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Shepherd v. City of East Peoria

United States District Court, C.D. Illinois, Peoria Division

May 22, 2015



JOE BILLY McDADE, Senior District Judge.

This matter is before the Court on cross Motions for Summary Judgment. (Docs. 19 & 22). The motions are fully briefed and ready for disposition. For the reasons stated below, Plaintiff's Motion for Partial Summary Judgment is DENIED and Defendants' Motion for Summary Judgment is GRANTED.


"The 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). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant may demonstrate the absence of a genuine dispute of material fact by citing to admissible evidence, or by showing that the nonmovant cannot produce admissible evidence to support a genuine dispute of material fact. Fed.R.Civ.P. 56(c)(1). Upon such a showing by the movant, the nonmovant may not simply rest on his or her allegations in the complaint, "[t]he nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence." Warsco v. Preferred Technical Grp., 258 F.3d 557, 563 (7th Cir. 2001) (internal quotations and citation omitted); Fed.R.Civ.P. 56(c)(1). Typically, all inferences drawn from the facts must be construed in favor of the non-movant, but the court is not required to draw every conceivable inference from the record. Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). At the summary judgment stage, however, the court may not resolve issues of fact; disputed material facts must be left for resolution at trial. Anderson, 477 U.S. at 249-50.

"On cross-motions for summary judgment, the same standard of review in Federal Rule of Civil Procedure 56 applies to each movant." Continental Cas. Co. v. Nw. Nat. Ins. Co., 427 F.3d 1038, 1041 (7th Cir. 2005). The Seventh Circuit has explained that courts "look to the burden of proof that each party would bear on an issue of trial; we then require that party to go beyond the pleadings and affirmatively establish a genuine issue of material fact." Diaz v. Prudential Ins. Co. of America, 499 F.3d 540, 643 (7th Cir. 2007) (quoting Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997)). Cross-motions for summary judgment are considered separately, and each party requesting summary judgment must satisfy the above standard before judgment will be granted in its favor. See Tegtmeier v. Midwest Operating Eng'rs Pension Trust Fund, 390 F.3d 1040, 1045 (7th Cir. 2004); Santaella, 123 F.3d at 461. Thus, the facts are construed in favor of the non-moving party, which differs depending on which motion is under consideration. Tegtmeier, 390 F.3d at 1045.


At the time of Plaintiff Brian Shepherd's termination, he was employed by Defendant City of East Peoria (the "City") as a wastewater operator in the City's Department of Public Works ("DPW"). Steve Ferguson was the DPW's Director (highest official with the power to take employment actions including hiring, firing and suspending workers) during all times relevant. The wastewater operator is a low level position within the wastewater division of the DPW. Shepherd's job required him to be certified by the Illinois Environmental Protection Agency and to be a member of a union that had a collective bargaining agreement ("CBA") between it and the City. The position also required a valid commercial driver's license. Prior to beginning his employment with the City in the DPW, Shepherd was required to submit to a pre-employment drug screen.

All non-clerical and non-management workers start out by working on garbage trucks in the solid waste division of the DPW. In 1998, Shepherd was able to move into a wastewater operator vacancy in the wastewater division of the DPW. In 2006, Shepherd began working in the wastewater lab. He worked in the lab until his termination in 2012. Shepherd worked under very scant supervision. During the period of time that he held the lab position, Shepherd never drove a commercial vehicle. Nor did he operate any heavy machinery other than a forklift, which he operated on an occasional basis.

The City had an official policy providing that the possession, use, manufacture, sale, or distribution of alcohol, drugs, or other intoxicants or controlled substances on City property, or while at work or on the job for the City constitutes employee misconduct sufficient to warrant termination of the employment relationship. The City also had a personnel manual in place that provided for random, suspicionless drug testing of employees to enforce the City's drug policy, amongst other things. The City, in fact, required its workers in the DPW to be subjected to random drug/alcohol screening. Throughout his employment with the DPW, Shepherd was subjected to several such random drug/alcohol tests. The CBA provided in relevant part that "the City shall not discharge or suspend any employee without just cause, ... except that the City shall have the right to summarily dismiss or suspend an employee who is under the influence of liquor or drugs while on duty and who fails to obey a direct and reasonable order from the superintendent or foreman, among other reasons.

The City utilized Proctor First Care ("Proctor") to administer its random drug/alcohol screening program. While the City would provide Proctor with a list of employees who were eligible to be selected for testing, Proctor would generate a list of numbers associated with individual employees; randomly draw the numbers; administer and collect the urine specimens; preserve the urine specimens; ship partial specimens of the samples to an independent lab for processing; retain and preserve the remaining sample for future possible testing; have a medical review officer ("MRO") review the results of the drug screen; and finally, notify the City of the results of a drug screen. Quest Diagnostics ("Quest") was the independent lab responsible for running Proctor's lab tests.

On September 4, 2012, Shepherd was subjected to a random, suspicionless drug screening test by the City conducted by Proctor, pursuant to which he provided a urine sample. A portion of the urine sample was sent to and tested by Quest. According to the test results Proctor received from Quest, Shepherd's specimen tested positive for marijuana metabolites.

Dr. James Ausfahl is a certified MRO employed by Proctor who handles the City's random drug testing program. On September 6, 2012, while at work, Shepherd received a telephone call from Proctor informing him of his test results. Although Shepherd claims he was informed he failed the test due to the detection of opiates, Defendants claim he was informed he failed due to the presence of marijuana metabolites. Meanwhile, Ferguson had been informed that Shepherd failed the drug screen test and had viewed a letter from Dr. Ausfahl stating the following: 1) that Proctor had received results of a drug screen test performed on a sample of Shepherd's urine collected on September 4, 2012; 2) the test had been performed in compliance with NIDA guidelines as per the Department of Transportation by Quest; 3) Dr. Ausfahl had reviewed the chain of custody and the reported results; and 4) the specimen was positive for marijuana. Later on September 6, 2012, Shepherd was summoned into a meeting with Ferguson.

During the course of the meeting with Shepherd on September 6, 2012, Ferguson told Shepherd that the drug screen from the urine sample collected from him had come back positive for marijuana. Shepherd denied smoking marijuana. Ferguson also told Shepherd he was being suspended without pay indefinitely. Ferguson further advised Shepherd he could appeal their findings and have his own test done. According to Defendants, Shepherd was only entitled to a testing of the remaining sample preserved by Proctor. Defendants do not dispute that Ferguson told Shepherd he could have his own test done, but state that doing so was an error because federal regulations the City must abide by, only allow for the testing of the remaining sample, not altogether new testing.

Ferguson also handed Shepherd document titled "Employee Warning Record, " which noted that Shepherd had failed the random drug screen test and tested positive for marijuana. The document also noted that Shepherd was being suspended without pay indefinitely under the CBA for being under the influence of liquor or drugs while on duty. Ferguson told Shepherd to enroll in a substance abuse program ("SAP"). Ferguson told Shepherd that if he was evaluated by a substance abuse professional and declared fit for duty, he would consider this in making his final disciplinary decision. Ferguson also told Shepherd that for a first time offense, the City usually reinstates the person if he is evaluated, treated, and declared fit for duty by an approved substance abuse professional. Indeed, Shepherd knew of at least one employee who had tested positive for drugs, underwent a SAP, was deemed fit to work, and retained his position with the City. Shepherd told Ferguson he was not going undergo evaluation by a substance abuse professional because he didn't think he did anything wrong. Ferguson told him that was something for the substance abuse professional, not Ferguson, to determine. Ferguson added that Shepherd could not argue with the findings; the substance abuse professional could clear him.

On September 10, 2012, Ferguson sent Shepherd a letter that reiterated the reason for Shepherd's suspension without pay. Ferguson also informed Shepherd that he was required to follow a certified SAP and be declared fit to work by the SAP's licensed counselor or psychiatrist. Ferguson reiterated that if Shepherd successfully completed the SAP, it would be taken into consideration in a final decision on discipline. Ferguson also notified Shepherd he had to produce evidence by September 21, 2012 that he was enrolled in a SAP.

On September 12, 2012 Shepherd sent a letter to Ferguson notifying him that he was appealing his suspension and was going to have an MRO review the results of the City's drug test. Shepherd ended the letter saying the MRO would get in touch with the City within a week. After Ferguson received Shepherd's September 12, 2012 letter, he sent it to the city attorney, who told Ferguson he "did not see any grounds for considering an appeal." The city attorney also told Ferguson that if Shepherd wanted to appeal his suspension, he could file a grievance through the Union.

On September 26, 2012, Ferguson and Shepherd spoke on the phone. Ferguson wrote to Shepherd later that day confirming the conversation and warned Shepherd that his failure to provide evidence that he was enrolled in a SAP by September 21, 2012 could be considered in the discipline action taken by the City. Shepherd was again informed that if he successfully completed a SAP this would likewise be taken into consideration in a final decision on that disciplinary action.

Ferguson received a letter dated October 9, 2012 from Dr. Holden, Shepherd's physician stating that Shepherd had come to him for a drug test after the City's positive test. The letter states in relevant part:

I am writing this letter as Mr. Shepherd's primary care physician. I am a board certified family practitioner and I am also certified as a medical review officer. My certifications are available if necessary.... [Mr. Shepherd] subsequently presented in my office in September, 2012 stating that he had "failed" a drug test and had been told that his test was positive for opiates. He also said that when questioned by the company physician he reported that he was not taking any opiates and therefore it was concluded that he was in denial of his substance abuse and needed treatment for that substance abuse, It is my opinion that Mr. Shepherd does not have a substance abuse problem. Subsequent testing, done here at my office, was negative for all illicit type medications, including opiates.... It was also reported to me that he was subsequently told that he had also tested positive for marijuana metabolites but I have no direct evidence what that alleged drug test did show.... Enclosed you will find a copy of my note from the September meeting that I had with him and his wife. It is my medical opinion that Mr. Shepherd does not have a drug or alcohol related problem and that his failure in the drug test was because of his error in reporting that he, in fact, had taken Nucynta per medical instructions.... Please feel free to contact me with any further questions regarding this issue.

((Doc. 20-8 at 91 (emphasis added)). Dr. Holden enclosed a drug screen test report on a urine sample from September 11, 2012 showing that Shepherd had tested negative for every drug, including marijuana. After receiving Shepherd's September 12, 2012 appeal or Dr. Holden's October 9, 2012 letter, Ferguson contacted Proctor to see if Nucynta could have caused a false positive for marijuana. Ferguson was told it could ...

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