The Clash of the Titans: Reasonable Suspicion Drug Test Disputes Face Off Against an Employer’s Good Faith in Kelly v. Boeing

The following case from Oregon focuses on reasonable suspicion testing and when an employer has a good faith belief when taking adverse action against an employee. The court in Kelly v. Boeing Company grappled with whether an employer had good faith belief to terminate or if discrimination was a factor present in the decision. In the case, Michael Kelly (Kelly), a Boeing employee, filed several claims against his employer for discrimination after he was discharged for refusing to provide a sample for drug testing.[1]

Kelly was employed as a Computer Numerical Control (CNC) machinist at Boeing Company; this was considered a non-safety sensitive position.[2] Boeing Company was aware that Kelly had several medical conditions including celiac disease which required him to be near the restroom and there was no dispute that Boeing Company did not accommodate any of Kelly’s accommodation requests.[3]

After several incidents of Kelly falling asleep and supervisors witnessing belligerent and groggy behavior, he was asked to perform a reasonable suspicion drug test.[4] Kelly’s specimen subsequently tested positive for heroin and he was given the option to participate in Boeing’s drug-free workplace Employee Assistance Program (EAP) which mandated randomized follow-up drug testing for three years following his return to duty.[5] The program also incorporated a last chance agreement which included a provision which purported to waive his rights to dispute a refusal to test determination during the follow-up program; Kelly agreed.[6]

On January 12, 2017, Kelly was informed by his supervisor that he was to undergo a random drug test as part of his follow-up testing plan before his shift was over.[7] After several attempts to retrieve a sample from Kelly, two Emergency Medical Technicians (EMTs), part of the group hired to perform the drug test, claim they witnessed Kelly trying to replace his urine with yellow liquid from a vial with a blue cap on it.[8] The EMT’s believed Kelly was trying to tamper with his specimen and reported this to the head of the drug free workplace program and Human Resources.[9] The EMT included in his report that that he did not see urine come out of Kelly’s body.[10] After this incident Kelly was informed that he might be terminated for failing provide an adequate sample on-site as required by the drug-free workplace  Employee Assistance Program.[11] Kelly was not required to perform any additional testing and was taken to a motel.[12] When Kelly returned to work he was discharged for refusing to provide a testing sample on the basis of the report made by the EMT’s.[13]

The main issue the court analyzed was whether Boeing Company’s policy and actions were discriminatory and retaliatory.[14] Kelly claimed that he was discriminated against because he was unable to produce sufficient urine for the drug test.[15] The court found that Boeing Company had articulated a legitimate, non-discriminatory, non-retaliatory reason for terminating Kelly’s employment.[16] Based on reports to Boeing given by two people who worked for an independent testing company, according to the court, 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.[17] The court in this case held that as long as 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.[18] Kelly was unable to provide any evidence that the EMT’s made their reports in bad faith or knew that their reports were false.[19] The Court further held that Kelly was unable to show that Boeing Company had no valid basis for termination.[20]

Kelly also brought claims under the Family and Medical Leave Act (“FMLA”), and the Oregon Family Leave Act (“OFLA”); however, the court found that, under either FMLA or OFLA, his request to leave was not a factor considered in his discharge and therefore there was no cause of action under those acts.[21] Similarly, Kelly’s claim under common law for wrongful discharge and the intentional infliction of emotional distress were also dismissed.[22]

Employers must take measures to avoid discrimination against employees with disabilities; however, if an employee is discharged for a legitimate, non-discriminatory reason, employers may be required to show a good faith belief in support of that reason to justify the dismissal. Similarly, if an employer knows a report or other foundation behind an adverse action is false, then it cannot have a good faith belief that the reason for the discharge is valid.

[1] Kelly v. Boeing Co., 400 F.Supp.3d 1093, 1099 (D. Or. 2019). [2] Id. at 1100. [3] Id. at 1102. [4] Id. at 1101. [5] See Kelly, 400 F.Supp.3d at 1102. [6] Id. [7] Id. at 1103. [8] Id. at 1104-05. [9] Id. at 1105. [10] See Kelly, 400 F.Supp.3d at 1106. [11] Id. [12] Id. [13] Id. [14] Id. [15] See Kelly, 400 F.Supp.3d at 1106. [16] Id. at 1108. [17] Id. at 1099. [18] Id. [19] Id. [20] See Kelly, 400 F.Supp.3d at 1099. [21] Id. at 1112. [22] Id.

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