Poulos v. Pfizer, Inc.

• Decision Date: 28 April 1998
• Docket Number: No. 15676,15676
• Citation: 244 Conn. 598,711 A.2d 688
• Court: Connecticut Supreme Court
• Parties: , 13 IER Cases 1679 Thomas POULOS v. PFIZER, INC., et al.

Page 688

711 A.2d 688

244 Conn. 598, 13 IER Cases 1679

Thomas POULOS v.PFIZER, INC., et al.

No. 15676.

Supreme Court of Connecticut.

Argued Sept. 23, 1997.

Decided April 28, 1998.

William C. Longa, with whom was Patrick J. Fitzgerald, Woodbridge, for appellant(named defendant).

Thomas J. Riley, with whom was Rita Provatas, New London, for appellee(plaintiff).

Todd A. Bromberg, New York City, pro hac vice, Mark A. de Bernardo, pro hac vice, Peter A. Susser, pro hac vice, and Nancy N. Delogu, pro hac vice, Washington, DC, filed a brief for the Institute for a Drug-Free Workplace as amicus curiae.

Mary E. Kelly, Vernon, and Deborah L. McKenna, Westbrook, filed a brief for the Connecticut Employment Lawyers Association as amicus curiae.

Before CALLAHAN, C.J., and BORDEN, NORCOTT, McDONALD and PETERS, JJ.

CALLAHAN, Chief Justice.

The plaintiff, Thomas Poulos, brought this action in the Superior Court alleging, inter alia, ¹ that his employer, the named defendant, Pfizer, Inc., ² had required him to submit to drug testing in violation of General Statutes § 31-51x³ and unlawfully had terminated his employment on the basis of the results of those tests.The trial court determined that: (1)the plaintiff's consent to the drug testing was invalid because his consent, having been obtained under threat of termination of his employment, was not voluntary and consequently did not constitute a waiver of his right to challenge the lawfulness of the testing; and (2) the drug testing was unlawful because the defendant lacked reasonable suspicion that the plaintiff was "under the influence of drugs [or alcohol] which adversely affected or could adversely affect" his job performance.Pursuant to General Statutes § 31-51z (a), ⁴the trial court awarded the plaintiff damages, interest, attorney's fees and costs.The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book§ 4023andGeneral Statutes § 51-199(c).

The principal issues on appeal are: (1) whether the trial court properly excluded testimony that the defendant could have discharged the plaintiff for attempting to remove the defendant's property from the workplace, when that testimony was offered by the defendant in support of its claim that the plaintiff had consented voluntarily to the drug test; and (2) whether the trial court properly concluded that the defendant lacked reasonable suspicion to require the plaintiff to undergo a urinalysis drug test.We reverse the judgment and order a new trial.

The record reveals the following facts.On December 20, 1990, the plaintiff, who was employed as a materials clerk at the defendant's Groton plant, acting within his authority, ordered and received a surge protector from one of the defendant's suppliers.At the end of his work shift, the plaintiff attempted to take the new surge protector out of the defendant's plant in a box.When a security guard at the plant gate asked him what was in the box, the plaintiff lied, stating that the box was empty.A subsequent search by the security guard revealed the surge protector.The plaintiff then lied again, telling the guard that a friend had brought the surge protector to work and had given it to him, and that he simply was taking it home.According to his own testimony, the plaintiff fabricated that story because he was afraid he would be disciplined for attempting to remove the surge protector from the plant.

Because the plaintiff did not have a property pass for the surge protector, the security guard refused to allow the plaintiff to take it through the plant gate.Instead of proceeding home without the surge protector, however, the plaintiff went back into the plant, discarded the box and placed the surge protector in his desk.The plaintiff knew that the guard would report what had happened at the gate, and the plaintiff feared the consequences.He then separately approached two supervisors, Joseph Feeney and Richard Smith, and requested a property pass to take home a used extension cord.When the supervisors questioned him, the plaintiff again lied, claiming that the item the guard had discovered was the used extension cord.Both of the plaintiff's requests for a property pass were refused, and the plaintiff subsequently left the plant without the surge protector or an extension cord.According to the plaintiff's testimony, when he left the plant he was concerned that he would lose his job as a result of his efforts to remove the surge protector.

The following morning, December 21, Feeney questioned the plaintiff about the events of the previous day.According to his own testimony, the plaintiff was very concerned for his job, and said to Feeney: "I am in trouble.How can I make this easier on myself?"After again falsely claiming that the item the security guard had discovered in the box was a used extension cord, the plaintiff, when told the guard had made a report, admitted that he had surreptitiously attempted to remove the surge protector from the plant.The plaintiff then claimed that he had attempted to borrow, rather than to steal, the surge protector.The plaintiff was sent home and told not to return to work until December 26.Upon returning home, the plaintiff, on his own initiative, called Marylou Nowak, a personnel supervisor, and made an appointment to discuss the status of his job.

Later in the day on December 21, Feeney and Smith met with Barton Finnegan, the corporate employee responsible for implementing the drug free workplace program at the defendant's Groton plant, and informed him of the incident involving the surge protector.Finnegan decided that the plaintiff should undergo a fitness for duty evaluation (evaluation), ⁵ and informed the plant physician, Paul Kanfer, of the incident and of other concerns, such as lateness to work, that had been raised regarding the plaintiff's work performance.

When he reported to work on December 26, the plaintiff was asked to submit to an evaluation.According to his own testimony, the plaintiff replied, "no problem."Before signing the consent form, the plaintiff asked what would happen if he did not consent.The plaintiff testified that he had asked that question "to be clever."At that time, Smith informed the plaintiff that if he did not consent to the evaluation, he would be sent home pending termination.The plaintiff subsequently signed a consent form that stated, inter alia: "I ... understand ... that, as part of the ... evaluation, my urine ... may be tested....I understand that if I decline to sign this consent, the [drug testing] will not be conducted but the Personnel Department will be notified and I will be subject to termination of employment...."

At the fitness for duty evaluation, Kanfer was unable to find an alternative explanation for the plaintiff's behavior and determined that a drug test was appropriate under the circumstances, even though he did not detect any outward physical signs of alcohol or drug use at that time.After signing a second consent form, the plaintiff provided a urine specimen.He then was escorted to the plant gate and told not to return to work until the results of the urinalysis were obtained from the lab.

When the plaintiff returned to work on January 2, 1991, he was informed that the test results had revealed cocaine use.The defendant then offered the plaintiff the opportunity to enroll in its employee assistance program (program).Program participants are required to submit to random drug testing.The plaintiff was told that refusal to participate would result in the termination of his employment.At that time, he agreed to participate in the program.On March 1, 1991, his employment was terminated because a random drug test conducted on February 13 as part of the program was positive for cocaine.⁶

I

The defendant first claims that the trial court improperly excluded testimony that it had offered to support its claim that the plaintiff had waived his rights under § 31-51x by voluntarily consenting to the December 26 drug testing.Specifically, the defendant challenges the exclusion of testimony that the defendant could have terminated the plaintiff's employment solely on the basis of the surge protector incident.⁷We agree with the defendant that the excluded evidence was relevant and material to the defendant's theory of consent, and that the improper exclusion of that evidence by the trial court was harmful.

In order to resolve the defendant's evidentiary claim, we first must consider the role and effect, with respect to § 31-51x, of employee consent to drug testing.Whether and to what extent a private employee can consent to a drug test and thereby waive the "reasonable suspicion" stricture of § 31-51x (a) is a matter of statutory construction and, therefore, "[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature....In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter."(Internal quotation marks omitted.)Connecticut National Bank v. Giacomi, 242 Conn. 17, 32, 699 A.2d 101(1997).

The language of § 31-51x (a) provides that "[n]o employer may require an employee to submit to a urinalysis drug test...."(Emphasis added.)Because this language provides no guidance as to when, if ever, an employee voluntarily may consent to a urinalysis drug test so that it can no longer be said that the employer has "require[d]" the test, we turn to the relevant legislative history for guidance.SeeState v. DeFrancesco, 235 Conn. 426, 436, 668 A.2d 348(1995).

In 1987, § 31-51x was enacted as part of a comprehensive legislative plan...