Ritchie v. Walker Mfg. Co., No. 91-1307

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BOWMAN; HEANEY
• Citation: 963 F.2d 1119
• Decision Date: 21 May 1992
• Docket Number: No. 91-1307
• Parties: 121 Lab.Cas. P 56,901, 7 IER Cases 694 Jim RITCHIE; Mike Truhlicka; Gary Wergin; Louis Burchfield; Charles Jaudon; Scott Kobza; Mitch Gabel; Don Gehle, Appellants, v. WALKER MANUFACTURING COMPANY, Appellee.

Page 1119

963 F.2d 1119 121 Lab.Cas. P 56,901, 7 IER Cases 694 Jim RITCHIE; Mike Truhlicka; Gary Wergin; Louis
Burchfield; Charles Jaudon; Scott Kobza; Mitch
Gabel; Don Gehle, Appellants,
v.
WALKER MANUFACTURING COMPANY, Appellee. No. 91-1307. United States Court of Appeals,
Eighth Circuit. Submitted Oct. 14, 1991.
Decided May 11, 1992.
Rehearing Denied May 21, 1992.

Patricia A. Knapp, Lincoln, Neb., argued (Thom K. Cope, on brief), for appellants.

Page 1120

William R. Sullivan, Jr., Chicago, Ill., argued (Carl E. Johnson and Kathryn M. Hartrick, Chicago, Ill., and Neal Stenberg, Lincoln, Neb., on brief), for appellee.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

HEANEY, Senior Circuit Judge.

After being terminated from their jobs for failing a drug test, Jim Ritchie and several other employees (collectively referred to as "Ritchie") of Walker Manufacturing Company ("Walker") commenced this action in Nebraska state court. In his complaint, Ritchie alleged that his termination violated his employment contract as well as state and federal constitutional and statutory provisions. Walker removed the case to federal court pursuant to 28 U.S.C. § 1441. ¹ Subsequent to removal, the district court granted Walker's motion to dismiss the plaintiffs' complaint under Fed.R.Civ.Pro. 12(b)(6) for failure to state a claim upon which relief can be granted. Ritchie appeals. We affirm.

BACKGROUND

Ritchie's five count complaint alleged that 1) Walker breached its employment contract with him, 2) Walker violated Nebraska's and the United States' public policies against unreasonable search and seizures as embodied in the Nebraska and United States Constitutions, 3) Walker violated Nebraska's statutory right to privacy, 4) Walker deprived Ritchie of rights secured by the federal Constitution and Neb.Rev.Stat. § 20-148, and 5) Walker deprived Ritchie of rights secured by the Nebraska Constitution and section 20-148. The district court dismissed each of these claims pursuant to Rule 12(b)(6).

With respect to Ritchie's employment contract claim, the district court focused on two provisions of Walker's alcohol and drug abuse program, which provide:

Employees will be subject to discharge in connection with this policy for:

. . . . .

2. Being under the influence of alcohol or drugs on company property or on company time;

3. Selling or using alcohol or drugs on company property or on company time;

4. Failure to consent to a drug or alcohol test when there is probable cause; and/or

5. Conviction of a drug related crime.

and

The company may require a blood test, urinalysis, or other drug/alcohol screening of persons suspected of using or being under the influence of a drug or alcohol.... Positive results on, or failure to consent to a drug or alcohol test may result in discharge.

Ritchie did not contest Walker's conclusion that he violated the company's drug policy. Accordingly, the district court ruled that Ritchie could not prevail on a breach of contract claim.

The district court next dismissed Ritchie's public policy claim. According to the district court, Nebraska's public policy anticipates and condones "the discharge of employees who use drugs or refuse to consent to a test to detect such use", see Neb.Rev.Stat. §§ 48-1903 and 48-1910 (1988), and "[t]herefore, the conduct of [Walker] appears to be consistent with, rather than contrary to, a clear legislative mandate of public policy." As for constitutionally-inspired public policy, the district court held that the federal and state constitutions only prohibit state actors from conducting unreasonable search and seizures and thus did not apply to Walker, a private employer. See Jackson v. Metropolitan

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Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 452, 42 L.Ed.2d 477 (1974); State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907, 911-12 (1989).

The district court then decided that Nebraska's statutory right to privacy, see Neb.Rev.Stat. § 20-203 (1988), did not apply to a bodily invasion. The district court reached this conclusion based on a literal reading of the statute, which protects a "person in his or her place of solitude or seclusion," but which does not equate such protection with ensuring bodily integrity. Id.

The district court finally ruled that neither Ritchie's fourth nor fifth causes of action could survive a 12(b)(6) motion for dismissal. According to the district court, in order for Ritchie to recover damages for violating his federal and state constitutional rights, there must be state action, which is missing here. See Jackson, 419 U.S. at 349, 95 S.Ct. at 452; Jolitz, 435 N.W.2d at 911-12. ²

DISCUSSION

In reviewing a 12(b)(6) dismissal,

we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

A. Constitutional Causes of Action

Ritchie's second cause of action alleges that his discharge violated public policy. See Schriner v. Meginnis Ford Square Ltd., 228 Neb. 85, 421 N.W.2d 755, 759 (1988) (recognizing public policy exception to the employment-at-will rule). More specifically, he contends that Walker violated the federal and state constitutional prohibitions against unreasonable search and seizures ³ in contradiction of a series of decisions holding drug tests unconstitutional. See e.g., Willner v. Thornburgh, 738 F.Supp. 1 (D.D.C.1990); Beattie v. City of St. Petersburg Beach, 733 F.Supp. 1455 (M.D.Fla.1990).

In relying on these cases and the public policy that emanates from them, Ritchie fails to note that each of the cases involves state action, which is not present here. Without state action, Ritchie cannot claim a violation of the federal fourth amendment. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989). The Nebraska Constitution's prohibition against unreasonable search and seizures is subject to the same limitation. See Jolitz, 435 N.W.2d at 911-12. Accordingly, the district court correctly dismissed Ritchie's second cause of action.

B. Statutory Causes of Action

Ritchie asserts that Nebraska statutory law prohibits private employers in non-sensitive ⁴ industries from discharging non-sensitive employees with impeccable work records for refusal to take a drug test or for failing to pass a drug test taken under the threat of discharge. We do not believe that Nebraska statutory law prohibits such discharges if the employer has probable cause to believe that the employees are using or under the influence of drugs on company property or on company time, as was the case here. ⁵

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Three sets of Nebraska statutes guide this conclusion: Neb.Rev.Stat. §§ 20-148, 20-201 to 20-211, and 48-1901 to 48-1910 (1988).

1. Section 20-148

Ritchie's fourth cause of action claims that section 20-148 entitles him to sue Walker for depriving him of rights recognized under the first, fourth, fifth and fourteenth amendments to the United States Constitution. Ritchie's fifth cause of action similarly alleges that section 20-148 entitles him to sue Walker for...