Boldt v. N. States Power Co.

• Decision Date: 02 May 2017
• Docket Number: Civil No. 16–232 ADM/SER
• Citation: 259 F.Supp.3d 954
• Parties: Wade BOLDT, Plaintiff, v. NORTHERN STATES POWER COMPANY, a Minnesota Corporation, d/b/a/ Xcel Energy, Defendant.
• Court: U.S. District Court — District of Minnesota

259 F.Supp.3d 954

Wade BOLDT, Plaintiff,

v.NORTHERN STATES POWER COMPANY, a Minnesota Corporation, d/b/a/ Xcel Energy, Defendant.

Civil No. 16–232 ADM/SER

United States District Court, D. Minnesota.

Signed May 2, 2017

Jenny M. Helling, Esq., and Nicholas G. B. May, Esq., Fabian May & Anderson, PLLP, Minneapolis, MN, on behalf of Plaintiff.

Michael J. Moberg, Esq., and Alyssa M. Toft, Esq., Jackson Lewis P.C., Minneapolis, MN, on behalf of Defendant.

MEMORANDUM OPINION AND ORDER

ANN D. MONTGOMERY, U.S. DISTRICT JUDGE

I. INTRODUCTION

On February 16, 2017, the undersigned United States District Judge heard oral argument on Defendant Northern States Power Company d/b/a Xcel Energy's ("NSP") Motion for Judgment on the Pleadings [Docket No. 25]. Plaintiff Wade Boldt ("Boldt") opposes the Motion. For the reasons set forth below, NSP's Motion is granted.

II. BACKGROUND

In January 2016, Boldt sued NSP in Minnesota state court alleging disability discrimination under the Minnesota Human Rights Act ("MHRA"), Minn. Stat. §§ 363A.08 and 363A.17. See Compl. [Docket No. 1, Attach. 1]. NSP removed this action to federal court, arguing that Boldt's claims are preempted by the Labor Management Relations Act ("LMRA"), 29 U.S.C. §§ 141, et seq. , and the Energy Reorganization Act ("ERA"), 42 U.S.C. §§ 5801, et seq .See Notice of Removal [Docket No. 1] ¶ 6. Boldt then moved to remand the case back to state court. See Mot. Remand [Docket No. 8]. On July 18, 2016, this Court denied the motion to remand, holding that Boldt's MHRA claims were completely preempted by the LMRA and by federal law governing nuclear safety. See Mem. Op. & Order [Docket No. 17] ("July 18 Order"). NSP now moves for judgment on the pleadings, arguing that the preemption analysis in the July 18 Order applies with equal force to the motion for judgment on the pleadings. Boldt opposes the motion with respect to Count I of the Complaint, which asserts a claim for disability discrimination based on a perceived disability of alcoholism under Minn. Stat. § 363A.17.¹ Boldt argues that the Court's July 18 Order erroneously concluded that Boldt's MHRA claims are preempted.

A. Parties

NSP, a Minnesota corporation, operates the Prairie Island Nuclear Generating ("PING") Plant near Red Wing, Minnesota. Compl. ¶¶ 2, 4. Boldt is a Special Construction Laborer and member of the Laborers Local 563, which is an affiliate of the Minnesota State Building and Construction Trade Council. Id. ¶¶ 3, 17. Beginning in 2002, Boldt's union assigned him to temporary projects at NSP's PING Plant. Id. ¶¶ 3–4.

B. Labor Agreement

As a union laborer, Boldt's work on NSP's property was governed by a labor agreement between NSP and Boldt's union (the "Labor Agreement"). Id. ¶ 17; Helling Aff. [Docket No. 9] Ex. A ("Labor Agreement").² The Labor Agreement includes the following provisions related to NSP's security, drug screening, and safety requirements:

5.1 Employees must meet all security and drug screening requirements as set forth by the Company[.]

5.9 The Employer and Employees shall abide by all Company safety regulations, policies, and plant-specific or site-specific work rules as may be applicable to the work site.

10.8 All personnel on the job agree to submit to job site personnel and/or vehicle inspections as security experience may require.

Labor Agreement ¶¶ 5.1, 5.9, 10.8.

C. Policies and Regulations Governing Unescorted Access to the Nuclear Plant

Boldt's work at the PING Plant required him to maintain unescorted nuclear access authorization to the plant. Compl. ¶ 4. This authorization required Boldt to comply with NSP's Access Authorization Program ("AAP"), which included a Fitness for Duty ("FFD") Policy. Id.

NSP administered the AAP and FFD Policy pursuant to federal statutes and regulations governing the safety of operations at nuclear power plants. Id. Specifically, the Atomic Energy Act ("AEA"), ERA, and regulations promulgated by the Nuclear Regulatory Commission (the "NRC Regulations") require nuclear licensees such as NSP to establish and administer an AAP that provides "high assurance" that individuals granted unescorted access to the nuclear power plant "are trustworthy and reliable, such that they do not constitute an unreasonable risk to public health and safety or the common defense and security, including the potential to commit radiological sabotage." 10 C.F.R. § 73.56(c). Nuclear licensees are also required to implement an FFD Program that must:

(a) Provide reasonable assurance that individuals are trustworthy and reliable as demonstrated by the avoidance of substance abuse;

(b) Provide reasonable assurance that individuals are not under the influence of any substance, legal or illegal, or mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties;

(c) Provide reasonable measures for the early detection of individuals who are not fit to perform the duties that require them to be subject to the FFD program; [and]

(d) Provide reasonable assurance that the workplaces subject to this part are free from the presence and effects of illegal drugs and alcohol ....

10 C.F.R. § 26.23.

The NRC Regulations also mandate nuclear licensees to "implement drug and alcohol testing programs" and "administer drug and alcohol tests ... [i]n response to an individual's observed behavior or physical condition indicating possible substance abuse or after receiving credible information that an individual is engaging in substance abuse." 10 C.F.R. § 26.31(a), (c)(2) ; see also 10 C.F.R. § 26.69 ("Authorization with potentially disqualifying fitness-for-duty information").

The NRC Regulations additionally set forth detailed requirements related to fitness-for-duty determinations, including the roles of Medical Review Officers ("MRO") and Substance Abuse Experts ("SAE") in making the determinations. See 10 C.F.R. §§ 26.181 – 189. The regulations provide that if an employee "may be in violation of the licensee's ... FFD policy or is otherwise unable to safely and competently perform his or her duties," a "determination of fitness must be made by a licensed or certified professional." 10 C.F.R. § 26.189(a). The SAE's role "is to protect public health and safety and the common defense and security by professionally evaluating the individual and recommending appropriate education/treatment, follow-up tests, and aftercare." 10 C.F.R. § 26.187(g). "The SAE is not an advocate for the licensee or other entity, or the individual." Id. Under the regulations, a licensee such as NSP has no authority to alter an SAE's evaluation and recommendations:

Neither the individual nor licensees and other entities may seek a second determination of fitness if a determination of fitness under this part has already been performed by a qualified professional employed by or under contract to the licensee or other entity. After the initial determination of fitness has been made, the professional may modify his or her evaluation and recommendations based on new or additional information from other sources including, but not limited to, the subject individual, another licensee or entity, or staff of an education or treatment program. Unless the professional who made the initial determination of fitness is no longer employed by or under contract to the licensee or other entity, only that professional is authorized to modify the evaluation and recommendations....

10 C.F.R. § 26.189 (emphases added).

D. Events of November 8, 2013 and Ensuing Conditions on Boldt's Unescorted Access

On November 8, 2013, Boldt reported to the PING Plant at 5:00 p.m. to begin his night shift. Compl. ¶ 5. Boldt's supervisor approached him and told him that he smelled of alcohol and needed to take a breathalyzer test immediately. Id. In addition to the odor of alcohol, Boldt's supervisor observed that Boldt's eyes were glazed, his face was flushed, and he was shaking. Helling Aff. Ex. B at 12; Moberg Aff. Ex. C. Boldt completed an alcohol breath test. Compl. ¶ 5; Moberg Aff. Ex. C. Although the breathalyzer test results showed .000% blood alcohol content, Boldt admitted that he had consumed a "6–pack" at 9:00 a.m. that morning. Helling Aff. Ex. C; Moberg Aff. Ex. E. NSP also required Boldt to take a urinalysis screening test the following day, which he passed. Compl. ¶ 6.

Following these events, Tasha Stephens ("Stephens"), NSP's supervisor of the AAP and FFD programs, scheduled Boldt for a chemical dependency assessment at an outpatient rehabilitation and treatment center. Id. ¶ 7. Boldt completed the assessment on November 14, 2013. Compl. ¶ 8. Boldt alleges that the assessment falsely stated he had tested positive for alcohol at work. Id. Boldt informed the treatment center staff that he had passed the breathalyzer and urinalysis screening tests. Id. Stephens also arranged for Boldt to have an interview, exam, and blood draw with Dr. Thomas Jetzer ("Jetzer"), NSP's Medical Review Officer ("MRO") and Substance Abuse Expert ("SAE"), on November 20, 2013. Id. ¶¶ 7, 9. Dr. Jetzer determined that for Boldt to maintain his unescorted access authorization and to be allowed back on the PING Plant site, he would first have to complete 60 hours of outpatient treatment. Id. ¶¶ 9–10; Moberg Aff. Ex. D.

Boldt alleges that NSP's FFD Handbook did not authorize or require NSP to impose these further conditions or requirements on him. Compl. ¶ 9. Boldt complained to Stephens and to several other members of NSP management that he did not understand why NSP was forcing him to go to rehabilitation and refusing to allow him to return to work when he had not tested positive for alcohol or drugs. Id. ¶¶ 9–10. Nevertheless, Boldt completed 60 hours of outpatient treatment and 10 weeks of aftercare treatment, which NSP required before Boldt could return to work. Id. ¶ 11.

In July 2014, after Boldt had completed the required treatment, Dr. Jetzer again reviewed Boldt's relevant information to determine his...