Anderson vs. Bestmark Express, Inc.
Filing
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MEMORANDUM AND ORDER denying 9 Motion for Summary Judgment. Defendant's motion for summary judgment on Plaintiff's claim of tortious interference is denied. Signed by District Judge John W. Broomes on 8/6/2018. (sz)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KEVIN ANDERSON,
Plaintiff,
v.
Case No. 17-1234-JWB
BESTMARK EXPRESS, INC.,
Defendant.
MEMORANDUM AND ORDER
This case comes before the court on Defendant Bestmark Express, Inc.’s motion for
summary judgment (Doc. 9). The motion has been fully briefed and is ripe for decision. (Docs.
20, 27.) Defendant’s motion is DENIED for the reasons stated herein.
I.
Facts
Defendant operates a trucking business and hauls cargo to several states. In August
2015, Defendant hired Plaintiff Kevin Anderson as an over-the-road truck driver (“driver”).
Federal law requires drivers to be randomly tested for alcohol and controlled substances. The
random tests must be unannounced and the driver must proceed to the test site unless he is
engaged in a safety-sensitive function, i.e. driving. If a driver refuses a test, Defendant cannot
permit that driver to continue performing safety-sensitive functions. (Doc. 10 at 2-3; 20 at 3-5.)
On October 7, 2015, Defendant’s third-party administrator who coordinates the DOT
drug testing randomly selected four drivers to be tested. Plaintiff was one of the randomly
selected drivers.1
On or about October 22, Plaintiff applied for employment with Sunset
1
Plaintiff states that he denies this fact because he does not have sufficient information to admit or deny the same.
(Doc. 20 at 6.) In responding to a fact set forth in a motion for summary judgment, the non-movant must
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Logistics (“Sunset”), another trucking company. Sunset made a conditional offer to Anderson,
which was contingent on a review of Plaintiff’s driving record and information from Plaintiff’s
employers, including Defendant. Defendant was not aware of the offer made to Plaintiff. (Doc.
10 at 3-4; 20 at 5-6.)
On October 30, Plaintiff and his wife, Rebecca, were at Defendant’s terminal in Strong
City, Kansas. Plaintiff reported to the terminal after being instructed to report for maintenance to
his tractor and trailer. While at the terminal, Plaintiff and Mike Miller, Defendant’s VicePresident, revised Plaintiff’s log books. At approximately 1:47 p.m., Jerry Russell, Defendant’s
General Manager, called a health clinic in Emporia to inform them that Plaintiff would be
arriving for a DOT drug test. While Defendant contends that Russell told Plaintiff about the
random drug test, Plaintiff disputes this fact. It is undisputed that Rebecca became ill and
Plaintiff drove Rebecca to the hospital in one of Defendant’s vehicles. Plaintiff and Rebecca
were at the hospital from 2:50 p.m. until 5:30 p.m. During this time, Russell made calls to
Plaintiff but Plaintiff did not answer the calls. Rebecca also received a call from Russell during
which he inquired about her health. Plaintiff returned to Defendant’s terminal sometime after
6:00 p.m. (Doc. 10 at 4-5; 20 at 6-9.)
Upon Plaintiff’s return, Plaintiff and Miller had a conversation during which Plaintiff quit
his employment effective immediately due to Miller’s decision to revoke permission for Plaintiff
to visit his daughters in Florida. According to Plaintiff, Miller asked him if he had done his drug
test. Plaintiff said no because he had no knowledge of the drug test. Miller then informed
Plaintiff that he just “f***ed himself.” Miller said that Plaintiff “should have known” that he
was selected for a random drug test because Miller asked him to come to the office. Miller did
specifically controvert the fact for it to be disputed. If it is not specifically controverted, the fact is deemed
admitted. See D. Kan. R. 56.1(a). All facts to which Plaintiff has responded in a similar fashion are deemed
admitted as they have not been specifically controverted.
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not advise Plaintiff that he could take the drug test nor did he tell Plaintiff where the drug test
could be taken. Plaintiff then left the terminal in a rented vehicle and returned to his home in
Florida. (Doc. 10 at 6; 20 at 10.)
Plaintiff informed Sunset that Defendant claimed that he refused a drug test but insisted
that he had not refused. On November 2, Sunset sent Plaintiff an email in which Sunset
suggested that Plaintiff contact DOT about the circumstances surrounding his departure from
Defendant. Sunset informed Plaintiff that they will determine whether they could proceed after
receiving a determination letter regarding the drug test and its validity. On November 4, Sunset
faxed an employment verification request to Defendant. This was the first indication that
Defendant had regarding Plaintiff’s prospective employment with Sunset. Russell completed the
verification and indicated on the same that Plaintiff refused a drug test on October 30. (Doc. 10
at 6-7; 20 at 10-11.)
On November 5, Sunset sent Plaintiff the following email after receiving Plaintiff’s
employment verification request from Defendant:
Kevin,
BestMark is obviously not happy you quit w/o notice.
Unfortunately our hands are tied until you get a letter from the KS DOT indicating it was
an invalid test request.
I am providing you the attached form as a courtesy.
If I were you, I would call the DOT office in the region where BestMark is located,
explain IN DETAIL what happened the days prior to, and up to the day you left.
As gently, but urgently as possible, ask them for a [sic] invalid test request letter, as this
is affecting your employment opportunities.
Until you get that letter from the DOT, we are unable to move forward.
(Doc. 10, Exh. 7).
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Plaintiff contends that he lost the opportunity for a job due to Defendant’s actions in
informing Sunset that he refused a drug test. On January 8, 2016, Plaintiff sent DOT an email
regarding the events which occurred on October 30, 2015. (See Doc. 20, Exh. C.) Defendant
was not contacted by DOT regarding Plaintiff’s allegation that the drug test was invalid.
Plaintiff filed this action alleging claims of defamation and tortious interference.
Defendant has moved for summary judgment on both claims.
II.
Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is no
genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is “material” when it is essential to the claim, and the issues of fact
are “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either
party's favor. Haynes v. Level 3 Commc'ns, 456 F.3d 1215, 1219 (10th Cir. 2006). The movant
bears the initial burden of proof and must show the lack of evidence on an essential element of
the claim. Thom v. Bristol—Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The
nonmovant must then bring forth specific facts showing a genuine issue for trial. Garrison v.
Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). The court views all evidence and reasonable
inferences in the light most favorable to the nonmoving party. LifeWise Master Funding v.
Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
III.
Analysis
a. Defamation
To establish a claim of defamation, Plaintiff must prove the following: “1) false and
defamatory words 2) that are communicated to someone else and (3) that injure the reputation of
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the person defamed.” Herrman v. Williams, 386 P.3d 925, 2016 WL 7324446, *4 (Kan. Ct. App.
Dec. 16, 2016). Defendant contends that Plaintiff cannot establish that the statement was false
and that it resulted in Plaintiff’s loss of employment. The court disagrees. Viewed in a light
most favorable to Plaintiff, the facts show that Plaintiff was not informed about the random drug
screen until after he had quit his employment. Plaintiff was also not informed that he could still
take the drug test and where he needed to report in order to do so. Therefore, Plaintiff has shown
a dispute of material fact as to whether Defendant’s statement that Plaintiff refused a drug test
was false.
With respect to causation, Defendant contends that Plaintiff cannot establish that his loss
of a position was due to the statement regarding the refused drug test. The court finds that
Plaintiff has shown a dispute as to material fact regarding causation.
After receiving the
employment verification form from Defendant, Sunset informed Plaintiff that he could not be
employed. Defendant argues that Sunset told Plaintiff to obtain a determination letter regarding
the validity of the drug screen, and that the failure to provide the letter was the reason for
Plaintiff’s loss of employment. (Doc. 27 at 6.) Plaintiff, however, would not have needed to
obtain a determination letter if Defendant had not informed DOT about the refusal. Plaintiff also
contacted DOT, albeit belatedly, regarding his version of events. Therefore, a question of fact
remains as to whether Defendant’s statement harmed Plaintiff’s reputation.
i. Privilege
Defendant also moves for summary judgment on the basis that the statement was
privileged. Defendant contends that the statement was entitled to conditional privilege under
both federal and state law. Pursuant to 49 C.F.R. 391.23(l)(1), a Federal Motor Carrier Safety
Regulation, an action for defamation or interference with contract that is based on information
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that is disclosed to potential employers, such as a DOT drug test, cannot be brought against the
person who disclosed the information. The regulation, however, does not apply to “persons who
knowingly furnish false information.” Id. Viewing the facts in a light most favorable to
Plaintiff, a jury could find that Defendant knowingly furnished false information to Sunset.
Therefore, summary judgment is denied on this basis.
Defendant also argues that the information disclosed to Sunset is privileged under Kansas
law and, therefore, Plaintiff must make an additional showing of bad faith. Under Kansas law, a
“qualified privilege exists for employment communications made in good faith among people
who have the same interest or duty in the subject of the communication.” Herrman, 2016 WL
7324446, *4; see also Turner v. Halliburton Co., 240 Kan. 1, 14–15, 722 P.2d 1106, 1117 (1986)
(information from a former employer to a prospective employer regarding a past employee is
privileged). “This privilege exists in the context of communications by a former employer to a
potential employer concerning a job applicant….” Booth v. Elec. Data Sys. Corp., 799 F. Supp.
1086, 1091 (D. Kan. 1992), opinion supplemented on denial of reconsideration, 1992 WL
223784 (D. Kan. Aug. 31, 1992). Because the information is privileged, Plaintiff must show
actual malice on the part of Defendant. Turner, 240 Kan. at 10.
Defendant contends that Plaintiff cannot show actual malice. Although the question of
malice may be appropriate to determine on summary judgment, it is normally a question of fact
for the jury. Id. at 8; see also M W., Inc. v. Oak Park Mall, L.L.C., 44 Kan. App. 2d 35, 56, 234
P.3d 833, 848 (2010) (“The issues of defendants' motive and the presence or absence of malice
are typically questions for the jury.”) Defendant argues that there is no evidence of malice as it
provided the information to Sunset for driver safety and there is “no evidence that Bestmark
supplied false information to Sunset Logistics or that Bestmark was motivated by evil-
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mindedness or a specific intent to injure plaintiff.” (Doc. 10 at 15.) Viewing the facts in a light
most favorable to Plaintiff, Plaintiff was not informed of the drug test and did not refuse to take a
drug test. Moreover, after Plaintiff quit, Plaintiff was never informed that he could still take the
test. Rather, he was told that he was “f***ed.” which might imply a little malice. Contrary to
Defendant’s position that the communication to Sunset was made for driver safety, if the jury
finds that Plaintiff did not refuse a drug test, a jury could conclude the statements were not made
in the interest of driver safety but with malicious intent. See Ziemkiewicz v. R+L Carriers, Inc.,
996 F. Supp. 2d 378, 394–95 (D. Md. 2014) (question of malice a fact issue when employer
falsely reported that Plaintiff refused a drug test). The court finds that the question of malice is
one for the jury.
Therefore, Defendant’s motion for summary judgment on Plaintiff’s defamation claim is
denied.
b. Tortious Interference
In order to establish a claim of tortious interference, Plaintiff must prove the following:
(1) the existence of a business relationship or expectancy with the probability of future
economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the
defendant; (3) that, except for the conduct of the defendant, plaintiff was reasonably
certain to have continued the relationship or realized the expectancy; (4) intentional
misconduct by defendant; and (5) damages suffered by plaintiff as a direct or proximate
cause of defendant's misconduct.
Turner, 240 Kan. at 12.
First, Defendant contends that Plaintiff’s claim fails because the communication was
privileged under federal and state law. Although Defendant remains free to assert privilege as a
defense during trial which would negate the element of intentional misconduct, see id. at 14-15,
these arguments fail on summary judgment as there is a disputed fact issue as to whether the
statement was false and if Defendant acted with malice as discussed, supra.
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Defendant also argues that Plaintiff cannot establish that it knew about Plaintiff’s
relationship with Sunset. The facts show that Sunset sent an employment verification form to
Defendant. Defendant stated in its statement of facts that this “was the first time Bestmark
learned that Sunset Logistics was a prospective employer of plaintiff.”
(Doc. 10 at 7.)
Defendant’s knowledge that Sunset was a prospective employer is sufficient to create a dispute
of material fact as to Defendant’s knowledge of an expectancy of a business relationship between
Sunset and Plaintiff.
Finally, Defendant argues in its reply that Plaintiff cannot establish that the employment
loss was due to Defendant’s conduct. (Doc. 27 at 5-6.) As discussed supra, the court finds that
Plaintiff has created a dispute as to material fact regarding causation.
Defendant’s motion for summary judgment on Plaintiff’s claim of tortious interference is
denied.
IV.
Conclusion
Defendant’s motion for summary judgment (Doc. 9) is DENIED.
IT IS SO ORDERED this 6th day of August, 2018.
____s/ John W. Broomes____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE
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