Whye v. Concentra Health Servs., Inc.

• Decision Date: 24 September 2013
• Docket Number: Civil Action No. ELH-12-3432
• Parties: WENDELL E. WHYE and WILLIAM H. TROUT, Plaintiffs, individually and on behalf of a class of persons similarly situated, v. CONCENTRA HEALTH SERVICES, INC., Defendant.
• Court: U.S. District Court — District of Maryland

WENDELL E. WHYE and WILLIAM H. TROUT,Plaintiffs, individually and on behalf of a class of persons similarly situated, v. CONCENTRA HEALTH SERVICES, INC., Defendant.

Civil Action No. ELH-12-3432

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Date: September 24, 2013

MEMORANDUM OPINION

Plaintiffs Wendell E. Whye and William H. Trout, individually and on behalf of a class of persons similarly situated, filed a putative class action law suit against Concentra Health Services, Inc. ("Concentra"), defendant, alleging that Concentra violated "Maryland law by conducting unlawful job-related breath alcohol tests." Complaint ¶ 1 (ECF 2). In particular, plaintiffs allege that, by conducting breath alcohol tests on the employees and job applicants of public and private Maryland employers, Concentra violated Md. Code (2009 Repl. Vol., 2012 Supp.), § 17-214 of the Health-General Article ("H.G.") (the "Testing Statute"), which regulates the testing of alcohol and controlled dangerous substances by Maryland employers.¹ Recognizing that the Testing Statute does not provide a private right of action, plaintiffs havelodged common law claims under Maryland law for the tort of intrusion upon seclusion (Count I) and fraud (Count II), seeking both compensatory and punitive damages.

In Count I, plaintiffs allege that "Concentra intentionally invaded [plaintiffs'] privacy by physically intruding upon their right to seclusion and their right to be free of intrusion into private bodily functions," by "subjecting [plaintiffs] to unlawful job-related breath alcohol testing." Compl. ¶¶ 58-59. They also complain that Concentra acted "deliberately, with actual malice, and with the intention of depriving [plaintiffs] of their rights . . . and/or with reckless disregard for those rights." Id. ¶ 62. Count II alleges that Concentra "made numerous false representations of material facts" to plaintiffs, id. ¶ 66, by "[a]dulterating and using a federally-prescribed form" for breath testing, id. ¶ 66a, and by giving plaintiffs "the false impression that the illegal breath alcohol testing procedures . . . had the approval of the federal government, and/or were under the auspices of some required federal testing program." Id. ¶ 66b.

Concentra moved to dismiss under Fed. R. Civ. P. 12(b)(6) ("Motion," ECF 9), and filed a supporting memorandum ("Memo," ECF 9-1). Plaintiffs opposed the Motion ("Opposition" or "Opp.," ECF 10), and Concentra replied ("Reply," ECF 11). No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I will grant the Motion.

I. Factual Background²

A. Concentra's Breath Alcohol Tests

Concentra is an "occupational testing services provider" that offers "job-related alcohol and drug testing services" to employers in forty states, including Maryland. Compl. ¶¶ 4, 11. According to plaintiffs, it "holds itself out" as having "specialized knowledge and expertise" in regard to "workplace drug and alcohol testing...." Id. ¶ 22. Its Maryland clientele includes both public and private employers. Id. ¶ 25.

Concentra offers Maryland employers a "standing 'protocol' or menu of testing," id. ¶ 23, which includes breath alcohol testing conducted at one of Concentra's eleven Maryland facilities. Id. ¶ 22. "[A]fter the testing is performed, Concentra sends the . . . employer the test results and an itemized bill for each test rendered." Id. ¶ 23.

To administer a breath test, a Concentra "technician" instructs the individual to place a tube into his or her mouth and connects the tube to a "breath testing device." Id. ¶¶ 30a-b. The individual is instructed to breathe deeply for several minutes "so as to produce alveolar or 'deep lung' breath for chemical analysis." Id. ¶¶ 30c-d. The individual is not allowed to stop the test or leave the testing room while the test is conducted. Id. ¶¶ 30e-f. In the event of a positive test result, however, Concentra's breath samples cannot be "retested later for accuracy." Id. ¶ 30i. Therefore, plaintiffs assert that the breath testing device used by Concentra during the relevant time was not "an approved device for conducting evidential breath testing under Maryland state law." Id. ¶ 30b.

Concentra records the test results, as well as other information, on a one-page form titled "Breath Alcohol Testing Form (Non-DOT)" (the "BAT Form"). Compl. ¶ 28. The BAT Form includes four separate boxes or "steps" to be completed by either Concentra's "alcohol technician" or the test subject. See Compl. Exh. A, ECF 2 at 27.³ "Step 1" documents the name and identifying information of the employee being tested, the name and contact information of the employer, and the reason for the test ("Random," "Reasonable Susp.," "Post-Accident," "Return to Duty," "Follow-up," or "Pre-employment"). Id. "Step 2" provides a certification to be signed by the employee or the prospective employee, which states: "I certify that I am about to submit to alcohol testing, and that the identifying information provided on the form is true and correct." Id. "Step 3" provides a certification to be signed by the alcohol technician performing the test, which states: "I certify that I have conducted alcohol testing on the above named individual, that I am qualified to operate the testing device(s) identified, and that the results are as recorded." Id. The technician conducting a breath alcohol test can check a box identifying himself as a "BAT" technician and another box identifying the device, either "breath" or saliva." See id. Step 3 also includes several lines for "remarks." Id. "Step 4" is a certification "to be completed by [the] employee if [the] test result is 0.02 or higher." Id. It states: "I certify that I have submitted to the alcohol test, the results of which are accurately recorded on this form. I understand that I must not drive, perform safety-sensitive duties, or operate heavy equipment because the results are 0.02 or greater." Id.

Plaintiffs maintain that the BAT Form is an "adulterat[ed]" version of a form utilized by the U.S. Department of Transportation (the "DOT Form")⁴ to conduct alcohol testing on commercial truck drivers, a copy of which is attached as Exhibit B to the Complaint (ECF 2 at 28).⁵ See Compl. ¶¶ 62d-g. The DOT Form, titled "U.S. Department of Transportation (DOT) Alcohol Testing Form," also includes four "steps" and requires substantially the same information as is required on the BAT Form. See Compl. Exh. B. Of note, both forms contain the same OMB (i.e., Office of Management and Budget) form number at the bottom of the page (the "OMB number"): "OMB No. 2105-0529." See ECF 2 at 28. Plaintiffs allege that this number gives employees "the false impression that . . . the breath alcohol testing procedures used by Concentra in Maryland had the approval of the federal government, and/or were under the auspices of some required federal testing program." Compl. ¶ 62e.

However, the DOT Form is unlike the BAT Form in several respects. In Step 2 of the DOT Form, the certification to be signed by the employee states: "I certify that I am about to submit to alcohol testing required by US Department of Transportation regulations and that the identifying information provided on the form is true and correct." Compl. Exh. B (emphasis added). Additionally, the certification to be signed by the "alcohol technician" in Step 3 states: "I certify that I have conducted alcohol testing on the above named individual in accordance with the procedures established in the US Department of Transportation regulation, 49 CFR Part 40, that I am qualified to operate the testing device(s) identified, and that the results are asrecorded." Id. (emphasis added). The DOT Form also includes the following designation, which is not included in the BAT Form: "Form DOT F 1380 (Rev. 5/2008)." Id.

B. Testing of Named Plaintiffs

Whye and Trout both underwent periodic, random breath alcohol testing as employees of Vector Security, Inc. ("Vector").⁶ Whye was employed as a Vector security guard from 2007 until May 2012. Id. ¶ 35. In 1980, Whye's larynx was surgically removed due to laryngeal cancer. Therefore, he breathes through a hole (called a "stoma") in his neck. Id. ¶ 37. As a result, he "has great physical difficulty both in producing the 'deep lung' alveolar breath required for breath alcohol testing, and also in tolerating the breath alcohol testing procedure." Id. Nevertheless, he "was randomly selected on a periodic basis for alcohol and drug testing, with Vector instructing him on short notice to report after his work shift to Concentra's testing center in Arbutus, Maryland for this purpose." Id. ¶ 35. Whye was tested "approximately every two or three months," including on the following fifteen occasions: July 7, 2008;⁷ August 21, 2008; October 10, 2008; December 12, 2008; March 26, 2009; May 7, 2009; June 11, 2009; August 13, 2009; November 5, 2009; February 4, 2010; April 1, 2010; July 1, 2010; October 21, 2010; January 13, 2011; and July 11, 2011. Id. ¶ 38.

Trout, who is presently employed as a "service technician" for Vector, has also been"randomly selected on a periodic basis for alcohol and drug testing, with Vector instructing him on short notice to report to Concentra's testing center in Columbia, Maryland for this purpose." Id. ¶ 42. Trout was tested "approximately every few months," including on the following seventeen occasions: June 30, 2008; July 30, 2008; August 19, 2008; September 2, 2008; September 16, 2008; September 30, 2008; October 14, 2008; December 16, 2008; April 9, 2009; August 4, 2009; November 12, 2009; January 27, 2010; April 14, 2010; July 6, 2010; January 5, 2011; June 22, 2011; and November 4, 2011. Id. ¶ 44.

Whye and Trout do not allege that any of the tests conducted on them yielded a positive result for alcohol, or that Vector ever took disciplinary action against them based on any test results. Nevertheless, plaintiffs posit: "Maryland employees and applicants were...