ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
SHERMAN G. FINESILVER CHIEF UNITED STATES DISTRICT Court
This matter comes before Court on defendant's motion to dismiss or in the alternative for summary judgment filed February 11 1991. It involves the growing issue of the legitimacy of drug testing in the workplace. On April 4 1991 we notified the parties that Court would be treating the motion as one for summary judgment. Jurisdiction is based upon 28 U.S.C.A. SEC. 1332 (West Supp. 1991). For the reasons stated below the motion for summary judgment is hereby GRANTED.
I.
Plaintiff Carmela Mares ("Mares") was hired as a benefits clerk by defendant Longmont Foods ("Longmont") on March 1 1988. On April 24 1989 Longmont notified its employees that it was instituting a drug testing policy. In addition to submitting to drug testing Longmont required its employees to provide a form disclosing any medications being taken and authorizing the named physician to release to Longmont any information concerning the use of the specified medications. Plaintiff was terminated on June 23 1991 for refusing to sign the consent form.
On February 5 1991 this action was removed pursuant to 28 U.S.C.A. SEC. 1441(a) (West Supp. 1991) from the Boulder County District Court. The complaint asserts six causes of action for (i) breach of contract (ii) violation of public policy (iii) intentional infliction of emotional distress (iv) negligent or intentional interference with prospective economic advantage (v) invasion of privacy and (vi) constitutional torts and civil rights violations.
Defendant filed the instant motion to dismiss or in the alternative for summary judgment on February 11 1991. Defendant's brief included material outside the pleadings. Fed. R. Civ. P. 12(b) provides in pertinent part "if on a motion asserting the defense numbered (6) to dismiss for failure of a pleading to state a claim upon which relief can be granted matters outside the pleading are presented to and not excluded by Court the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."
As we are not excluding the materials presented we are required to treat the motion as one for summary judgment and dispose of it as provided in Fed. R. Civ. P. 56. Carter v. Stanton 405 U.S. 669 671 31 L. Ed. 2d 569 92 S. Ct. 1232 (1972); M.S. News Co. v. Casado 721 F.2d 1281 1285 (10th Cir. 1983).
Under the express language of the rule all parties must be given reasonable opportunity to present pertinent material. T.V. Communications v. ESPN Inc. 767 F. Supp. 1062 (D. Colo. 1991). The parties were given notice that the motion would be treated as one for summary judgment on April 4 1991. Additional materials were submitted by both sides.
II.
Summary judgment is now regarded as an acceptable procedural device. Evans v. Board of County Comm'rs 752 F. Supp. 973 974 (D. Colo. 1990). It is an integral vibrant part of the Federal Rules of Civil Procedure. Celotex Corp. v. Catrett 477 U.S. 317 327 91 L. Ed. 2d 265 106 S. Ct. 2548 (1986). Granting summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Lucas v. Mountain States Tel. & Tel. Co. 909 F.2d 419 420 (10th Cir. 1990).
A genuine issue of material fact exists only where there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Merrick v. Northern Natural Gas Co. 911 F.2d 426 429 (10th Cir. 1990); Vaske v. DuCharme McMillen & Assocs. Inc. 757 F. Supp. 1158 1160 (D. Colo. 1990). Only disputes over facts that might affect the outcome of the case will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby Inc. 477 U.S. 242 91 L. Ed. 2d 202 106 S. Ct. 2505 (1986); Allen v. Dayco Prods. Inc. 758 F. Supp. 630 631 (D. Colo. 1990).
In reviewing a motion for summary judgment Court must view the evidence in the light most favorable to the party opposing the motion. Newport Steel Corp. v. Thompson 757 F. Supp. 1152 1155 (D. Colo. 1990). All doubts must be resolved in favor of the existence of triable issues of fact. Lucas 909 F.2d at 420; Anderson v. Department of Health and Human Servs. 907 F.2d 936 946-47 (10th Cir. 1990).
In a motion for summary judgment the moving party's initial burden is slight. Fed. R. Civ. P. 56 does not require the movant to negate the opponent's claim. Celotex 477 U.S. at 323. Rather the moving party must allege an absence of evidence to support the opposing party's case and identify supporting portions of the record. Id.
Once the movant has made an initial showing the burden of proof shifts to the opposing party. Anderson v. Department of Health and Human Servs. 907 F.2d at 947. The nonmovant must establish that there are issues of material fact to be determined. Celotex 477 U.S. at 322-23. The nonmovant must go beyond the pleadings and designate specific facts showing that there are genuine issues for trial on every element challenged by the motion. Allen 758 F. Supp. at 632. Conclusory allegations will not establish an issue of fact sufficient to defeat summary judgment. McVay v. Western Plains Serv. Corp. 823 F.2d 1395 1398 (10th Cir. 1987).
In reviewing the evidence submitted Court should grant summary judgment only when there is clearly no issue of material fact remaining. Summary judgment should be granted if the pretrial evidence is merely colorable or is not significantly probative. Liberty Lobby 477 U.S. at 249-50. In the instant matter Court finds that as a matter of law the motion for summary judgment must be granted.
III.
Defendant generally argues that plaintiff's causes of action should not survive as she acquiesced in the new terms of employment by continuing to work after the institution of the drug testing program. Pittman v. Larson Distrib. Co. 724 P.2d 1379 1384 (Colo. App. 1986). While this argument is somewhat persuasive questions of fact would seem to surround such an inquiry. We believe that the causes of action should be handled on much more substantive grounds.
IV.
Plaintiff's first cause of action seeks relief for breach of contract. The second cause of action seeks relief for violations of public policy. Mares does not contend that an employment contract had been formed. In the absence of an employment contract any employment relationship is terminable at-will by either party. Continental Air Lines Inc. v. Keenan 731 P.2d 708 711 (Colo. 1987); Cronk v. Intermountain Rural Elec. Ass'n 765 P.2d 619 622 (Colo. App. 1988); accord Garcia v. Aetna Fin. Co. 752 F.2d 488 491 (10th Cir. 1984). An at-will employee may be terminated without cause without notice and any such discharge does not give rise to a claim for relief. Hoff v. Amalgamated Transit Union 758 P.2d 674 678 (Colo. App. 1987) cert. denied slip op. (Colo. 1988); Therrien v. United Air Lines Inc. 670 F. Supp. 1517 1523 (D. Colo. 1987).
Colorado has two narrow exceptions to the employment at-will doctrine: (i) implied contract rights or promissory estoppel arising out of company policy and employment manuals and (ii) claims for wrongful discharge in retaliation for the exercise of statutory rights or duties a public policy exception. Allen 758 F. Supp. at 633; Vaske 757 F. Supp. at 1161-62. We do not believe that plaintiff can benefit from either exception. See Friesen Drug Testing in Colorado: Problems & Advice for Private Employers 19 Colo. Law. 413 416 418 (1990).
Plaintiff does not allege that she enjoyed implied contract rights based upon company policies or employment manuals. Instead plaintiff asserts that she was fired in retaliation for exercising statutory rights under Colo. Rev. Stat. SEC. 13-90-107(d) (Bradford 1987).
The Colorado courts have never addressed this statute in the context of an action for wrongful termination. It provides that
"[a] physician surgeon or registered professional nurse duly authorized to practice his profession shall not be examined without the consent of his patient as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient."
We must predict how Colorado's highest court would rule on enlarging this public policy exception to include such behavior. Weiss v. United States 787 F.2d 518 525 (10th Cir. 1986); Terry v. Avemco Ins. Co. 663 F. Supp. 39 41 (D. Colo. 1987); Reighley v. International Playtex Inc. 604 F. Supp. 1078 1081 (D. Colo. 1985).
The Colorado courts have held that causes of action under the public policy exception may proceed in two situations. First claims have been allowed when the discharge was in retaliation for employees exercising their rights under Colorado's workers' compensation law. Lathrop v. Entenmann's Inc. 770 P.2d 1367 (Colo. App. 1989); *fn1 accord Miedema v. Browning-Ferris Indus. Inc. 716 F. Supp. 1369 1371-72 (D. Colo. 1989). Plaintiff has not asserted that she was discharged in retaliation for seeking workers' compensation benefits. Second suits have been permitted to proceed when employees had been directed by their employers to violate certain statutes subjecting them to criminal liability. Cronk 765 P.2d at 622; Lorenz v. Martin Marietta Corp. 802 P.2d 1146 1149 (Colo. App. 1990). Mares does not allege that she had been directed to violate a criminal law.
As a result Court would have to create a new category within this narrow exception for plaintiff to maintain her cause of action. A federal court sitting in diversity should not anticipate a change in existing state law. Vaske 757 F. Supp. at 1163; Bannowsky v. Krauser 294 F. Supp. 1204 1205 (D. Colo. 1969). Our role does not include effecting a dramatic shift in the forum state's common law. Power Motive Corp. v. Mannesmann Demag Corp. 617 F. Supp. 1048 1051 (D. Colo. 1985); accord Hubbard Business Plaza v. Lincoln Liberty Life Ins. Co. 649 F. Supp. 1310 1312-13 (D. Nev. 1986) aff'd 844 F.2d 792 (9th Cir. 1988).
Crafting a new category based upon this statute would be a dramatic shift in this area of Colorado's common law. Vaske 757 F. Supp. At 1163. Specifically in the area of wrongful discharge a federal Court should not expand this tort's reach. Vaske 757 F. Supp. at 1163; accord Brezinski v. F.W. Woolworth Co. 626 F. Supp. 240 244 (D. Colo. 1986). We do not believe that we are in a position to enlarge this public policy exception to the employment at-will doctrine. *fn2
Moreover this statute does not create a private cause of action. Never does the law expressly or impliedly address civil liability. See Weiszmann v. Kirkland & Ellis 732 F. Supp. 1540 1543 (D. Colo. 1990); accord Vaske 757 F. Supp. at 1162 n. 7. It deals with testimonial privileges. Accordingly defendant's motion for summary judgment on the first and second claims for relief is hereby GRANTED.
V.
Plaintiff's third cause of action seeks relief for intentional infliction of emotional distress or outrageous conduct. To support a finding of liability under this theory Court must determine in the first instance that "the conduct has been so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Generally the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim 'Outrageous!'".
Rugg v. McCarty 173 Colo. 170 476 P.2d 753 756 (1970) (quoting Restatement (Second) of Torts SEC. 46 comment d (1965)); Vaske 757 F. Supp. at 1165; Therrien 670 F. Supp. at 1524. While the tort of outrageous conduct exists in the employment context in Colorado Churchey v. Adolph Coors Co. 759 P.2d 1336 1349-50 (Colo. 1988) termination from employment without more does not constitute outrageous conduct. Grandchamp v. United Air Lines Inc. 854 F.2d 381 384 (10th Cir. 1988) cert. denied 489 U.S. 1080 109 S. Ct. 1534 103 L. Ed. 2d 838 (1989); Brown v. Progressive Cas. Ins. Co. No. 90-F-1428 slip op. at 9 (D. Colo. June 21 1991); Therrien 670 F. Supp. at 1524. Plaintiff must prove such conduct was outrageous by a preponderance of the evidence. Grandchamp 854 F.2d at 385-86 n. 8.
Court must first consider Longmont's actions. Vaske 757 F. Supp. At 1165. Defendant requested that Mares provide a list of medication prescribed by a physician. Such conduct was not so outrageous in character or so extreme in degree as to go beyond all bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. Id.; see Denver Publishing Co. v. Kirk 729 P.2d 1004 1007 (Colo. App. 1986). Defendant would have no other was to guarantee the integrity of their testing program without full knowledge of those drugs which Mares was legitimately ingesting. Second the manner of the discharge is critical to a finding of outrageous conduct. Grandchamp 854 F.2d at 385. Mares has offered no evidence to prove the manner in which she was terminated would cause the average member of the community to exclaim "Outrageous!". Rugg 476 P.2d at 756; accord Brown slip op. at 10.
Three recent decisions offer guidance. In Cronk the Colorado Court of Appeals affirmed a trial court's decision to grant summary judgment for defendants on a claim for outrageous conduct even though plaintiffs were discharged for refusing to violate a criminal statute. Cronk 765 P.2d at 622 624. In Bradbury v. Phillips Petroleum Co. 815 F.2d 1356 1360 (10th Cir. 1987) the Tenth Circuit upheld a trial court's decision to submit the issue of outrageous conduct to the jury. The plaintiff in Bradbury had been chased and strangled by agents of the defendants. Id. at 1359.
In Wing v. JMB Property Management Corp. 714 P.2d 916 918 (Colo. App. 1985) the Colorado Court of Appeals reversed a trial court's decision to dismiss an employee's claim for outrageous conduct. In Wing the plaintiff's claim was based on sexual harassment. The instant situation is much less severe than Cronk and nowhere near as drastic as Bradbury and Wing. Brown slip op. at 10-11. We do not believe that plaintiff has satisfied her burden of proof and shown that Longmont's behavior was outrageous by a preponderance of the evidence. See Friesen supra at 416 418. Defendant's motion for summary judgment on the third cause of action is hereby GRANTED.
VI.
Plaintiff's fourth cause of action seeks relief for negligent or intentional interference with prospective economic advantage or contractual relations.
A.
While Colorado recognizes the tort of intentional interference with contractual relations Memorial Gardens Inc. v. Olympian Sales & Management Consultants Inc. 690 P.2d 207 210 (Colo. 1984) the Colorado courts have not recognized the tort of negligent interference with contractual relations. Plaintiff has not cited any case law to support the proposition that such a tort has been recognized. We are persuaded by Court Arraj's opinion in Western Gas Processors Ltd. v. Enron Gas Processing Co. Civ. A. No. 87-A-1472 (D. Colo. July 7 1988). Court ruled that Colorado would not recognize such claim. Id. Plaintiff cannot maintain a cause of action for negligent interference with contractual relations.
B.
To prove a claim for intentional interference with contractual relations plaintiff must prove (i) the existence of a valid contract between plaintiff and a third party (ii) knowledge by defendant of the contract or knowledge of facts that should lead it to inquire regarding the existed of the contract (iii) intent by defendant to induce or cause the third party not to perform (iv) action by defendant that induces or causes non-performance of the contract and (v) resulting injury or damages to plaintiff. Hanley v. Continental Airlines Inc. 687 F. Supp. 533 537 (D. Colo. 1988); Montgomery Ward & Co. v. Andrews 736 P.2d 40 47 (Colo. App. 1987). Mares has not alleged any interference by defendant with a third party in which she had contractual relations. As plaintiff has not alleged the existence of a valid contract between herself and a third person the claim must fall. See Henderson v. Times Mirror Co. 669 F. Supp. 356 362 (D. Colo. 1987) aff'd 876 F.2d 108 (10th Cir. 1989). Accordingly defendant's motion for summary judgment on the fourth claim for relief is hereby GRANTED.
VII.
Plaintiff's fifth cause of action seeks relief for invasion of privacy. Mares alleges that requiring the disclosure of medications intrudes on her privacy rights. We are persuaded by the United States Supreme Court's pronouncement in Skinner v. Railway Labor Executives Ass'n 489 U.S. 602 103 L. Ed. 2d 639 109 S. Ct. 1402 (1989). Court ruled that requiring the disclosure of private medical facts when confidentiality was protected did not involve a significant invasion of privacy. Id. at 626 n. 7. The confidentiality of this information remains undisputed. In light of the Supreme Court's strong statement we do not believe that plaintiff's claim for invasion of privacy can survive. See also Shoemaker v. Handel 795 F.2d 1136 1144 (3d Cir.) cert. denied 479 U.S. 986 107 S. Ct. 577 93 L. Ed. 2d 580 (1986); Friesen supra at 414 416. Accordingly defendant's motion for summary judgment on the fifth cause of action is hereby GRANTED.
VIII.
Plaintiff's sixth cause of action seeks relief for constitutional torts and civil rights violations. In order for an individual to recover for violations of such rights the actions must have been committed by the government. Rendell-Baker v. Kohn 457 U.S. 830 838 73 L. Ed. 2d 418 102 S. Ct. 2764 (1982). Never did Mares allege that Longmont was a state actor. Requiring an employee to submit to a drug test does not transform the employer into a state actor. See Greco v. Halliburton Co. 674 F. Supp. 1447 1450 (D. Wyo. 1987).
Plaintiff alleges that Longmont was acting under the color of state law by complying with the requirements of the Drug Free Workplace Act of 1988 41 U.S.C.A. SEC.(S) 701-706 (West Supp. 1991). Nowhere in this law does it require entities to engage in drug testing of employees. At best the federal government has encouraged such activity. Encouragement does not transform activity into state action. See Maher v. Roe 432 U.S. 464 475-76 53 L. Ed. 2d 484 97 S. Ct. 2376 (1977). Accordingly defendant's motion for summary judgment on the sixth cause of action is hereby GRANTED.
IX.
ACCORDINGLY it is hereby ordered:
1) Defendant's motion for summary judgment on plaintiff's first second third fourth fifth and sixth causes of action is hereby GRANTED.
2) The clerk of Court is directed to enter judgment in favor of defendant and against plaintiff on these causes of action.
3) The action and complaint are DISMISSED WITH PREJUDICE.
4) Each party is to bear her or its own costs.
Dated this 15 day of July 1991 at Denver Colorado.
JUDGMENT - July 15 1991 Filed
PURSUANT TO and in accordance with the Order Granting Motion for Summary Judgment entered July 15 1991 by the Honorable Sherman G.
Finesilver Chief Court it is
ORDERED that judgment is entered in favor of the defendant Conagra Poultry Company Inc. d/b/a Longmont Foods and against the plaintiff Carmela Mares on plaintiff's first second third fourth fifth and sixth causes of action and the action and complaint are DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that each party is to bear her or its own costs.