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Phillips 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, Wendell Phillips ("Phillips"), filed a seven-count amended complaint [25] against Defendants Quality Terminal Services, LLC ("QTS"), BNSF Railway Company ("BNSF")*fn1 , and Psychemedics Corporation ("Psychemedics") on March 27, 2009. All of Plaintiffs 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 [30] 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 [30] is granted in part and denied in part.

I. Background*fn2

Plaintiff resides in Bellwood, Illinois. Compl. ¶ 1. In May 2000, 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 at QTS' s intermodal facility operations located in Cicero, Illinois ("the Cicero facility"). Id. ¶ 8. Plaintiff worked as a spotter, hostler driver, hitch inspector and securement verifier at QTS. Id. ¶¶ 8-9. During his employment with QTS, Plaintiff was a member of Union Local 705, which had a collective bargaining agreement with QTS. Id. ¶¶ 92, 94. QTS conducted at least six random drug tests on Plaintiff during his employment, all of which returned negative results. Id. ¶ 11.

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. ¶ 12. BNSF, which was aware of the collective bargaining agreement between QTS and Union Local 705 (id. ¶ 96), invited QTS employees to apply with BNSF to fill the positions that were to be vacated by QTS in 2009. Id. ¶ 13. On June 25, 2008, Plaintiff applied to be an intermodal equipment operator with BNSF. Id. ¶ 14. At BNSF, an intermodal equipment operator acts as a hostler driver, hitch inspector and/or securement verifier. Id.

On July 23, 2008, Plaintiff attended an orientation held by BNSF in Countryside, Illinois. Id. ¶ 15. At the orientation, BNSF informed the applicants that they would be required to submit to a pre-employment drug test. Id. ¶ 16. Plaintiff agreed to submit to the drug test, and, during the July 23 orientation, BNSF (or an agent acting on its behalf) cut a length of hair from Plaintiff's chest for drug testing. Id. ¶ 17. 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. ¶ 18.

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. ¶ 19. 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 29, 2008, Plaintiff received an e-mail from a company called Comprehensive Health Services, Inc. with the subject line "BNSF Applicant Notification philips, wendell." Id. ¶ 20, Ex. B. The e-mail stated: "You recently applied to BNSF for the position of Crane Director. You failed a test provided by another vendor -- EMSI." Id. ¶ 20, Ex. B.

At or about the same time, Plaintiff received a phone call from Dr. Joseph Thomasino, who informed Plaintiff that his pre-employment drug test results were positive. Id. ¶ 21. 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. ¶ 22. 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. However, Dr. Thomasino denied this request. Id. Additionally, Plaintiff requested that Dr. Thomasino provide him with a copy of the test results. Id. ¶ 23. Dr. Thomasino instructed Plaintiff to put his request in writing and fax it to Dr. Thomasino. Id. ¶ 24. Plaintiff did as instructed but has not yet been provided with a copy of his test results. Id. ¶ 25.

On September 2, 2008, Plaintiff went to Advanced Occupational Medicine Specialists in Bellwood, Illinois, a local drug screening facility, to have another hair sample taken for drug testing purposes. Id. ¶¶ 26-27. Advanced Occupational Medicine Specialists sent the chest hair sample taken from Plaintiff to Quest Diagnostics in Atlanta, Georgia, for testing. Id. ¶ 27. On September 5, 2008, Quest Diagnostics performed a drug test on the hair sample, and reported that the results were negative. Id. ¶ 28.

At some time prior to September 5, 2008, BNSF informed QTS of Plaintiff's positive pre-employment drug test result and/or provided it with a copy of the test results. Id. ¶ 29. BNSF also instructed QTS to forbid Plaintiff from entering the Cicero facility or returning to work. Id. On September 5, 2008, QTS informed Plaintiff by hand delivered letter that he was restricted from the property because of the pre-employment drug test results. Id. ¶ 30. The letter also stated that BNSF would lift the restriction if Plaintiff completed a company-sponsored substance abuse program. Id. In response, Plaintiff offered the results of the drug test done by Quest Diagnostics, and requested that he be given another opportunity to retake the drug screening test. Id. ¶ 31.

Around this time, Plaintiff called a BNSF representative and informed him that the pre-employment test results were incorrect, and that Plaintiff had another drug test performed by Quest Diagnostics, which produced a negative result. Id. ¶ 32. Plaintiff also requested that the remaining hair sample from the Psychemedics'drug test be retested. Id. The representative informed Plaintiff that his remaining hair sample had been destroyed and was not available for retesting. Id. ¶ 33. Both QTS and BNSF refused to consider the results from the test performed by Quest Diagnostics, 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. ¶ 34. QTS again offered to remove the restriction if Plaintiff completed a substance abuse program. Id. ¶ 35.

Plaintiff agreed to participate in the substance abuse program. Id. ¶ 36. At the first meeting, Plaintiff showed the results of the Quest Diagnostics drug test to a QTS representative or the program moderator. Id. The QTS representative told Plaintiff that unless he admitted to having a drug problem and agreed that the Psychemedics' test results were accurate, he would not be allowed to complete the substance abuse 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. ¶ 37. Plaintiff refused to state that he used cocaine or that the Psychemedics'test results were valid. Id. ¶ 38. Plaintiff lost his job with QTS. 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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