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Cutler v. Quality Terminal Services

December 4, 2009


The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

Judge Robert M. Dow, Jr.


Plaintiff, John Cutler ("Plaintiff"), filed a six-count amended complaint [30] against Defendants Quality Terminal Services, LLC ("QTS"), BNSF Railway Company ("BNSF")*fn1 , and Psychemedics Corporation ("Psychemedics") on March 27, 2009. All of Plaintiff's claims arise out of a 2008 drug test which resulted in the termination of Plaintiff's employment with QTS. Before the Court is Defendant BNSF' s motion to dismiss [36] all claims against it -- which consist of various state law tort claims -- pursuant to Fed. R. Civ. P. 12(b)(6). The Court has jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332. For the reasons stated below, the motion [36] is granted in part and denied in part.

I. Background*fn2

Plaintiff resides in Justice, Illinois. Compl. ¶ 1. On March 22, 2004, Plaintiff was hired by QTS, a Colorado limited liability company that provides transportation, freight, and railroad services throughout parts of the United States, to work as a hostler for QTS' s intermodal facility operations located in Cicero, Illinois ("the Cicero facility"). Id. ¶ 8. During his employment with QTS, Plaintiff was a member of Union Local 705, which had a collective bargaining agreement with QTS. Id. ¶¶ 96, 98. Because Plaintiff was a covered employee pursuant to 49 C.F.R. § 219.601, QTS conducted at least two random drug tests on Plaintiff during his employment, which returned negative results. Id. ¶ 11. Additionally, Plaintiff applied for a job with BNSF at least six times between January 2005 and June 2008, and was drug tested each time with negative results. Id. ¶ 12.

In the spring of 2008, Plaintiff learned that BNSF, a rail carrier operating throughout parts of the United States, would be taking over QTS' s operations at the Cicero facility in 2009. Id. ¶ 13. BNSF, which was aware of the collective bargaining agreement between QTS and Union Local 705 (id. ¶ 100), invited the QTS employees to apply with BNSF for the positions that were going to be vacated by QTS in 2009. Id. ¶ 14. On June 25, 2008, Plaintiff applied to be an intermodal equipment operator with BNSF. Id. ¶ 15. At BNSF, an intermodal equipment operator acts as a hostler, driver, hitch inspector, and/or securement verifier. Id.

On July 15, 2008, Plaintiff attended an orientation held by BNSF. Id. ¶ 16. At the orientation, BNSF informed the applicants that they would be required to submit to a pre-employment drug test. Id. ¶ 17. Plaintiff agreed to submit to the drug test, and, during the July 15 orientation, BNSF (or an agent acting on its behalf) cut a length of hair from Plaintiff's head for drug testing. Id. ¶¶ 18, 19. BNSF claims that Plaintiff's hair sample was sent to a laboratory at Psychemedics, a biotechnology company located in Culver City, California that provides drug testing services for businesses. Id. ¶ 19. Psychemedics did not receive Plaintiff's hair sample until August 18, 2008. Id. ¶ 20.

On August 15, 2008, Plaintiff received a letter from BNSF extending to him a conditional offer of employment to join BNSF as an intermodal equipment operator at the Cicero facility. Id. ¶ 21. The August 15 letter stated that the offer was "contingent on the favorable outcome of a pre-employment background screening," including a "hair analysis drug screen." Id. at Ex. A. On August 22, 2008, Psychemedics notified BNSF that Plaintiff's drug test came back positive for cocaine. Id. ¶ 22.

On August 25, 2008, Plaintiff received a phone call from Dr. Joseph Thomasino, who informed Plaintiff that his pre-employment drug test results were positive. Id. ¶ 23. During his phone call with Dr. Thomasino, Plaintiff insisted that there was a mistake or the results were wrong because he did not use cocaine. Id. ¶ 24. Plaintiff further requested that either a second test be performed on the remaining hair sample, or that the remaining hair be sent to him so that he could have a second test performed. Id. Dr. Thomasino instructed Plaintiff to put this request in writing and send it to him, which Plaintiff did. Id. ¶ 25. Approximately two weeks later, Plaintiff received a response telling him that the remaining hair sample had been sent to BNSF along with a copy of Psychemedics' test results. Id. ¶ 26.

On August 25, 2008, Plaintiff went to Concentra Chicago, a local drug screening facility, to have another hair sample taken for drug testing purposes. Id. ¶ 27. Concentra Chicago sent the hair sample taken from Plaintiff to Psychemedics for testing. Id. ¶ 28. On August 26, 2008, Psychemedics received this sample and performed a drug test on the sample the same day. Id. ¶ 29. On August 28, 2008, Psychemedics reported that the results of this test were negative. Id.

On or about August 28, 2008, Plaintiff called Martin Crespin from BNSF because Crespin was listed as the contact person on Psychemedics' August 22, 2008 test results. Id. ¶ 30.

Plaintiff informed him that the pre-employment test results were incorrect, and that Plaintiff had another drug test performed by Psychemedics, which produced negative results. Id. Plaintiff also requested that the remaining hair sample from the Psychemedics'drug test be retested. Id. Mr. Crespin informed Plaintiff that his remaining hair sample had been destroyed and was not available for retesting. Id. ¶ 31.

At some time prior to September 4, 2008, BNSF informed QTS of Plaintiff's positive pre-employment drug test results and/or provided it with a copy of the test results. Id. ¶ 32. BNSF also instructed QTS to forbid Plaintiff from entering the Cicero facility or returning to work. Id. On the evening of September 3, 2008, QTS requested that Plaintiff work a shift the following day, which was his day off. Id. ¶ 33. Plaintiff arrived at work on September 4, 2008, and was instructed to go home because he was restricted from the property, so he could not work. Id. ¶ 34. Plaintiff was told by Marcus Harris, a Union representative, to return the next day for an explanation. Id. ¶ 35.

On September 5, 2008, Plaintiff returned to work and was handed a letter explaining that he was restricted from the property because of the positive drug screening. Id. ¶ 36. In response, Plaintiff offered the results of the August 28 drug test, and requested that he be given another opportunity to retake the drug screening test, as the August 22 results were erroneous. Id. ¶ 37. However, both QTS and BNSF refused to consider the results from the August 28 drug test, refused to retest Plaintiff, and either refused to retest the remaining hair sample to confirm the original test results, or destroyed the remaining hair sample. Id. ¶ 38. QTS offered to remove the restriction if Plaintiff completed a substance abuse program. Id. ¶ 39.

Plaintiff agreed to participate in the substance abuse program. Id. ¶ 40. On or about September 10, 2008, Plaintiff attended the first meeting, but refused QTS' s demand that he agree that the August 22 test results were accurate. Id. At the meeting, a QTS representative or agen told Plaintiff that unless he admitted that these test results were accurate, he would not be allowed to complete the program, he would never work for QTS again, he would never get a job with BNSF, and he would never work in the railroad industry again. Id. ¶ 41. Plaintiff refused to state that he had a drug problem or that the Psychemedics'test results were valid. Id. ¶ 42. Plaintiff lost his job with QTS and has been unemployed since September 5, 2008. Id.

Plaintiff asserts various state law tort claims against BNSF based on its involvement in the drug testing and the subsequent termination of his employment with QTS, including a negligence claim (Count IV), a defamation claim (Count V), and a tortious interference with contractual relations claim (Count VI). Plaintiff also ...

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