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August 5, 2004.


The opinion of the court was delivered by: RONALD GUZMAN, District Judge


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 (Count VII).

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 (2d Cir. 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 ...

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