United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued August 2, 2011

Decided August 8, 2011

Before

DIANE P. WOOD, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 11-1101

JIMMY ROBINSON,

Plaintiff-Appellant,

v.

BAYER HEALTHCARE LLC,

Defendant-Appellee.

Appeal from the

United States District Court for the

Northern District of Indiana,

South Bend Division.

No. 3:07-CV-486

Joseph S. Van Bokkelen,

Judge.

O R D E R

Jimmy Robinson claims that a manager at Bayer HealthCare fired him, and then

refused to reinstate him, because he is black. The district court granted summary judgment

to Bayer. Robinson challenges that decision, maintaining that he presented sufficient

evidence at summary judgment that he was treated less favorably than two similarly

situated white employees. We reject this argument and affirm. Robinson’s comparators are

not suitable, and Bayer had a legitimate nonpretextual reason for firing him when he

refused alcohol testing after reporting to work seemingly intoxicated.

The following events are recounted in the light most favorable to Robinson, with

relevant disputes noted. See Sow v. Fortville Police Dep’t, 636 F.3d 293, 299-300 (7th Cir. 2011).

At the beginning of his shift on the day that he was fired, Robinson, who had worked at

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 11-1101 Page 2

Bayer more than 22 years, had a conversation with Theresa Englebrecht, a human-resources

consultant at Bayer, that can most generously be described as strange. He called her over to

talk to him, and the first thing he did was ask her “how much” he could say before she

fired him. (Robinson maintains that this comment was prompted by the firing of other

black employees, who, along with him, had consulted an attorney about discrimination at

Bayer.) Robinson then told Englebrecht that he saw her over the weekend and noticed her

“short shorts” and red tank top. According to Englebrecht, Robinson stared at her chest

while making this comment, behaved oddly, had bloodshot eyes, and reeked of alcohol.

Other Bayer employees also noticed Robinson’s behavior: They reported that he slurred his

speech, and appeared anxious and “more animated than usual.”

Robinson denies being drunk. He admits that it was unusual for him to initiate a

conversation with Englebrecht, but explains his behavior differently. Before coming to

work that day, he says, he took gout medication, which, his doctor reports, can cause

drowsiness, confusion, and slurred speech.

After this conversation, Englebrecht returned to her office to contact Robinson’s

supervisor and review the drug-and-alcohol policy in Robinson’s collective-bargaining

agreement. According to the agreement, if an employee is reasonably suspected of

intoxication, he can be required to give a urine sample; a refusal to do so can lead to

termination. If he tests positive, he will be given a chance to enroll in treatment and save

his job. While Englebrecht was reviewing the policy, Robinson reported to a daily meeting

in which he asked his supervisor for a day off due to lack of work. The supervisor denied

the request.

After Robinson returned to work, this supervisor told him that someone had

smelled alcohol on him and asked him to “go up front.” It is unclear exactly what the

supervisor meant by that instruction, but it is undisputed that Robinson did not comply.

Instead he clocked out of work, left the building, and sat in his car to “cool off.” A coworker

came out a few minutes later to tell him that management wanted to test him for drug-andalcohol use, so Robinson went back inside. Englebrecht and a nurse then asked Robinson to

consent to urine and breathalyzer tests. After 40 minutes of discussion (this was

Englebrecht’s estimate), Robinson agreed to do so. But he returned with an empty cup after

about a minute and a half in the bathroom; he claimed he was having trouble urinating.

What happened next is the subject of disagreement. As Robinson tells it,

Englebrecht told him, “You can’t pee, you’re discharged.” He says that he replied, “Don’t

do this,” but Englebrecht walked away. (She says she walked away to get his union

steward.) Based on this interaction, Robinson believed he’d been fired and began to make

his way out of the building. Englebrecht, however, recalls events differently. She says
No. 11-1101 Page 3

didn’t fire Robinson on the spot, but instead made clear that he could go to a nearby

hospital for testing, and the nurse called a taxi to take him there.

Before Robinson made it out of the building, Englebrecht returned with his union

steward. Robinson overheard them talking about sending him to a hospital, and the

steward urged him to “take the test.” Robinson refused to get into the cab to go for off-site

testing. Englebrecht says that at this point she fired him for refusing to submit to alcohol

testing. Englebrecht then told a nearby police officer to stop Robinson from leaving the

parking lot because he was drunk. The officer had Robinson breathe into a device

(Robinson claims to be unsure whether it was a breathalyzer). According to the union

steward, Robinson blew into a breathalyzer and registered a blood-alcohol content of

.24 percent.

At Robinson’s request, the union grieved his discharge. During the grievance

process, Englebrecht told the union steward that Bayer would not rehire Robinson unless

he accepted responsibility for his actions. The union steward said that he encouraged

Robinson to admit to a substance-abuse problem (even if he didn’t have one) just to get his

job back. The grievance led to arbitration, and the arbitrator refused to reinstate Robinson

because Robinson “was anything but cooperative” about the drug testing, and he refused

to take responsibility for his actions.

Robinson then sued Bayer for discrimination under Title VII, claiming that he was

terminated based on his race. In trying to establish a prima facie case under the indirect

method, he identified two white employees he claims were treated more favorably after

similar incidents involving alleged workplace intoxication. The first was Todd Kucela, who

also initially failed to produce a urine sample, but who was given extra time to complete

the test after he explained he couldn’t urinate and asked for a drink of water. The second

comparator, David Ward, also refused to take a drug test and was fired by Englebrecht, but

then was rehired on a conditional basis after agreeing to seek counseling. (Ward was

eventually fired a second time for refusing to sign paperwork related to ongoing drug

testing but again was rehired after consenting to the testing.)

The district court granted Bayer’s motion for summary judgment, concluding that

Robinson failed to establish a prima facie case of discrimination under the indirect method

of proof. In reaching this conclusion, the court found that Ward and Kucela were not

similarly situated to Robinson. The court held that Ward was not similarly situated because

Englebrecht did not fire or rehire him and he admitted to alcohol abuse and agreed to

counseling before he was rehired. And Kucela was an inapt comparator for six reasons:

(1) Kucela didn’t resist testing; (2) he didn’t clock out and leave the building before his test;

(3) he didn’t have to be asked multiple times to submit to testing; (4) he didn’t engage in a
No. 11-1101 Page 4

prolonged discussion before going into the bathroom; (5) he wasn’t in the bathroom a

minute and a half; and (6) he didn’t insult Englebrecht. The court added that even if Kucela

were similarly situated to Robinson, there was no evidence that Englebrecht’s reason for

firing him was pretextual because the record supported her belief that Robinson violated

the collective-bargaining agreement by refusing to provide a urine sample.

On appeal Robinson reiterates his argument that the evidence raises a reasonable

inference that Kucela and Ward were similarly situated and were treated more favorably.

He adds that the same evidence also supports his claim that Englebrecht’s proffered reason

for terminating him is pretextual. He makes no direct attack on the district court’s analysis

other than to list certain evidence that he claims the court “failed to consider” or “shouldn’t

have” considered. He does not, however, explain how these alleged errors affect his case.

Under the indirect method of proof established in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), Robinson needed to show, among other things, that Bayer treated him

worse than similarly situated white employees. See Luster v. Ill. Dep’t of Corr., No. 09-4066,

2011 WL 2857262, at *2 (7th Cir. July 19, 2011). In disciplinary situations, a plaintiff can

establish this element by producing evidence “showing that two employees dealt with the

same supervisor, were subject to the same workplace rules, and engaged in similar

conduct, but nonetheless received disparate treatment for no apparent legitimate reason.”

Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 940 (7th Cir. 2003); see Luster, 2011 WL 2857262,

at *3; Elkhatib v. Dunkin Donuts, Inc., 493 F.3d 827, 831 (7th Cir. 2007).

We note first that there are some errors in the district court’s analysis. The court

excluded Ward as a comparator because Englebrecht wasn’t “part of either his termination

or reinstatement decisions,” and Ward “readily admitted his offense and agreed to seek

alcohol counseling.” But Ward testified in his deposition that Englebrecht was involved in

the decisions to fire and later reinstate him, and that he never admitted to anyone at Bayer

that he came to work under the influence of alcohol. In addition, some of the court’s

multiple reasons for distinguishing Kucela from Robinson are trivial given the flexible and

common-sense nature of the “similarly situated” analysis. See Elkhatib, 493 F.3d at 831;

Goodwin v. Bd. of Trs. of Univ. of Ill., 442 F.3d 611, 619 (7th Cir. 2006). For example, the

differing lengths of time the two men spent in the bathroom trying to provide urine

samples is irrelevant.

Nonetheless, we agree with the district court that the two comparators were not

similarly situated to Robinson and that Bayer had a legitimate nonpretextual reason for

treating Robinson differently. Refusing to be tested after being suspected of intoxication is a

valid, nondiscriminatory ground for termination. Robinson refused to be tested; Kucela did
No. 11-1101 Page 5

not. As the district court noted, although Kucela may have been given more time to take

the test, he never refused to cooperate and successfully completed the testing after being

given water and some additional time. Robinson, on the other hand, initially left the

building—during his shift and without permission—when accused of being intoxicated,

then offered no explanation as to why he couldn’t complete the test and did not offer to try

again. He also said he would not get into the cab to be taken off-site for testing. And even

though the district court misunderstood Englebrecht’s role in Ward’s termination, Ward

remains an inapt comparator because like Kucela, he did not refuse testing. Although some

evidence suggests that Ward might have refused to take a breathalyzer test before his first

termination, Ward has denied that he refused to take the test, and Robinson has accepted

that denial. Moreover, the record shows that Ward, unlike Robinson, agreed to seek

substance-abuse treatment. That Ward later refused to sign paperwork related to ongoing

testing does not make him comparable to Robinson; Ward eventually consented to the

testing and on that basis was reinstated.

Even if Robinson had established a prima facie case of discrimination, he failed to

show that Englebrecht’s reason for firing him—his refusal to submit to alcohol

testing—was pretextual. As the district court recognized, the record supports Englebrecht’s

belief that Robinson was refusing to be tested. His pre-test behavior was erratic: He was

confrontational with Englebrecht and asked how much he could say before being fired; he

commented on Englebrecht’s weekend attire; he ignored his supervisor’s instructions and

left the building abruptly. In addition, as we have discussed, he gave Englebrecht no

explanation for his failure to provide a urine sample and also refused to go for off-site

testing. Englebrecht understandably wanted him to take responsibility for this behavior

before considering reinstating him. Since Robinson has not pointed to any evidence raising

a reasonable inference that Englebrecht’s proffered reason for his termination was a lie, his

pretext argument fails. See Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 396-97 (7th Cir.

2010); Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 478-79 (7th Cir. 2010).

AFFIRMED.