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THOMAS POULOS
vs.
.v. PFIZER INC. AND PHARMCHEM LABORATORIES INC.
 
Case:
No. 520719
 
Location:
SUPERIOR COURT OF CONNECTICUT JUDICIAL DISTRICT OF NEW LONDON AT NEW LONDON
 
Date:
June 24, 1992 Decided
 
Court:
Hurley
 
Author:
The Hon. Justice Hurley
 

ISSUE

Should the defendant's motion to strike the second third and fifth counts of the plaintiff's complaint be granted?

FACTS

On November 7, 1991 the plaintiff Thomas Poulos filed a seven count complaint against his former employer Pfizer Inc. (hereinafter the "defendant") and Pharmchem Laboratories Inc. (hereinafter "Pharmchem"). Plaintiff is seeking to recover damages for wrongful discharge breach of the covenant of good faith and fair dealing invasion of privacy defamation and intentional infliction of emotional distress.

The plaintiff's complaint alleges the following facts: In the course of his employment with the defendant the plaintiff on December 26, 1990 was forced to submit a urine sample to the defendant for drug testing. The urine sample was given involuntarily and under the threat of termination. On January 2, 1991 Pharmchem conducted a drug test on the urine sample which indicated the presence of an illegal drug.

Under the continued threat of termination the defendant forced the plaintiff to enter an employee assistance program and to undergo several random drug tests. On February 13, 1991 defendant had the plaintiff submit a urine sample to be tested for drugs. On February 19, 1991 Pharmchem conducted a urinalysis drug test on the sample producing a positive result for illegal substances. On March 1, 1991 defendant terminated the plaintiff's employment on the basis of the February 19 test results.

DISCUSSION

The function of the motion to strike is to allow a party to contest the legal sufficiency of a pleading. Ferryman v. Groton 212 Conn. 138 142 561 A.2d 432 (1989). In analyzing a motion to strike the court is limited to the facts alleged in the complaint. Rowe v. Godou 209 Conn. 273 278 550 A.2d 1073 (1988). Court must construe the facts in the complaint most favorably to the pleader. Gordon v. Bridgeport Housing Authority 208 Conn. 161 170 540 A.2d 1185 (1988). If Court finds that the facts alleged in the pleading would support a cause of action the motion to strike must be denied. Ferryman v. Groton supra 142.

I. The Second and Third Counts

The second count of the plaintiff's complaint sets out a claim for wrongful discharge while the third count pleads a breach of the covenant of good faith and fair dealing. Both counts of the complaint allege that the defendant violated Connecticut's public policy concerning drug testing as articulated in General Statutes Section 31-51t et seq. Defendant is moving to strike the second and third counts of the complaints on the basis that they do not plead legally sufficient causes of action because the plaintiff has a statutory remedy. In opposing the motion plaintiff argues that the disputed counts put forth valid causes of action.

The restrictions and requirements in bringing a claim based upon the breach of the covenant of good faith and fair dealing are the same as those used in a wrongful discharge cause of action. Magnan v. Anaconda Industries Inc. 193 Conn. 558 572 479 A.2d 781 (1984); Battista v. United Illuminating Company 10 Conn. App. 486 495 523 A.2d 1356 (1987). The discussion and application of the law will be the same as to the causes of action grounded in wrongful discharge and the breach of the covenant of good faith and fair dealing. Therefore the second and third counts of the plaintiff's complaint will be dealt with together.

When parties fail to agree upon specific terms of employment an at-will employment contract is created in which the covenant of good faith and fair dealing is implied. Morris v. Hartford Courant Co. 200 Conn. 676 677-679 513 A.2d 616 (1986); Magnan v. Anaconda Industries Inc. supra 568-569; Battista v. United Illuminating Company supra. A cause of action in tort for wrongful discharge or in contract for the breach of the covenant of good faith and fair dealing exists "where the discharge contravenes a clear mandate of public policy." Magnan v. Anaconda Industries Inc. supra 565; see also Sheets v. Teddy's Frosted Foods Inc. 179 Conn 471 474-475 427 A.2d 385 (1980). This has been interpreted to mean that these two causes of action exist only when a discharge violates public policy and the employee is otherwise without a remedy. Atkins v. Bridgeport Hydraulic Company 5 Conn. App. 643 648 501 A.2d 1223 (1985); Wysochi v. Norden Systems Inc. 5 CSCR 915 November 19 1990 (Fuller J.); Brotherton v. Burndy Corporation 55 CSCR 882 883 September 24 1990 (Fuller J.); Reed v. Ritz Camera and Video Center 4 CSCR 862 November 9, 1989 (Thompson J.). A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violated of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated. Atkins v. Bridgeport Hydraulic Company supra (quoting Wehr v. Burroughs Corporation 438 F.Supp. 1054 (E.D. Pa. 1977)).

Under General Statutes Section 31-51z whenever an employer laboratory or medical facility violates statutory provisions concerning drug testing (General Statutes Section 31-51t to Section 31-51aa inclusive) an aggrieved person may bring a civil action to recover damages and/or seek injunctive relief.

Court finds that a claim for wrongful discharge or the breach of the covenant of good faith and fair dealing exists only when there has been a violation of public policy and the absence of a remedy. General Statutes Section 31-51z provides remedies for unlawful drug testing. In fact the plaintiff in the first count of the complaint is seeking damages and reinstatement under General Statutes Section 31-51z. Because the plaintiff has a statutory remedy he cannot plead legally sufficient causes of action sounding in wrongful discharge or breach of the covenant of good faith and fair dealing. Accordingly the defendant's motion to strike the second and third counts of the plaintiff's complaint is hereby granted.

II. The Fifth Count

In the fifth count of the complaint plaintiff alleges that the defendant acted in such a way as to intrude upon the seclusion of the plaintiff resulting in an invasion of privacy. Defendant is moving to strike this count claiming that any intrusion was not highly offensive to a reasonable person. Therefore the defendant contends that the plaintiff has not alleged a sufficient invasion of privacy claim. In opposition plaintiff argues that the drug tests were an intrusion upon his seclusion and that a reasonable person would find the defendant's conduct highly offensive.

Connecticut courts have recognized a cause of action for invasion of privacy and have adopted the four categories as defined in the Restatement (Second) Torts. See Venturi v. Savitt Inc. 191 Conn. 588 591 468 A.2d 933 (1983); Goodrich v. Waterbury Republican-American Inc. 188 Conn. 107 126-128 488 A.2d 1317 (1982); Jonap v. Silver 1 Conn. App. 550 557 474 A.2d 800 (1984).

The four categories of invasion of privacy are: "(a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." Goodrich v. Waterbury Republican-American Inc. supra 128; see also Restatement (Second) of Torts Section 652A (1977); Prosser and Keeton on torts Section 117 (5th ed.).

While the unreasonable intrusion cause of action has not been litigated in Connecticut other jurisdictions have required that a plaintiff must demonstrate an invasion upon a privacy interest that is highly offensive to a reasonable person. O'Brien v. Papa Gino's of America Inc. 780 F.2d 1067 1072 (1st Cir. 1986) (wrongful discharge due to polygraph exam); Fowler v. Southern Bell Telephone & Telegraph Company 343 F.2d 150 155-56 (5th Cir. 1965) (wiretapping); Neff v. Time Inc. 406 F.Supp. 858 860-61 (W.D. Penn. 1976) (photograph taken at public event); Harmes v. Miami Daily News Inc. 170 So. 2d 715 717 (Fla. Dist. Ct. App. 1961) (phone call); Hamberger v. Eastman 206 A.2d 239 241-42 (N.H. 1964) (wiretapping); Nadar v. General Motors Corporation 25 N.Y. 2d 560 307 N.Y.S. 2d 647 652-53 (N.Y. 1970) (intrusive investigation and wiretapping); Sutherland v. Kroger Company 110 S.E. 2d 716 723-24 (W. Va. 1959) (inspection of shopping bag); see also Prosser and Keeton on Torts 854-56 (5th ed.). One who intentionally intrudes physically or otherwise upon the solitude or seclusion of another or his private affairs or concerns is subject to liability to the other for invasion of privacy if the intrusion would be highly offensive to a reasonable person. Restatement (Second) of Torts Section 652B (1977). [This] form of invasion of privacy [intrusion upon seclusion] . . . does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an international interference with his interest in solitude or seclusion either as to his person or as to his private affairs or concerns of a kind that would be highly offensive to a reasonable man. Id. comment a.

Therefore for the plaintiff to plead a legally sufficient cause of action the complaint must allege facts demonstrating an intrusion upon a privacy interest that is highly offensive to a reasonable person.

The United States Supreme Court in allowing the drug testing of certain government employees and upholding government regulations mandating the testing of employees in specific industries has stated it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable. . . . Skinner v. Railway Labor Executives Association 489 U.S. 602 109 S.Ct 1402 1413 (1989) (Regulations requiring drug and alcohol testing of certain railway employees following accidents); National Treasury Employees Union v. Von Raab 489 U.S. 656 109 S.Ct. 1384 1390 (1989) (urinalysis testing of certain customs personnel); see also McClosky v. Honolulu Police Department 799 P.2d 953 958 (Hawaii 1990) drug testing of police officers); Annapolis v. United Food and Commercial Workers Local 400 317 Md. 544 565 A.2d 672 676-77 (Md. 1989) (drug testing of police officers and firefighters); Caldwell v. New Jersey Department of Corrections 250 N.J. Super. 592 595 A.2d 1118 1126 (N.J. Super. A.D. 1991) (drug testing of corrections officers).

In the private sector it is also been found that the collection and testing of urine intrudes upon employees' privacy interests. Luck v. Southern Pacific Transportation Company 218 Cal. App. 3dl 267 Cal. Rptr. 618 627 (Cal. App. 1 Dist. 1990) (company testing of railroad employees); Wilkinson v. Times Mirror Corporation 215 Cal. App. 2d 1034 264 Cal Rptr. 194 (Cal. App. 1 Dist. 1989) (testing of prospective employees by publishing company); Twigg v. Hercules Corporation 406 S.E. 2d 52 55 (W. Va. 1990) (employee drug testing by fuel manufacturer); Employment Security Commission of Wyoming v. Western Gas Processors Ltd. 786 P.2d 866 (Wyo. 1990) (testing of employees by gas company).

When courts have recognized a cause of action for intrusion upon seclusion they have held that there is no intrusion if the plaintiff voluntarily gives a urine sample for the purpose of testing. Luedtke v. Nabors Alaska Drilling Inc. 768 P.2d 1123 1137-1138 (Alaska 1989) (urine sample given as part of company physical); Baggs v. Eagle Picher Industries Inc. 750 F. Supp. 264 272-73 (W.D. Mich. 1990) (workers notified of urinalysis test as part of a drug free workplace policy).

Connecticut has restricted the use of drug tests by employers to situations where there is reasonable suspicion of drug or alcohol use and only if such use adversely affects or could adversely affect job performances. General Statutes Section 31-51x(a). The legislature has also recognized the privacy interests of the employee by prohibiting observation of the production of a urine sample and restricting the use of the results of a urinalysis test. General Statutes Section 31-51w.

While these issues have not been confronted in the Connecticut courts the legislature in passing the drug testing statutes has acknowledged the trend at the federal and state levels recognizing the privacy interests of employees. An employer who forces an employee to undergo drug testing may be intruding upon the seclusion of the employee's person or private affairs. The plaintiff's complaint successfully alleges facts to support his claim that the defendant intruded upon his seclusion.

To fulfill the second requirement of this cause of action the plaintiff must state facts which demonstrate that the defendant has engaged in conduct that is highly offensive to a reasonable person. The plaintiff's complaint alleges that the defendant without reasonable suspicion threatened coerced and forced the plaintiff to submit urine samples for drug testing. While such issues will ultimately have to be decided by the trier of fact it is plausible that those facts may constitute conduct considered highly offensive to a reasonable person.

Accordingly the plaintiff has pled a legally sufficient claim of invasion of privacy and the defendant's motion to strike the fifth count of the plaintiff's complaint is hereby denied.

CONCLUSION

The plaintiff has a statutory remedy and cannot seek relief for wrongful discharge or for the breach of the covenant of good faith and fair dealing. Also the plaintiff has pled sufficient facts to maintain an invasion of privacy cause of action. For the foregoing reasons the defendant's motion to strike is granted as to the second and third counts and denied as to the fifth count of the plaintiff's complaint. *fn1

 
Notes:

*fn1 In Johnson v. Carpenter Technology Corp. 723 F. Supp. 180 186 (D. Conn. 1989) some of the issues involving drug testing and privacy were discussed. However no decision was rendered on those grounds since the drug testing statutes were inapplicable to the facts of the case at bar.