In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2692

Huston Stockett,

Plaintiff-Appellant,

v.

Muncie Indiana Transit System,

Defendant-Appellee.



Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 97 C 645--John P. Godich, Chief Magistrate.


Argued May 15, 2000--Decided July 21, 2000



       Before Cudahy, Flaum, and Evans, Circuit Judges.

      Flaum, Circuit Judge. Huston Stockett sued his
employer, the Muncie Indiana Transit System
("MITS"), for race discrimination in violation of
42 U.S.C. sec. 2000e-2(a) (Title VII). The
district court granted summary judgment for the
defendant, and for the reasons stated herein we
affirm.

I.   BACKGROUND

      In 1989, MITS adopted a zero tolerance Alcohol
and Substance Abuse Policy (the "Drug Policy").
Under this Policy, MITS may test any employee for
drugs and alcohol who is "reasonably suspected of
being impaired or under the influence" while on
MITS property. Any employee who tests positive is
subject to immediate termination. Employees who
are concerned that they may have a drug or
alcohol abuse problem are given a one-time
opportunity to enter an Employee Assistance
Program ("EAP") to receive treatment and
counseling. Employees who test positive for drugs
are subject to termination regardless of their
participation in this counseling program.
      Huston Stockett, a black man, was employed as a
bus driver for MITS. On August 17, 1995, Stockett
returned to work from a one week vacation and was
called into a meeting with MITS supervisors. The
purpose of the meeting was to discuss a complaint
of sexual harassment that had been filed against
Stockett. Later that day, Stockett was called to
another meeting with the same supervisors to
discuss the same issue. MITS ultimately concluded
that there was insufficient evidence to take any
further action regarding the complaint and did
not pursue the allegations of sexual harassment
against Stockett.

      However, prior to the meetings, MITS had
received an anonymous report that Stockett had
been seen smoking crack. Kevin Barton, a MITS
supervisor who had been trained to recognize
signs of alcohol or drug influence, observed
Stockett during the meetings. Mr. Barton noticed
that Stockett had red eyes and that his demeanor
was uncharacteristically calm. Based on these
facts, Mr. Barton concluded that there was
probable cause to suspect that Stockett was under
the influence of drugs. Pursuant to the Drug
Policy, Stockett was required to submit to a drug
test, and he tested positive for drug use. MITS
gave Stockett the option of voluntarily resigning
or being terminated. Stockett chose termination,
and his position was subsequently filled by a
black woman.

      Robert Merryweather is a white MITS employee.
Prior to the adoption of the 1989 Drug Policy,
Merryweather tested positive for drug use and was
permitted to enter a rehabilitation program
without losing his job. After completing the
program, Merryweather returned to work subject to
a number of probationary conditions. On August
27, 1991, Merryweather was required to submit to
another drug test. The result was negative, but
Merryweather enrolled in a voluntary drug
treatment program under MITS’s EAP. In 1994, MITS
received two complaints alleging that the
complainant had purchased drugs from Merryweather
and had seen Merryweather using drugs. The
complainant was known to MITS as a person who had
caused problems for and complained about MITS
employees in the past. After the second
complaint, a MITS supervisor, who was trained to
recognize the signs of drug or alcohol influence,
observed Merryweather for two days but did not
detect any signs of drug use. Merryweather was
not asked to submit to a drug test following this
observation period.

      On April 23, 1997, Stockett filed suit against
MITS, claiming that he was discriminated against
on the basis of his race in violation of Title
VII when he was required to take a drug test and
was fired for failing it while Merryweather, a
similarly-situated white employee, was treated
more favorably. The district court granted
summary judgment for MITS, and Stockett now
appeals.
II.   DISCUSSION

      Stockett contends that the district court erred
in granting summary judgment for MITS on his race
discrimination claims under Title VII. We review
a district court’s grant of summary judgment de
novo, viewing the facts and drawing all
reasonable inferences in the light most favorable
to the non-moving party. See Billups v. Methodist
Hosp. of Chicago, 922 F.2d 1300, 1302 (7th Cir.
1991). Summary judgment is appropriate only where
"there is no genuine issue as to any material
fact and . . . the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P.
56(c); see James v. Sheahan, 137 F.3d 1003, 1006
(7th Cir. 1998).

      Stockett was fired pursuant to clearly
established MITS policy because he reported to
work to drive a bus while under the influence of
drugs. Stockett does not contest that he failed
the drug test, nor does he contest that MITS was
entitled to fire him when he failed that test.
Rather, Stockett contends that he was required to
take the drug test because of his race and that
this treatment was an adverse employment action
that violated his rights under Title VII.

      A plaintiff may meet his burden of proof under
Title VII by offering either direct proof of
discriminatory intent or by proving disparate
treatment through the indirect, burden-shifting
method outlined by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343,
347 (7th Cir. 1997); Sample v. Aldi Inc., 61 F.3d
544, 547 (7th Cir. 1995). In this case, Stockett
offers no direct proof of discrimination but
attempts to meet his burden through showing
discriminatory treatment under the McDonnell
Douglas test.

      To prove discrimination using the McDonnell
Douglas method, the plaintiff must first make out
a prima facie case of discrimination. McDonnell
Douglas, 411 U.S. at 802. Where a plaintiff
alleges discriminatory treatment, he must
demonstrate that (1) he belongs to a protected
class; (2) he performed his job satisfactorily;
(3) he suffered an adverse employment action; and
(4) his employer treated similarly-situated
employees outside of his protected class more
favorably. See Plair, 105 F.3d at 347; Lenoir v.
Roll Coater, Inc., 13 F.3d 1130, 1132 (7th Cir.
1994). Once a plaintiff has made this showing,
there is a presumption that he was discriminated
against, and the employer must come forward with
a legitimate, non-discriminatory reason for the
employment action. See McDonnell Douglas, 411
U.S. at 802; Lenoir, 13 F.3d at 1133. At this
stage, the employer need not prove that it was
actually motivated by the proffered reason.
Rather, an employer "need only produce admissible
evidence which would allow the trier of fact
rationally to conclude that the employment
decision had not been motivated by discriminatory
animus." Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 257 (1981). Once the
defendant has met this burden of production, the
plaintiff must prove by a preponderance of the
evidence that the reason offered by the defendant
is merely a pretext for discrimination. Id. at
253; Plair, 105 F.3d at 348. While the McDonnell
Douglas approach is often called a "burden
shifting" method of proof, "[t]he ultimate burden
of persuading the trier of fact that the
defendant intentionally discriminated against the
plaintiff remains at all times with the
plaintiff." Burdine, 450 U.S. at 253.

      It is undisputed that Stockett is a member of a
protected class. In addition, MITS does not
allege that Stockett was not meeting its
legitimate employment expectations prior to
requesting that he take the drug test at issue in
this case. However, MITS contends that Stockett
fails to make out a prima facie case of
discrimination because requiring an employee to
take a drug test is not an adverse employment
action and because MITS did not treat similarly-
situated non-black employees more favorably than
Stockett.

      An adverse employment action is "a materially
adverse change in the terms and conditions of
employment [that is] more disruptive than a mere
inconvenience or an alteration of job
responsibilities." Crady v. Liberty Nat’l Bank
and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993);
see Rabinovitz v. Pena, 89 F.3d 482, 488 (7th
Cir. 1996). Adverse employment actions encompass
more than simply the termination of employment or
a decrease in salary. They also may include
actions such as bestowing on an employee "a less
distinguished title, a material loss of benefits,
significantly diminished material
responsibilities, or other indices that might be
unique to a particular situation." Crady, 993
F.2d at 136. It is well established that
conditions of employment that are designed to
harass and humiliate employees because of their
race are actionable adverse employment actions
under Title VII. See Patterson v. McLean Credit
Union, 491 U.S. 164, 180 (1989) ("Racial
harassment in the course of employment is
actionable under Title VII’s prohibition against
discrimination in the ’terms, conditions, or
privileges of employment.’"); Johnson v. City of
Fort Wayne, 91 F.3d 922, 938 (7th Cir. 1996)
("’Title VII affords employees the right to work
in an environment free from discriminatory
intimidation, ridicule, and insult.’") (quoting
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65
(1986) and applying its rationale to race-based
harassment); Daniels v. Essex Group, Inc., 937
F.2d 1264, 1270 (7th Cir. 1991). As the Supreme
Court has recognized, a suspicion-based drug test
can be a "badge of shame" for those subjected to
the test. Vernonia Sch. Dist. 47J v. Acton, 515
U.S. 646, 663 (1995) (recognizing the possibility
of the arbitrary and discriminatory imposition of
suspicion-based drug tests). Therefore, under
circumstances where a drug test is not performed
in a routine fashion following the regular and
legitimate practices of the employer, but is
conducted in a manner that harasses or humiliates
employees, requiring that the employee submit to
the drug test as a condition of employment may be
an adverse employment action that is actionable
under Title VII. See Landon v. Northwest
Airlines, Inc., 72 F.3d 620, 624-25 (8th Cir.
1995) (holding that requiring the plaintiff to
submit to a drug test was an actionable adverse
employment action under Title VII where there was
no reasonable suspicion that the employee was
under the influence of drugs and there was a
question of fact as to whether the employer’s
proffered non-discriminatory reason was
pretextual).

      In this case, however, Stockett does not show
that requiring him to submit to a drug test was
the type of harassing act that constitutes an
adverse employment action. MITS only requested
that Stockett take the test after it had received
a report that Stockett was using drugs and after
a trained observer determined that Stockett
exhibited the signs of a person who was under the
influence of a controlled substance. This
reasonable and legitimate request made pursuant
to MITS’s published Drug Policy does not
constitute the type of adverse employment action
that Title VII is designed to prevent. See North
v. Madison Area Ass’n for Retarded Citizens-
Developmental Ctrs. Corp., 844 F.2d 401, 409 (7th
Cir. 1988) (noting that racial harassment must be
"severe or pervasive" to be actionable under
Title VII); see also Johnson, 91 F.3d at 938.

      Furthermore, Stockett has not demonstrated that
similarly-situated non-black employees were
treated more favorably. While Stockett asserts
that Robert Merryweather, a white employee, was
not required to take a drug test under
circumstances analogous to those under which
Stockett was tested, this contention is
unsupported by the record. Both Stockett and
Merryweather were accused by outside informants
of using drugs, and both employees were then
observed by MITS supervisors trained to recognize
signs of alcohol or drug influence. While the
supervisor who was observing Stockett concluded
that there was probable cause to suspect Stockett
was under the influence of drugs, the supervisor
observing Merryweather found no signs of drug use
and concluded there was no probable cause to test
Merryweather. Rather than treating the two
employees differently, the MITS supervisors
treated them identically--observing them for
signs of drug use after allegations were made
against them and requiring testing only if those
observations yielded probable cause to do so.

      Stockett also alleges that Merryweather was
treated more favorably because Merryweather was
permitted to enter the EAP for treatment two
times when the Drug Policy allowed employees to
use this program only once and Stockett did not
use the EAP at all. However, Merryweather used
the program for the first time before the Drug
Policy was instituted. The second time
Merryweather entered the program, he did so after
submitting to the requested drug test and
receiving a negative result. Stockett, on the
other hand, did not request that he be admitted
to the EAP program until after he had tested
positive for drugs. We find nothing in this
series of events that demonstrates that
Merryweather was treated more favorably than
Stockett with respect to his use of the EAP. See
Anderson v. Lewis Rail Serv. Co., 868 F.2d 774,
775 (5th Cir. 1989) (holding that black
plaintiffs who were fired and not rehired after
failing drug tests were not similarly situated to
white employees who were fired and rehired after
failing similar tests because the white employees
had undergone voluntary drug rehabilitation which
the black employees had foregone).

      We find no disparity in MITS’s treatment of
Merryweather and Stockett, and Stockett has
proffered no other evidence that he was required
to take a drug test because of his race.
Therefore, we conclude that Stockett has not made
out a prima facie case of discrimination under
Title VII, and the district court did not err in
granting summary judgment to MITS.

III.   CONCLUSION

      For the foregoing reasons, the district court’s
grant of summary judgment in favor of MITS is
Affirmed.
