Employees subject to U.S. Department of Transportation (“DOT”) drug and alcohol testing regulations may have limited privacy interests in their positive drug and alcohol test results of their positive drug and alcohol tests, according to a recent decision by the United States District Court for the Eastern District of California. McTimmonds v. Alcohol and Drug Testing Services, LLC, 2014 U.S. Dist. LEXIS 167656 (E.D.Ca. Dec. 2, 2014).

Plaintiff Daniel McTimmonds filed suit against national drug and alcohol testing company Alcohol and Drug Testing Services, LLC (“ADTS”), alleging he suffered severe emotional distress as a result of ADTS’ actions during a DOT-mandated random drug and alcohol test. Plaintiff, an employee of Union Pacific Railroad, was required by the Federal Railroad Safety Act to undergo periodic, random drug and alcohol tests.

On July 17, 2013, upon instructions by Union Pacific Railroad, Plaintiff reported to a local ADTS testing site to undergo such a test. According to Plaintiff’s Complaint, an ADTS technician administered his breathalyzer test in a public room, in the presence of Plaintiff’s coworkers (all of whom also were undergoing random drug and alcohol tests). After reviewing the results of the breathalyzer test – which indicated Plaintiff had a blood alcohol content of .05% (which constitutes a positive test result) — the ADTS technician “very loudly and publicly” questioned Plaintiff as to whether he had “been drinking this morning.” Still in the presence of his coworkers, Plaintiff denied he had drank any alcohol, to which the ADTS technician responded, “Well, this says you have been!”

According to Plaintiff, he requested the ADTS technician lower her voice as the “information was private” and his coworkers were nearby. The technician dismissed his request, waiving her hands in the air and claiming she “had been asking . . . for a private room for the last two years.” Shortly thereafter, Plaintiff overheard the technician speaking on her cell phone to an unknown party and “sharing information about the testing procedure involving Plaintiff and clearly disclosing information regarding Plaintiff’s response and objections to the testing procedures and conditions.” Plaintiff complained to an ADTS supervisor, who recommended the technician re-administer the breathalyzer test inside an office. This test also was positive for alcohol.

Plaintiff filed suit, alleging invasion of privacy, intentional infliction of emotional distress and negligent infliction of emotional distress. He made no allegations concerning any discipline or other adverse employment action that may have resulted from his positive alcohol test result. ADTS moved to dismiss.

Plaintiff argued that ADTS’ actions constituted a public disclosure of a private fact, an actionable tort under California law (the Complaint was filed in federal court on diversity grounds). In order to properly plead such a claim, Plaintiff was required to allege facts sufficient to establish ADTS publicly disclosed a private fact; that the fact was offensive and objectionable to a reasonable person; and, that the fact is not of legitimate public concern. Plaintiff claimed that the ADTS technician publicly disclosed his positive alcohol test result to six other people who were present. The Court held that Plaintiff’s positive breathalyzer test was not a private fact, noting that Plaintiff had not identified any privacy interest in his positive breathalyzer test. The Court further reasoned that even if Plaintiff did identify a privacy interest, it would be outweighed by the Federal Railroad Administration’s legitimate interests of the state in in conducting drug and alcohol testing “to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.” The Court also found Plaintiff failed to plead a public disclosure, as the tort envisions disclosure to the public at large, not to a small group of individuals in a waiting room.

The Court dismissed Plaintiff’s claims for intentional and negligent infliction of emotional distress, as Plaintiff failed to plead adequate harm.