Drake v. Laboratory Corp. of America Holdings

• Citation: 290 F.Supp.2d 352
• Decision Date: 18 November 2003
• Docket Number: No. 02-CV-1924 FB RML.,02-CV-1924 FB RML.
• Parties: Richard W. DRAKE, Plaintiff, v. LABORATORY CORPORATION OF AMERICA HOLDINGS, Kevin Wilson, Northwest Toxicology, Inc., David J. Kuntz, Elsohly Laboratories, Inc., Dr. William H. Whaley, and West Paces Ferry Medical Clinic, Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 352

290 F.Supp.2d 352

Richard W. DRAKE, Plaintiff, v. LABORATORY CORPORATION OF AMERICA HOLDINGS, Kevin Wilson, Northwest Toxicology, Inc., David J. Kuntz, Elsohly Laboratories, Inc., Dr. William H. Whaley, and West Paces Ferry Medical Clinic, Defendants.

No. 02-CV-1924 FB RML.

United States District Court, E.D. New York.

November 18, 2003.

Sam O. Maduegbuna, Esq., Maduegbuna Cooper, LLP, New York, NY, for Plaintiff.

Demetrios C. Batsides, Esq., Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., New York, NY, for Defendants Laboratory Corporation of America Holdings and Kevin Wilson.

Jeffrey Hurd, Esq., Phelan, Burke & Scolamiero, LLP, Albany, NY, for Defendants Northwest Toxicology, Inc. and David J Kuntz.

Sean P. Callahan, Esq., Devitt, Spellman Barrett, Callahan & Kenney, LLP, Smithtown, NY, for Defendant ElSohly Laboratories, Inc.

Ira Rosenstein, Esq., Orrick, Herrington & Sutcliffe LLP, New York, NY, for Defendant William H. Whaley.

MEMORANDUM AND ORDER

BLOCK, District Judge.

Seeking compensatory and punitive damages, plaintiff Richard W. Drake ("Drake") brings this action pursuant to 42 U.S.C. § 1983 based on alleged violations of his Fourth and Fourteenth Amendment rights. He also asserts several state common law tort claims. Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants separately move to dismiss the federal claims for failure to state a claim, and jointly move to dismiss the state common law claims on the ground of federal preemption. In addition, defendants Northwest Toxicology, Inc. ("Northwest") and David J. Kuntz ("Kuntz") move, in the alternative, for summary judgment. For the following reasons, the federal, but not the state, claims are dismissed.

PRIOR RELATED LITIGATION

In 1993, Drake was terminated from his employment as a flight attendant by his employer Delta Airlines ("Delta") because he purportedly failed a random drug test required by the Federal Omnibus Transportation Employee Testing Act ("OTE- TA").¹ The present case marks his fourth litigation effort at vindication. The first was against Delta. One aspect of that lawsuit is still pending—the viability of the random selection process; all other claims have been rejected. The next two cases entailed a host of unsuccessful legal challenges against the FAA. In the current lawsuit, Drake sues those entities and individuals whom he claims were responsible for furnishing false drug information to Delta, which served as the basis for his termination.

In his first lawsuit, this Court construed Drake's pro se complaint as alleging a private right of action against Delta for violating FAA drug testing regulations, and a claim for the violation of his Fourth Amendment rights in the testing of his urine sample for adulterants. See Drake v. Delta Airlines, Inc., 923 F.Supp. 387 (E.D.N.Y.1996). The Court dismissed the complaint in response to Delta's Rule 12(b)(6) motion. It held that Congress did not authorize a private right of action against an airline for violating FAA drug testing regulations. As for the Fourth Amendment, the Court determined that Delta must be viewed as acting as an agent for the government—even though a search for adulterants, unlike drugs, was permissive under the regulatory scheme, rather than statutorily mandated—but that the search was not unreasonable. In this latter regard, Drake's urine sample was initially found unsuitable for testing, but was sent to a second laboratory to determine whether it contained adulterants. According to Delta, this second test tested positive for adulterants, and was the reason for his termination. Although Drake did not refute this finding at a termination hearing, he claimed that his Fourth Amendment rights were violated because Delta failed to give him access to records pertaining to his drug test and secure his urine sample.

Applying Fourth Amendment jurisprudence, requiring the balancing of an intrusion on an individual's Fourth Amendment interests against the promotion of a legitimate governmental interest, the Court reasoned that "[t]o the extent Drake retained any privacy interest in his urine sample after it had been tested the first time, that interest was minimal" since "[t]here was no further physical invasion necessitated by testing his urine for adulterants or any involvement of Drake." Drake v. Delta, 923 F.Supp. at 396. After commenting that "[s]o long as the actions of [employers in the transportation industry] are reasonable, the protections afforded individuals under the Fourth Amendment will not be violated," the Court concluded "that Delta's permissive search for adulterants, which plausibly and logically flowed from the mandatory drug test, was reasonable as a matter of law." Id. at 397.

Although the Court dismissed the complaint, it sua sponte granted leave to amend since, liberally construed, Drake's allegations suggested the possibility of other claims. As the Court stated: "It is premature, based on the limited allegations presently before the Court, to determine whether or not Drake can allege a claim for wrongful termination ... or for violation of his due process rights." Id. Drake availed himself of this opportunity. In his second pleading, still acting pro se, he based a wrongful termination claim on allegations that Delta's real motive in firing him was because of his union activity, and predicated a due process claim on his contention, once again, that Delta had violated FAA drug testing regulations; in addition, he claimed that he was not afforded a proper termination hearing. The Court rejected both claims. See Drake v. Delta Air Lines, Inc., 1997 WL 397498 (E.D.N.Y. Jul.10, 1997).

In regard to the wrongful termination claim, the Court found Drake's allegations of union bias to be conclusory; moreover, Drake was an at-will employee and Delta was not a state actor with respect to the employment action since "the decision to terminate an employee on the basis of a federally-mandated drug test is not one compelled by federal law and does not transform a private employer into a government agent." Drake v. Delta, 1997 WL 397498 at *4. As for the due process claim, the Court held that to the extent it was based upon Delta's failure to comply with FAA regulations, it must fail "because, as the Court made clear in its prior opinion, `Drake has no legally cognizable claim against Delta for its alleged violations of FAA's drug testing regulations.'" Id. (quoting Drake v. Delta, 923 F.Supp. at 393). Finally, the Court rejected that branch of Drake's due process claim regarding the termination hearing, holding that "although Fourth Amendment protections attached to Delta's drug testing because it was acting as a government agent for that limited purpose, Delta did not act as a government agent in its subsequent decision to terminate Drake's employment." Id.

On appeal, the Circuit Court affirmed, "substantially for the reasons stated in [the district court's] opinions," the dismissal of "(i) Drake's claims based on Delta's alleged violations of drug testing regulations, because there is no implied private right of action for employees under those regulations; and (ii) Drake's statutory, common law, and constitutional claims based on Delta's allegedly wrongful termination of his employment because, inter alia, Drake was an at-will employee and Delta was not a state actor with respect to the employment action." Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170-71 (2d Cir.1998) (internal citation omitted). However, as to the Fourth Amendment claim, it remanded because Drake's first complaint "can be construed to allege that Delta's collection and first test of his urine sample were not administered within the parameters of its systematic testing program, and the record is silent (as is Delta) as to any basis, arising prior to the test's administration, for a reasonable suspicion that Drake was using drugs." Id. at 172.

Although Drake had no judicial recourse against Delta for its alleged violations of the FAA's drug testing regulations, the Circuit Court, agreeing with the District Court, noted that Drake "could have sought redress of the alleged regulatory violations through administrative avenues, such as by filing a complaint with the Secretary of Transportation." Drake v. Delta, 147 F.3d at 171 n. 2. Drake thereupon initiated, to no avail, two pro se litigations against the FAA in the District Court for the District of Columbia. As noted by the D.C. Circuit Court of Appeals in affirming the District Court's dismissals of these actions, the first case concerned the FAA's drug testing regulations "as a whole, and the related allegation that the laxity of these regulations may have allowed Delta to violate Drake's rights when it processed his urine sample;" the second case principally attacked the FAA's subsequent determination "that Delta did not violate those regulations and the FAA's refusal to disclose information bearing on that determination." Drake v. Federal Aviation Administration, 291 F.3d 59 (D.C.Cir.2002).²

PRESENT LITIGATION

While he was litigating his pro se claims against the FAA, Drake, now represented by counsel, initiated the present case against the entities and individuals involved in the testing of his urine.

The Complaint

Factual Allegations

Drake commenced his employment with Delta in 1990. See Compl. at ¶ 6. On October 28, 1993, at Delta's request, Drake submitted a urine specimen to Delta to be tested for illegal substances. See id. at ¶¶ 32, 35. Delta split the specimen and sent one portion to defendant Laboratory Corporation of America Holdings ("Lab-Corp") for testing. See id. at ¶ 35.³

On November 2, 1993,⁴ LabCorp notified Delta that the specimen "had an odor characteristic of an adulterant and suggested the presence of amphetamines." Id. at ¶ 37. LabCorp found the specimen "unsuitable for testing" and marked it "cancelled." Id. at ¶¶ 41, 42. Nevertheless, LabCorp tested the specimen; it...