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Tilson v. Disa, Inc.

United States District Court, M.D. Louisiana

June 26, 2018




         Before the Court is a Motion to Dismiss Plaintiffs' Fifth Amended Complaint (“Motion”) filed by Defendant Clinical Reference Laboratory, Inc. (“Defendant” or “CRL”).[1] Plaintiffs Emile Tilson, Jr. (individually referred to as “Tilson”) and Debra Tilson (individually referred to as “Mrs. Tilson”) (collectively referred to as “Plaintiffs” or “Tilsons”) have filed an Opposition to Defendant's Motion to Dismiss Plaintiff's Fifth Amended Complaint (“Opposition”) to which the Defendant has filed a Reply.[2] The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343. Oral argument is unnecessary. For the following reasons, the Motion shall be GRANTED IN PART and DENIED IN PART.


         Tilson was employed by Turner Industries ("Turner") as a boilermaker, pipefitter, and member of the reactor crew who worked at the Exxon petrochemical plant in Baton Rouge, Louisiana. Tilson was subject to a work-related random drug test. A Turner employee collected Tilson's urine specimen, and sent it to CRL, an independent testing lab, for testing.

         After an initial test and a second confirmatory test, CRL reported to Turner's Medical Review Officer ("MRO") that Tilson's urine tests reflected the presence of marijuana metabolite at a concentration of 14 ng/mL. The marijuana concentration reporting threshold ordered by Turner was 10 ng/mL In other words, Turner required CRL to report as “positive” results above 10 ng/mL. Turner terminated Tilson as a result of the test results.

         On March 6, 2017, Tilson filed suit in state district court against DISA Global Solutions, Inc. ("DISA"), Psychemedics Corporation, and Clinical Pathology Laboratories, Inc. ("CPL")[4] alleging various claims arising from the collection, testing, and reporting of the workplace drug test. On November 15, 2017, Tilson filed a "Fifth Supplemental and Amending Petition for Damages" against CRL and co-defendants DISA, Exxon, and Dr. Randy Barnett.

         Tilson alleges that CRL was hired “to perform the urine drug test and the confirmation second test on Mr. Tilson's urine specimen. CRL allegedly falsely reported that Mr. Tilson‘s sample tested positive for the presence of marijuana, a prohibited substance."[5] Tilson alleges that CRL violated state and federal workplace drug testing rules, specifically the Louisiana Drug Testing Statutes (“LDTSA”), [6] the U.S. Department of Transportation's ("DOT") Procedures for Workplace Drug and Alcohol Testing Programs, [7] the Pipeline and Hazardous Materials Safety Administration's ("PHMSA") drug and alcohol testing program, [8] and the U.S. Department of Health and Human Services ("HHS") Mandatory Guidelines for federal drug testing. Tilson claims that CRL negligently interpreted or failed to exclude other causes for Tilson's marijuana positive test result and defamed Tilson. Tilson also alleges a violation of his civil rights under the 5th and 14th Amendments, invasion of privacy, “interference with his employment;" and violations of HIPAA, the Americans with Disabilities Act, the Louisiana Employment Discrimination Law, and the Louisiana Human Rights Act. Tilson seeks damages for wrongful termination, loss of earnings, emotional and psychological pain and suffering, and injury to his reputation. Mrs. Tilson asserts loss of consortium and damages for emotional and psychological pain and suffering.


         A. Motion to Dismiss Standard

         When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'” The Court may consider “the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” “To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.'” In Twombly, the United States Supreme Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6) motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” A complaint is also insufficient if it merely “tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” However, “[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” In order to satisfy the plausibility standard, the plaintiff must show “more than a sheer possibility that the defendant has acted unlawfully.” “Furthermore, while the court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable to the plaintiff.'” On a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”

         B. Negligence Claims

         Tilson alleges that "Defendants owed [him] a duty to undertake and perform random drug tests in compliance with company guidelines, practices, and procedures along with Louisiana and Federal law."[9] Tilson alleges that CRL owed breached statutory duties arising under LDTSA, DOT and PHMSA drug testing regulations. In a negligence action under Louisiana law, Tilson bears the burden of proving duty, breach, causation and damages.[10] Whether a duty exists is a question of law.[11]

         1. LDTSA[12]

         Tilson alleges CRL breached its "statutory duty," under LDTSA, inter alia, because his drug test results were not reviewed by an MRO prior to his termination. In direct contradiction of this claim, Tilson's Complaint concedes that an MRO reviewed his laboratory test result. Tilson's claim that CRL breached LDTSA for failure to submit test results to an MRO is far from plausible.

         CRL concedes that LDTSA “provides mandatory procedures for covered employers in conducting workplace drug testing, ”[13] but CRL contends that, because Tilson was working at a petrochemical plant, LDTSA is inapplicable. By its express terms, the LDTSA does not apply "to ·any person, firm, or corporation engaged or employed in the exploration, drilling, or production of oil or gas in Louisiana or its territorial waters."[14]Although the Complaint alleges that Tilson, employed by Turner, worked at the Exxon petrochemical plant, this allegation alone is insufficient to permit the Court to conclude that Tilson or the Exxon workplace was “engaged or employed in the exploration, drilling, or production of oil or gas.” While affidavits or other summary judgment evidence may establish this as a fact, the Court's analysis on a Motion to Dismiss is confined to the four corners of the Complaint.

         CRL further argues that, even if LDTSA applies, Louisiana does not recognize a claim for wrongful termination resulting from a drug test performed in violation of the LDTSA; thus, Tilson fails to state a claim for relief as a matter of law. CRL cites to cases which hold that the LDTSA does not supplant or otherwise create an exception to Louisiana's employment at-will doctrine.[15] An employer's failure to follow the statutory requirements does not provide basis for claim of wrongful termination. The cases cited by CRL hold that LDTSA does prohibit an employer from terminating an employee at-will.

         The Court does not find these cases applicable to Tilson's claims against CRL, an independent testing lab. While an employer may find shelter from the LDTSA under the employment at will doctrine, CRL does not. The LDTSA would be rendered meaningless if the employment at will defense were extended to third parties who collect, test, and report workplace drug tests.

         Tested against the rigors of FRCP Rule 12(b)(6), Tilson's claim that the LDTSA imposes a duty on CRL survives dismissal. The Motion to Dismiss Tilson's negligence claim arising out of the LDTSA is DENIED.

         2. Federal Statutes

         Plaintiff alleges “upon information and belief” that CRL breached duties arising under federal workplace drug testing regulations, namely DOT, PHMSA and HHS workplace drug testing regulations. Tilson inartfully intermingles PMHSA and DOT regulations and makes no specific allegations regarding HHS regulations. The Court dismisses claims asserted under HHS regulations for failure to state a claim. The Court evaluates separately Plaintiff's claims that PMHSA and the DOT regulations create a legal duty on CRL.

         a. PMHSA

         Tilson alleges that he is a covered employee under PMSHA based on his job duties at the Exxon facility.[16] PHMSA regulations require operators of certain pipeline facilities to test covered employees for the presence of prohibited drugs and alcohol.[17] CRL moves dismissal asserting that “PHMSA regulations apply to pipeline operators, not workplace drug testing laboratories like CRL.”[18] In opposition to the Motion to Dismiss, Tilson argues that he “does not fall under the exceptions in § 199.2(c)(1) because the chemical facility [where he works] transports petroleum gas/catalyst mixtures via pipeline and is not a master meter system.”[19] Tilson cites to extra-record information to support his argument.[20] As previously stated, on a Motion to Dismiss, the inquiry is whether the allegations in the Complaint plausibly state a claim for relief. The Court's analysis is limited to the allegations in Complaint. The Complaint makes no factual allegations which would bring CRL within the scope of the PMSHA drug testing regulations. Accordingly, Plaintiff's negligence claims related to PMHSA shall be DISMISSED.

         b. DOT Regulations: Negligent Interpretation of the Sample

         Tilson argues “CRL improperly used the initial cut-off level of 20 ng/mL and the confirmation cut-off level of 10 ng/mL” and that under the DOT regulations “the required cut-off levels for marijuana are 50 ng/mL for the initial test and 15 ng/mL for the confirmation test.”[21] Thus Tilson argues that his urinalysis should have been reported as negative, and that CRL's failure to abide the federal regulations caused his harm.

         CRL moves dismissal arguing that, even if Tilson is a covered employee under the regulations, CRL is not Tilson's employer and owed no duty to test or report results in accordance with DOT cut-offs. CRL argues that since it is not Tilson's employer, CRL had no duty to “make a determination of whether Tilson's urine specimen was required to have been tested pursuant to the provisions of DOT or PHMSA regulations.”[22] Plaintiff concedes that “Tilson's urine specimen was collected as a non-federal specimen.”[23] The Court finds that, as matter of law, CRL has no duty under Louisiana law to test his non-federally regulated urine specimen pursuant to DOT drug testing regulations. The employer is the drug tester. Where the employer specifies the parameters of the clinical test and, as in the case, the laboratory performed the test and reported findings as instructed by the employer, if the choice of testing parameters was negligent, the negligence is attributable ...

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