Facts

Roy Flugence sued the City and County of San Francisco, San Francisco Municipal Transit Agency, or SFMTA, Nathaniel Ford, and George Louie in connection with Flugence's employment with the SFMTA. Ford was the Executive Director/Chief Executive Officer of the SGMTA, while Louie, an Asian male, was Flugence's immediate supervisor.

PLAINTIFF'S CONTENTIONS:
Flugence began working for the SFMTA as a transit operator in 1998. Flugence is a black male, who had received good performance reviews throughout his career with the SFMTA.

In 2009, Flugence tested positive for cocaine. As a result, the SFMTA suspended him for 30 days. Flugence successfully completed a substance abuse program. In addition, he signed a "last chance agreement" and was cleared to return to work on or about Dec. 31, 2009. On Jan. 5, 2010, Flugence was directed to provide a urine sample, but he could not do so because of a nervous bladder. The following day, Flugence tested negative. However, SFMTA treated Flugence's failure to test on Jan. 5 as a second "positive" test. Consequently, Flugence was suspended as of Jan. 5. Eventually, defendants terminated Flugence on March 29, despite an arbitrator's order recommending Flugence's suspension in lieu of termination.

Flugence contended that he was subjected to unequal treatment in the job place because he is black, and that defendants favored non-black males. He also contended that he was unlawfully terminated and that defendants refused to protect him or correct the error in terminating him.

Flugence sued defendants for violating his civil rights and asserted equal protection and due process claims, arguing among other things. Flugence also claimed that the grievance process was futile, because he had prevailed yet was still terminated, and that the due process provided by the Memorandum of Understanding's internal grievance procedure was a sham.

DEFENDANTS' CONTENTIONS:
Defendants filed a motion for summary judgment, arguing that the arbitrator's opinion recommending Flugence's suspension was not binding. As such, defendants contended that they were free to accept it or deny the recommendation. Moreover, defendant Ford contended that he exercised his discretion in rejecting the arbitrator's recommendation, and that he did not know or consider Flugence's race when he made the decision. Defendants contended that Flugence failed to present any evidence to support his claims.

Moreover, defendants' disputed Flugence's account of the events that took place on Jan. 5 when Flugence was directed to provide a urine sample. Defendants claimed that Flugence repeatedly told the Certified Professional Collector/Breath Alcohol Tester to pretend that he never saw him because Flugence was required to provide a blood sample within a certain amount of time. Instead of staying within sight of the collector, Flugence instead left and again told the collector to "pretend not to have seen" him. Consequently, Flugence was taken off duty because he failed to test as scheduled. This failure to test was deemed to be a refusal to test, which, in turn, was treated as a second positive.

Result

U.S. Magistrate Judge Maria-Elena James found that defendants were acting pursuant to a policy and not based on his race, and granted defendants' motion for summary judgment.

Other Information

The case is currently on appeal in the 9th Circuit. FILING DATE: Jan. 27, 2012.