PCP Not The Same As Alcohol For Purposes Of Race Discrimination Claim

Following his arrest for Driving Under the Influence, Antjuan Proctor entered a “back-to-work agreement” in lieu of termination from the Fairfax County, Virginia Fire and Rescue Department. Under the Agreement, Proctor was required to abstain from all mood-altering substances and submit to random, unannounced drug and alcohol testing. Less than two months after he entered the Agreement, Proctor tested positive for the illegal drug phencyclidine (PCP). Proctor challenged his subsequent termination, claiming it was the result of racial bias.

In support of his discrimination claim, Proctor pointed to two Caucasian Fire Department employees who entered back-to-work agreements, violated their agreements’ prohibition on alcohol consumption, but ultimately retained their jobs. However, a federal court found that “these comparators were not similarly situated to Proctor.

“Identical circumstances are not required for employees to be ‘similarly situated.’ Instead, employees are required to be ‘similar in all relevant respects.’ Proctor is not ‘similar in all relevant respects’ to these employees just because they all entered and violated back-to-work agreements. The nature of their violations must also be considered.

“The terms of the Agreement can be violated in a number of ways, including alcohol consumption, illegal drug use, use of over-the-counter medications, use of dietary supplements, and use of prescription medications. Proctor errs in his assertion that employees who violate the agreement by using PCP (or, heroin, cocaine, methamphetamine, etc.), alcohol, cough syrup, antibiotics, and weight-loss supplements are all similarly situated. Not all violations of the Agreement are created equal, and Proctor’s use of PCP does not make him similarly situated to employees that tested positive for alcohol. The Fire Chief acted well within the discretion provided him by the Agreement when he distinguished between employees that violated it by legally drinking alcohol and Proctor, whose violation for PCP use would have justified his removal regardless of the Agreement.”

Proctor v. Fairfax County Fire & Rescue Dept., 2014 WL 6473712 (E.D. Va. 2014).