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View Case Details
 
THOMAS POULOS
vs.
.v. PFIZER INC.
 
Case:
NO. 520719
 
Location:
SUPERIOR COURT OF CONNECTICUT JUDICIAL DISTRICT OF NEW LONDON, AT NEW LONDON
 
Date:
July 8 ,1996, Decided
 
Court:
Hurley J.
 
Author:
The Hon. Justice Hurley
 

In December 1990 Thomas Poulos was employed as a raw materials clerk in the Organics II department at defendant's Groton Connecticut facility. Poulos' responsibilities included ordering materials such as chemicals and office supplies. (Tr. at 187-188.) Poulos had authority to order supplies worth $ 50.00 or less and take possession of them without anyone else's prior knowledge or approval. (Tr. at 187-189.) Further Poulos assisted Joseph Feeney in operating the coffee fund; Feeney gave Poulos cash to pay for the coffee and coffee making supplies consumed by members of their department. (Tr. at 151-152.)

On December 20, 1990 Poulos arrived at work at 6:00 a.m. (Tr. at 187.) During the course of the day he placed an order with Solomon's for a surge protector and other miscellaneous items; he planned to use the surge protector to plug in his computer. (Tr. at 192.) The value of the surge protector was listed in Solomon's catalogue as $10.95. (Tr. at 191.) When Poulos left work that day he decided to take the surge protector home for the holiday weekend to set up his son's train set and other electrical toys; he intended to bring it back to work after Christmas. (Tr. at 193-194.)

Poulos attempted to remove the surge protector from the defendant's plant without the appropriate property pass. After the security guard at the gate refused to let him leave with it Poulos requested a property pass from Feeney the general foreman of his department and Dick Smith the building supervisor for an orange extension cord rather than the new surge protector. Both men refused the pass. (Tr. at 196-200.) After claiming on December 20, 1990 and again the next morning that he had tried to remove the orange cord he admitted on December 21 1990 to Feeney that he had attempted to remove the surge protector from the plaint without a pass. (Tr. at 201.) Poulos explained that he had intended to use the item over the Christmas holidays and bring it back at a later date. (Tr. at 193-194.)

Poulos was sent home on Friday December 21, 1990 and was told later that day to return at 6:30 a.m. on the morning of December 26, 1990. (Tr. at 204.) When Poulos returned to the plant at 6:30 a.m. on December 26, 1990 Feeney and Smith informed Poulos that he had been referred for a Fitness for Duty Evaluation ("FDE") and told Poulos to sign a consent form for a medical evaluation. (Tr. at 169-170.) Smith informed Poulos that if he did not sign the consent form he would be sent home pending termination. (Tr. at 206.) The consent form authorized defendant to administer a urinalysis drug test and cautioned Poulos that if he refused to sign the consent form he was subject to termination. (Plaintiff's Exhibit 1.) Feeney then escorted Poulos to Dr. Kanfer's office who at the time was the plant physician. (Tr. at 207.)

Dr. Kanfer evaluated Poulos and determined that a drug test would be appropriate under the circumstances. Dr. Kanfer requested that Poulos sign a Consent for a Toxicological Test authorizing Dr. Kanfer to administer a drug test. (Tr. at 207-208.) Poulos signed the consent form. (Plaintiff's Exhibit 10.) Poulos provided a urine sample was escorted to the main gate and was told not to return to work until after further notification. (Tr. at 208-209.) Poulos returned to work on January 2, 1991 and was informed that the drug test was positive. At that time he was given two choices: termination or registration in the Employees Assistance Program ("EAP") which would subject him to random drug testing. (Tr. at 210.) Thus Poulos was forced into the EAP which included random drug testing without reasonable suspicion. Poulos was subsequently terminated for having failed a random drug test on February 13, 1991.

Dr. Kanfer had the ultimate authority to order the drug test and in fact did order and oversee the drug test of Poulos on December 26, 1990. (Tr. at 61; Plaintiff's Exhibit 20 at p. 9.) Barton S. Finnegan merely made a determination to have Poulos submit to a Fitness for Duty Evaluation which may or may not have included a drug screening test. (Tr. at 61.) An FDE was a medical evaluation by medical personnel that may include a drug test; medical personnel had exclusive authority to make the determination to administer the drug test. (Tr. at 62.) Relying on behavior purportedly identified by others Dr. Kanfer made the ultimate determination to impose a drug test on Poulos. During his deposition Dr. Kanfer testified that the only behavior he relied upon to conduct the drug test was that (1) Poulos had stolen property from the company and had lied about it; and (2) Poulos had been late for work. (See Plaintiff's Exhibit 20 at 16-20.) This information was relayed to Dr. Kanfer verbally by Finnegan; Dr. Kanfer did not receive any written documentation outlining the observed behavior. (See Plaintiff's Exhibit 20 at 17.) Additionally Dr. Kanfer stated that upon Poulos' medical examination he could not detect any positive objective signs of alcohol and/or drug use. (Plaintiff's Exhibit 20 at 20.)

It is undisputed that Dr. Kanfer made the ultimate decision to drug test Poulos. Defendant has attempted to attribute the decision to administer the drug test to Finnegan and has argued that he relied on other alleged conduct disclosed to him by Mr. Poulos' supervisors Feeney and Smith. The evidence shows however that the behavior identified by management at the time which triggered the drug test was the surge protector incident. This incident formed the basis of Poulos' referral to the FDE.

Finnegan nevertheless testified that the additional information relayed to him by Poulos' supervisors on which he based the referral for a EPE concerned was: (1) short notice vacation days or half days; (2) Poulos' inability to get along with his coworkers; (3) the borrowing of money from the coffee fund at Christmas time. (Tr. at 53-56 58.) Finnegan admitted that none of the behaviors that he relied upon were aberrant behaviors in and of themselves. (Tr. at 51 60.) Finnegan further alleged that these alleged behavior were relayed to him by Feeney and Smith verbally. (Tr. at 53-55 56 57 and 58.) Finnegan could not recall however any specific information concerning the alleged incidents such as when they occurred or how often they occurred. (Tr. at 53-55 57 and 58.) The only incident Finnegan could recall with any detail was the surge protector incident. (Tr. at 53.)

The plaintiff claims that the defendant Pfizer forced him to undergo a drug test in violation of C.S.G. SEC. 31-51x(a) which reads in pertinent part:

(a) no employer may require an employee to submit to a urinalysis drug test unless the employer has a reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee's job performance.

The plaintiff claims that the defendant did not have the requisite reasonable suspicion to require a drug test. He contends that the defendant failed to make a cognizant determination of reasonable suspicion that he was drug impaired while at work. The defendant's policy regarding drugs was explained by Finnegan.

Barton D. Finnegan the Director of Employee and Community Relations was the corporate employee responsible for implementing the drug free work place program at the Groton facility. (Tr. at 11.) Under this program there were two standards by which a determination for a referral to a Fitness for Duty Evaluation ("FDE") could be made. The first standard rested on the identification of aberrant behavior(s). The second standard required a reasonable suspicion that an employee was impaired by drugs or alcohol. (Tr. at 12-13.) At his deposition Finnegan testified that in referring an employee to a FDE he was not making a determination that an employee was drug impaired or taking drugs. (Tr. at 21-22.) Finnegan made referrals to a FDE based on the identification of aberrant behaviors. (Tr. at 13 21-22.) At trial Finnegan attempted to distance himself from his earlier testimony by stating that in developing the aberrant behavior approach it was Pfizer's goal to ensure that aberrant behavior be defined the same as reasonable suspicion of

drug use or impairment. (Tr. at 22.)

In fact Pfizer's definition of aberrant behavior is predominately tailored to a finding of objective criteria of physical symptoms of drug use or impairment:

Aberrant behavior may involve a bizarre behavioral incident or a number of uncharacteristic behaviors over some period of time (e.g. slurred speech glassy eyes unsteady walk change in normal behavior pattern sleeping on the job laughter or crying uncontrollably appearance of intoxication displaying unusual work pace lack of dexterity mood changes reduced capacity for rational thoughts altered attention span and on-the-job accidents. (Plaintiff's Ex. 15 at Section II Part B P1 at p. 13.)

Once a Pfizer supervisor identifies and observes aberrant behavior the supervisor is responsible for interviewing the employee to confirm the observation of aberrant behavior. (Plaintiff's Exhibits 17 and 18.) After the interview with the employee the supervisor has the obligation to document the aberrant behavior. (Plaintiff's Exhibit 18.) A supervisor would then confer with the next line of supervision or the Personnel Department to decide is a Fitness for Duty Evaluation should be recommended. (Plaintiff's Exhibit 18.) If management decided to refer an employee to a Fitness for Duty Evaluation the employee would be requested to submit to the evaluation. (Plaintiff's Exhibits 17 and 18.) if an employee refused to be drug tested as part of the FDE the employee would be subject to immediate termination.

Refusal to be tested refusal to sign the release form tampering with the urine specimen in the case of testing for designated drugs or with the documents involved with testing and refusal to release to Pfizer the results of tests performed by a hospital or clinic will be treated as a serious failure to cooperated and will result in termination of employment. (Plaintiff's Exhibit 15 Section II Part C P1 at p. 15.) If a drug test was administered the employee was sent home pending the results of the drug test. (Plaintiff's Exhibit 15 at p. 15 P10.) The employee would be paid for that mandatory time off. (Plaintiff's Exhibit 15 at p. 15.) Finally if the results of a drug test administered during the FDE were positive a mandatory referral to an Employee Assistance Program ("EAP") was made which includes mandatory random testing. (Plaintiff's Exhibit 15 at p. 16 P1; Plaintiff's Exhibit 17.)

Connecticut General Statutes SEC. 31-51x(a) (the Act ) provides that "no employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol with adverse affects or could adversely affect such employees job performance." (Emphasis added.) The legislative intent behind Section 31-51x was to control random urinalysis drug testing. See Johnson v. Carpenter Technology Corp. 723 F. Supp. 180 185 n.5 (D. Conn. 1989) ("as noted by Representative Adamo the Act 'puts in place what [the legislature felt was] necessary to control random and unnecessary drug testing of employees in the workplace....' House Proc. at 11373 (May 29 1987"). When Section 31-51x was enacted it was well established that random urinalysis drug testing intrudes on the privacy interests of employees. See Poulos v. Pfizer Inc. 7 CSCR 799 (July 13 1992 Hurley J.) ("The legislature in passing the drug testing statutes has acknowledged the trend at the federal and state levels recognizing the privacy interests of employees"). *fn1

The Connecticut Supreme Court has not construed the term "reasonable suspicion" under its statute. However the United States District Court has held the Connecticut statute to be analogous to the Fourth Amendment which protects the privacy rights of employees against Government-mandated urinalysis testing. Doyon v. Home Depot U.S.A. Inc. 850 F. Supp. 125 (1994) As the Doyon court stated:

Simply put urinalysis drug testing is no less intrusive when required by private employers that when required by the Government. The effect on an employee's privacy interests does not vary according to his employer's public or private status. Once the Connecticut legislature decided to extend protection to employees in the private sector Court cannot conclude that it meant to extend a lesser quantum of protection than that afforded to public employees under the Fourth Amendment. Therefore the court finds that Section 31-51x requires a showing of individualized suspicion before an employer may require an employee to submit to a urinalysis drug test.

In the reasonable suspicion context a mandatory drug testing procedure must be based on a "reasonable suspicion of drug use [which] arises from evidence of on-the-job drug use or impairment." National Treasury Employees Union v. Yeutter 287 U.S. App. D.C. 28 918 F.2d 968 974 (D.C. Cir. 1990); American Fed'n of Gov't Employees v. Sullivan 744 F. Supp. 294 (D.D.C. 1990). However the suspicion must be individualized Capua v. City of Plainfield 643 F. Supp. 1507 1514 (D.N.J. 1986) and must be consistent with the use of drugs in a workplace setting. Government Employees v. Derwinski 777 F. Supp. 1493 6 IER Cases 1301 1307 (D.C. Calif. 1991).

In American Fed'n of Gov't Employees v. Sullivan 744 F. Supp. 294 (D.D.C. 1990) federal employees challenged in part the reasonable suspicion testing portion of the "Drug Free Workplace Plan" program developed by the Department of Health and Human Services ("HHS plan") on the grounds that it violated the Fourth Amendment to the United States Constitution. The HHS plan premised reasonable suspicion in relevant part on (1) direct observation of the physical symptoms of being under the influence of a drug; or (2) a pattern of abnormal conduct or erratic behavior. Id. at 297. Court struck down the latter as unduly broad and ambiguous. Id. at 304. *fn2 In its rationale Court explained:

It is unclear for example how this standard would be applied to employees who do not exhibit 'the physical symptoms of being under the influence of a drug' as required by the first criterion. Certainly 'the pattern of abnormal conduct or erratic behavior' must be the kind of erratic behavior that could be induced by drugs in order to justify a urinalysis test; otherwise there would be no reasonable suspicion that the behavior was induced by drug use. In addition for a supervisor to make such a determination he or she would surely have to be trained to recognize the types of emotional behavior that are the result of drug-use. Yet even with these precautions it appears that there is likely to be a risk of error in evaluating who should be tested under this relatively subjective criterion than in use of the far more objective criterion which calls for testing based on direct observation of the physical symptoms of drug use. Id. at 304.

Federal case law makes clear that any standard used for reasonable suspicion drug testing must be based on evidence showing use or impairment while on the job. For example in Rice v. Sielaff 181 A.D.2d 502 581 N.Y.S.2d 311 (1992) dismissal of a correction officer was upheld based on his refusal to submit to a urinalysis examination where several Department officials provided undisputed testimony that the correction officer was seen with dilated eyes perspiring forehead and irrational behavior. The officer also had an unsatisfactory employment record and psychological problems. 581 N.Y.S.2d at 312.

In Martinez v. Ward 166 A.D.2d 392 561 N.Y.S.2d 195 (1990) a police officer's dismissal was again upheld for his failure to a urinalysis test. Six members of the department established that over a span of six months leading up to the ordered test the police officer was observed on several occasions both on-duty and off-duty in a known drug area. Several anonymous reports received by the precinct provided information consistent with the officer's description and his suspected drug activity. Additionally during the six month period the officer's behavior was noticeably erratic. In front of superior officers petitioner's moods would often swing from an "'animated'" state to fits of crying and depression. 561 N.Y.S.2d at 196. Six weeks prior to the drug test order a crack vial was found on the driver's side of a patrol car assigned to the officer. The officer's own memo book established that he had searched the vehicle at the start of his tour but had found no contraband inside. Lastly on the day prior to the drug test order the officer was again observed at the same rug location. When the officer reported to work the next day his physical appearance did not comport with his excuse of a heavy drinking bout and when questioned he broke down and cried. Id.

Finally in Smith supra 666 F. Supp. at 1087-88 Court found that there was a reasonable suspicion of drug use as to a number of employees. There was information that each of these employees (a) talked about or was observed using drugs (b) was observed under the apparent influences of drugs or (c) had previously expressed concerns about taking a drug test. Id. See also Velez v. N.Y. City Health & Hospitals 166 A.D.2d 344 561 N.Y.S.2d 161 161 (1990) (corrections officer's physical appearance and demeanor gave rise to reasonable suspicion that officer was under influence of drugs to justify order to submit to urinalysis).

The drafters of Pfizer drug free workplace program incorporated the principles articulated in federal case law including those outlined in the case American Fed'n of Gov't Employees v. Sullivan supra 744 F. Supp. at 297-304 into their own program by ensuring through its written policies and procedures that its supervisors would first identify "aberrant behaviors" that showed some bizarre behavioral incident or physical signs of drug impairment and second that the supervisors would then make an independent determination or reasonable suspicion of drug use. Pfizer's definition of aberrant behavior is predominately tailored to a finding of objective criteria of physical symptoms of drug use or impairment:

Aberrant behavior may involve a bizarre behavioral incident or a number of uncharacteristic behaviors over some period of time (e.g. slurred speech glassy eyes unsteady walk change in normal behavior pattern sleeping on the job laughter or crying uncontrollably appearance of intoxication displaying unusual work pace lack of dexterity mood changes reduced capacity for rational thoughts altered attention span and on-the-job accidents.) (Plaintiff's Exhibit 15 Section 11 Part B P1 at p. 13.)

There is no evidence of such bizarre or characteristic behavior in this case. Moreover a determination of aberrant behavior is not in and of itself a determination of reasonable suspicion of drug use or impairment under the defendant's procedures for drug testing:

Testing for substance abuse as part of a fitness for duty evaluation will be conducted where an employee manifests aberrant behavior and; 1) the supervisor is unable to determine the cause of the behavior after discussion with the employee or the supervisor has reasonable suspicion to believe that substance abuse is involved 2) the supervisor has discussed the problem with the personnel manager and the operating unit head where applicable and 3) a medical authority (physician or nurse) agrees that urinalysis breath test and/or blood test is appropriate. (Plaintiff's Exhibit 15 Section 11 Part A P2 at p. 10) The supervisor must make an independent determination of reasonable suspicion. There is no evidence in this record that Poulos' supervisors identified any behaviors that fall within the definition of aberrant behavior or made an independent determination of reasonable suspicion.

Finally a literal reading of the Connecticut Act mandates a more restrictive interpretation of the drug testing procedures than those offered by the federal case law and defendant's drug testing policy. The Act is written in the active voice and requires that before submitting an employee to a drug test the employer must have a reasonable suspicion that the employee "is under the influence of drugs or alcohol" at the time the test is ordered. Accordingly under the state Act the determination to drug test is a two-step process: (1) the determination of reasonable suspicion of drug use or impairment while at work; and (2) determination of reasonable suspicion at the time the drug test is administered.

It was Dr. Kanfer who determined that Poulos should undergo the drug test on December 26, 1990. Dr. Kanfer relied on only two alleged factors for a finding of aberrant behavior thereby justifying the mandatory drug test he administered to Poulos: (1) Poulos had stolen from he company and had lied about it; and (2) Poulos had been late for work. (Plaintiff's Exhibit 20 at 16-17.) Further Dr. Kanfer admitted that upon Poulos' medical examination he could not detect any positive objective signs of alcohol and/or drug use. (Plaintiff's Exhibit 20 at 20.)

These two factors are insufficient to establish reasonable suspicion of drug use or drug impairment by Poulos while on duty. First neither factor offers any objective evidence of drug use or drug impairment while on duty as required under the relevant case law. Further the factors relied upon do not fit within Pfizer's own definition of aberrant behavior. The alleged theft of a ten dollar surge protector at Christmas time can hardly be considered a "bizarre behavioral incident." Certainly lying about the surge protector is understandable in light of the anxiety Poulos felt when being stopped by the security guard without the appropriate pass.

Additionally being late for work does not fit within any of the physical symptoms of drug use listed as part of the definition of aberrant behavior. Nor is there any evidence Poulos was late for work in 1990. His performance evaluation prepared in August 1990 and reviewed with him in late September 1990 clearly does not refer to an attendance or tardiness problem. Further his supervisors never documented an attendance problem in 1990 as they had in mid 1989. (plaintiff's Exhibit 7.) *fn3

Finally Dr. Kanfer made no effort to determine if there was reasonable suspicion of drug use or impairment by Poulos while on duty; he accepted the behavior relayed to him verbally by Finnegan as aberrant behavior found no medical cause for the behavior and drug tested Poulos.

Even if we were to assume that Finnegan made the decision to have Poulos drug tested and made a determination of reasonable suspicion the factors that Finnegan would have relied upon to establish reasonable suspicion of drug use or impairment while on duty fall far short of the criteria relied upon in the cases cited by defendant and from any of the objective criteria outlines in Pfizer's definition of aberrant behavior.

Finnegan claims to have based his decision to refer Poulos to a Fitness for Duty Evaluation on the following alleged facts: (1) the attempted theft involving the surge protector; (2) alleged short notice of vacation days or half days; (3) Poulos' alleged inability to get along with his coworkers; and (4) borrowing of money from the coffee fund. (Tr. at 53-54 56 and 58. *fn4 Finnegan claimed that these alleged facts were relayed to him by Feeney and Smith. (Tr. at 52 and 54.) Finnegan did not speak to Poulos at all concerning these allegations nor did he check Poulos' personal file. (Tr. at 53-56 and 58.)

Plaintiff claims that defendant failed to make any determination of reasonable suspicion that Poulos was taking drugs or drug impaired while at work. Instead it ordered the drug test on the basis of the surge protector incident. Further defendant's attempt after the fact to demonstrate that the factors identified by Finnegan and Dr. Kanfer collectively as "aberrant behavior" formed the basis of reasonable suspicion must fail. Finnegan admitted that the alleged facts in and of themselves are not aberrant behaviors. (Tr. at 51 and 60.) Not one of the factors listed by Finnegan or Dr. Kanfer is an objective factor of some physical symptom of drug use as required under Pfizer's own definition of aberrant behavior. Similarly the factors listed do not singularly or considered together indicate drug use or impairment by Poulos on or off duty. Further as Dr. Kanfer testified at the time Poulos presented himself for the fitness for duty evaluation he did not show any physical signs of drug use or impairment. "Thus the fact that an employee tests positive does not necessarily indicate on the job impairment very recent drug use or habitual drug use." National Treasury supra 918 F.2d at 973. Finally none of these factors indicate that Poulos was under the influence on December 26, 1990 which was impairing his performance as is required by the state Act.

This court construes the Act in a manner consistent with the interpretation of 4th Amendment standards. In light of defendant's own drug testing policy the drug test administered to Poulos on December 26 1990 cannot pass muster.

Court has reviewed and rejected the testimony of Bruce Rounsaville M.D. for the reason that the issue is one of law not of psychology.

Court also finds that the plaintiff did not consent to the drug testing.

Pfizer violated the provisions of the Connecticut Drug Testing Statute C.G.S. SEC. 31-51s et seq. by compelling Poulos to submit to a urinalysis drug test on December 26, 1990 without a reasonable suspicion that he was under the influence of drugs which adversely affected or could adversely affect his job performance. Pfizer's claim that Poulos consented to this test is rebutted by the "consent" form it required Poulos to sign before the test was conducted. (Plaintiff's Exhibit 11. ) *fn5

Poulos also testified that his boss Smith advised him that he would be sent home pending termination if he did not sign the consent form and "agree" to the testing. (TR. at p. 205 line 22 to p. 206 line 22; p. 274 line 21 to p. 275 line 14.)

It is equally clear that the positive result of the unlawful urinalysis drug test conducted on December 26, 1990 led Poulos' mandatory participation in the employees assistance program (EAP) in January and February 1991 and submission to the additional random testing which took place in those months as part of that program. Pfizer's argument that Poulos consented to participating in the EAP or to that additional testing is as baseless as its argument on his consent to the December 1990 test. Poulos participated in the EAP and this testing only because Pfizer made it clear to him that he would be fired if he did not. (Tr. at 210 line 14 p. 216 line 16 to p. 217 line 10; p. 223 lines 11-15.) Poulos' boss Smith and Nowak of the personnel department told Poulos on January 2 1991 that his participation in the EAP and submission to random drug testing was required as a condition of his continued employment. (Tr. at pp. 209 to 210.) Smith could not recall what was said at this meeting. (Tr. at p. 97.) The memorandum Smith sent Poulos concerning his suspension following the February 13, 1991 drug test also states that as a result of the first test i.e. the December 26th test Poulos was required to submit to random drug screening for one year. (Plaintiff's Exhibit 22.) Pfizer's policy on drug testing also clearly mandated his referral to the EAP and subjected him to mandatory random testing on pain of termination of his employment following the December 26th test result. (Plaintiff's. Exhibit 15 at p. 12 question 13; p. 15 question 1; p. 16 questions 2-3; p. 17 question 5.) Under these circumstances Pfizer cannot argue that Poulos consented to participation in the EAP or to any of the tests. See Doyon v. Home Depot U.S.A. Inc. 850 F. Supp. at 125.

The test conducted on February 13, 1991 was a random test not one based on a claim of reasonable suspicion. Pfizer did not even argue at trial that it had a reasonable suspicion on that date that Poulos was under the influence of drugs which adversely affected or could adversely affect his job performance. The company's communications with Poulos following the result of the December 26th test state that he was required to undergo random urinalysis drug testing thereafter. See supra p. 7. Since the random test was not otherwise validated by Section 31-51x(b) (3) as part of an EAP in which Poulos voluntarily participated it clearly violated Section 31-51x. Were it not for this violation of the Act on February 13 1991 Pfizer would not have terminated Poulos' employment. (Testimony of Thomas Poulos Tr. p. 179 line 20 to p. 180 line 9.) (Plaintiff's Exhibit 14 the March 1 1991 letter from Smith to Poulos' (the only reason for termination is stated is Poulos' alleged violation of the company's drug free work place policy.)

On pages 8 through 12 of its of its brief Pfizer cites numerous federal cases to establish what the law is regarding "reasonable suspicion." It also attached some 22 cases on the subject. Court has reviewed those cases and does not find one that supports Pfizer's position in this case. All of the cases involve a fundamental situation where there was direct observation of drug use or physical effects of drug abuse on the job.

The case of Doyon v. Home Depot U.S.A. Inc. 850 F. Supp. 125 (D. Conn. 1994) supra is not illustrative of the situation in the Poulos case.

In Doyon the employer had a policy requiring mandated drug testing of any employee involved in a serious work-related accident. Court (Cabranes J.) held that: (1) employer's policy violated C.G.S. SEC. 31-51x which prohibits employers from requiring drug testing unless there was reasonable suspicion that the employee was using drugs or alcohol; (2) the employee did not waive his right to refuse the test because it was required as a condition of employment.

Pfizer claims it had reasonable suspicion. It was based upon the claim that at the time of the December 26 1990 drug test the supervisory personnel at Pfizer knew that Poulos had attempted to take the surge protector from the Pfizer plant and then repeatedly lied to his superiors about the circumstances of that event. (Tr. at 193-200.) Poulos' dishonesty about the event demonstrates the bizarre nature of his behavior. The managers at Pfizer also relied on the fact that Poulos had been acting strangely in other ways as well in that (1) he was having difficulty getting along with coworkers and was losing his temper for no apparent reason; (2) he borrowed money from the coffee fund so frequently that coemployees were concerned that there would not be funds available for the Christmas party; and (3) he had been taking short notice vacation days and half-days with increasing frequency in recent months. (Tr. at 53-58.)

Based upon the cases cited the foregoing was clearly not enough to establish reasonable suspicion of drug use under the statute.

Court rejects Pfizer's argument that even if there was no reasonable suspicion or consent to the test it cannot be held liable because it did not violate the statute. Court finds that Pfizer did violate the statute when it performed the illegal test. This alone entitles the plaintiff damages under Section 31-51z.

Court finds for the defendant on the second count intentional infliction of emotional distress. There was no evidence that: (1) the defendant intended to inflict emotional distress or knew or should have known that emotional distress was a likely result of its conduct; (2) the conduct was extreme and outrageous; (3) the defendant's conduct was the cause of plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was severe. Petyan v. Ellis 200 Conn. 243 253 510 A.2d 1337 (1986). There is liability only if the conduct exceeds "all bounds usually tolerated by decent society of a nature which is especially calculated to cause and does cause mental distress of a very serious kind." Peytan .200 Conn. at 254 n. 5; Restatement (Second) of Torts SEC. 46 Comment d (1965).

Poulos failed to meet his burden of proof with respect to any of the four elements of this cause of action. First Pfizer's conduct was not intended to inflict emotional distress and was anything but extreme and outrageous. In fact Pfizer provided Poulos with repeated chances to salvage his employment despite his attempted theft and repeated acts of dishonesty and it offered to help him through its employee assistance Counseling program. Second Poulos failed to present any evidence at trial that he suffered severe emotional distress as a result of Pfizer's conduct. Therefore Poulos cannot prevail in this claim and Pfizer is entitled to judgment on the second count of the complaint.

Court also finds in favor of the defendant on the third count invasion of privacy. Other than a violation of SEC. 31-51x there was no evidence of an unlawful invasion of privacy.

Because of the violation of Section 31-51x the plaintiff is entitled to special and general damages Counsel's fees and costs.

The parties have stipulated to the amount of damages as $66 455.00 in lost salary and benefits including pre judgment interest the amount including interest comes to $77 870.00.

Court also awards reasonable Counsel's fees and costs.

Hurley J.

 
Notes:

*fn1 Other subsections of Section 31-51x illustrate the Connecticut legislature's concern regarding employee privacy interests. Section 31-51x(b) recognizes only three narrow exceptions to the general rule protecting the privacy interests of employees. Under section 31-51x(b) an employer may require an employee to submit to random drug testing only if: "(1) such test is authorized under federal law (2) the employee serves in an occupation which has been designated as a high-risk or safety-sensitive occupation... or (3) the urinalysis is conducted as part of an employee assistance program sponsored or authorized by an employer in which the employee voluntarily participates." Further Section 31-51 w(a) prohibits direct observation of the production of a urine sample while Section 31-51w(b) mandates that results of any drug test remain confidential. Section 31-51v prohibits reliance on results of drug tests for disciplinary action or disclosure of test results unless certain protocol followed. See pp. infra.

*fn2 Court also struck the regulation as constitutionally infirm because the listed criteria for establishing reasonable suspicion was not limited to the observation of or information regarding on-the-job impairment but extended to off-duty impairment as well. Id. at 303.

*fn3 The parties stipulated that the 1990 attendance record (Plaintiff's Exhibit 7) does not permit Court to determine the basis for any apparent absences from work in 1990. (Tr. at p. 74).

*fn4 Plaintiff submits however that the December 26, 1990 test was ordered on the basis of the surge protector incident alone and not on any other behaviors he testified to at the time of trial. Defendant's lack of documentation of those other behaviors coupled with the failure to Counsel Mr. Poulos on those behaviors prior to December 26, 1990 certainly renders defendant's subsequent rationalizations suspect. See supra pp.7-11.

*fn5 The consent form authorizes defendant to administer a urinalysis drug test and cautioned Mr. Poulos that if he refused to sign the consent form he was subject to termination. (Plaintiff's Exhibit 11.) Further as defendant's own drug testing policy makes clear Mr. Poulos did not have a choice as to whether or not he could consent to the drug test. An employee's refusal to be tested for substance abuse will lead to automatic termination. (Plaintiff's Exhibit 15 Section II Part C P1 at p. 15).