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Texas’ at-will employment doctrine affirmed by state Supreme Court, rejecting a former Exxon employee’s self-defamation claim after his failed drug test

June 9th, 2017 by David Minces

In many industries, it is necessary for workers to be completely drug-free.  In such fields, employees that are not fully sober may be hindered from fulfilling job requirements, and, more importantly, can jeopardize the safety of themselves and others.  However, businesses often face problems when screening for drugs, and mitigating these problems is of great importance.  Employees testing positive may question the validity of the results and the fairness of the screening.  Sometimes, these questions may be legitimate.  For example, proven racial discrimination regarding drug tests is illegal and can warrant employee compensation.  However, many other claims are unsustainable, as one was found to be by the Texas Supreme Court in a recently concluded lawsuit against ExxonMobil and others.

Background

Gabriel Rincones was a catalyst technician for an Exxon refinery in Baytown, Texas.  His employer was WHM Custom Services, which was contracted by Exxon’s Baytown refinery.  Due to the possible hazards of work at the Oil refineryrefinery, Exxon requires that all its contractors, including WHM, have written drug policies.  Rincones consented to these policies, which were designed to meet Houston Area Substance Abuse Program requirements and included random drug testing.  WHM designated DISA, a drug screening administrator that was approved by the Substance Abuse Program, to test employees.  In early April 2008, Rincones was randomly chosen for a drug test, to which he tested positive for marijuana.  In accordance to the Substance Abuse Program, Rincones was prevented from returning to work until he completed a rehabilitation program.

Contested results

However, rather than going through rehabilitation, Rincones insisted that the test was wrong.  DISA offered to retest the urine sample they had taken previously.  Instead, Rincones went to a private doctor for another drug test the day after he received the results of the first test.  Though the test showed negative for marijuana, the positive threshold of this test was significantly higher than the level required by the Substance Abuse Program.  Still refusing to attend rehabilitation, Rincones was prevented from working for WHM.  In October 2008, Rincones filed a discrimination charge with the Texas Workforce Commission — Civil Rights Division, on bias against Hispanics under the Substance Abuse Program.  A lawsuit was filed in April 2009 against WHM and Dallas Mentor, a misidentified party in place of DISA.  Rincones later amended the lawsuit to include ExxonMobil and DISA.

Path of the case to the Texas Supreme Court

Rincones’ lawsuit included multiple claims against all three defendants, including discrimination, compelled self-defamation, and more.  However, a trial court dismissed the case, determining that Rincones lacked evidence against the defendants.  Rincones appealed the dismissal, and a court of appeals reversed the trial court’s judgement.  This brought the lawsuit to the Texas Supreme Court.

Rincones unable to prove discrimination

161017153320-dea-schedule-1-drugs-heroin-super-169The Texas Supreme Court found Rincones’ claim of discrimination against Hispanics to be unsubstantiated.  In order to prove that the defendants had engaged in discriminatory practices, Rincones had to show evidence of other similarly situated employees receiving preferential treatment.  Rincones alleged that three non-Hispanic employees were allowed to continue working for WHM after testing positive for drugs: Tony Davis, Mark Sweet, and Darren Cooper.  However, the Texas Supreme Court found that Tony Davis and Mark Sweet, both white males, were not similarly situated employees.  Davis was a superintendent and Sweet was the operations manager.  Lack of complete sobriety would not endanger other employees.  However, Rincones’ duties included those that involved fine motor skills including operating a forklift.  Furthermore, WHM showed evidence that Davis had never failed a drug test, and Rincones was not able to prove otherwise.  However, Darren Cooper, a black male, had failed a drug test, and he held the same position as Rincones.  The difference was that, unlike Rincones, Cooper had completed rehabilitation.  Only then was he able to return to work.  Thus, Rincones was not able to show even one example of a non-Hispanic similarly situated employee being treated preferentially.

Supreme Court decides not to recognize compelled self-defamation

Rincones also claimed that WHM, ExxonMobil, and DISA were compelling him to self-defame himself.  Rincones said he was being forced to say he left WHM for a positive marijuana test result, which he claimed was false, to potential future employers.  However, the Texas Supreme Court found that recognizing compelled self-defamation was incompatible with Texas’ at-will employment system, which allows businesses to hire and terminate employees for nearly any reason or no reason at all (but not an illegal reason such as age, gender, or racial discrimination).  This was the first time the Texas Supreme Court decided on the issue of compelled self-defamation, which was also rejected by the majority of the state courts that had previously considered it, including New York, Pennsylvania, and Massachusetts.

Other claims

Rincones also made several more charges, including negligence, pattern-or-practice discrimination, retaliation, tortious interference with his employment contract, and more.  The Texas Supreme Court sided with the defendants on all of these issues as well.

Lessons for other employers

In the opinion on this case delivered by Justice Brown, the Texas Supreme Court strengthened and expanded Texas’ at-will employment doctrine by deciding not to recognize compelled self-defamation.  This is a landmark case for employers and employees because the Texas Supreme Court until then had not decided on the issue.  However, this case also showed that employers need to be careful to not give preferential treatment to certain employees of similar situation.  If you are an employer or an employee who has questions on the issues raised in this article, feel free to contact Minces PLLC.  We have extensive experience in most matters of employment law.

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