Filed: Mar. 24, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 3-24-2009 Christopher Byrd v. Fed Express Corp Precedential or Non-Precedential: Non-Precedential Docket No. 08-2015 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Christopher Byrd v. Fed Express Corp" (2009). 2009 Decisions. Paper 1701. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1701 This decision is brought to you for free and
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 3-24-2009 Christopher Byrd v. Fed Express Corp Precedential or Non-Precedential: Non-Precedential Docket No. 08-2015 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Christopher Byrd v. Fed Express Corp" (2009). 2009 Decisions. Paper 1701. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1701 This decision is brought to you for free and o..
More
Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-24-2009
Christopher Byrd v. Fed Express Corp
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2015
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Christopher Byrd v. Fed Express Corp" (2009). 2009 Decisions. Paper 1701.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1701
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 08-2015
____________
CHRISTOPHER BYRD,
Appellant
v.
FEDERAL EXPRESS CORP.;
CONCENTRA MEDICAL CENTER,
Appellee.
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-05-cv-02648)
District Judge: Honorable Robert B. Kugler
____________
Submitted Under Third Circuit LAR 34.1(a)
March 3, 2009
Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.
(Filed: March 24, 2009)
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Christopher Byrd appeals the District Court’s grant of summary judgment in favor
of Federal Express Corporation (FedEx). We will affirm.
I.
Because we write exclusively for the parties, we recount only the facts necessary to
our decision.
Byrd began working as a courier for FedEx on July 24, 1995 and became a senior
customer service agent in 1998. Byrd is a diabetic and has received treatment for alcohol
dependency. On February 9, 2001, Byrd reported to FedEx that he had an alcohol
problem. Pursuant to FedEx’s Alcohol and Drug Free Workplace Policy (Policy), Byrd
took an authorized leave of absence to seek treatment. FedEx informed Byrd that his
leave of absence was protected under the Family and Medical Leave Act (FMLA) until it
was exhausted on February 20, 2001. Byrd was also advised that he could not return to
work until he received clearance from a FedEx medical review officer (MRO).
Pursuant to the Policy, Byrd was required to execute a Statement of Understanding
(SOU) before returning to work. The SOU is, in effect, a “last chance” agreement and
failure to comply with the SOU triggers disciplinary action, including possible
termination. Byrd executed the SOU on April 5, 2001 and returned to work on April 9,
2001, after FedEx’s MRO cleared him for reinstatement. The SOU required Byrd to
2
undergo random alcohol testing at the behest of FedEx. Between May 25, 2001 and
February 24, 2003, Byrd was tested eighteen times and passed each test.
On April 7, 2003, FedEx required Byrd to report to Concentra Medical Center
(Concentra) for a follow-up test pursuant to the Policy. Byrd’s initial test indicated a
blood alcohol content of .072. Byrd then submitted to a confirmation test, which resulted
in a blood alcohol content of .061. Byrd denied having used any alcohol and contested
the test results; nonetheless, FedEx suspended him temporarily. Byrd requested a blood
alcohol screen, but FedEx denied his request. Byrd later obtained a letter from his
primary care physician, who believed that the test was a false positive caused by Byrd’s
diabetes. Byrd’s physician opined that ketoacidosis, a condition associated with diabetes,
can cause a false positive.
As a result of the positive alcohol tests, FedEx terminated Byrd’s employment on
April 11, 2003. Byrd sued FedEx in state court claiming violations of the New Jersey
Law Against Discrimination (NJLAD) and alleging intentional and negligent infliction of
emotional distress. After FedEx removed the case to the United States District Court for
the District of New Jersey, Byrd amended his complaint to add claims for violations of
the Family Medical Leave Act (FMLA) and other state law claims that are not relevant to
this appeal.
The District Court granted FedEx summary judgment on all claims and Byrd filed
this timely appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.
3
II.
Byrd raises various arguments on appeal. First, Byrd claims that an issue of
material fact existed as to the cause of his positive alcohol test such that his NJLAD claim
should have proceeded to trial. Byrd also argues that FedEx’s Policy discriminates
against persons with addictions in violation of the NJLAD by requiring them to submit to
testing, while other employees are not subject to the same requirement. As for his federal
claim, Byrd asserts that summary judgment was improper under the FMLA because
disputed issues of material fact exist regarding the date he returned to work. Finally,
Byrd argues that material issues of fact exist on his claims for negligent and intentional
infliction of emotional distress. For the reasons that follow, we find none of Byrd’s
arguments persuasive.
A.
To prevail under the NJLAD, Byrd must show that FedEx’s adverse employment
decision not only was wrong, but that the company acted with discriminatory animus.
Abramson v. William Paterson Coll. of N.J., 260 F.2d 265, 283 (3d Cir. 2001). Even
assuming, arguendo, that Byrd’s positive alcohol tests were erroneous, this fact would not
be material. FedEx had no hand in the testing, which was performed by an independent
company, Concentra. FedEx was entitled to accept at face value the results of
Concentra’s testing of Byrd. Accordingly, we agree with the District Court’s conclusion
4
that the record is devoid of evidence from which Byrd could satisfy his burden of
showing pretext under Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).
It is unfortunate for Byrd that the nineteenth time he was tested, the results came
back positive. But this does not change the fact that FedEx had a clear policy for
employees who, like Byrd, voluntarily report alcohol abuse. By signing the SOU, Byrd
was well aware that his employment at FedEx was conditioned on follow-up testing, and
that a positive test could result in termination.1
B.
Byrd also argues that the SOU he was required to sign violates the NJLAD
because it treats employees with alcohol or substance abuse problems differently from
employees suffering from other ailments. We do not reach the merits of this argument,
however, because Byrd brought this claim on April 8, 2005, more than four years after
signing the SOU on April 5, 2001 and more than two years after his last alcohol test.
Accordingly, the District Court correctly held that Byrd’s claim that the SOU violates the
NJLAD is time-barred. Montells v. Haynes, 627 A.2d 654, 655 (N.J. 1993) (holding that
the NJLAD requires that claims be brought within two years of a violation).
1
Byrd’s argument that his positive test was caused by the inhalation of diesel fumes
is questionable in light of the fact that Byrd passed eighteen previous tests while working
under similar conditions. Even if diesel fumes had been the true cause of the failed
alcohol test, this would mean only that FedEx’s termination decision was erroneous, not
discriminatory.
5
C.
Byrd next argues that the District Court erred in granting FedEx’s motion for
summary judgment on his FMLA claim because the date he returned to work is a material
fact in dispute. The FMLA provides that an employee with a serious health condition
who is unable to perform the functions of his employment is entitled to twelve weeks of
unpaid leave during a twelve month long period. 29 U.S.C. § 2612(a)(1)(D). Upon
returning from FMLA leave, the employee is reinstated to his former position and
resumes his prior duties. 29 U.S.C. § 2614(a)(1). Of course, if an employee returns to
work after the FMLA leave expires, he loses its protection. Conoshenti v. Pub. Serv.
Elec. & Gas Co., 364 F.3d 135, 141 (3d Cir. 2004).
The District Court found that Byrd’s FMLA protection expired on February 20,
2001. Byrd argues that he was discharged from alcohol treatment and was ready to return
to work on February 19, 2001, a day before his FMLA leave expired. The evidence in the
record supports the District Court’s determination that Byrd did not return to work until
April 9, 2001. Indeed, Byrd did not receive clearance from the MRO until April 5, 2001.
Instead of challenging directly the District Court’s determination that he returned
to work on April 9, 2001, Byrd asserts that FedEx delayed his return to work because
FedEx refused to reinstate him until he obtained clearance from the MRO. Although this
is factually accurate, Byrd was on notice that the approval of FedEx’s MRO was a
condition precedent to his reinstatement.
6
Byrd also argues that FedEx interfered with his FMLA rights not only when he
signed the SOU and agreed to random alcohol testing as a condition of continued
employment, but also each time that he was required to submit to an alcohol screen after
his reinstatement. The continued violations, according to Byrd, violated his FMLA rights
because they placed Byrd in a worse position than he enjoyed prior to taking his leave of
absence.
We find that the District Court did not err when it entered judgment for FedEx on
Byrd’s FMLA claims. Significantly, Byrd fails to cite even a single case in support of his
FMLA arguments. When Byrd returned to work on April 9, 2001, he was fully reinstated
to a position equivalent to that which he enjoyed prior to his leave of absence.
Accordingly, FedEx was entitled to judgment on this claim.
C.
Like his other arguments, Byrd asserts that issues of material fact exist regarding
his claims for negligent and intentional infliction of emotional distress. We find that the
District Court did not err in this regard because Byrd did not produce sufficient evidence
to create a genuine issue of material fact as to whether or not he suffered emotional
distress. In New Jersey, it is well established that it is “extremely rare to find conduct in
the employment context that will rise to the level of outrageousness necessary to provide
a basis for recovery for the tort of intentional infliction of emotional distress.” Griffin v.
7
Tops Appliance City, Inc., 766 A.2d 292, 297 (N.J. Super. Ct. App. Div. 2001) (quoting
Cox v. Keystone Carbon Co.,
861 F.2d 390, 395 (3d Cir. 1988)).
We agree with Byrd that a finding of intentional infliction of emotional distress
requires him to show that: (1) FedEx engaged in extreme and outrageous conduct; (2)
FedEx intended to cause injury to Byrd or knew or should have known that its conduct
would likely cause Byrd to experience emotional distress; (3) FedEx’s conduct
proximately caused Byrd’s damages; and (4) Byrd’s distress was severe. Buckley v.
Trenton Savings Fund Society, 544 A.2d 857, 863-64 (N.J. 1988). Nevertheless, we find
that Byrd has failed to proffer sufficient evidence to support any of the four required
elements. Rather, FedEx had a nondiscriminatory “last chance” policy in place for
individuals who self-reported alcohol problems. That policy made clear that one’s
employment would be conditioned on follow-up testing for alcohol abuse. Byrd
voluntarily signed the SOU containing the facts to that effect. Thus, Byrd cannot
plausibly argue that FedEx intentionally or negligently inflicted distress upon Byrd by
terminating him pursuant to the terms of the SOU.
Accordingly, we find that the District Court did not err in dismissing Byrd’s
emotional distress claims.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
8
