Anderson v. Thompson Creek Mining Co. et al

Filing 55

MEMORANDUM DECISION re: 39 MOTION for Summary Judgment filed by Thompson Creek Mining Co. The Court will grant the motion for summary judgment filed by Thompson Creek Mining, and deny the motion filed by Anderson. Thus, all claims have been resolved and the Court will enter a separate Judgment as required by Rule 58(a). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SHERMAN ANDERSON,
Case No. 4:11-CV-639-BLW
Plaintiff,
MEMORANDUM DECISION
v.
THOMPSON CREEK MINING CO., a
Colorado Corporation doing business in Idaho;
and PSYCHEMEDICS CORPORATION, a
Delaware Corporation doing business in Idaho,
Defendants.

INTRODUCTION
The Court has before it cross-motions for summary judgment. The Court heard
oral argument on May 1, 2013, and took the motions under advisement. For the reasons
explained below, the Court will deny plaintiff’s motion and grant defendant’s motion.
LITIGATION BACKGROUND
Plaintiff Anderson was fired by defendant Thompson Creek Mining Co. following
a positive drug test. Anderson claims that Thompson Creek’s drug testing procedures,
and its decision to fire him based on the results of those procedures, violated his rights
under the Idaho Private Employer Alcohol and Drug-Free Workplace Act, I.C. § 72-1701,
et seq. (the Act). His complaint contains two counts, the first alleging that Thompson
Creek violated the Act and the second alleging that he was wrongfully terminated in

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contravention of the public policy established by the Act.
The parties have filed cross-motions for summary judgment addressing both
claims in Anderson’s complaint. The Court will examine each claim.
ANALYSIS
Count One – Violation of the Act
Anderson alleges that the Act provides a private right of action for an employee
fired for a positive drug test when the employer fails to follow the provisions of the Act in
conducting the test. To resolve this claim, the Court must examine the Act in detail.
The Act establishes drug and alcohol testing guidelines for employers, Idaho Code
§ 72-1701, and sets out detailed provisions for the taking of samples and the testing itself.
Id. at § 72-1704. For example, the Act requires that the samples be (1) collected with
“due regard to the privacy of the individual being tested,” (2) labeled to “preclude the
possibility of mislabeling,” (3) handled with “reasonable chain-of-custody and
confidentiality procedures” to avoid “contamination,” and (4) tested in a way that
conforms to “scientifically accepted analytical methods and procedures.” Id. at (1)-(6).
Before any test can be used as a basis for action by an employer, there must be a
“mandatory second or additional test of the same sample that is conducted by a laboratory
utilizing a chromatographic technique such as gas chromatography-mass spectrometry or
another comparable reliable analytical method.” Id. at (7). The Act specifically protects
employees who have tested positive, giving them the right to request a retest of the same
sample within seven days. Id. at § 72-1706(2). If the retest is negative, the employer
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“will reimburse the cost of the retest, compensate the employee for his time if suspended
without pay, or if terminated solely because of the positive test, the employee shall be
reinstated with back pay.” Id. The employer must have a written policy complying with
the Act and containing a notification to employees that “violation of the policy may result
in termination due to misconduct.” Idaho Code § 72-1705.
These provisions are all “voluntary.” Id. at § 72-1701(1). To promote
compliance, the Act offers four principal benefits to an employer who follows its
provisions. First, compliance could reduce taxes for the employer. An employee who is
fired for a positive test that complies with the Act will be presumed to have committed
“misconduct” and will not receive unemployment benefits, thereby saving the employer
from an increase in his unemployment tax. Id. at § 72-1701(1); Desilet v. Glass Doctor,
132 P.2d 412, 415-16 (Id.Sup.Ct. 2006).
Second, compliance provides protection from lawsuits. The Act contains a “safe
harbor” provision for employers, protecting them from being sued by workers who were
fired as a result of a positive drug test, so long as the test complied with the Act, unless
the test result was false and the employer knew or clearly should have known the result
was false. Id. at § 72-1711(1).
Third, compliance saves the employer money on his worker’s compensation
insurance premiums. Id. at § 72-1716. And fourth, compliance renders employers
eligible to contract for State construction projects. Id. at § 72-1717.
The Act does not expressly provide for any private right of action by employees
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who were fired for testing positive.1 Anderson argues, however, that the Act contains an
implied action.
No Idaho court has addressed this issue. The Court must determine how the Idaho
Supreme Court would decide the issue. McKown v. Simon Property Group Inc., 689 F.3d
1086 (9th Cir. 2012). In the past, when considering whether a statute created a private
right of action, the Idaho Supreme Court has relied upon the Restatement (Second) of
Torts § 874A, which states as follows:
When a legislative provision protects a class of persons by proscribing or
requiring certain conduct but does not provide a civil remedy for the violation,
the court may, if it determines that the remedy is appropriate in furtherance of
the purpose of the legislation and needed to assure the effectiveness of the
provision, accord to an injured member of the class a right of action, using a
suitable existing tort action or a new cause of action analogous to an existing
tort action.
White v. Unigard Mut. Ins. Co., 730 P.2d 1014, 1021 (Id.Sup.Ct. 1986). Under this
Restatement provision, the threshold requirement for implying a right of action is a
finding that the statute “proscrib[es] or requir[es] certain conduct.” The Act does neither;
it neither proscribes non-compliance nor requires compliance.2 Compliance with the Act
is “voluntary” by its very terms. An employer gains substantial benefits from following

1

If the Idaho Legislature had wanted to expressly provide for civil remedies, it would have been
easy to do so. For example, Oklahoma passed its “Standards for Workplace Drug and Alcohol Testing
Act” in 1993, about four years prior to Idaho’s Act. Oklahoma’s law expressly authorizes civil actions
by “any person aggrieved by a willful violation” of its provisions. See 40 Okl.St.Ann. § 563 (discussed in
Williams v United Parcel Service Inc., 527 F.3d 1135 (10th Cir. 2008)).
2

There is a provision that requires employers to comply with federal law – the Americans With
Disabilities Act, 42 U.S.C. § 12101. See Idaho Code § 72-1702(1). Anderson makes no claim under this
provision.
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the Act – as discussed above – but is free to choose to ignore the Act and forego those
benefits. The plain wording of the Act shows that the Idaho Legislature was promoting
rather than mandating compliance. To read an implied right of action into the Act would
be to impose a mandatory duty on employers to comply with its terms. The Court refuses
to rewrite the statute in that manner.
Anderson points out that the Idaho Legislature’s Statement of Purpose states that
the Act “provides testing guidelines that protect the rights of employees, by insuring that
the employer’s testing program is conducted in a reasonable manner and is scientifically
valid.” See Statement of Purpose RS 06574 (S 1042). This shows, Anderson argues, an
intent to protect the rights of employees. The Court agrees. But the protection was not
accomplished by making the Act mandatory; it was accomplished by granting benefits to
employers to motivate them to voluntarily confer certain rights on employees.
This can be seen clearly in other paragraphs of the Statement of Purpose. For
example, one such paragraph states that “[t]he provisions of this bill do not mandate drug
and alcohol testing, but provide guidelines and legal benefits to those employers who
have a need to create such a program.” Id. Another paragraph states that “[a]ll employers
. . . may choose to have a Drug-Free Workplace program.” See Statement of Purpose RS
12990 (S 1119). These Statements align with the wording of the Act itself that its
provisions are “voluntary” for employers. The Court would ignore this language if it
adopted a right of action for non-compliance, which would make the Act mandatory on
employers.
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For all these reasons, the Court finds that if faced with the issue, the Idaho
Supreme Court would hold that there is no implied right of action in the Act.
Accordingly, Anderson’s claim under the Act, contained in Count One of his Second
Amended Complaint, must be dismissed as a matter of law.
Count Two – Wrongful Termination in Violation of Public Policy
Anderson was an at-will employee, and both sides agree that he can be fired for
any reason, except for one that contravenes public policy. In Count Two, Anderson
claims that the Act establishes a public policy that its provisions be followed, and that his
firing based on a test that did not comply with the Act contravenes Idaho’s public policy.
But to judicially authorize this claim, after finding that the Idaho Legislature authorized
no direct claim under the Act, would be to “judicially admit at the back door that which
has been legislatively turned away at the front door.” Laird v. Nelms, 406 U.S. 797, 802
(1972). This claim must likewise be dismissed.
Conclusion
For all these reasons, the Court will grant the motion for summary judgment filed
by Thompson Creek Mining, and deny the motion filed by Anderson. The only other
defendant, Psychemedics Corporation, was previously dismissed by stipulation. See
Order (Dkt. No. 35). Thus, all claims have been resolved and the Court will enter a
separate Judgment as required by Rule 58(a).3
3

This result makes it unnecessary to resolve the issues with the drug testing raised by the
affidavit of Robert Swotinsky, see Affidavit of Swotinsky (Dkt. No. 47), and therefore renders moot the
motion to strike that affidavit filed by Thompson Creek. See Motion (Dkt. No. 51).
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DATED: May 2, 2013

B. LYNN WINMILL
Chief Judge
United States District Court

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