The opinion of the court was delivered by: Charles P. Kocoras, District Judge:
This case comes before the Court on Defendant Pitt Ohio Express, LLC's ("Pitt Ohio") motion to dismiss the complaint of Plaintiff Anthony Price ("Price") pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion is denied.
Pitt Ohio terminated Price's employment as a truck driver after he failed a random drug test mandated by the Omnibus Transportation Employee Testing Act of 1991 (the "Act"), 49 U.S.C. § 31306, and the United States Department of Transportation's ("DOT") regulations, 49 C.F.R. §§ 40.1 et seq.
The Act and DOT regulations require the random testing of operators of commercial motor vehicles, or safety-sensitive transportation employees, for the use of a controlled substance or alcohol in violation of the law. See 49 U.S.C. § 31306(b)(1); see also 49 C.F.R. §§ 40.1 et seq. An employer who receives a verified positive drug test result "must immediately remove the employee involved from performing safety-sensitive functions." 49 C.F.R. § 40.23(a). The employee cannot thereafter perform any DOT safety-sensitive duties for any employer without fulfilling certain obligations, including an evaluation by a substance abuse professional ("SAP") and any treatment prescribed by the SAP. 49 C.F.R. § 40.285. Employers are not required to provide a SAP evaluation or any education or treatment for an employee who has violated a DOT drug and alcohol regulation. 49 C.F.R. § 40.289(a).
In December 2011, Price filed a complaint against Pitt Ohio, alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. § 1981. Price generally alleges that he was subjected to different terms and conditions of employment, including a "more rigorous federal drug test." Price's brief clarifies his claim that Pitt Ohio discriminated against him when it fired him for failing his drug test instead of continuing to employ him in a non-safety-sensitive position while allowing him to complete a SAP evaluation and any other requirements for reinstatement as a truck driver. Price asserts that Pitt Ohio did not similarly terminate a white employee who was intoxicated at work. Pitt Ohio now moves to dismiss Price's complaint.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss, the complaint must contain sufficient facts to state a facially plausible claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In ruling on a motion to dismiss, a court accepts the well-pleaded allegations in the complaint as true, construes the allegations of the complaint in the light most favorable to the plaintiff, and draws all reasonable inferences in favor of the plaintiff. Hentosh v. Herman M. Finch Univ. of Health Scis./The Chi. Med. Sch., 167 F.3d 1170, 1173 (7th Cir. 1999). A court construes pro se pleadings liberally. Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). When evaluating a pro se complaint, the court may also consider facts in the plaintiff's opposition to a motion to dismiss as long as the facts are consistent with the complaint's allegations. Thompson, 300 F.3d at 753; Gutierrez, 111 F.3d at 1367 n.2.
Pitt Ohio moves to dismiss Price's complaint, arguing that Price fails to plead sufficient facts to state a race discrimination claim under Title VII or Section 1981.
Title VII and Section 1981 prohibit an employer from discharging or otherwise discriminating against an individual because of such individual's race. 42 U.S.C. § 2000e-2(a); 42 U.S.C. § 1981. A plaintiff alleging race discrimination may establish a prima facie case of discrimination directly or indirectly. Petts v. Rockledge Furniture LLC, 534 F.3d 715, 720 (7th Cir. 2008); Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 849-50 (7th Cir. 2008). Price's complaint cannot survive under the direct method because Price alleges no facts pointing directly to a discriminatory reason for his termination, such as an admission of discrimination by Pitt Ohio. See Koszola v. Bd. of Educ. of Chi., 385 F.3d 1104, 1119 (7th Cir. 2004) ("Direct evidence essentially requires an admission by the decision-maker that his actions were based on the prohibited animus.") (citation omitted). Accordingly, the Court will evaluate whether Price has alleged discrimination under the indirect method.
A plaintiff establishes a prima facie case of discrimination under the indirect method by proving that he (1) belongs to a protected class, (2) was satisfying the employer's legitimate expectations, (3) suffered an adverse employment action, and
(4) was treated worse than similarly situated employees outside the protected class. Rodgers v. White, 657 F.3d 511, 517 (7th Cir. 2011) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If the plaintiff establishes a prima facie case and the defendant articulates a non-discriminatory reason for the adverse action, the plaintiff must then prove that the stated reason is merely a pretext for discrimination. Id. Price states facts satisfying the first element of the prima facie case because he alleges in his brief that he is African American and thus belongs to a protected class. Pitt Ohio contends that Price has not alleged facts that could satisfy the second, third, and fourth requirements of the prima facie case.
The second element of the prima facie case requires Price to demonstrate that he was satisfying Pitt Ohio's legitimate expectations. Price cannot establish that he was meeting his employer's legitimate expectations since he concedes that he failed a drug test which required Pitt Ohio to immediately remove him from his position as a truck driver. However, when a black employee alleges that he was disciplined more severely than a white employee who also failed to meet the employer's expectations, the plaintiff need not show that he met the employer's expectations. Rodgers, 657 F.3d at 517; Curry v. Menard, Inc., 270 F.3d 473, 477-78 (7th Cir. 2001). In this instance and as discussed below, the second and fourth elements of the indirect method merge. Rodgers, 657 F.3d at 517. Here, although Price admittedly failed his ...