Drake v. Laboratory Corp. of America Holdings

• Decision Date: 19 July 2006
• Docket Number: Docket No. 05-0250-CV (L).,Docket No. 05-0252-CV (CON).,Docket No. 05-0560-CV(CON).
• Citation: 458 F.3d 48
• Parties: Richard W. DRAKE, Plaintiff-Appellee, v. LABORATORY CORPORATION OF AMERICA HOLDINGS, Kevin Wilson, Dr. William H. Whaley and West Paces Ferry Medical Clinic, Defendants-Appellants. David J. Kuntz, Elsohly Laboratories, Inc., and Northwest Toxicology, Inc., Defendants.
• Court: U.S. Court of Appeals — Second Circuit

458 F.3d 48

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

Docket No. 05-0250-CV (L).

Docket No. 05-0252-CV (CON).

Docket No. 05-0560-CV(CON).

United States Court of Appeals, Second Circuit.

Argued: December 2, 2005.

Decided: July 19, 2006.

Kevin McNulty, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C. (John J. Gibbons, Demestrios C. Batsides, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., Newark, NJ, D. Faye Caldwell, Caldwell & Clinton PLLC, Houston, TX, of counsel) Newark, NJ, for Defendants-Appellants Laboratory Corporation of America and Kevin Wilson.

Steven J. Fink, Orrick, Herrington, & Suttcliffe, LLP (Ira G. Rosenstein, Orrick, Herrington, & Suttcliffe, LLP, New York, NY, William H. Boice, Kilpatrick & Stockton LLP, Atlanta, GA, of counsel) New York, NY, for Defendants-Appellants William H. Whaley and West Paces Ferry Medical Clinic.

Samuel O. Maduegbuna, Maduegbuna Cooper, LLP (Kenechukwu C. Okoli, of counsel), New York, NY, for Plaintiff-Appellee Richard W. Drake.

Before CARDAMONE, LEVAL, and SACK, Circuit Judges.

SACK, Circuit Judge.

The plaintiff-appellee, Richard Drake, was terminated from his employment by Delta Air Lines in 1993 because airline officials thought he had failed a drug test required of him as an airline employee by federal law. Drake has asserted that some persons and entities involved in administering his drug test and disseminating the results violated the Fourth and Fourteenth Amendments to the United States Constitution and committed state common-law torts against him. Drake alleges, inter alia, that the defendants-appellants conducted the tests in violation of federal regulations and industry standards and that they falsely represented to Delta that Drake's urine sample was adulterated.¹

The district court (Frederic Block, Judge ) granted the defendants' motion to dismiss Drake's federal constitutional claims pursuant to Federal Rule of Civil Procedure 12(b)(6), but it declined to dismiss his state-law claims, concluding that they were not preempted by federal law. Some of the defendants, after certification by the district court and this Court pursuant to 28 U.S.C. § 1292(b), filed this interlocutory appeal.

The issues raised on appeal are whether and to what extent federal statutes and regulations concerning drug testing of persons employed in the aviation industry preempt the application of state tort law to events arising out of such drug tests. We conclude that Drake's state tort claims are preempted to the extent that he asserts that the defendants-appellants violated state common-law drug-testing standards that are independent of federal law. But Drake's claims are not preempted insofar as he alleges that the defendants-appellants engaged in wrongful behavior not addressed by federal law, or insofar as his state-law causes of action do no more than provide remedies for violations of the federal regulations. Because none of Drake's asserted state-law causes of action appear from the pleadings to be based entirely on preempted state law, we affirm the order of the district court and remand the matter to that court for further proceedings.

BACKGROUND

In 1993, after several decades as a flight attendant, Drake was terminated by his then-employer, Delta Air Lines, as a result of federally mandated drug testing he had undergone. Thereafter, but prior to filing this lawsuit, Drake brought three actions in federal court regarding his termination: one against Delta and two against the Federal Aviation Administration ("FAA"). The history of that litigation is recounted elsewhere. See Drake v. Lab. Corp. of Am. Holdings, 290 F.Supp.2d 352, 353-56 (E.D.N.Y.2003); Drake v. FAA, 291 F.3d 59, 63-66 (D.C.Cir.2002), cert. denied, 537 U.S. 1193, 123 S.Ct. 1295, 154 L.Ed.2d 1028 (2003); Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170 (2d Cir.1998) (per curiam).

The Complaint

Drake filed this lawsuit, the fourth relating to his termination, in the United States District Court for the Eastern District of New York on December 28, 2001. Because the current appeal arises from a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we assume for purposes of this appeal that the allegations contained in the complaint are true. See, e.g., Freedom Holdings Inc. v. Spitzer, 357 F.3d 205, 208 (2d Cir.2004).

According to the complaint, Drake submitted a urine sample to Delta on October 28, 1993, as part of a federally required drug test. Both Drake and the Delta employee charged with collecting the sample signed a form affirming that Drake had not tampered with the sample. Delta divided the specimen between two vials, sending one to defendant-appellant Laboratory Corporation of America Holdings ("LabCorp") for testing.²

The complaint describes a complicated series of events following the urine collection, in which each of the defendants allegedly violated federal drug-testing protocols and thereby contributed to Delta's ultimate, erroneous conclusion that Drake's urine sample contained glutaraldehyde, "a substance often used to mask the presence of drugs in the body." Drake v. FAA, 291 F.3d at 63.³ It is undisputed that the presence of glutaraldehyde, if validly detected, would have justified Drake's termination.

According to the complaint, LabCorp, after receiving Drake's urine specimen but prior to testing it, suspected that the specimen was adulterated based on its odor. One of LabCorp's employees allegedly notified Delta of these suspicions by telephone, in violation of federal regulations governing communications between drug-testing laboratories and aviation-industry employers. LabCorp subsequently attempted to test the specimen but found it "unsuitable for testing." Compl. at ¶ 42. LabCorp did not detect the presence of glutaraldehyde or other drugs or adulterants. Having found the specimen unsuitable for testing, Drake alleges, LabCorp was required by federal law to cancel the test and destroy the sample, but it failed to do so. Id. at ¶ 43.

The complaint alleges that LabCorp continued to communicate directly with Delta regarding its suspicions about Drake's urine specimen, leading Delta management to think incorrectly that Drake had tested positive for drug use. It also asserts that LabCorp negligently sent some other employee's drug test results in place of Drake's to defendant-appellant William H. Whaley, who was the Medical Review Officer ("MRO")⁴ for Delta and an owner and employee of defendant-appellant West Paces Ferry Medical Clinic. According to the complaint, LabCorp represented to Whaley that the other employee's test results were Drake's. Id. at ¶ 46. These results allegedly led Delta employees to believe that Drake's specimen had tested positive for a prohibited substance.

In the ensuing days, the complaint alleges, LabCorp failed to maintain records required by federal law regarding the chain of custody for Drake's urine specimen. It further alleges that LabCorp tampered with the sample. According to the complaint, on November 15, 1993, LabCorp sent "someone else's urine sample" to defendant Northwest Toxicology, Inc. ("Northwest"), and represented that the urine sample was obtained from Drake. Id. at ¶ 53. Northwest then tested the sample and "conveyed false results" to Delta. Id. at ¶ 54.⁵ The complaint does not say what those false results were, but it does allege that Northwest tested the sample for glutaraldehyde and certified that glutaraldehyde was not found.

On November 19, Whaley sent a memo to Delta reporting his "suspicions of what may be in Drake's urine sample." Id. at ¶¶ 58-59 (emphasis in original). That day, Northwest sent the remainder of the sample to defendant ElSohly Laboratories, Inc. ("ElSohly") for testing, without maintaining proper custody over the specimen. ElSohly tested the sample on November 23, 1993. Although the sample tested negative, ElSohly "conveyed unsubstantiated and improper speculation about the sample to Delta and Whaley." Id. at ¶ 61.

On November 24, 1993, according to the complaint, Whaley sent another memo to Delta, which "acknowledged that no drugs or adulterants were found in Drake's alleged urine sample by any of the three labs (defendants LabCorp, Northwest and ElSohly), suggested that adulteration was still suspected, and warned that any further testing `would violate' the [Department of Transportation] Drug Testing Regulations." Id. at ¶ 63. Nevertheless, on November 29, 1993, at Delta's direction and with Whaley's approval; Northwest "unlawfully purported to re-test Drake's alleged urine sample, and claimed that the re-test was positive for the presence of [g]lutaraldehyde." Id. at ¶ 64. According to the complaint, the November 29 re-test "had a number of anomalies," including that Northwest "had transferred all of the sample in its possession to ElSohly on November 19, 1993" and therefore did not have any of Drake's urine sample in its possession on November 29. Id. at ¶ 65. Whaley and Northwest accepted the results of the November 29, 1993, re-test and transmitted the results to Delta.

Thereafter, Drake asserts, "Delta accepted the false and improper results ... in total disregard of all earlier tests that found no adulterant in Drake's alleged urine sample." Id. at ¶ 67. Delta suspended Drake on November 29, 1993, and terminated his employment on December 28.

Drake's Claims

In his complaint, Drake asserts eight causes of action, contending that the defendants violated his rights under the United States Constitution and New York common law. In particular, Drake alleges violations of his rights under the Fourth and Fourteenth Amendments to the Constitution (Counts I and II), Negligence (Count III), Tortious Interference with Economic Relations (Count...