The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Kenneth McDowell brings this action against Defendant
J.B. Hunt Transport, Inc. alleging discrimination on the basis of
race in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000(e) et seq. (Count I); violations of the
Federal Motor Carrier Safety Regulations, 49 C.F.R. Part 40 and
49 C.F.R. §§ 382, 391 (Count II); discrimination in violation of
42 U.S.C. §§ 1981 and 1988 (Count III); intentional infliction of
emotional distress (Count IV); intentional interference with
actual and prospective economic relationships (Count V);
negligent supervision and retention (Count VI); and defamation
Defendant moves to dismiss Counts II, IV, V, and VI of the
Second Amended Complaint ("Complaint") for failure to state a
claim upon which relief may be granted pursuant to Federal Rules
of Civil Procedure ("Rule") 12(b)(6) and Counts IV and VI for a
lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
For the reasons set forth below, Defendant's motion to dismiss
Counts II, IV, V, and VI is granted in part and denied in part. BACKGROUND
The following facts of the Complaint are assumed to be true for
purposes of this motion to dismiss. Albany Bank & Tr. v. Exxon
Mobil Corp., 310 F.3d 969, 971 (7th Cir. 2002). Plaintiff is an
African-American who was employed by Defendant from June 2001
through November 19, 2001. (Second Am. Compl. ¶¶ 9, 15, 17.)
While employed, Plaintiff alleges he was forced to drive an
unsafe vehicle, but newly hired Caucasian employees were given
newer, safer vehicles to drive. (Id. ¶ 32.) Plaintiff's
complaints about his vehicle were "mostly ignored." (Id. ¶ 10.)
Plaintiff eventually was terminated for violating Defendant's
Controlled Substance Abuse Policy for taking medication
prescribed to his wife. (Id. ¶¶ 14, 17.)
Plaintiff alleges his termination and Defendant's treatment of
African-American drivers as it relates to both vehicle assignment
and the application of its substance abuse policy was
discriminatory based on race. (Id. ¶ 19.) Plaintiff alleges
that he never refused to take a drug test and should not have
been terminated by Defendant without a reasonable suspicion drug
test required by 49 C.F.R. § 382.307(b) (2004). (Second Am.
Compl. ¶ 40.) Plaintiff further alleges that after his
termination, Defendant published false information about his
alleged drug use to others in the business of Defendant. (Id. ¶
22.) Plaintiff claims that as a result of Defendant's actions, he
has been unable to secure regular employment as a truck driver.
(Id. ¶ 23.)
Plaintiff alleges that he has suffered lost wages, continuing
injury to his career and employment, humiliation, mental anguish,
invasion of privacy, damage to reputation, pain, and suffering.
(Id. at 13, ¶ C.) DISCUSSION
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the sufficiency, not the merits,
of the complaint. Autry v. N.W. Premium Servs., Inc.,
144 F.3d 1037, 1039 (7th Cir. 1998). When reviewing a motion to dismiss,
the Court accepts all well-pleaded facts as true and views any
reasonable inferences from them in the light most favorable to
the plaintiff. Albany Bank, 310 F.3d at 971. Dismissal is
proper when it "appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him
to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Federal courts require notice, not fact, pleading, in which the
complaint must include a "short and plain statement of the
claim." Leatherman v. Tarrant Co. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168 (1993). However, while "the
Federal Rules of Civil Procedure do not require a plaintiff `to
set out in detail the facts upon which he bases his claim,' . . .
he must `set out sufficient factual matter to outline the
elements of his cause of action or claim, proof of which is
essential to his recovery." Menard Inc. v. U.S. Equities Dev.,
Inc., No. 01 C 7142, 2002 WL 31050160, at *1 (N.D. Ill. Sept.
13, 2002) (quoting Benson v. Cady, 761 F.2d 335, 338 (7th Cir.
1985)). If the complaint fails to allege an element required to
obtain relief, dismissal may be proper. R.J.R. Servs., Inc. v.
Aetna Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989).
Rule 12(b)(1) provides for dismissal of claims over which the
federal court lacks subject matter jurisdiction. See Shelton v.
Ernst & Young, LLP, 143 F. Supp. 2d 982, 986 (N.D. Ill. 2001).
When reviewing a Rule 12(b)(1) motion to dismiss, the Court must
accept all well-pleaded facts as true and draw reasonable
inferences from those allegations in the plaintiff's favor. See
United Transp. Union v. Gateway Western Ry. Co., 78 F.3d 1208, 1210
(7th Cir. 1996). The Court also may look beyond the complaint and
view whatever evidence has been submitted by the parties to
determine whether subject matter jurisdiction exists. Id.
(citing Bowyer v. U.S. Dep't of Air Force, 875 F.2d 632, 635
(7th Cir. 1989)). The plaintiff bears the burden of proving that
the jurisdictional requirements have been met. See NLFC, Inc. v.
Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir. 1995).
In Count II, Plaintiff asserts a claim for violations of the
Federal Motor Carrier Safety Regulations ("FMCSRs"), 49 C.F.R.
Part 350 et seq. (Second Am. Compl. § 34.) Specifically,
Plaintiff alleges that his termination based on a violation of
the company's Alcohol and Controlled Substances Abuse Policy
without the administration of a drug test violated the
"reasonable suspicion" drug test "required" by
49 C.F.R. § 382.307(b). (Id. ¶¶ 37, 40.) Plaintiff also asserts that
Defendant's suspicion of Plaintiff's drug use was not reasonable
under 49 C.F.R. § 382.307(b). (Id. ¶ 38.)
Defendant argues that Plaintiff's claim is barred as a matter
of law because no private right of action exists to enforce such
Department of Transportation regulations. Plaintiff responds that
although the FMSCRs do not explicitly create a private right of
action, Congress's silence on the issue does not indicate that it
is not available. Furthermore, Plaintiff argues, because truck
drivers' rights are protected under the regulations, the FMCSRs
reveal an intention to benefit drivers.
"The question whether a statute creates a cause of action,
either expressly or by implication, is basically a matter of
statutory construction. Transamerica Mortgage Advisors, Inc. v.
Lewis, 444 U.S. 11
, 15-16 (1979); see Parry v. Mohawk Motors of Mich.,
Inc., 236 F.3d 299, 309 (6th Cir. 2000), cert. denied,
533 U.S. 951 (2001) ("[F]ederal regulations in and of themselves
cannot create a private cause of action unless the action is at
least implied from the applicable statute."). The relevant
statute in this case is the Federal Omnibus Transportation
Employee Testing Act of 1991 ("FOTETA"), 49 U.S.C. § 31306
(2004), pursuant to which the FMCSRs were promulgated. FOTETA
amended the Federal Commercial Motor Vehicle Safety Act and other
federal statutes to require drug testing of certain
transportation workers in safety-sensitive positions. See Drake
v. Delta Airlines, Inc., 923 F. Supp. 387, 390-93 (E.D.N.Y.
1996), vacated in part on other grounds, 147 F.3d 169
1998). FOTETA provides, in part:
In the interest of commercial vehicle safety, the
Secretary of Transportation shall prescribe
regulations that establish a program requiring motor
carriers to conduct preemployment, reasonable
suspicion, random and post-accident testing of
operators of commercial motor vehicles for the use of
a controlled substance in violation of law or a
United States Government regulation and to conduct
reasonable suspicion, random and post-accident
testing of such operators for the use of alcohol in
violation of law or a United States Government
regulation. The regulations shall permit such motor
carriers to conduct preemployment testing of such
employees for the use of alcohol.
49 U.S.C. § 31306(b)(1)(A).
FOTETA is framed as a general mandate statute, expressly
authorizing the Secretary of Transportation to prescribe
regulations relating to the establishment of drug testing
programs for commercial vehicle transportation. See
49 U.S.C. § 31306(b)(1)(B); Parry, 236 F.3d at 308. Pursuant to the
statute, the Secretary promulgated regulations including the
FMCSRs for the "purpose of . . . establish[ing] programs designed
to help prevent accidents and injuries resulting from the misuse of alcohol or use of controlled substances by
drivers of commercial motor vehicles." 49 C.F.R. § 382.101. The
Secretary also has promulgated the Department of Health and Human
Services Procedures for Transportation Workplace Drug and Alcohol
Testing Programs regulations. See 49 C.F.R. Part 40.
It is undisputed that FOTETA does not provide an express right
of action, so the question is whether a private right of action
is implied in the statute. See Statland v. Am. Airlines, Inc.,
998 F.2d 539, 540 (7th Cir. 1993). The ...