Kraslawsky v. Upper Deck Co.

• Citation: 56 Cal.App.4th 179,65 Cal.Rptr.2d 297
• Decision Date: 02 July 1997
• Docket Number: No. D021780,D021780
• Court: California Court of Appeals Court of Appeals
• Parties: , 12 IER Cases 1789, 97 Cal. Daily Op. Serv. 5317, 97 Daily Journal D.A.R. 8589 Janet KRASLAWSKY, Plaintiff and Appellant, v. UPPER DECK COMPANY, Defendant and Respondent.

Page 297

65 Cal.Rptr.2d 297

56 Cal.App.4th 179, 12 IER Cases 1789,

97 Cal. Daily Op. Serv. 5317,

97 Daily Journal D.A.R. 8589

Janet KRASLAWSKY, Plaintiff and Appellant, v. UPPER DECK COMPANY, Defendant and Respondent.

No. D021780.

Court of Appeal, Fourth District, Division 1, California.

July 2, 1997.

Chandler and Vatave, Linda Hart Chandler and Sunil Lewis Vatave, Newport Beach, for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, John D. Collins and Angela A. Dahl Sisney, San Diego, for Defendant and Respondent.

HALLER, Associate Justice.

The Upper Deck Company terminated Janet Kraslawsky after Kraslawsky refused to take a urinalysis drug/alcohol test under Upper Deck's reasonable cause drug testing program. Kraslawsky sued Upper Deck, alleging Upper Deck violated her privacy rights under the California Constitution (Cal. Const. art. I, § 1), intentionally inflicted emotional distress, and wrongfully terminated her in violation of public policy. The trial court granted summary judgment in favor of Upper Deck on each of Kraslawsky's claims. Kraslawsky appeals.

Kraslawsky does not challenge the constitutionality of Upper Deck's suspicion-based testing program. Kraslawsky instead contends Upper Deck's demand that she submit to a urinalysis test violated her state constitutional right to privacy because Upper Deck did not have reasonable cause to believe she was intoxicated. Upper Deck counters that (1) the existence of reasonable cause is not relevant to the constitutional privacy analysis and (2) Kraslawsky did not proffer sufficient evidence to create a triable issue of fact on the reasonable cause issue.

We determine summary judgment was improper on Kraslawsky's state constitutional privacy claim because the existence of reasonable cause was relevant and Kraslawsky submitted evidence creating a triable issue of fact as to whether Upper Deck had reasonable cause to believe she was under the influence of intoxicants. We reverse on Kraslawsky's wrongful termination claim because Upper Deck moved for summary judgment on this claim based solely on its assertion there was no actionable invasion of privacy. We affirm the judgment on Kraslawsky's intentional infliction claim because Upper Deck presented evidence its conduct was not outrageous and Kraslawsky failed to proffer contrary evidence.

FACTUAL AND PROCEDURAL BACKGROUND

Upper Deck manufactures sports trading cards and sports memorabilia. In July 1991, Upper Deck interviewed Kraslawsky for an executive secretary position. Upper Deck notified Kraslawsky it would hire her if she underwent a medical examination and successfully completed a urine test for drugs and alcohol. ¹ During the ensuing medical examination, Kraslawsky voluntarily provided a urine sample and disclosed the prescription and non-prescription medications she was taking. The sample tested positive for a prescription medication. Kraslawsky later provided a doctor's note confirming the need for the medication.

Upper Deck then hired Kraslawsky as an executive secretary for company vice president and marketing director Anthony Loiacono. The personnel department gave Kraslawsky a copy of the Employee Handbook, which included a discussion of the company policy against alcohol and drug use in the workplace and the company's reasonable cause drug testing policy. The Handbook stated Upper Deck "may require an employee to submit to monitored tests whenever it has reasonable cause to believe that an employee is [under the influence of intoxicants].... An employee's consent ... to submission to tests is required as a condition of employment. An employee's refusal to consent when requested by [Upper Deck] may result in disciplinary action, including discharge, even for a first offense." Kraslawsky read the Handbook, and signed a form stating she agreed to abide by the stated policies.

Eight months later, on March 10, 1992 at approximately 4 p.m., an Upper Deck personnel employee requested that Kraslawsky drive to a medical facility and provide a urine sample for a drug test. Kraslawsky refused to take the test. Based on this refusal, Upper Deck terminated Kraslawsky.

On June 5, 1992, Kraslawsky brought an action against Upper Deck, alleging Upper Deck's demand that she submit to a drug test was made "without good cause or reason, and at random."

In March 1994, Upper Deck moved for summary judgment, relying on Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633. Upper Deck contended Kraslawsky could not recover on her privacy cause of action because Kraslawsky had no reasonable expectation of privacy, Kraslawsky consented to the "reasonable cause" drug test, and Upper Deck had a legitimate need to drug test its employees.

In support of its motion, Upper Deck proffered evidence showing that (1) Kraslawsky read and signed the Employee Handbook containing notice of the reasonable cause drug testing policy; (2) two Upper Deck managers personally observed Kraslawsky on March 10, 1992 and believed she was under the influence of intoxicants; (3) had Kraslawsky submitted to the test, her urination would not have been visually observed ² and the results would have been disclosed only to specified Upper Deck personnel; (4) Kraslawsky did not object to the preemployment urine test and at that time disclosed medications she was taking; and (5) Kraslawsky testified at a deposition that she did not believe the procedure involved in taking the test was intrusive.

Upper Deck also proffered the declaration of Brian Burr, an Upper Deck executive vice president of operations. Burr stated Upper Deck maintains a suspicion-based drug testing policy to (1) "further its interest in the efficient operation of its business and performance of its employees"; (2) reduce the risks of liability associated with employee drug or alcohol use; (3) ensure that its policies are "consistent with the drug and alcohol policies" of sporting organizations since "an image of being soft on drugs ... would hinder its business in promoting competitive sports and sports stars"; (4) reduce the costs of health care premiums; and (5) ensure the health and safety of its employees. Burr stated Upper Deck does "not favor 'random' [drug] testing."

In opposition to the summary judgment motion, Kraslawsky contended she had a reasonable expectation of privacy and Upper Deck's asserted reasons for requiring the drug test were insufficient to overcome her privacy rights. Kraslawsky argued and presented evidence that Upper Deck did not have "reasonable cause" to believe she was under the influence of intoxicants. This evidence included Kraslawsky's declaration in which she denied that on March 10 she was intoxicated or acting as if she were intoxicated or that she exhibited the physical symptoms allegedly observed by the two Upper Deck managers. Kraslawsky also submitted deposition transcripts of the two managers who acknowledged they did not know what was wrong with Kraslawsky, never specifically believed she was under the influence of intoxicants, and had never received formal training on detecting substance abuse. Kraslawsky additionally proffered evidence that her job responsibilities were strictly secretarial and did not involve security or safety-related activities.

The court granted summary judgment in favor of Upper Deck. The court found the undisputed facts established Kraslawsky did not have a reasonable expectation of privacy because she "was on notice of the testing and consented to it" and Upper Deck's "testing procedures are suspicion-based and not random." The court also found the drug testing policy was not a "serious" invasion of Kraslawsky's privacy rights because the urine test was "unobserved" and "the results would be kept confidential." The court further determined Upper Deck's "legitimate and important countervailing interests in its drug testing policy outweigh any privacy interest plaintiff might have had ... per the Burr Declaration." The court alternatively found Kraslawsky's consent to Upper Deck's reasonable cause drug testing policy was a "complete defense" to Kraslawsky's privacy claim. The court granted summary judgment on the wrongful termination and emotional distress claims because Kraslawsky could not establish an actionable invasion of privacy.

DISCUSSION

I. Right of Privacy Under the State Constitution

Kraslawsky contends the court erred in granting summary judgment on her claim that Upper Deck violated her privacy right under the California Constitution.

A. Legal Principles

Article I, section 1 of the California Constitution provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." (Italics added.) This provision "creates a right of action against private as well as government entities." (See Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 20, 26 Cal.Rptr.2d 834, 865 P.2d 633 (Hill ).)

The California Supreme Court has recently addressed the validity of urinalysis drug testing under our state constitution in two decisions--Loder v. City of Glendale (1997) 14 Cal.4th 846, 59 Cal.Rptr.2d 696, 927 P.2d 1200 (Loder ) and Hill, supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633. ³

In Hill, the court articulated a test for evaluating whether a plaintiff has stated a cause of action for violation of privacy under the California Constitution. (Hill, supra, 7 Cal.4th at pp. 39-40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The court stated a plaintiff has the burden to prove three elements: "(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy." (Ibid.) A defendant may prevail by negating any of these three elements or by pleading...