July 6, 2016
from the United States District Court for the Northern
District of Illinois, Western Division. No. 10 cv 50326 -
Philip G. Reinhard, Judge.
Posner, Sykes, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
Robin Turner sued defendant Hirschbach Motor Lines for
failing to hire him as a truck driver after his routine drug
test was positive for marijuana use. Turner alleges the
decision was racially discriminatory, but the district court
granted summary judgment against him. Turner argues that the
district court erred in requiring him to offer evidence both
(a) that racial animus of a Hirsch- bach employee who was not
a decision-maker caused the decision not to hire him, and (b)
that Hirschbach and a medical doctor came to an agreement to
cancel Turner's request for a second drug test. We
affirm. The district court correctly concluded that Turner
lacked evidence supporting his federal claim for race
discrimination and his state-law claim for civil conspiracy.
is a commercial trucking company. It offered Turner a job as
a driver contingent on his completion of orientation and a
drug test, among other conditions. Turner is African
American. Throughout orientation, Turner asserted, he was
subjected to insults by Nancy Thompson, Hirschbach's
employee responsible for evaluating and hiring applicants.
Turner testified that she stared at him and once whispered
insults to him.
orientation, Turner tested positive for marijuana use. An
independent medical facility collected a urine sample, which
was then sent to MedTox Laboratories for testing. MedTox
split the sample in two, tested one part, and stored the
other. As required by United States Department of
Transportation regulations, MedTox reported the positive
result to Hirschbach's independent medical review
officer, Dr. Richard Thompson (no apparent relation to Nancy
Thompson). In turn, Dr. Thompson contacted Turner through
Hirschbach and notified him that his results were positive
for marijuana. See 49 C.F.R. § 40.97(b).
Hirschbach's safety officer, Lester Winegarden, then told
Turner he had the right to request that the second half of
his sample be tested by a different laboratory (a "split
test" covered by 49 C.F.R. § 40.171). Turner told
Winegarden he wanted the split test, though he admits that he
had not requested the test from Dr. Thompson.
split test never took place, and the reason for that is
disputed. Turner testified in his deposition that Winegarden
told him the split test would be a "waste of time"
and that he was "never going to pass the test."
Turner recalled asking: "Are you telling me there's
some racial b***s*** you're pulling me into?" to
which Winegarden responded, "Yeah, you got it. You got
it now." Turner asserts that Winegarden then cancelled
the split test by falsely reporting to Dr. Thompson that
Turner had changed his mind about it. Winegarden denied all
this and testified that he would have cancelled a split test
only if Turner had in fact changed his mind about it.
initial positive test result was verified by Dr. Thompson and
sent to Hirschbach. Turner decided to leave the company's
orientation program and was not hired. Hirschbach, as
permitted by Department of Transportation regulations,
reported Turner's positive drug test to an industry
consortium from which future employers could, with
Turner's permission, seek his previous test results. See
49 C.F.R. §§ 40.25, 40.345, 40.349.
then filed this suit against Hirschbach under Title VII of
the Civil Rights Act of 1964, 42 U.S.C.
§2000-e(2)(a)(1), as well as 42 U.S.C. § 1981 and
Illinois civil conspiracy law. He claimed that Hirschbach
refused to hire him because of his race, discriminated
against him by reporting his drug results to the industry
consortium, and conspired with Dr. Thompson to cancel the
second or split test.
district court granted summary judgment for Hirschbach.
Because Turner had not responded to the majority of
Hirschbach's statements of undisputed facts, the court
deemed most of them undisputed. The court considered the
theory that Winegarden's alleged racial animus caused the
decision not to hire Turner, using a so-called
"cat's paw" theory of liability for his Title
VII and § 1981 claims. Under that theory Turner needed
to offer evidence that the racial animus of Winegarden, who
was not a decision-maker, was a proximate cause of the
adverse decision. See Nichols v. Michigan City Plant
Planning Dep't, 755 F.3d 594, 604 (7th Cir. 2014);
Smith v. Bray, 681 F.3d 888, 897 (7th Cir. 2012).
district court concluded that such a claim could not succeed.
Giving Turner the benefit of conflicts in the evidence, as
required when considering Hirschbach's summary judgment
motion, Turner had offered evidence that Winegarden cancelled
the split test and acted based on racial animus. The court
found that Turner lacked evidence that Winegarden's
racial animus caused him not to be hired because he offered
no evidence that the MedTox drug test was unreliable or that
the split test would have been negative. The court also found
that Turner did not offer sufficient evidence for a
reasonable jury to infer that Nancy Thompson herself decided
not to hire him because of racial animus rather than his
positive test result. Nor did Hirschbach discriminate against
Turner by reporting his positive drug test result to the
industry consortium, the court concluded. Hirschbach
presented undisputed evidence that it reported positive tests
as a matter of routine and as required by federal
regulations. Finally, the court concluded that the civil
conspiracy claim failed because Turner lacked evidence that
Hirschbach and Dr. Thompson had come to an agreement to
cancel the split test.
argues that he was not required to offer evidence to support
an inference that the allegedly improper cancellation of the
split test caused him not to be hired. Turner asserts without
elaboration that he did not need to provide such evidence
because the cancellation violated Department of
Transportation regulations and therefore suffices to prove
disagree with Turner's arguments. Winegarden did not make
the decision not to hire Turner. Nancy Thompson was the
decision-maker. Under a cat's paw theory of liability the
challenge is to show a causal link between the presumed
unlawful animus of someone like Winegarden, who did not make
the decision, and the decision itself. The district court
properly required Turner to support his cat's paw theory
with evidence casting doubt on the reliability of the initial
drug test or the positive result itself. As the district
court correctly determined, Turner needed evidence that