if that result was negative, she would be reinstated, reimbursed for the cost of the retest, and given back pay for any lost wages. (D.E. 30-4 at PageID 480-81.)

         Miles's next involvement in Plaintiffs case was a phone call she received directly from Dr. Coy. (D.E. 30-4 at PageID 482.) Dr. Coy told Miles that Kollmer took a medication that would result in a false positive for phenobarbital. (Id. at PageID 483.) Miles "told him the same thing she told [Plaintiff], " that the specimen could be retested. (Id.) She described Dr. Coy as "frustrated." (Id.) Miles called i3screen after this conversation and spoke with the MRO on call about the situation. (Id. at PageID 487-88.) She asked the MRO whether "there was any chance that a medication could cause the false positive, " and the MRO said there was not. (Id. at PageID 488.) Miles said that she did not know of any other reason that Kollmer was terminated other than the positive drug screen. (Id. at PageID 491.)

         Kollmer elected to proceed with a retest, and after reanalysis, the sample was again verified as positive for phenobarbital. (D.E. 27-2 at PageID 175-76; D.E. 31 at PageID 528.) Regional was notified of this result and Plaintiffs employment was not reinstated. (D.E. 27-4 at PageID 71-72.) Kollmer contends that, although she paid to have a retest of a split sample, the test was improper because the lab retested the same sample that was tested initially. (D.E. 31 at PageID 528.)

         II. STANDARD OF REVIEW

         Rule 56 of the Federal Rules of Civil Procedure provides in pertinent part that "[t]he 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). The court must view all evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in the nonmoving party's favor. Ondo v. City of Cleveland, 795 F.3d 597, 603 (6th Cir. 2015). "There is a genuine issue of material fact only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. (citing Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986)) (internal quotation marks omitted). "The test is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. (citing Anderson, 477 U.S. at 251-52) (internal quotation marks omitted). The moving party must initially show the absence of a genuine issue of material fact. Id. (citing Celotex Corp. v. Catrett, 477 ...


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