Lockhart v. Examone World Wide, Inc.

• Decision Date: 05 December 2012
• Docket Number: No. 2:11–cv–0037–JMS–WGH.,2:11–cv–0037–JMS–WGH.
• Citation: 904 F.Supp.2d 928
• Court: U.S. District Court — Southern District of Indiana
• Parties: Michelle LOCKHART & Erika Shick, Plaintiffs, v. EXAMONE WORLD WIDE, INC., et al., Defendants.

904 F.Supp.2d 928

Michelle LOCKHART & Erika Shick, Plaintiffs,

v.EXAMONE WORLD WIDE, INC., et al., Defendants.

No. 2:11–cv–0037–JMS–WGH.

United States District Court,

S.D. Indiana,

Terre Haute Division.

Oct. 17, 2012.

Order On Reconsideration in Part Dec. 5, 2012.

Derek W. McCullough, Douglas A. Enloe, Gosnell Borden Enloe & Sloss, Ltd., Lawrenceville, IL, Kyle T. Ring, Stephen L. Williams, Williams Law Firm, Terre Haute, IN, for Plaintiffs.

D. Faye Caldwell, Caldwell Everson PLLC, Houston, TX, Sharon L. Stanzione, Stephen M. Brandenburg, Johnson & Bell, LTD., Merrillville, IN, for Defendants.

ORDER

JANE MAGNUS–STINSON, District Judge.

Plaintiffs Michelle Lockhart and Erika Shick allege claims for intentional infliction of emotional distress, negligent infliction of emotional distress, and invasion of privacy by intrusion upon seclusion, stemming from an observed urine collection drug test ordered by their employer, Defendant The Western and Southern Life Insurance Company (“ Western & Southern ”).¹ Presently pending before the Court are two motions for summary judgment. First, Western & Southern moves for summary judgment on Ms. Lockhart's claims against it.² [Dkt. 103.] Second, Defendants American Medical Review, Inc. (d/b/a ExamOne Indianapolis) (“ AMR ”); Estate of Stephen Ammerman ³ (“ Mr. Ammerman ”); ExamOne World Wide, Inc. (“ ExamOne ”);Quest Diagnostics (d/b/a LabOne, Inc.) (“ LabOne ”), and Allison Price (“ Ms. Price ”) (collectively, the “ Collection Defendants ”) move for summary judgment on Ms. Lockhart and Ms. Shick's claims against them. [Dkt. 105.] Because Plaintiffs' claims stem from the same incident and there is some, although not complete, overlap between the arguments presented by Western & Southern and the Collection Defendants, the Court will address both of the pending summary judgment motions herein and differentiate between the arguments presented by specific parties when necessary.

I.Standard of Review

A motion for summary judgment asks that the Court find that a trial based on the uncontroverted and admissible evidence is unnecessary because, as a matter of law, it would conclude in the moving party's favor. SeeFed. R. Civ. Pro. 56. To survive a motion for summary judgment, the non-moving party must set forth specific, admissible evidence showing that there is a material issue for trial. Fed. R. Civ. Pro. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. Pro. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. Pro. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competentto testify on matters stated. Fed. R. Civ. Pro. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially the grant of summary judgment. Fed. R. Civ. Pro. 56(e).

The Court need only consider the cited materials, Fed. R. Civ. Pro. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them,” Johnson v. Cambridge Indus., 325 F.3d 892, 898 (7th Cir.2003). Furthermore, reliance on the pleadings or conclusory statements backed by inadmissible evidence is insufficient to create an issue of material fact on summary judgment. Id. at 901.

The key inquiry, then, is whether admissible evidence exists to support a plaintiff's claims or a defendant's affirmative defenses, not the weight or credibility of that evidence, both of which are assessments reserved to the trier of fact. See Schacht v. Wis. Dep't of Corrections, 175 F.3d 497, 504 (7th Cir.1999). When evaluating this inquiry, the Court must give the nonmoving party the benefit of all reasonable inferences from the evidence submitted and resolve “any doubt as to the existence of a genuine issue for trial ... against the moving party.” Celotex, 477 U.S. at 330, 106 S.Ct. 2548.

II.Background

The following facts, though not established as objectively true, are supported by admissible evidence and accepted as true for purposes of ruling on the pending summary judgment motions. Moreover, while the Defendants deny certain allegations—for example, whether Ms. Price asked the Plaintiffs to bend over during the observed collection—they recognize that the Court must accept those allegations as true, since the Court is required to view the facts in a light most favorable to the Plaintiffs when ruling on a motion for summary judgment. [Dkt. 106 at 7 n. 6; see also dkt. 107–5 at 22 (deposition testimony from Ms. Price that she did not ask the Plaintiffs to bend over).]

Ms. Lockhart became a sales representative for Western & Southern in 2007 and was licensed to sell life and health insurance. [Dkt. 127–2 at 6.] Ms. Shick became a sales representative for Western & Southern in 2010. [Dkt. 127–3 at 6.] At all relevant times, Western & Southern had a drug testing policy. [Dkt. 127–8.] The policy established a procedure for random drug tests and for cause drug tests but did not disclose the possibility of observed drug tests. [ Id.]

In late August and early September 2010, Western & Southern's corporate office received phone calls from Rodney White, an estranged spouse of Western & Southern employee Angela White, claiming that Ms. White had provided her drug-free urine to other employees in the Vincennes office to use for workplace drug tests. [Dkt. 107–1 at 7–8, 25–26, 27–30.] Mr. White identified several employees by name but did not identify either of the Plaintiffs. [Dkt. 107–1 at 10, 27–30.] Mr. White alleged that Ms. White had a square bottle in her desk that she filled with urine that could be used by someone else. [Dkt. 107–1 at 10.] Mr. White did not make any allegations about Ms. Lockhart or Ms. Shick. [Dkt. 107–1 at 10.]

Because of these allegations, Western & Southern formed an investigation team, consulted with an in-house attorney, and reviewed its drug testing policy. [Dkt. 107–1 at 9.] Western & Southern also revieweda policy issued by the United States Department of Transportation (“ DOT ”), which contained procedures for observed drug tests.⁴ [Dkt. 107–1 at 42.] Western & Southern searched Ms. White's desk for the square bottle that Mr. White alleged she used to provide her urine to other employees, but it did not find a bottle. [Dkt. 107–2 at 26–27.] Ultimately, Western & Southern decided to conduct an unannounced observed drug test on all employees within the Vincennes district, which included the district office in Vincennes and sales offices in Terre Haute and Linton. [Dkt. 107–1 at 9, 42.] The DOT procedures gave Western & Southern “confidence that there was a procedure that would be followed.” [Dkt. 107–1 at 42.] Ms. Lockhart and Ms. Shick were to be included in the on-site observed drug test “[b]ecause they work[ed] at the Vincennes office not because there were any specific allegations against them.” [Dkt. 107–1 at 10.]

Western & Southern contacted LabOne to arrange the on-site observed drug test. [Dkt. 107–1 at 62.] LabOne, a national organization and wholly-owned subsidiary of Quest Diagnostics, sent the request to ExamOne, a wholly-owned subsidiary of LabOne, [dkt. 107–2 at 7], which sent the request to AMR, a local organization doing business as ExamOne Indianapolis, [107–4 at 5]. AMR contacted Mr. Ammerman, a business contact who did paramedical exams and drug testing for various insurance companies.⁵ [Dkt. 107–4 at 29.] Mr. Ammerman confirmed that he could conduct the on-site observed drug test at Western & Southern on September 27, 2010. [Dkt. 107–4 at 34.] AMR faxed Mr. Ammerman a copy of the DOT observed collection procedures and asked him to find a female who could observe the drug tests for the women at Western & Southern. [Dkt. 107–4 at 36, 56.] Mr. Ammerman contacted Ms. Price, a former nurse who he knew when he was a maintenance supervisor at a nursing home, and she agreed to observe the female employees. [Dkt. 107–4 at 36, 37.] Mr. Ammerman told Ms. Price that he would pay her $10 for each female she observed. [Dkt. 107–5 at 18.]

On September 27, 2010, Mr. Ammerman drove Ms. Price to the Western & Southern Vincennes office. [Dkt. 107–4 at 38.] Mr. Ammerman discussed the DOT observed collection procedures with Ms. Price and provided her with a written copy of a sheet summarizing those procedures. [Dkts. 107–4 at 37; 107–5 at 18.] It was the first time Ms. Price had worked with Mr. Ammerman to conduct a drug test, and she did not work with him again. [Dkt. 107–5 at 20.] Ms. Price did not speak to anyone at AMR, ExamOne, or LabOne before the testing at Western & Southern. [Dkt. 107–5 at 31.]

Western & Southern arranged to have members of its corporate staff present at each location where the drug testing would occur. [Dkt. 107–1 at 18.] Tarah Corlett, a human resources manager for Western & Southern, was present at the Vincennes location. [Dkt. 107–2 at 21, 33.] Ms. Corlett made an announcement to the employees at the Vincennes location that there was going to be an observed drug test because Western & Southern felt that its drug testing policy had been compromised. [Dkt. 107–2 at 63.] Ms. Lockhart did not hear the group announcement, [dkt. 127–2 at 30], and it is unclear whether Ms. Shick did, [dkt. 127–3 at 10–13].

When Ms. Lockhart arrived at work,...