McTimmonds v. Alcohol & Drug Testing Services, LLC

Filing 10

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 12/2/2014 GRANTING 4 Defendant's Motion to Dismiss. Plaintiff has twenty days from the date this Order is signed to file an amended complaint, if he can do so consistently with this Order. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL McTIMMONDS,
Plaintiff,

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CIV. NO. 2:14-2124 WBS KJN

v.

MEMORANDUM AND ORDER RE: MOTION
TO DISMISS

ALCOHOL & DRUG TESTING
SERVICES, LLC, and DOES 1
through 20 Inclusive,

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Defendants.

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Plaintiff brought this diversity action against
defendant Alcohol and Drug Testing Services, LLC (“ADTS”) to
recover for emotional distress he suffered as a result of
defendant’s alleged tortious acts during a random alcohol drug
screening procedure.

Defendant now moves to dismiss the

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief may be granted.
I.

Factual and Procedural Background

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The Union Pacific Railroad (“Union Pacific”) contracts

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with defendant to conduct drug testing of Union Pacific

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employees. (Compl. ¶ 6.)

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Pacific, and on July 17, 2013, he presented himself for a

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routine, random drug and alcohol screening procedure required by

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the United States Department of Transportation.

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Federal Railroad Safety Act, 49 U.S.C. § 20140 (mandating that

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the Secretary of Transportation promulgate regulations

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establishing preemployment, reasonable suspicion, random and

Plaintiff is an employee at Union

(Id.); see

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post-accident drug testing programs for railroad employees); 49

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C.F.R. pt. 40 (Department of Transportation regulations pursuant

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to § 20140).

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Plaintiff alleges that when he entered the site, an

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ADTS technician shouted his last name and instructed plaintiff to

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take a seat and sign an Alcohol Test form.

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administered a breathalyzer test to check plaintiff’s blood

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alcohol content (“BAC”).

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BAC of .05%, plaintiff alleges the technician “very loudly and

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publicly” asked plaintiff, “Have you been drinking this morning?”

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(Id. ¶¶ 8, 13.)

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all within a six-foot radius or “earshot” of plaintiff.

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Plaintiff, allegedly shocked and humiliated, replied that he had

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not been drinking.

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breathalyzer back and forth, responded, “Well, this says you have

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been!”

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voice because the information was private and many of plaintiff’s

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co-workers were nearby.

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air, the technician stated in a loud voice, “I have been asking

The technician

When the result appeared, indicating a

“[N]o fewer than six other people” were present,

(Id. ¶ 10.)

(Id. ¶ 9.)

(Id.)

The technician, waiving the

Plaintiff asked the technician to lower her

(Id. ¶ 11.)

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Waiving her hands in the

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Buck (a UPRR employee) for a private room for the last two years-

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-Redding and Dunsmuir [sic] and I never got it!”

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The technician then questioned whether the machine was working

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properly and made a call on her cell phone.

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(Id. ¶ 14.)

(Id. ¶¶ 14-16.)

When the call ended, plaintiff told the technician,

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“This isn’t right,” and stated he was going to call his

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supervisor.

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proceeded toward the door.

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technician confronted him, saying, “You can’t take that!”

(Id. ¶¶ 15-16.)

He picked up his testing form and

(Id.)

According to plaintiff, the
(Id. ¶

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17.)

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of plaintiff’s hands while plaintiff simultaneously pulled away

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and said, “Don’t touch me!”

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technician as she continued to instruct plaintiff to stay at the

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site.

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a supervisor who had allegedly overheard the conversation with

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the technician from his office adjacent to the testing site.

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(Id. ¶ 19.)

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The technician attempted to physically wrest the form out

(Id.)

Plaintiff walked around the

Before plaintiff could manage to leave, he was stopped by

Soon after, plaintiff’s direct supervisor arrived.

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(Id. ¶ 20.)

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cell phone to an unknown party, allegedly “sharing information

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about the testing procedure involving [p]laintiff and clearly

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disclosing information regarding [p]laintiff’s response and

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objections to the testing procedures and conditions.”

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During this time, the technician was talking on her

(Id.)

Plaintiff’s direct supervisor recommended the

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technician re-test plaintiff’s BAC.

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repeated the breathalyzer inside an office with the door open

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while “plaintiff’s co-workers were entering and exiting the

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building.”

(Id. ¶ 22.)

(Id. ¶ 21.)

The technician

The test was once again positive for
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alcohol.

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test, and was next instructed by the technician to produce a

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sample for a urinalysis.

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half hours, plaintiff produced a specimen.

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one-and-a-half hour window, plaintiff overheard the technician

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ask someone on her cell phone, “Am I going to get fired for

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this?”

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any reference to discipline or adverse employment actions that

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resulted from his positive breathalyzers or the result of his

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(Id. ¶ 24.)

(Id. ¶ 27.)

Plaintiff then performed a confirmation

(Id. ¶ 26.)

After roughly one-and-a(Id.)

During the

Plaintiff’s allegations end there, without

urinalysis.

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Plaintiff brings four state law tort claims to recover

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for emotional distress he allegedly suffered as a result of the

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technician’s conduct and the public nature of the testing

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environment: (1) invasion of privacy; (2) intentional infliction

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of emotional distress; (3) negligence; and (4) negligent

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infliction of emotional distress.

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under Rule 12(b)(6), arguing the Department of Transportation

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safety regulations preempt plaintiff’s claims, and, in any case,

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plaintiff’s Complaint does not contain sufficient allegations to

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support his claims.

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II.

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Defendant now moves to dismiss

Analysis
On a Rule 12(b)(6) motion to dismiss, the court must

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accept the allegations in the complaint as true and draw all

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reasonable inferences in favor of the plaintiff.

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Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

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Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S.

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319, 322 (1972).

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must plead “only enough facts to state a claim to relief that is

See Scheuer v.

To survive a motion to dismiss, a plaintiff

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plausible on its face.”

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544, 570 (2007).

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for more than a sheer possibility that a defendant has acted

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unlawfully,” and where a plaintiff pleads facts that are “merely

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consistent with a defendant’s liability,” it “stops short of the

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line between possibility and plausibility.”

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556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).

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Bell Atl. Corp. v. Twombly, 550 U.S.

This “plausibility standard,” however, “asks

Ashcroft v. Iqbal,

A. Invasion of Privacy

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Plaintiff did not specify in his Complaint which of the

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privacy torts he asserts against defendant, but his allegations

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employ the elements of a public disclosure of private facts

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claim, (see Compl. ¶¶ 29-34), and at oral argument plaintiff’s

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counsel confirmed unequivocally that this is plaintiff’s claim.

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The elements of this claim are: “(1) public disclosure (2) of a

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private fact (3) which would be offensive and objectionable to

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the reasonable person and (4) which is not of legitimate public

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concern.”

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(1998).

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the results of [his] breathalyzer test to approximately six

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others who were present at the testing site and that his positive

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result was extremely private in nature and not a matter of public

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concern.

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“suffered mental anguish, humiliation, discomfort, worry,

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anxiety, annoyance, and severe emotional distress.”

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Shulman v. Grp. W Prods., Inc., 18 Cal. 4th 200, 214

Plaintiff alleges the ADTS technician publicly disclosed

(Compl. ¶¶ 28-32.)

As a result, plaintiff alleges he

(Id. ¶ 33.)

Plaintiff has made no attempt to identify a privacy

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interest in his positive breathalyzer results such that they

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would constitute “private facts.”

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Sentinel, Inc., 172 Cal. App. 4th 1125, 1130 (5th Dist. 2009)
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See Moreno v. Hanford

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(recognizing that one must have a reasonable expectation of

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privacy in a fact for it to be private).

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assert he had a privacy interest in his test results, that

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interest would be outweighed by the FRA’s stated purpose for its

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comprehensive drug and alcohol testing regulations, “to prevent

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accidents and casualties in railroad operations that result from

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impairment of employees by alcohol or drugs.”

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219.1(a); see Smith v. Fesno Irrigation Dist., 72 Cal. App. 4th

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147, 162 (holding that the plaintiff’s privacy interest in the

Even if plaintiff could

49 C.F.R. §

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drugs he ingested was outweighed by the district’s legitimate and

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substantial safety-related reasons for randomly drug testing its

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construction and maintenance workers).

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allege an essential element of a public disclosure claim of

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private facts claim.

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Plaintiff thus fails to

Additionally, plaintiff has not adequately alleged a

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public disclosure.

“[E]xcept in cases involving physical

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intrusion, the [public disclosure] tort must be accompanied by

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publicity in the sense of communication to the public in general

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or to a large number of persons as distinguished from one

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individual or a few.”

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805 (1966) (citing Prosser on Torts 835 (3d ed.)).

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workers in the waiting room of the testing site do not amount to

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the “public in general” or a “large number of persons.”

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Tarlson v. United States, Civ. No. 13-3535, 2014 WL 605489, at *4

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(N.D. Cal. Feb. 13, 2014) (holding that “[plaintiff’s] claim does

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not meet the ‘mass exposure’ standard set out in California,

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because all those who were aware of Plaintiff’s discharge were

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all professionally connected in the Coast Guard” and thus it was

Schwartz v. Thiele, 242 Cal. App. 2d 799,

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Six co-

See

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not plausible that Foster's statements were “communicated to the

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general public or a diverse group of people completely

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unconnected”).

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few as twenty persons sufficed as “mass exposure.”

See Kinsey v.

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Macur, 107 Cal. App. 3d 265, 272 (1st Dist. 1980).

Kinsey is

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distinguishable, however, because those people were a “diverse

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group of people living in several states and totally unconnected

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either socially or professionally.”

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alleged disclosure to a non-diverse group of plaintiff’s

The California Court of Appeal has held that as

Here the technician made the

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coworkers.

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fails to allege a plausible claim for public disclosure of

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private facts, and the court must grant defendant’s motion to

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dismiss that claim.

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Because such disclosure is not “publicity,” plaintiff

B. Intentional Infliction of Emotional Distress

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The elements of an intentional infliction of emotional

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distress claim are (1) extreme and outrageous conduct by the

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defendant with the intention of causing, or reckless disregard of

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the probability of causing, emotional distress; (2) the plaintiff

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suffered severe or extreme emotional distress; and (3) actual and

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proximate causation.

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(2009).

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what can constitute severe distress.”

Wong v. Tai Jing, 189 Cal.

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App. 4th 1354, 1376 (6th Dist. 2010).

“Severe emotional distress

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means emotional distress of such substantial quality or enduring

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quality that no reasonable [person] in civilized society should

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be expected to endure it.”

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that a plaintiff’s “discomfort, worry, anxiety, upset stomach,

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concern, and agitation” did not rise to this level) (internal

Hughes v. Pair, 46 Cal. 4th 1035, 1050

“The California Supreme Court has set a ‘high bar’ for

Hughes, 46 Cal. 4th at 1051 (holding

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quotation marks and citation omitted).

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mental reaction such as fright, grief, shame, humiliation,

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embarrassment, anger, chagrin, disappointment or worry” is not

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“severe” if it is “trivial or transient.”

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App. 4th at 1376.

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A “highly unpleasant

See Wong, 189 Cal.

Plaintiff alleges that as a result of the technician’s

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comments he suffered “anguish, humiliation, discomfort, worry,

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anxiety, annoyance, and severe emotional distress.”

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43.)

(Compl. ¶

The Complaint is silent, however, as to whether the

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distress was enduring.

Under Iqbal, the conclusory allegation

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that plaintiff suffered severe emotional distress is

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insufficient.

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the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.”)

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similar allegations insufficient to state a cognizable IIED

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claim.

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1246 (9th Cir. 2013) (holding that plaintiff’s emotional injuries

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such as anxiety, sleeplessness, upset stomach, and muscle

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twitches “clearly” did not rise to the level of “severe”);

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Connolly v. Remkes, Civ. No. 5:14-1344 LHK, 2014 WL 5473144, at

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*14 (N.D. Cal. Oct. 28, 2014) (dismissing IIED claim where the

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plaintiff merely alleged “great worry and concern” without

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providing any facts of extreme emotional distress she may have

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suffered because “California courts have held that such

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allegations fail to establish the degree of harm necessary for a

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claim of intentional infliction of emotional distress”); San

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Joaquin Deputy Sheriff’s Ass’n v. County of San Joaquin, 898 F.

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Supp. 2d 1177, 1192 (E.D. Cal. 2012) (Karlton, J.) (granting

Iqbal, 556 U.S. at 678 (“Threadbare recitals of

Courts have repeatedly found

See. e.g., Lawler v. Montblanc N. Am. LLC, 704 F.3d 1235,

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defendant’s motion to dismiss where plaintiff’s allegations of

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severe emotional distress were conclusory).

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plaintiff fails to sufficiently allege severe emotional distress

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rising to the “high bar” set by the California Supreme Court, the

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court must grant defendant’s motion to dismiss.1

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Therefore, because

C. Negligence and Negligent Infliction of Emotional Distress

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Plaintiff pleads claims for negligence and negligent

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infliction of emotional distress separately.

“A claim of

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negligent infliction of emotional distress is not an independent

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tort but the tort of negligence to which the traditional elements

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of duty, breach of duty, causation, and damages apply.”

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189 Cal. App. 4th at 1377.2

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claims both allege that plaintiff suffered emotional distress as

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a result of defendant’s negligence.

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allegations supporting his negligence claim are identical to his

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allegations supporting his NIED claim, the court will address

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those claims together.

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Wong,

Plaintiff’s negligence and NIED

Because plaintiff’s

The only damages plaintiff alleges are emotional

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distress, not injury to his person.

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California, “‘damages for negligently inflicted emotional

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(Compl. ¶ 38.)

In

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Because the court finds that plaintiff’s failure to
plead “severe emotional distress” is a sufficient ground for
dismissal, the court need not address whether plaintiff plausibly
alleges that the technician’s behavior was “outrageous.”
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This court has previously acknowledged that where a
plaintiff alleges an NIED claim based on damages suffered by
bystander to an accident caused by a defendant’s negligence, the
claim requires proving different elements. See Roberts v. Orange
Glo, Civ. No. 2:14-421 WBS DAD, 2014 WL 5780961, at *4 (Nov. 5,
2014). However, here plaintiff’s NIED claim is that ADTS
breached a duty to him and caused him emotional distress as a
result, which is exactly what his negligence claim alleges.
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distress may be recovered in the absence of physical injury or

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impact . . . .’”

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4th 965, 986 (1993) (quoting Burgess v. Superior Court, 2 Cal.

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4th 1064, 1074 (1992)).

Potter v. Firestone Tire & Rubber Co., 6 Cal.

However,

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unless the defendant has assumed a duty to plaintiff
in which the emotional condition of the plaintiff is
an object, recovery is available only if the emotional
distress arises out of the defendant’s breach of some
other legal duty and the emotional distress is
proximately caused by that breach of a duty.
Even
then, with rare exceptions, a breach of the duty must
threaten physical injury, not simply damage to
property or financial interests.

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Potter, 6 Cal. 4th at 985.

emotional distress on a claim of negligence where there is no
accompanying personal, physical injury, the plaintiff must show
that the emotional distress was ‘serious.’”
4th at 1377.

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Wong, 189 Cal. App.

“Serious emotional distress” required for an NIED

claim absent threat of physical harm is “functionally the same
as” the articulation of “severe emotional distress’ required for
an IIED claim.

Id.

Here, plaintiff does not allege that defendant’s

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Furthermore, “to recover damages for

conduct threatened physical injury.

He only alleges that, by

failing to use certain accepted protocols to ensure the site was
private, plaintiff suffered emotional distress.
39.)

(Compl. ¶¶ 37-

Without any accompanying injury, plaintiff would have to

allege that his emotional distress was “severe” to state a
plausible NIED or negligence claim.
at 1377.

See Wong, 189 Cal. App. 4th

Because, as previously discussed, the Complaint fails

to allege “severe emotional distress,” those claims both fail.
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Accordingly, the court must grant defendant’s motion to dismiss

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plaintiff’s NIED and negligence claims.

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IT IS THEREFORE ORDERED that defendant’s motion to
dismiss be, and the same hereby is, GRANTED.

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Plaintiff has twenty days from the date this Order is

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signed to file an amended complaint, if he can do so consistently

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with this Order.

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Dated:

December 2, 2014

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