Parry v. Mohawk Motors of Michigan et al
| Decision Date | 15 September 2000 |
| Docket Number | No. 99-3924,99-3924 |
| Citation | 236 F.3d 299 |
| Parties | (6th Cir. 2000) Christopher J. Parry, Plaintiff-Appellant, v. Mohawk Motors of Michigan, Inc.; Austintown Ambulatory ER; MedExpress; Drug Free, Inc., Defendants-Appellees, Arnold J. Pritchard; APIC; Diversified Contract Services, Inc., Defendants. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 98-00179, John M. Manos, District Judge. [Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Natalie F. Grubb, Medina, Ohio, for Appellant.
Laura J. Avery, REMINGER & REMINGER, Cleveland, Ohio, Douglas G. Leak, BONEZZI, SWITZER, MURPHY & POLITO, Cleveland, Ohio, Francis Daniel Balmert, Vorys, Sater, Seymour & Pease, Cleveland, OH, D. Faye Caldwell, CALDWELL & CLINTON, Houston, Texas, Kathryn M. Miley, Ernerst L. Wilkerson, WILKERSON & ASSOCIATES, Cleveland, Ohio, for Appellees.
Joseph Black, Paul D. Cullen, Sr., Diana E. Stein, CULLEN LAW FIRM, Washington, D.C., for Amicus Curiae.
Before: JONES, SILER, and CLAY, Circuit Judges.
Plaintiff, Christopher J. Parry, appeals from the district court's order granting summary judgment to Defendants, Mohawk Motors ("Mohawk"), Austintown Ambulatory ER ("Austintown"), MedExpress, and Drug Free, Inc. ("Drug Free") and denying Plaintiff's motion to file a second amended complaint. Plaintiff claims that the district court erred by (1) denying him leave to amend his complaint to include a Bivens claim; (2) concluding that he did not have a private cause of action under the regulations promulgated pursuant to the Federal Omnibus Transportation Employee Testing Act of 1991 ("FOTETA"), 49 U.S.C. §a31306; (3) concluding that he was not wrongfully terminated under the Americans with Disabilities Act, 42 U.S.C. § 12101 ("ADA") and Ohio public policy; and (4)aconcluding that he did not have a cause of action under Ohio state law for defamation or invasion of privacy. Moreover, Plaintiff claims that the district court erred in granting summary judgment to Defendants Mohawk, Drug Free, MedExpress and Austintown while at the same time imposing a stay under the Bankruptcy Code in Plaintiff's case against Defendants Pritchard and APIC. For the reasons stated below, this Court AFFIRMS the district court's orders granting summary judgment and denying Plaintiff's motion to file a second amended complaint.
On July 11, 1996, Plaintiff signed a contract with Defendant Arnold J. Pritchard and Pritchard's company, Defendant APIC, to drive on their behalf. Defendant Pritchard leased drivers and trucks to Defendant Mohawk. Mohawk acted as the carrier and dispatched leased drivers for particular runs. Defendant Pritchard signed an agreement with Mohawk stating that his drivers would participate in a drug testing program as mandated by federal law.
On August 6, 1997, Plaintiff was selected for a random drug test. Plaintiff received instructions to proceed to a terminal in Lordstown, Ohio because that location was the most convenient. At the Lordstown terminal, Plaintiff was given a Federal Drug Testing Custody and Control Form ("CCF") and a testing kit. Plaintiff was then instructed to drive to Defendant Austintown, a clinic and emergency room, for collection of his specimen.
Wendy Carter, a technician for Austintown, supervised Plaintiff's urine collection. The CCF indicates that the collection process began at 12:15 p.m. on August 6, 1997. Initially, Carter indicated that the temperature of Plaintiff's specimen was "in range." However, she testified during her deposition that Plaintiff's specimen "felt hot." Pursuant to instructions from her supervisor, she took the temperature of Plaintiff and his specimen. Carter's notes indicate that Plaintiff's body temperature was 98.2 degrees Fahrenheit while Plaintiff's urine specimen was 104.6 degrees Fahrenheit. Additionally, Carter determined that the specific gravity of the specimen was about 1.0, indicating that the specimen was too clear for normal urine.
Although the specimen temperature did not match Plaintiff's body temperature, Carter sealed and boxed the specimen to ship to the laboratory for testing. She testified that her notes were written down after the specimen was boxed. By this time, Plaintiff had been given a copy of the CCF. In addition, three copies of the CCF were sealed in the box with the specimen. Carter altered the copies of the CCF to indicate that the specimen was not within the proper temperature range. Because various carbon pages had already been separated, the alteration did not appear on all copies. Carter stated that she initially indicated a normal temperature on the CCF because she had never encountered an abnormal specimen before and assumed that Plaintiff's specimen would be normal as well.
After the collection, Plaintiff was taken to an alcohol technician for an alcohol breath test. Carter testified that she told both the alcohol technician and Plaintiff that he could not leave because another urine specimen was required in light of the temperature and specific gravity readings of Plaintiff's earlier specimen. Plaintiff testified that during the course of events, "[he] knew [he] had to stay at the facility." (J.A. at 627.) After the alcohol test, Plaintiff was escorted to the waiting area near the reception desk.
At approximately 12:50 p.m., Carter went into the reception area and observed Plaintiff re-entering Austintown from the outer doors of the emergency room. She had a conversation with Plaintiff in which she explained to Plaintiff that he could not give a second specimen because he had left the facility. Although Carter's notes indicate two specimens were taken and the second was observed by a doctor, the notes also indicate that Plaintiff left before the second specimen could be taken. Carter explained the discrepancy by stating that the initial statement was written down based on Plaintiff's agreement to give a second specimen. He left the facility, however, before she or a doctor actually had an opportunity to take the second specimen.
Subsequently, Plaintiff made a phone call to Defendant Pritchard for instructions and spoke to Pritchard's wife. After the call, pursuant to Plaintiff's employer's instructions, Carter was directed to send the first specimen for testing. Plaintiff's phone call and Pritchard's instruction are reflected in Carter's notes. Plaintiff then left Austintown.
At approximately 2:05 p.m., Plaintiff returned to Austintown again with the intention of giving a second specimen. Carter instructed him to wait while she determined whether he could give a second specimen. She contacted Linda Campbell of Central Transport. Campbell informed Carter that because he had left the facility, a second specimen could not be taken because under the regulations, leaving constituted a "refusal to test." Campbell then advised her supervisor, Randall Fields, that there was a problem with Plaintiff's drug test. In a subsequent conference call between Carter and Fields and/or Campbell, Campbell reiterated that a second sample could not be taken. They instructed Carter to send the original specimen and explained to Plaintiff that he should contact Defendant Pritchard for further instructions.
On August 7, 1997, MedExpress received and tested Plaintiff's urine specimen for drugs. The specimen was also tested for specific gravity and creatine level. The specimen tested negative for drugs, but had a specific gravity and creatine level below that required by the regulations. Although this did not mean that a driver was disqualified, it did mean that a driver could be required to give an "observed" specimen in a subsequent test. The results were reported to Defendant Drug Free, the Medical Review Officer ("MRO"), for review.
Drug Free received the results on August 7 or 8, 1997. Dr. James Haber, an employee of Drug Free was the physician who acted as the MRO for Plaintiff's case. He testified at his deposition that negative results ordinarily receive an administrative review. Negative results are also not discussed with the employer. Dr. Haber only recalled discussing the results with David Eades, the president of Drug Free.
Eades testified at deposition that the motor carrier is notified of a low specific gravity or creatine level even if the tests are negative. The reporting is necessary to permit the employer to require an observed specimen in subsequent tests. Eades also testified that he has discussed negative results with employers when problems with the collection process were brought to his attention.
Fields and Campbell contacted Eades within days of Plaintiff's test. They were concerned about whether it was proper to send a "hot" specimen out for testing. Eades explained that all specimens, regardless of temperature, must be tested under federal regulations. They also inquired as to the ramification of the low specific gravity and creatine level. Eades further explained that this did not result in disqualification, but the employer had the option of requiring an observed specimen in subsequent tests. Eades instructed his employees to look into the matter further; the employees in turn contacted Austintown and MedExpress for their version of events. Between August 13 and 18, 1997, the parties faxed information to each other surrounding the circumstances of Plaintiff's drug test.
Carter testified that any subsequent inquiries about Plaintiff were referred to Fields. Other than these referrals, she did not have any substantive discussions with anyone about Plaintiff. Fields and Campbell testified that they did not talk about Plaintiff to others.
Plaintiff no longer drives for Pritchard or Mohawk. Plaintiff was terminated because he allegedly took Defendant Pritchard's tractor across state lines without permission....
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