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Kelly v. The Boeing Co.

United States District Court, D. Oregon

August 15, 2019


          Daniel Snyder, Carl Post, and John David Burgess, Law Offices of Daniel Snyder, Of Attorneys for Plaintiff.

          James M. Barrett, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Christopher J. Banks, Karen Y. Cho, and Joseph R. Lewis, Morgan Lewis & Bockius LLP, Of Attorneys for Defendant.



         Michael Kelly (“Kelly”) brings this lawsuit against his former employer, The Boeing Company (“Boeing”), alleging that Boeing violated his rights, discriminated against him, and retaliated against him when it terminated his employment on January 12, 2017. Kelly asserts claims under the Americans with Disabilities Act (“ADA”), the Oregon Rehabilitation Act (“ORA”), the Family and Medical Leave Act (“FMLA”), and the Oregon Family Leave Act (“OFLA”). He also brings common law claims for wrongful termination and intentional infliction of emotional distress. Kelly seeks money damages, including punitive damages, as well as declaratory and injunctive relief. Boeing moves for summary judgment against all claims.

         As more fully described below, Boeing required Kelley to submit to periodic drug tests by providing urine samples. Based on reports to Boeing given by two people who worked for an independent testing company, Boeing formed the good faith belief that Kelly had attempted to tamper with a urine collection sample that he was required to provide and then terminated Kelly's employment. Kelly denies that he tampered with the required urine sample. When an employer holds a good faith belief that a termination of employment is valid, the employer cannot be liable, even if it is later revealed that the termination was based on a factual mistake or misunderstanding. Kelly has identified no evidence to suggest that either of the two reporting individuals made their reports in bad faith or knew that their reports were false or inaccurate. Further, Kelly has identified no evidence to suggest that Boeing acted in bad faith or did not believe those reports in good faith. Thus, even if those reports were based on a factual misunderstanding of Kelly's actions, a conclusion that the Court need not reach, Kelly has failed to show a genuine issue for trial regarding whether Boeing had a lawful and valid basis for terminating Kelly's employment. Boeing's motion for summary judgment is granted.


         A party is entitled to 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 moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiffs position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).


         Kelly filed an administrative complaint with the Oregon Bureau of Labor and Industries on September 7, 2017, and he received a right to sue letter on January 18, 2018. The statute of limitations under Oregon law extends to one year before the filing of the administrative complaint. Or. Rev. Stat. § 659A.875(a). Thus, Kelly's claims for any events that occurred before September 7, 2016 are barred by the statute of limitations. The events occurring before September 7, 2016, however, are relevant to paint a picture of Kelly's employment at Boeing and the events leading up to his termination.

         A. Boeing's Drug Free Workplace Policy

         Boeing has policies for the drug testing of its employees. Some employees, predominantly those who work in “safety-sensitive” jobs, are subject to U.S. Department of Transportation (“DOT”) drug testing requirements, and federal regulations govern the procedures for those drug tests. ECF 64-1 at 12. Employees who do not perform “safety-sensitive” jobs are not subject to federal regulations governing drug test procedures but still may be subject to drug tests under Boeing's internal drug testing policies, which mirror the federal regulations in many ways. ECF 64-1 at 12. During the time period relevant to this lawsuit, Boeing engaged American Medical Response (“AMR”) to collect urine samples for non-DOT drug tests. ECF 44-2 at 7. Boeing would schedule drug testing with AMR, and AMR would dispatch emergency medical technicians (“EMTs”) to conduct the testing. ECF 44-2 at 7. The EMTs who conducted drug tests were not Boeing employees. AMR employees are trained in administering breath alcohol tests and collecting urine samples to deliver to a lab for testing. AMR does not provide blood testing or hair testing, and Boeing does not use blood testing or hair testing in its drug testing policy. ECF 64-1 at 18. AMR employees do not themselves test the urine samples for drugs, but instead send the samples to an independent lab for testing. ECF 64-1 at 18.

         B. Boeing Hires Kelly

         Kelly worked at Boeing from 2011 until January 12, 2017. In 2011, Boeing hired Kelly as a “CNC Machinist.” ECF 44-1 at 87. Kelly filled out a post-offer employment health questionnaire and reported no medical conditions and attested that he had no restrictions for any type of work for medical reasons. ECF 44-1 at 89-92. Kelly also checked the boxes on the form indicating that he did not have any medical conditions or limitations that would keep him from performing the functions of the job and he did not require any modifications of the job in order to perform the job functions. ECF 44-1 at 92-93.

         Kelly was diagnosed with celiac disease in 2010 or 2011 and with gout in 2012. ECF 44-3 at 65. Plaintiff contends that his celiac disease makes it difficult for him to urinate and also causes him frequently to need to use the restroom. ECF 44-3 at 65. Because of his celiac disease, Kelly has a handicap placard for his car, which allows him to park in handicap parking spaces to be closer to restrooms. ECF 44-3 at 65. Kelly also has an enlarged prostate, which he contends substantially impairs his urination. ECF 44-3 at 66. In 2012, Kelly claims that he told his then-supervisor Dan Deutsch that he needed to use the restroom frequently and requested to work closer to the bathrooms. In 2013 and 2014, Kelly asked his new manager, Kevin Miller, if he could work at machines closer to the bathroom and Miller accommodated his request. ECF 44-1 at 76. Kelly continued to work at machines closer to the restroom until the time he was terminated in 2017. ECF 44-1 at 76. In 2013 and 2014, Kelly told Bill Conway, Kelly's team leader, about his celiac disease and asked Conway to assign him to work on the floor. Conway agreed to Kelly's request and allowed Kelly to work on the floor until Kelly was terminated. ECF 44-1 at 77.[1]

         In 2013, Kelly's wife was diagnosed with cancer. ECF 54 at 3. Kelly was her primary caregiver. ECF 54 at 3. Whether due to his own medical issues or his wife's illness, Kelly took several periods of intermittent FMLA leave during his employment at Boeing. ECF 55-26 at 1. Kelly testified that Boeing never denied his requests for leave. ECF 44-1 at 73.

         Kelly lived in Vernonia, Oregon, and communed more than 60 miles each day to the Boeing facility in Gresham, Oregon, where he worked the “graveyard” shift from 10:45 p.m. until 5:45 a.m. Between caring for his wife during the day and working during the night, Kelly was fatigued. ECF 54 at 5. He also had difficulty sleeping due to his frequent need to use the restroom. ECF 44-1 at 18. On July 8, 2015, Kelly's supervisor, Miller, discovered Kelly sleeping at a machine. ECF 44-1 at 17; ECF 45 at 25.[2] Miller gave Kelly a verbal warning and told Kelly to see a nurse in the medical department. On July 16, 2015, a nurse at Boeing issued Kelly a “doze alert” earpiece that Kelly could wear on his ear, and the earpiece would “alert” if it sensed him falling asleep. Kelly testified that he wore the earpiece for about a month and then stopped using it. 44-1 at 24.

         On September 3, 2015, Kelly told his supervisor, Miller, that he experienced pain in his feet due to gout when he had to walk up steps. ECF 44-2 at 26. Miller gave Kelly a Medical Evaluation Report Form (“MERF”) to complete and return to Boeing's medical department. ECF 44-2 at 26. Kelly filled out the form and claims that he turned it in to the medical department, although the medical department has no record of having received it. On the form, Kelly listed “strain on tendon” as the medical concern and wrote “I can't say” when asked what caused the medical issue. ECF 44-1 at 134. Kelly did not mention gout as the cause of his foot problems anywhere on the MERF form.

         C. Kelly's Drug Test

         On September 3, 2015, Kelly took a drug test, which tested positive for heroin. The parties dispute the events leading up to the drug test, but these factual disputes are not material for purposes of summary judgment. According to Kelly's manager, Miller, Kelly's team leader, Conway, told Miller that Kelly looked pale and “listed to the side.” ECF 44-2 at 44. Miller testified that Conway told him that, when Conway asked Kelly if he was “okay, ” Kelly told Conway “I have been here since 9:00 p.m. and this is what alcohol and pain pills does to you.” ECF 44-2 at 44. Miller claims that he and Kelly's temporary manager Andrew Campbell went to check on Kelly and discovered him sleeping in the cab of a machine while the machine was running. ECF 44-2 at 35. Miller testified that, when Kelly woke up he was groggy and belligerent, and raised his voice at Miller and Campbell. ECF 44-2 at 36. Miller testified that he and Campbell called security, who sent Kevin Martin to join Miller and Campbell. ECF 44-2 at 38. Miller testified that he asked Kelly if he was on any medication, and Kelly responded that he was on medication for his gout. ECF 44-2 at 39.

         Under Boeing's drug free workplace policy, if a manager and another employee who has been trained in observing and documenting the symptoms of drugs or alcohol have reason to suspect that an employee may be under the influence of drugs or alcohol, they may request that the employee undergo a drug test. ECF 64-1 at 21. Miller and Martin prepared what Boeing refers to as a “Request to Test” form based on reasonable suspicion that Kelly was intoxicated. ECF 44-2 at 47. Kelly complied with the request to test and provided a urine sample for a drug test. Kelly's test results were positive for heroin. ECF 64-1 at 53. Kelly requested a split-specimen test (where the un-tested remainder of the original sample is tested) and the split-specimen test also tested positive for heroin.

         Kelly denies ever using heroin. ECF 54 at 7. He also denies sleeping on the night of September 3, and he denies being belligerent or raising his voice. Kelly believes that Miller was biased against him and that Miller and Martin lacked reasonable suspicion to order a drug test. Kelly does not dispute, however, that the results of both the initial test and the split-specimen test were positive for heroin, although he believes that the test results were a false positive. ECF 54 at 7. Kelly consulted with his union representative, who advised him that he had two options. Kelly could remain employed at Boeing if he agreed to enter into the drug-free workplace program sponsored by Boeing and comply with the program's requirements, including unannounced drug testing, for three years. ECF 44-2 at 105. Alternatively, Kelly could be terminated by Boeing and then his union would grieve and arbitrate his termination. ECF 44-2 at 106.

         D. The Last Chance Agreement

         On September 11, 2015 Kelly signed a Compliance Notification Memo and entered into Boeing's drug free workplace program. ECF 44-1 at 136. In entering into the agreement, Kelly agreed that he would be subject to unannounced drug testing for a three-year period and agreed that a positive drug test, a confirmed alcohol result, or a refusal to test would be grounds for termination of his employment. ECF 44-1 at 136. A refusal to test was defined under Boeing policy to include “tampering or otherwise invalidating by means including adulteration, dilution, substitution, or failure to cooperate in any part of the drug testing process.” ECF 55-4 at 7. Kelly also agreed that he and his union would waive any right to challenge any termination of employment resulting from a violation of the conditions in paragraphs (1) and (3) of the Last Chance Agreement, which described the drug testing policy. ECF 44-1 at 236.

         Kelly waived his right to grieve or dispute the Last Chance Agreement. Kelly never indicated that he could not take urine drug tests or that he would need an accommodation from the testing requirements due to his celiac disease. Between October 2015 and January 11, 2017, Kelly successfully completed fifteen urine tests. ECF ...

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