Pingatore v. Union Pacific Railroad

Cite as 2017 Ark. App. 459

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-810

Opinion Delivered September 20, 2017

LARRY PINGATORE APPEAL FROM THE CRITTENDEN
APPELLANT COUNTY CIRCUIT COURT
[NO. 18CV-11-466]
V.
HONORABLE PAMELA
UNION PACIFIC RAILROAD HONEYCUTT, JUDGE
COMPANY and DENNIS HATLEY
APPELLEES

AFFIRMED

BRANDON J. HARRISON, Judge

This summary-judgment case involves an employee’s privacy rights in the

employment drug-testing context. Larry Pingatore has been employed by Union Pacific

Railroad (UP) since at least 2002. He worked as a signalman in California for UP. He took

a two-month leave of absence in 2002 and a six-month leave in 2005. In 2005 Pingatore

went through inpatient substance-abuse treatment for alcoholism. After that absence, the

company began drug testing him more frequently.

A third leave of absence was taken in 2007, for four months, when Pingatore on his

own initiative participated in an employee-assistance program for alcoholism. An element

of the program was a three-year follow-up plan, which required that Pingatore be tested six

times during the first year, nine times the second year, and six times the third year. Pingatore

did not sign any consent forms related to the testing. But under UP’s voluntary-referral

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policy, if Pingatore did not follow the “rehabilitation instructions,” then he would have

been placed in a medically disqualified status. UP’s drug-and-alcohol policy treats an

employee’s voluntary “referral and subsequent handling, including counseling and

treatment, as confidential, subject to the exceptions set forth in the EAP policy and

procedures.” Drug testing resumed after Pingatore returned to work; he took

approximately five tests in seven months.

Pingatore was injured on the job in April 2008 and was granted another leave until

November 2009. When he returned to work UP relocated him from California to West

Memphis, Arkansas, where he became a security guard because he could no longer work as

a signalman. His duties at the West Memphis facility included counting trucks entering and

leaving the facility in a one-person guard shack. Some testimony stated that as many as

1400 truck drivers go in and out of the facility each day.

After his arrival in West Memphis, UP drug tested Pingatore more frequently. He

was required to take eighteen tests in eleven months (from November 2009 to October

2010), which was more than the company’s assistance plan called for. UP maintained that

the frequency was caused by “the computer” trying to catch Pingatore up on the tests he

had missed while he was out for his work-related injury.

Most of the Arkansas-based urine tests were administered by a third-party contractor

at Pingatore’s work site. The contractor was Alcohol Drug Testing Services; the certified

tester’s name was Dennis Hatley. Pingatore claimed that it was apparent to anyone who

was present that he was undergoing a drug test and that it was not uncommon for truck

drivers to request to use the bathroom while a test was being administered. According to

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Pingatore, some truck drivers started referring to him as “pothead” because of the frequency

and number of tests that were administered. On one occasion a coworker would rev his

engine up when Pingatore would walk by and would say, “You’re a little jumpy, aren’t

you?” He maintained that the testing was not done discretely because truck drivers and

others would come into the shack while tests were being administered, Hatley would wear

a white lab coat when he performed the tests, Hatley’s vehicle was distinctive, and Hatley

(and Pingatore’s supervisor) told people that a drug test was underway. Pingatore felt that

the tests were administered in a public place as a part of an effort to get rid of him because

he had complained. UP maintained that Pingatore provided urine samples privately in the

restroom, that the collector did not generally observe the test, that managers have discretion

in the setting and time of day to test, and that Pingatore did not object to them. The last

test was administered in October 2010. Pingatore never tested positive and fully cooperated

with the railroad’s employee-assistance program.

Pingatore sued Union Pacific and Hatley (individually) in August 2011, alleging that

they had invaded his privacy and defamed him. Summary judgment was granted on the

defamation claims in November 2013. The remaining claims were dismissed with prejudice

in a second summary-judgment order entered in April 2016. Pingatore appeals the

dismissals.

I.

Summary judgment may be granted by a circuit court when there are no genuine

issues of material fact to be litigated and the moving party is entitled to judgment as a matter

of law. Patrick v. Tyson Foods, Inc., 2016 Ark. App. 221, at 3, 489 S.W.3d 683, 688 (internal

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citations omitted). Once a moving party has established a prima facie entitlement to

summary judgment, the opposing party must meet proof with proof and demonstrate the

existence of a material issue of fact. On appeal, we determine if summary judgment was

appropriate based on whether the evidentiary items presented by the moving party in

support of its motion leave a material fact unanswered. Id. This court views the evidence

in the light most favorable to the party against whom the motion was filed, resolving all

doubts and inferences against the moving party. After reviewing undisputed facts, summary

judgment should be denied if, under the evidence, reasonable people might reach different

conclusions from those undisputed facts. Id.

In his complaint, Pingatore made three common-law claims against UP and Hatley:

A. Intrusion

B. False Light

C. Defamation

Pingatore abandoned an additional claim under the Federal Employers’ Liability Act, 45

U.S.C. § 51 et seq.

A. Intrusion

In Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979), our

supreme court adopted the approach of the Restatement (Second) of Torts, which delineates

four separate torts grouped under “invasion of privacy.” Wal-Mart Stores, Inc. v. Lee, 348

Ark. 707, 719, 74 S.W.3d 634, 644 (2002). The Restatement provides that one who

intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another’s

private affairs or concerns, may be held liable to the other for invading his or her privacy.

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McMullen v. McHughes Law Firm, 2015 Ark. 15, at 14, 454 S.W.3d 200, 209. The alleged

intrusion must be highly offensive to a reasonable person. Id. This privacy tort covers

behavior harmful to the plaintiff although there is no reputational injury. Intrusion has been

recognized in Arkansas as one of the four actionable forms of invasion of privacy. An

intrusion occurs when an actor believes, or is substantially certain, that he or she lacks the

necessary legal, or personal permission, to commit the allegedly intrusive act. Id.

We start with Pingatore’s intrusion-upon-seclusion claim against UP. The question

presented here as we understand it is whether UP’s drug-testing conduct, when considered

in context, equates to an intrusion that a reasonable person might find highly objectionable.

Pingatore essentially argues that UP’s testing was offensive to him, and would be to any

reasonable person, because (1) he was subjected to far more tests than any of his colleagues,

(2) the testing was done at a location with a substantial amount of foot traffic, (3) it was

obvious he was being tested, and (4) his coworkers and supervisor thought he had an active

substance-abuse problem or had tested positive. UP, in turn, argues that it

has not alleged it has a free pass to do anything it desires in the drug-testing
context or that nothing in the context of drug testing could ever be an
invasion of privacy . . . [but its testing of Pingatore], based on undisputed
material facts, was not intrusive as a matter of law as it was not an intrusive
act that would be offensive to a reasonable person.

Though we are deciding state common-law claims in this case, the Supreme Court

of the United States informs our decision because the railroad industry is directly involved.

In Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989), the Supreme Court

primarily addressed whether the Fourth Amendment to the U.S. Constitution applies to the

drug-and-alcohol testing mandated, or authorized, by regulations promulgated by federal

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agencies. Testing constitutes a search even if carried out by private parties, where the persons

carrying out the testing act as an instrument or agent of the government. There the Court

recognized a privacy interest in the process of monitoring the urine sample and collecting

it. Id. at 617. And it did so because “[t]here are few activities in our society more personal

or private than the passing of urine.” Id. (internal citations omitted). Pingatore’s complaint

is not solely about the act of passing urine, because he is concerned primarily about how he

appears to others given the frequency of the testing and the manner in which it was carried

out. Yet the Court in Skinner recognized that an employer has a legitimate counterpoint to

a privacy concern, which is a safe workplace. Id. at 634 (mandatory urinalysis of workers

in certain circumstances is not unreasonable). Railroad employees participate in a highly

regulated industry, have a “diminished expectation of privacy,” and ordinarily consent to

employer-imposed restrictions on their freedom of movement. Id. at 633–34. Closer to

home, and as a general matter, Arkansas has a “Drug Free Workplace” law that discourages

drug or alcohol abuse by employees and provides employers special consideration in the

setting of workers’-compensation insurance rates. See Ark. Code Ann. §§ 11-14-101 & -

112 (Repl. 2012). So testing can and will be done by employers. The main question,

however, is whether a triable issue of fact exists on whether UP’s testing in this case rose to

the level of being highly offensive to a reasonable person.

We hold that there is no triable fact on this record. In his deposition, Pingatore said

that that he was embarrassed by the drug-and-alcohol testing and he felt that his character

had been smeared. He said that the testing in California was discrete, but the Arkansas

testing was not and that people would come into the guard shack while the tests were being

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administered. Several times truck drivers would impair the tests by using the bathroom

while the breathalyzer test was being administered, according to Pingatore. He also said

that he has been prescribed medication due to the stress and anxiety the testing caused.

Pingatore said that UP conducted one “observed test” in 2011 after the lawsuit had been

filed, during which the tester stood behind Pingatore as he made the sample. The other

tests conducted were not of the observed variety.

Recall that, as part of Pingatore’s follow-up testing plan, he was supposed to be tested

six times in year one, nine times in year two, and six in year three. UP tested Pingatore

eighteen times in less than one year. Charles Gessford, the manager of UP’s employee

assistance program, testified in his deposition that this was a “moderate” program and that

if Pingatore had a positive test, he would have doubled the number of tests and lengthened

the follow-up time to five years, instead of three years. Penny Lyons, a senior manager of

drug-and-alcohol testing for UP, said during her deposition that she had seen as many as

twenty-four to thirty-six follow-up tests given in one year. The inference here is that what

Pingatore experienced is not novel. As we mentioned earlier, it is undisputed Pingatore

never tested positive. There was a discrepancy in the testimony regarding the environment

in which the tests were done. Pingatore’s work area contained a guard shack, with a single

bathroom (according to Pinagatore). But Dennis Hatley, the tester, referred to “toilets.”

In his deposition, Gessford (the manager of the UP employee-assistance program)

agreed that there was an expectation of confidentiality and discretion to follow-up testing

of a self-referred employee like Pingatore. UP’s April 2012 “Drug and Alcohol Refresher

for Managers” states that a test “should never be ‘announced’ in front of others. This is

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more than a courtesy; it is a requirement for confidentiality.” Pingatore’s supervisor, Bazile,

said that he never had an employee who was tested as frequently as Pingatore. He would

assume Pingatore’s duties while Pingatore was being tested. Bazile also said that he did not

try to minimize the knowledge of others that a drug test was going on, that it was “pretty

much common knowledge” that Hatley was there to administer a drug or alcohol test, and

that Bazile would tell truck drivers not to use the bathroom because a test was going on.

And Bazile agreed that he could understand why someone might suspect that an employee

who was tested as frequently as Pingatore had a drug or alcohol problem. Another employee

who was tested as often as Pingtore was rumored to have quit because of an ongoing drug

or alcohol problem.

Inspector Hatley produced the affidavit of Ross B. Ose, who concluded that Hatley

had followed the DOT regulations related to the testing. Hatley said that he was not given

any instructions by UP on how Pingatore’s testing was to be done. When asked in his

deposition if Hatley had done anything that offended or embarrassed him, Pingatore replied,

“No.” He also said that Hatley would tell the truck drivers that “we’re administering a test

now.” And on two occasions when a truck driver knocked on the door Pingatore said,

“I’m busy right now; I’m doing a test.”

Pingatore, in turn, produced an affidavit from Ronald E. Henson, Ph.D., stating that

Hatley and UP had not followed the proper procedures, different procedures could allow

the testing to be done more discretely, and the procedures the company used suggested that

Pingatore had an active drug or alcohol problem.

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Pingatore argues that a jury should get to decide his intrusion claim because, “[i]n a

civil case, the issue of whether consent was valid is a question of fact that must be decided

by the trier of fact.” Pingatore’s brief relies heavily on Wal-Mart Stores, Inc. v. Lee, 348 Ark.

707, 74 S.W.3d 634 (2002). The Lee case is wholly distinguishable because of the protected

privacy interest at stake. In Lee, Walmart suspected an employee of stealing and searched

the employee’s house without notice. A person has a protected privacy interest in his or

her own home outside of work. But that is a material difference from the privacy interest

argued for in this case. Here, Pingatore had a limited privacy interest because he was an

employee with a history of drug-and-alcohol abuse and worked in a safety-sensitive

position. And the manner and circumstances in which the tests were actually administered

did not rise to the level of presenting a triable issue of fact on whether UP may be held

liable to Pingatore for intruding on a recognized privacy interest.

Viewing the facts in the light most favorable to Pingatore, we hold that there was no

unlawful invasion of his privacy and that UP was entitled to judgment as a matter of law on

these facts. Pingatore performed the tests for years without complaining or otherwise

protesting—apart from asking, one time when in Arkansas, why the testing was being done

so often. He filed no complaint until the testing period had ended. He requested no

accommodations nor did he behave in any way that would have put UP on notice that it

lacked his consent to the tests. His leave due to a job-related injury factored into the

frequency of the testing. And his rather isolated job location affected the manner in which

the tests could be given. That he could be placed on a medically disabled status does not

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make a material issue of fact as to his consent considering all the circumstances and highly

regulated area of the law. See generally 49 U.S.C. § 20103; see also 49 C.F.R. § 219.

Pingatore had a privacy interest as an employee with a history of substance misuse.

The privacy interest he has does not, however, extend to cover the fact that he was being

drug tested; nor was he entitled to complete anonymity as he was being tested. He was not

an anonymous urine donor. Moreover, the particular manner and circumstances under

which the tests were conducted in this case do not rise to an unlawful invasion of Pingatore’s

privacy. The circuit court’s summary judgment against Pingatore’s intrusion claim is

affirmed.

We also hold that Dennis Hatley was entitled to summary judgment against

Pingatore’s intrusion claim. That claim fails because Pingatore did not establish that Hatley’s

actions could be highly offensive to a reasonable person. Pingatore himself stated that Hatley

did not do anything that he (Pingatore) thought was inappropriate.

B. False-Light Claims

A false-light/invasion-of-privacy claim has two essential elements: the complaining

party must show (1) that the false light in which he was placed by the publicity would be

highly offensive to a reasonable person, and (2) that the defendant knew, or acted in reckless

disregard of, the falsity of the publicized matter and the false light in which the plaintiff

would be placed. Sawada v. Walmart Stores, Inc., 2015 Ark. App. 549, at 14, 473 S.W.3d

60, 68–69 (internal citations omitted). The evidence must support the conclusion that the

publisher had serious doubts about the truth of his publication.

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Pingatore contends that the false light UP’s testing placed him in was the “suggestion

that he had an active problem (as opposed to a problem in the past).” As we mentioned

earlier, given the highly-regulated nature of Pingatore’s field of employment, he did not

have an absolute (or unqualified) right to keep private the fact that he was being drug-and-

alcohol tested. And here again, the particular manner and circumstances under which the

tests were conducted in this case do not rise to the level of creating a triable issue on whether

UP painted Pingatore in a false light. Viewing the facts most favorable to Pingatore, truck

drivers referred to him as “pothead” and asked about why he was so “jumpy.” And

supervisor Bazile said that he could understand why someone would have a suspicion that

an employee who was tested as frequently as Pingatore had a drug or alcohol problem.

Another employee who was tested as often as Pingtore was rumored to have quit because

of an ongoing drug or alcohol problem. He also said that he would not trust someone with

a drug or alcohol problem as much as someone who he believed did not have the problem.

Bazile also said that Pingatore was being tested frequently because of something that had

happened in the past, a past whose truth no one disputed or misrepresented on this record.

Based on his own deposition testimony, Pingatore said on one occasion, “I’m busy right

now; I’m doing a test.”

The bottom line is that Pingatore failed to demonstrate a genuine issue of material

fact that UP or Hatley published private information about him—much less information

that was inaccurate to a misleading degree or flat-out untrue. Importantly, neither UP nor

Hatley disclosed the confidential results of any test. Pingatore did not allege that UP or

Hatley published protected information to others apart from a revelation that a test was

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occurring. As we stated earlier, there is no requirement that the testing frequency, manner,

or location be shrouded in secrecy. Given this record, we affirm the circuit court’s summary

judgment on Pingatore’s false-light claims against UP and Hatley.

C. Defamation Claims

To recover for defamation, Pingatore must create a triable issue on six elements: (1)

the defamatory nature of the statement of fact; (2) the statement’s identification of or

reference to him; (3) publication of the statement by UP or Hatley; (4) UP or Hatley’s fault

in the publication; (5) the statement’s falsity; and (6) that Pingatore was damaged. See Patrick

v. Tyson Foods, Inc., 2016 Ark. App. 221, at 15–16, 489 S.W.3d 683, 694–95. A viable

action for defamation turns on whether the communication or publication tends or is

reasonably calculated to cause harm to another’s reputation. A plaintiff must prove that

defamatory statements have been communicated to others and that the statements have

detrimentally affected those relations. Id.

Defamation requires a false statement. Pingatore has not identified any false statement

that either UP or Hatley made. He instead argues that their conduct impermissibly

suggested that he was a drug user or an alcohol abuser. While gestures, or even the

exhibition of a picture, may qualify as a “statement” within the meaning of defamation law,

Navorro-Monzo v. Hughes, 297 Ark. 444, 448, 763 S.W.2d 635, 637 (1989), conducting drug

tests in a highly-regulated safety industry is not an actionable “statement.” The circuit court

found that Pingatore “failed to show any actionable defamatory statement or overt

defamatory act.” We agree that Pingatore’s defamation claims fail as a matter of law.

Affirmed.

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GRUBER, C.J., and ABRAMSON, J., agree.

Easley & Houseal, PLLC, by: B. Michael Easly, for appellant.

Friday, Eldredge & Clark, LLP, by: H. Wayne Young, Jr., for appellee Union Pacific

Railroad Company.

Williams & Anderson, PLC, by: Heather G. Zachary and David M. Powell, for appellee

Denis Hatley.

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