### In the 

# United States Court of Appeals
For the Seventh Circuit

____________________ No. 15

- 3263

R OBIN W ILLIE T URNER , Plaintiff

- Appellant

,

v.

H IRSCHBACH M OTOR L INES , Defendant

- Appellee

.

____________________
Appeal from the United States District Court for the
Northern District of Illinois

, Western Division.
No. 10 cv 50326

— Philip G. Reinhard

, Judge

.

____________________

A RGUED J ULY 6, 2016

— D ECIDED A PRIL 24

, 2017

____________________

Before P OSNER , S YKES , and H AMILTON , Circuit Judges

.
H AMILTON , Circuit Judge

. Plaintiff Robin Turner sued defendant Hirschbach Motor Lines for failing to hire him as atruck driver after his routine drug test was positive for marijuana use. Turner alleges t he 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-2 No. 15

- 3263

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 asecond drug test. We affirm. The district court correctly concluded that Turner lacked evidence supporting his fe deral
claim for race discrimination and his state

- law claim for civil conspiracy.
Hirschbach is a commercial trucking company. It offeredTurner a job as a driver contingent on his completion of orientation and a drug test, among other conditions. Turner i s 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.
During orientation, Turner tested positive for marijuana use. An independent medical fa cility 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 requir ed 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 thro ugh 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.No. 15

- 3263 3

The 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 Wineg arden 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 ca ncelled a split test only if Turner had in fact changed his mind about it.
The 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, aspermitted by Department of Transportation regulations, reported Turner’s positive drug test to an industry consortiumfrom which future employers could, with Turner’s permission, seek his previous test results. See 49 C.F.R. §§ 40.25, 40.345, 40.349.

Turn er 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, disc riminated against him by reporting his drug results to the industry consortium, and conspired with Dr. Thompson to cancel the second or split test.
The district court granted summary judgment for Hirschbach. Because Turner had not responded to the majorit y of Hirschbach’s statements of undisputed facts, the court deemed most of them undisputed. The court considered the4 No. 15

- 3263

theory that Winegarden’s alleged racial animus caused the decision not to hire Turner, using a so

- called “cat’s paw” theory of liability fo r 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).

The 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 jud gment 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 ani mus 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 routineand 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.
Turner argu es that he was not required to offer evidenceto support an inference that the allegedly improper cancellation of the split test caused him not to be hired. Turner assertsNo. 15

- 3263 5

without elaboration that he did not need to provide such evidence because the cancel lation violated Department of Transportation regulations and therefore suffices to prove discrimination.
We 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 theor y with evidence casting doubt on the reliability of the initial drug testor the positive result itself. As the district court correctly determined, Turner needed evidence that Thompson’s failure tohire him was proximately caused by Winegarden’s presumabl y discriminatory action

— cancelling the split test. Nichols

, 755 F.at 604; Smith , 681 F.3d at 897.
Undisputed evidence shows that Thompson would not hire someone who fails a drug test and that Turner had failed a drug test administered by an independent med ical agency. Without evidence that the drug test was a false positive or some other evidence showing that the split test would havecome back negative and cleared Turner, a jury could not reasonably infer that Thompson’s hiring decision was proximately cau sed by Winegarden’s presumed racial animus.
See Johnson v. Koppers, Inc., 726 F.3d 910, 915 (7th Cir. 2013) (no inference that colleague’s story concocted out of racial animus caused supervisor’s termination decision when undisputed facts showed that plain tiff misbehaved); Young v. Dillon Companies, Inc ., 468 F.3d 1243, 1253 (10th Cir. 2006) (no inference6 No. 15

- 3263

that biased investigator’s report caused termination when investigator did not make recommendation and supervisor independently reviewed report and other evidence showing misconduct).
Turner also contends that a purported violation of Department of Transportation regulations is enough to show discrimination by Thompson, who made the hiring decision. The district court correctly rejected that argument. Turn er has not offered any evidence that Thompson herself knew he had requested a second test. The regulations do not prohibit an employer from making a hiring decision on the basis of one positive test. Turner has not offered any evidence that Thompson
violat ed the regulations.
A failed drug test does not necessarily mean a plaintiff like Turner cannot succeed on a discrimination claim, but hewould need additional evidence to permit a reasonable inference that the decision not to hire him was based on his rac e. For example, if an employer did not treat similarly situated applicants of other races in a similar way when they tested positive for marijuana, an inference of discrimination would find some traction. But Turner did not offer any evidence that Thompson treated differently any similarly situated applicants of other races who failed one drug test. The district court correctly concluded that a jury could not reasonably infer that Thompson was motivated by Turner’s race rather than his test
result. Stockett , 221 F.3d at 1002 (no discrimination where employee who failed drug test was fired under clear policy regarding drug use and there was no evidence of direct discrimination by supervisor or of similarly

- situated employees treated differently); Tatum v. Cit y of Berkeley , 408 F.3d 543, 550

– 51 (8th Cir. 2005) (termination after positive drug test resultNo. 15

- 3263 7

was facially legitimate under employer’s zero

- tolerance drug policy).
Finally, Turner argues that he offered sufficient evidence
that Hirschbach and Dr. Thomp son engaged in a civil conspiracy under Illinois law by cancelling the split test. Turner contends that it does not matter whether Dr. Thompson and Winegarden came to an agreement to cancel the split test against his wishes. What matters, he maintains, is that
Dr. Thompson’s failure to confirm with him directly whether he had changed his mind meant that Dr. Thompson somehow became a party to a conspiracy to cancel the split test.
The district court correctly concluded that Turner needed evidence of an agree ment between Winegarden and
Dr. Thompson to support his claim of civil conspiracy.
See Borsellino v. Goldman Sachs Group, Inc ., 477 F.3d 502, 509 (7th Cir. 2007). Under Illinois tort law, a civil conspiracy requires “(1) an agreement between two or more persons for the purpose of accomplishing either an unlawful purpose or a lawful purpose by unlawful means; and (2) at least one tortious act by one of the co

- conspirators in furtherance of the agreement that caused an injury to the plaintiff.” Id ., citing McClure v. Owens Corning Fiberglas Corp ., 720 N.E.2d 242, 258(Ill. 1999). An agreement is “a necessary and important” element of this cause of action, and “[a] defendant who innocently performs an act which happens to fortuitously further the tortious purpose of another is not liable under the theory of civil conspiracy.” Adcock v. Brakegate, Ltd ., 645 N.E.2d 888, 884 (Ill. 1994) . Turner offered no evidence that Dr. Thompson agreed with Winegarden to cancel the second test against Turner’s wishes, and Turner has not even claimed that Dr. Thompson knew he had not changed his mind.8 No. 15

- 3263

The judgment of the district court is AFFIRMED.