U.S. Steel Still Faces Class in Drug Testing Action

(CN) - A federal judge ruled that U.S. Steel will face class action charges for firing probationary employees who failed random breath alcohol testing, but only for a class consisting of those discriminated against within the proper time limitations.

"Since at least January 2006, U.S. Steel has been conducting random drug and alcohol testing of its probationary employees, pursuant to the terms and conditions of the basic labor agreement between U.S. Steel and the employees' union," wrote Judge Nora Barry Fischer in her review that pares U.S. Steel's second renewed motion to dismiss the EEOC's class action against it.

As an "issue of first impression before the Court," Fischer decided after careful review that "based on the plain language of Sections 706 and 707 ... the EEOC may not seek relief for individuals who were discriminated against more than 300 days before the filing of the administrative charge prompting the EEOC's investigation," and all claims of those subjected to an alcohol breath test who were fired outside the designated time should be dismissed.

The EEOC initially filed a class action against U.S. Steel and its affiliated Union in 2010, claiming the alleged unlawful testing policy "affects all probationary bargaining employees at its Clairton, Pennsylvania facility who are subject to the relevant basic labor agreement and all probationary bargaining unit employees at other facilities throughout the United States."

The EEOC sought relief for the class of unidentified aggrieved U.S. Steel employees under the Americans with Disabilities Act, claiming that subjecting probationary employees to such testing to discharge them if a positive test result occurred was discrimination.

Abigail DeSimone had first alerted the EEOC to U.S. Steel's alleged discriminating policies in 2008 by complaining that she was wrongfully dismissed for her false positive result in a random breath alcohol test two weeks into her probationary period. She claimed she protested her test result was a false positive caused by her diabetic condition, but was fired anyway. DiSimone filed a charge of discrimination with the EEOC a few months later and has since settled her individual case, according to the ruling.

EEOC's its original complaint against U.S. Steel was followed by an amended complaint and two motions to dismiss by U.S. Steel. Issues with "confidential conciliation documents" in the EEOC's opposition to dismiss dragged out the litigation process but ultimately ended with denials to dismiss, according to the ruling.

Fischer decided in favor in part of U.S. Steel for its second renewed motion to dismiss.

U.S. Steel argued for time limitations and claimed the EEOC "failed to specifically plead that it has met its statutory pre-suit obligations to investigate, issue reasonable cause findings and conciliate its claims, or to name any of the presently unidentified aggrieved employees who make up the purported class"

The EEOC argued in turn that "the time limitation period is not a bar and class claim is property pled," saying that claims were timely under the continuing violation doctrine.

Fischer agreed that the statute of limitations set forth by sections of the Civil Rights Act that says the EEOC must bring actions based on events occurring more than 300 days before the charges.

However, "the EEOC has met the requisite pleading standard for conditions precedent and is not required to name all of the class members in its Amended Complaint. In addition, at this state of the litigation it is premature to determine whether the EEOC failed to engage in pre-suit obligations," Fischer wrote.

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