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Sean Barbin v. Mv Transportation

April 23, 2013



This case was removed from the Fresno County Superior Court on February 17, 2012. It is an employment related dispute between Plaintiff Sean Barbin ("Barbin") and his former employer, MV Transportation, Inc. ("MVT"). Barbin alleges claims for breach of contract, wrongful termination, racial discrimination, negligence, and libel. MVT now moves for summary judgment on all claims. For the reasons that follow, MVT's motion will be granted.


Barbin was offered a position with MVT as a paratransit driver, which is a safety-sensitive position. DUMF 1. Barbin accepted the position and began work on May 7, 2007. See DUMF 2. Barbin knew when he applied for the position of paratransit driver that he was applying for a safety sensitive position, and also knew that the position would require him to be subject to pre-employment and random drug testing because drug and alcohol testing were required by government agencies. See DUMF's 3, 4. Throughout his employment at MVT, Barbin was a member of Amalgamated Transit Union Local 1027 ("the Union"). See DUMF 6.

There was a Collective Bargaining Agreement ("CBA") in place between MVT and the Union which governed Barbin's employment. See DUMF 7. The CBA is the only document or agreement that governed the terms and conditions of Barbin's employment with MVT. See DUMF 16. Barbin was given a copy of the CBA. See DUMF 8. Article 9 of the CBA states that:

In acknowledgment of the nature of [MVT]'s operations and the very special and overriding safety considerations, [MVT] has adopted formal provisions for fitness for duty Drug and Alcohol screening. [The Union] acknowledges that certain Federal drug and alcohol testing requirements bind [MVT]. The parties agree that any dispute regarding particular provisions of the drug and alcohol policy will be subject to the procedures in Article 10.

DUMF 11. Article 10 of the CBA sets forth the Grievance Procedure for processing grievances under the CBA. See DUMF 12. A "grievance" is a "claim that [MVT] has violated an express, specific provision of [the CBA]." Rocush Dec. Ex. 14 at p. 10. The procedure for grievances "must be followed." Id. Article 11 of the CBA provides for arbitration of all grievances not resolved under Article 10, and states the procedures for arbitration of grievances. DUMF 13. Section 14.5 of the CBA states: "The following violation of [MVT] policies and rules are considered serious infractions and shall be just cause for the immediate discharge of an employee, although [MVT] may impose, at its sole discretion, a lesser penalty . . . Violation of [MVT] Drug and Alcohol Program listed in Article 9 of this Agreement." DUMF 14.

In pertinent part, MVT's Substance Abuse Policy reads: Federal regulation requires that . . . all safety-sensitive employees will be subject to reasonable suspicion, post accident, random, return to duty and follow up drug and alcohol testing . . . . As a 'zero tolerance' employer, any positive drug or alcohol test will result in a termination of employment. (DUMF 27)

Any employee who has a drug and/or alcohol abuse problem and has not been selected for reasonable cause, random, or post-accident testing or has not refused a drug or alcohol test may voluntarily refer her or himself to the General Manager or the Human Resources Department, who will refer the individual to [MVT]'s Substance Abuse Professional (SAP) for an evaluation and treatment. (DUMF 30)

Any safety-sensitive employee who admits to a drug and/or alcohol problem will immediately be removed from his/her safety-sensitive function and will not be allowed to perform such function until successful completion of a prescribed rehabilitation program is completed . . . [MVT] shall make every effort to place the employee back in his/her position upon returning to work. However, an employee's commitment to an SAP does not guarantee that the employee's job will be available upon return. (DUMF 31)

FTA regulations specifically prohibit the use of the following illegal, prohibited substances and require testing for their presence under certain circumstances: Marijuana, Amphetamines, Opiates, [PCP], and Cocaine . . . Safety-sensitive employees may be tested for prohibited drugs at any time while on duty or on MVT property. (DUMF 32)

MVT shall require every covered employee who performs a safety-sensitive function . . . to submit to pre-employment, post-accident, random, and reasonable suspicion drug and alcohol test. (DUMF 33)

MVT is dedicated to assuring fair and equitable application of its 'Zero Tolerance' substance abuse policy. Therefore, supervisors and managers are required to use and apply all aspects of this policy in an unbiased and impartial manner. Any supervisor and manager who knowingly disregards the requirements of this policy, or is found to deliberately misuse the policy in regard to subordinates, shall be subject to disciplinary action, up to and including termination. (DUMF 34)

The basis for random [drug and/or alcohol testing] selection shall be by a scientifically valid random number generation method initiated by computer. The dates for administering unannounced testing of randomly-selected covered employees shall be spread reasonably throughout the calendar year, month, week, and all hours that safety-sensitive functions are performed. (DUMF 37)

The consequences of a positive drug test or a test refusal are as follows: the employee will immediately be removed from safety sensitive duties, referred to a SAP, and terminated from employment. (DUMF 38)

MVT's 'Zero Tolerance Policy' means that any employee or applicant that tests positive for any drug or alcohol test will be immediately terminated and/or not hired so there is no follow up required by MVT with the SAP. (DUMF 39)

No employee will be removed from the random pool following selection, and every employee will continue to be subject to random selection throughout the year . . . . Employees are only removed from the random pool when they are in rehabilitation programs, terminated, or permanently transferred to a non-safety-sensitive position, or expected to be out for at least 90 days or more. (DUMF 41) Barbin signed a receipt that acknowledge that he had received a copy of the Substance and Alcohol Abuse Policy Manual. DUMF 42. Barbin knew that he was subject to random drug testing, MVT had a 'zero tolerance policy' regarding substance abuse, a positive drug test would result in immediate termination, and understood the terms of the Substance Abuse Policy's Voluntary Rehabilitation provision as written. See DUMF's 49, 50, 51.

Every month on the first business day of the month, MVT's Safety and Training Manager Timothy Bernard logs on to MVT's corporate intranet to receive the list of employees who have been selected for drug testing that month. See DUMF 44. When Bernard logged on in March 2010, Barbin's name appeared on the random drug testing list. See DUMF 45.

On March 22, 2010, Bernard asked a dispatcher to notify Barbin that he needed to report to his office so that Bernard could inform Barbin that he had been selected for a random drug test. DUMF 76. Barbin met Bernard in Bernard's office, where he told Bernard that he had been smoking marijuana and had last smoked about a week ago. See DUMF 78. Barbin told Bernard that he wanted a grievance form, that he had been having personal problems, that he needed help, that he needed time off, and that he did not want to make a habit out of smoking marijuana. See Barbin Depo. 57:13-19. Barbin requested a grievance in order to get help for his personal problems. See id. at 56:3-6. Bernard informed Barbin that Barbin had been selected for a random drug test. See DUMF 79. Bernard said that he did not know what to do and then made a phone call. See Barbin Depo. 55:9-16, 57:20-24. Bernard called Sheri Henderson, MVT's Drug & Alcohol Compliance Manager. See DUMF's 80, 86; Bernard Dec. ¶ 9. Bernard told Henderson that an employee who had been selected for a random drug test had just informed him that he had recently used marijuana and thought he might test positive on the drug test. DUMF

86. Bernard was instructed to send Barbin for random testing. See DUMF 80; Barbin Depo. 58:9-10; see also DUMF 86. That day, Barbin reported to Concentra, who are not employees of MVT, and Concentra performed the drug test. See DUMF 46, 82.

The following day, MVT General Manager Paul Kwiatkowski received the results of Barbin's March 2010 drug test, and the results were positive for marijuana. See DUMF 47. The Medical Review Officer spoke to Barbin and told Barbin that the random drug test was positive for marijuana. See DUMF 52. The Medical Review Officer informed Barbin about further testing by a second laboratory using a "split screen" sample, and Barbin agreed to the additional test.*fn2 See Barbin Depo. 72:13-73:24. The Medical Review Officer told Barbin that he would inform MVT about the further sampling. See id.

Later that day, Barbin had a meeting with Kwiatkowski, John Sanchez (a Union steward), and Rick Steitz (the president of the Union) concerning the positive drug test. See Barbin Depo. 75:15-82:25; DUMF's 17, 18, 19. In that meeting, Barbin said inter alia that he had asked Bernard for a grievance prior to being informed of the random drug test and that he had asked for the grievance in order to get help. See id. at 81:19-23, 84:7-25. Kwiatkowski gave Barbin information regarding drug treatment and acknowledged that the Medical Review Officer had indicated that there would be further sampling. See id. at 81:9-19. Another meeting was set for April 1, 2010. See Kwiatkowski Dec. ¶ 6.

At the April 1, 2010, meeting, Barbin was informed that he was being terminated pursuant to Section 14.5 of the CBA because he had tested positive on the random drug test. See DUMF's 55, 88. At some point, Kwiatkowski had been informed by the Medical Review Officer that Barbin had not requested a split screen, and that no split screen sample was being analyzed. See DUMF 48. Sanchez and Steitz, who were at the termination meeting, told Barbin that he could appeal (file a grievance about) the termination, but Barbin responded that he did not want to pursue the appeal because he was going to file a lawsuit. See DUMF 23.

Barbin understood the steps of the CBA grievance procedure. See DUMF 21; see also DUMF 20. Barbin never filed a grievance or requested that a grievance be filed on his behalf. DUMF 22. Barbin never talked to the Union about grieving his termination, nor did he request that the termination be grieved. DUMF 24. Barbin also declined to attend or participate in the Union's offer to set up a meeting to try and get his job back. See DUMF 25. Barbin decided he was going to pursue his remedy through an attorney, and not through the Union, even though the Union was calling to try and help him. See id.


Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Herbert Schenk, P.C., 523 F.3d at 915, 923 (9th Cir. 2008); Soremekun, 509 F.3d at 984. If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, ...

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