                                  No. 95-1529



Robert Landon,                         *
                                       *
                   Appellant,          *
                                       *   Appeal from the United States
          v.                           *   District Court for the
                                       *   District of Minnesota.
Northwest Airlines, Inc.,    *
                                       *
                    Appellee.          *



                         Submitted:   October 18, 1995

                         Filed:   December 18, 1995


Before FAGG, HEANEY, and HANSEN, Circuit Judges.



HEANEY, Circuit Judge.


     Robert Landon, a former employee for Northwest Airlines, was drug
tested and subsequently terminated when his specimen tested positive for
marijuana metabolites.    Landon brought suit against his former employer in
federal court under various federal and state causes of action.            The
district court ordered summary judgment for Northwest Airlines on all
claims.


     With respect to Landon's claims that Northwest's actions violated
federal and state prohibitions on racial discrimination and the California
constitutional right of privacy, we find that there is sufficient evidence
to create a genuine issue of material fact:     the motivations for requiring
Robert Landon to take a drug test on the night of March 2, 1992.    Based on
the evidence presented, a reasonable juror could find that Northwest's
proffered
business reason for requiring Landon to take the drug test was pretextual.
As a result, a jury must determine whether the proffered reason was a
pretext for racial discrimination.        Therefore, summary judgment was
inappropriate with respect to Landon's claims of racial discrimination and
invasion of privacy.     We reverse the district court's dismissal of those
two claims and remand them for trial.


                                  BACKGROUND


     Appellant, Robert Landon, is an African-American male hired by
appellee, Northwest Airlines (NWA), as an Equipment Services Employee (ESE)
in September 1989.     As an ESE, Landon loaded, unloaded, and cleaned NWA
aircraft.    Landon was employed pursuant to a bargaining agreement between
NWA and the International Association of Machinists.


     On March 2, 1992, Landon was unloading a NWA airplane using a
conveyer-belt machine.     During the unloading, the steering wheel of the
belt loader caught on the aircraft cargo-bay door and broke the door
handle.     Landon reported the incident to his immediate supervisor, Robin
Aponte.   Aponte inspected the damage and told Landon to proceed to his next
assignment.     Aponte asserts that during a fifteen-minute interview of
Landon, he noticed that Landon had bloodshot eyes, slurred his speech, and
had difficulty understanding Aponte's questions.


     Aponte reported the incident to his supervisors, Stephen Brice and
Clifford Van Leuven.    Brice and Van Leuven then located Landon.   Van Leuven
informed Landon that, because the accident was his third of the year, he
could expect to have some time off and that he would be required to take
a drug and alcohol test.       Landon claims that Brice informed him that
regulations required administration of the test following an accident.
Landon's position with NWA was "non-safety sensitive."       As a non-safety
sensitive employee, the




                                      2
only legitimate basis for testing Landon was for reasonable suspicion of
alcohol or drug use.


     Brice and Van Leuven then accompanied Landon to the San Francisco
International Airport Medical Center, a facility independent from NWA,
where Landon was required to execute a written consent to the drug test.
At this time, Nurse Thomas Griglock completed a medical center form that
indicated that the basis for the test was "post-accident."1              Landon gave
Griglock a urine sample, which was sealed and sent to an independent
testing agency in Illinois.          After providing the urine sample, Landon
returned to the Ramp Office where Van Leuven suspended him for the rest of
his shift.   The following day, Van Leuven instructed Landon to report for
his regular work schedule.


     Landon's specimen tested positive for marijuana metabolites.                  On
March 13, 1994, Brice and Van Leuven informed Landon by notice of discharge
that his employment was terminated as a consequence of the NWA alcohol and
drug policy violation.


     Landon   alleges    that   he   was   tested   and   subsequently    fired   for
racially-motivated purposes.     He further alleges that he was not reinstated
for the same reasons and in retaliation for a Equal Employment Opportunity
Commission (EEOC) complaint that he had lodged against NWA.         Landon brings
suit under 42 U.S.C. § 1981; Title VII, 42 U.S.C. § 2000(e) et seq.; the
California Fair Employment and Housing Act, Cal. Gov't Code, Art. I, §
12940 et seq.; the California constitutional right of privacy; the San
Francisco City and County ordinance-based right of privacy; and California
public policy.   Landon further claims that statements




     1
     While Griglock could not remember what Brice had said was the
basis for the test, he testified that he would have checked the
testing basis stated by Brice. The "reasonable suspicion" basis,
which the form provided as an option, was not checked.

                                           3
made   by     his   supervisor,   Van   Leuven,   regarding    his   suspicions   were
defamatory.


                                        DISCUSSION


       Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of
law.   A material fact dispute is genuine if the evidence is sufficient to
allow a reasonable jury to return a verdict for the non-moving party.               We
review the granting of summary judgment de novo.


       Although summary judgment should be used sparingly in the context of
employment discrimination cases, Crawford v. Runyon, 37 F.3d 1338, 1341
(8th Cir. 1994), the plaintiff's evidence must go beyond the establishment
of a prima facie case to support a reasonable inference regarding the
alleged illicit reason for the defendant's action.            Reich v. Hoy Shoe Co.,
32 F.3d 361, 365 (8th Cir. 1994).


A.     The Discrimination Claims2


       In a racial discrimination suit, the plaintiff must first make a
prima facie case that i) he is a member of a protected class, ii) he is
qualified for the position, iii) adverse action was taken against him, and
iv) there is some evidence that would allow the inference of improper
motivation.         See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973).       The prima facie burden is not so onerous as, nor should it be
conflated with, the ultimate issue of racially-motivated action.                  See
Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 944 (8th Cir.
1994).      We find that Landon




          2
        Landon's suit claims that NWA's putative discriminatory
actions violated Title VII, 42 U.S.C. § 2000(e) et seq., 42 U.S.C.
§ 1981, and the California Fair Employment and Housing Act, Cal.
Gov't Code, Art. I, § 12940 et seq.

                                            4
sufficiently established a prima facie case.             Landon i) is African
American, ii) was a qualified ESE, and iii) was fired by NWA.          With respect
to the fourth prong, Landon has presented evidence that could support his
allegations that Van Leuven is a racist and that, as will be discussed,
NWA's proffered business reason was pretextual.      While this evidence would
not require a reasonable juror to return a verdict for the appellant, it
is sufficient to meet the fourth prong's minimal requirements of some
evidence allowing for an inference of improper motivation.


     Once the plaintiff makes a prima facie case, the burden shifts to the
employer to articulate a legitimate business reason for its action.
McDonnell, 411 U.S. at 802.      In this case, NWA maintains that it tested
Landon based on the reasonable suspicions of its supervisors that Landon
was under the influence of drugs or alcohol.         There is no dispute that
NWA's reasonable suspicion policy constitutes a legitimate business reason.
Having articulated a legitimate business purpose, the burden shifts back
to the plaintiff to meet a more difficult standard:       demonstrating that the
defendant's articulated reason for its action was i) a pretext ii) for
unlawful discrimination.     See St. Mary's Honor Ctr. v. Hicks, 125 L.Ed.2d
407, 418 (1993).


     As proof that the proffered reason for requiring the appellant to
submit   to drug testing was pretextual, the appellant points to the
following evidence:       i) statements made by Landon's supervisors on the
night of the accident that he was being tested as a consequence of the
accident; ii) forms, filed contemporaneously with the drug test, that fail
to indicate the supervisors' suspicions; iii) evidence that the supervisors
did not follow procedures consistent with reasonable suspicion (e.g.,
although   NWA   policy   prohibits   employees,   who   have   been   tested   for
reasonable suspicion, from driving motorized vehicles until the results of
their test are returned, Landon's supervisors permitted Landon to drive
home following the drug test and required him to return to




                                        5
work the following day); iv) a medical affidavit asserting that the levels
of marijuana metabolites found by the drug test were not such that the
appellant's   behavior   would   have   been   demonstrably     affected;   and   v)
affidavits of appellant's friends and relatives stating that Landon's
behavior was normal on the night of the accident.


     In response, NWA offers affidavits of the three supervisors.             These
affidavits assert that their suspicions were aroused by the appellant's
atypical   behavior.     The   defendant    admits   to    acting   abnormally,   but
attributes his behavior to his unhappiness regarding the accident.            Reply
Brief at 6 n.2.     For the purposes of summary judgment, the proffered
evidence must be taken in the light most favorable to the plaintiff.


     Landon's evidence sketches a factual background by which objective
reasonable suspicions could not be aroused.      More importantly, the evidence
of statements and conduct inconsistent with the supervisors' purported
subjective suspicions could support an inference that the supervisors had
no suspicions on the night of March 2, 1992.              As such, the evidence is
sufficient for a reasonable juror to reject NWA's proffered business
reason.


     For a jury to return a verdict in favor of the appellant, it would
need to find that the reason provided for the drug test was not only a
pretext, but that the actual motivation for the test was for racial
discrimination.   Hicks, 125 L.Ed.2d at 418-19.      The Supreme Court in Hicks,
however, stated that "rejection of the defendant's proffered reasons, will
permit the trier of fact to infer the ultimate fact of intentional
discrimination, . . . [n]o additional proof of discrimination is required."
Id. (footnote and citation omitted); accord Korbin v. University of
Minnesota, 34 F.3d 698, 702-03 (8th Cir. 1994) ("[A plaintiff] may overcome
summary judgment by producing evidence that, if believed, would allow `a
reasonable jury to reject defendant's proffered reasons of




                                        6
its actions.'").    Thus, while a verdict for the appellant can only occur
after a finding of discrimination, rejection of the defendant's proffered
reasons is enough at law to sustain such a finding.          Hicks, 125 L.Ed.2d at
418-19 n.4.


     While the appellant must ultimately persuade the jury, in light of
all of the evidence, that the motivation for the March 2nd testing was
racial bias,3 the evidence presented, which could support the conclusion
that the proffered reason was pretextual, is sufficient to overcome a
motion for summary judgment.       Therefore, we reverse the district court's
order of summary judgment.


B.   Retaliation Claim


     Landon   claims     that   NWA's   refusal     to   reinstate   him   after    his
termination   was   in   retaliation    for   the    EEOC   charge   alleging      race
discrimination that Landon filed against NWA on March 31, 1992.                     The
district court dismissed appellant's retaliation claim on two separate
grounds:   i) it was barred by the statute of limitations, and ii) there was
insufficient evidence for a reasonable juror to find for the appellant.


     Landon claims that the retaliatory act was NWA's failure to reinstate
him, not its decision to test or terminate him.              As evidence of NWA's
alleged retaliation for a prior EEOC claim, appellant points to a message
sent on May 9, 1992 from Van Leuven to NWA labor counsel regarding a
grievance proposal to reinstate Landon.           The message stated:




       3
       If NWA supervisors drug tested Landon for discriminatory
motivations, NWA may not invoke its policy of zero tolerance to
justify Landon's discharge, which would be the direct result of the
discriminatory action.     To hold otherwise would invite such
behavior.

                                         7
     The point is that Landon tested positive. Landon lied in
     a company investigation, and Landon filed an EEO
     complaint against me (I guess). I do not care about the
     EEO implications because Landon tested positive and then
     lied about it.


According to the appellant, this proves that Landon was not reinstated
because of the EEOC complaint.    We do not agree.   NWA has a clear policy
that a positive drug test results in termination.    Moreover, a terminated
employee is reinstated only after he or she has admitted that a problem
exists and agrees to seek treatment.      Appellant refused to meet these
conditions.   We agree with the district court that the evidence presented
does not support a claim of retaliation.         Therefore, we affirm the
dismissal of the retaliation claim.


C.   Invasion of Privacy Claims


     Appellant also claims that the drug testing was an infringement of
his right of privacy in violation of both the state constitution and a city
and county ordinance.


     1. The California Constitution.


     In dismissing the appellant's claim of an invasion of privacy in
violation of the California Constitution, the district court held that drug
testing an employee based on reasonable suspicions of drug or alcohol use
substantially furthers the countervailing interest of employee and public
safety.   We review the district court's findings of state law de novo.   See
Salve Regina College v. Russell, 499 U.S. 225, 231 (1991).


     In its analysis, the district court bypassed the initial burden
placed on a plaintiff to demonstrate the elements of a prima facie case:
i) a specific, identifiable, privacy interest; ii) a reasonable expectation
of privacy under the circumstances; and iii)




                                      8
a serious invasion of that privacy by the defendant's actions.             Hill v.
NCAA, 865 P.2d 633, 657 (Cal. 1994).       Instead, the district court focused
on NWA's defense that its actions substantially furthered countervailing
interests.   See id.   In its analysis, the district court held that employee
safety, public safety, and public confidence in safe air travel were
sufficient countervailing interests4 to justify the potential invasion of
privacy resulting from a "reasonable suspicion" test.5         We agree.


     Implicit    within    the   district    court's   order   is   the    factual
determination that appellant's position with NWA could adversely impact
these countervailing interests of public safety.       Appellant argues that his
position was characterized as "non-safety sensitive" by his employment
contract, and as such, he did not pose a threat to the safety and welfare
of others.   The contractual characterization of Landon's potential impact
on public safety,



         4
      Although appellant urges this court to adopt a "compelling
interest" standard, the California Supreme Court irrefutably
rejected this standard. Hill, 865 P.2d at 653-54. While the Hill
court acknowledged the differences between its case and one arising
from the employment context, it specifically stated that those
differences would be "subject to the elements [announced], which
require careful consideration of reasonable expectations of privacy
and employer, employee, and public interests arising in particular
circumstances." Id. at 667 n. 20. Appellant cites Semore v. Pool,
217 Ca.App.3d 1087 (Cal. Ct. App. 1990), and Luck v. Southern Pac.
Transp. Co., 218 Cal.App. 1 (Cal. Ct. App.), cert. denied, 498 U.S.
939 (1990), for the proposition that the "compelling interest"
standard must be applied in the employment context. Both cases,
however, were decided prior to Hill which specifically questioned
their continued viability in light of its newly enunciated
standard. Id.
     5
      We note that the district court stated that requiring a drug
test "either because of reasonable cause suspicion of drug
influence or because of suspicion aroused due to the employee's
damaging an airplane during his second accident in several weeks,
substantially furthers NWA's countervailing interests." Landon v.
Northwest Airlines, Inc., No. 3-93-151, slip op. at 11 (D. Minn.
Jan. 30, 1995). These alternatives merely suggest different bases
by which reasonable suspicion might be aroused; it does not raise
the more problematic issue of suspicionless drug testing.

                                       9
however, is not controlling.        We accept the district court's finding of
fact that Landon's employment position was a matter of public safety
concern.


     Nevertheless, appellant alleges that NWA's invasion of his privacy
was not based on reasonable suspicion, but rather on racial prejudice.      For
the reasons discussed above, the factual issue regarding the motivations
for the drug test still need to be resolved by a jury.             Although the
burden-shifting scheme enunciated by McDonnell and Hicks was developed
within the context of Title VII, its influence beyond Title VII claims may
be appropriate where alleged discriminatory motivations are at issue.        In
this particular context, NWA raises its motivation as a defense to the
claim of invasion of privacy.        While the analysis might be different for
the two claims, the material issue is the same:         what was the motivation
for drug testing Landon?       We have held that this question of fact must be
determined by a jury.        If the trier of fact were to determine that NWA's
motivations were discriminatory, NWA would not be able to assert its
"reasonable suspicion" policy as a countervailing interest.


     Therefore, we reverse the summary judgment with regards to this
issue.       We note that the district court has made no determination regarding
the appellant's prima facie case, and therefore we do not review this
issue.6




         6
       In light of Hill, any such consideration of a prima facie
case will need to address the continued vitality of prior case law,
which had held that employment drug testing violated the California
Constitution. See Hill, 865 P.2d at 667 n. 20. Additionally, the
impact of Landon's consent, which was considered in Hill under
different circumstances, would need to be considered.

                                         10
     2. The San Francisco Ordinance.


     We affirm the district court's dismissal of appellant's claim based
on the San Francisco Workers Privacy Ordinance, S.F. Police Code § 3300A.
The district court held that although the airport, at which Landon was
employed, is owned and operated by the City and County of San Francisco,
the airport's location in San Mateo County removes Landon from the purview
of the ordinance's definition of employee:               a person working within the
City and County of San Francisco.               S.F. Police Code § 3300A.2(1).             The
governmental powers of San Francisco County do not extend beyond its
territorial boundaries to property that it owns.                    The city attorney's
opinion, cited by appellant for the proposition that city employees are
covered     even    when   beyond    the   territorial        integrity    of   the    city,
specifically bases its opinion of extraterritorial application on the fact
that the organization in question, the San Francisco Giants, had its
principal place of business within city limits.


D.   Defamation Claims


     Landon's       defamation    claim    is    based   on   Van   Leuven's    statements
regarding his suspicions that Landon was under the influence of drugs or
alcohol on the night of March 2, 1992.            Holding that there was no evidence
of malice by which a juror could return a verdict for the plaintiff, the
district court dismissed appellant's claim for defamation.                 While there may
be sufficient evidence for a jury to find discriminatory motivations, and
hence malice, the district court appropriately dismissed appellant's
defamation claim given the evidence of a positive drug test.


     Landon        bases   his   defamation     claim    on   statements    made      by   his
supervisor to other NWA employees regarding his suspicions of Landon's
behavior.    In essence, the supervisor's statements implied that Landon used
illicit drugs.       Based on the positive result of




                                            11
the drug test,7 the district court found as a factual matter that the
appellant did in fact use marijuana.            We see no clear error in this
finding.        The truth of the allegations, in the context of defamation,
provides an absolute defense.        See Lundquist v. Reusser, 875 P.2d 1279,
1282 n.5 (Ca. 1994).       Therefore, we affirm the district court's dismissal
of the defamation claim.


E.     Public Policy Claims


       Finally, Landon argues that his discharge violates California public
policy.       The district court dismissed this claim.   California state courts
have determined that the California legislature intended the California
Fair Employment and Housing Act, Cal. Gov't Code §§ 12900-12996, one of the
three bases underlying Landon's discrimination claim, to be the sole remedy
for discriminatory discharge.      See Cook v. Lindsay Olive Growers, 911 F.2d
233,   238     (9th Cir. 1990) (citing Strauss v. A.L. Randall Co., 144
Cal.App.3d 514, 519-21 (Cal. Ct. App. 1983) and Ficalora v. Lockheed Corp.,
193 Cal.App.3d 489 (Cal. Ct. App. 1987)).         We are bound by California case
law to reject this cause of action.           Therefore, we affirm the district
court's dismissal of this claim.


                                     CONCLUSION


       NWA claims that its supervisors' decision to require Robert Landon
to submit to a drug test was motivated by their reasonable suspicions that
Landon was under the influence of drugs or alcohol.        The evidence presented
is sufficient for a reasonable juror to reject this justification as
pretextual.        For the claims for which NWA's motivations are a material
issue, a jury must determine this




          7
       Although appellant argues that the test has a disparate
impact based on the amount of melanin in the skin, the district
court rejected this assertion, noting that appellant's expert
admitted that the hypothesis was merely a theory without any
scientific corroboration.

                                         12
question of fact.   Therefore, we reverse the district court's granting of
summary judgment with respect to the claims of racial discrimination and
violation of the state constitutional right of privacy.      We affirm the
district court's dismissal of Landon's claims of retaliation, invasion of
privacy in violation of San Francisco's privacy ordinance, defamation, and
violation of public policy.   The case is hereby remanded to the district
court for proceedings consistent with this opinion.


HANSEN, Circuit Judge, concurring.


     I concur with our court's opinion because I believe Landon offered
sufficient evidence raising genuine issues of material fact as to whether
NWA's proffered reason for testing Landon was pretextual and whether NWA's
actual reason was racial discrimination.   The grant of summary judgment in
favor of NWA was therefore erroneous.


     A true copy.


         Attest:


              CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                     13
