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DANIEL DiTOMASO, et. al., Plaintiffs
vs.
ELECTRONIC DATA SYSTEMS, et. al., Defendants
 
Case:
C.A. No. 87-CV-60320-AA
 
Location:
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
 
Date:
October 5, 1988, Decided and Filed
 
Author:
The Hon. Justice Plata
 

I. INTRODUCTION

On September 11, 1987, Plaintiffs Daniel DiTomaso, Herman Edwards, Kelvin Hunter, and James Tracz, commenced this action in the Circuit Court for the County of Oakland,against Defendants Electronic Data Systems (EDS) and Roche Biomedical Laboratories Inc., (Roche). Defendants timely removed the action based on diversity of citizenship jurisdiction to this District Court.

Plaintiffs all formerly employed by EDS as security guards were discharged in March of 1986 after their urinalysis tests conducted by Defendant Roche proved positive for use of cannabinoids the active ingredient in marijuana. In their thirteen count Complaint Plaintiffs aver that EDS (1) breached a covenant of good faith and fair dealing; (2) discharged Plaintiffs in violation of public policy; (3) intentionally inflicted emotional distress upon them; (4) was negligent; (5) discriminated against Plaintiffs in violation of the Michigan Handicappers Civil Rights Act; (6) violated the Elliott-Larsen Civil Rights Act; (7) invaded their right to privacy; and (8) defamed each Plaintiff's character. Maintaining that no genuine issue of material fact exists for the fact finders determination or alternatively that Plaintiffs have failed to state a claim upon which relief can be granted Defendant EDS requests in its motion that summary judgment be granted in its favor.

II. BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING

In Count I of Plaintiffs' Complaint they allege that: "Plaintiffs by reason of the covenant of good faith and fair dealing had the right reasonably to expect that if they performed their duties of employment to the best of their abilities they had the right to the benefit of just compensation fair treatment and the same or similar benefits and privileges as were accorded to other similarly situated employees of Defendant EDS." *fn1

It is well settled in Michigan that employment is presumptively terminable at the will by either the employer or the employee. *fn2 Because Plaintiffs have failed to plead that their employment contract with EDS was other than at-will Court must presume that their employment was at-will in nature. Michigan Courts do not charge an employer with an implied covenant to act in good faith in an at-will employment contract. As such Plaintiffs cannot rely on a judicially imposed covenant to transform an at-will contract to one for just cause. Accordingly Count I of Plaintiffs' Complaint must be DISMISSED.

III. DISCHARGE IN VIOLATION OF PUBLIC POLICY

Relying on article I Section 11 of the Michigan Constitution which guarantees every person security from unreasonable searches and seizures Plaintiffs contend in Count II of their Complaint that they were discharged in violation of public policy. Specifically they maintain that because Defendant had neither probable cause nor reasonable suspicion to believe that Plaintiffs were involved with drugs Defendants had no right to search Plaintiffs' bodily fluids or seize those fluids.

The Michigan Supreme Court in Suchodolski v. Michigan Consolidated Gas Company, *fn3 confirmed that a claim of discharge in violation of public policy is an extremely narrow and rarely recognized cause of action. Typically such a cause of action has been found to be implied where the alleged reason for the discharge was (1) the employee's failure or refusal to violate a law in the course of employment or (2) the employee's exercise of a right conferred by a well established legislative enactment. *fn4 Plaintiffs reliance on the Michigan Constitution is misplaced. Because EDS is a private corporation it is not governed by the constitutional dictates embodied in Article I Section 11 of the Michigan Constitution. *fn5 *fn6 Finding that Plaintiffs have failed to set forth a clearly articulated and well accepted statement of public policy which Defendant has violated Count II is DISMISSED.

IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In Count III and Count VII Plaintiffs aver that EDS intentionally inflicted emotional distress upon them by; (1) subjecting Plaintiffs to urinalysis; (2) failing to adequately administer the drug test; (3) labelling Plaintiffs as illegal drug users; and; (4) failing to keep the urinalysis confidential. The Restatement Commentary cited by the Michigan Supreme Court in Roberts v. Auto-Owners Ins. Co., *fn7 specifically states, that the law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. *fn8

In the instant case three of the four Plaintiffs admit having smoked marijuana. It is ironic that individuals who admit being illegal drug users now come before this Court contending that this label has inflicted distress which is so severe that no reasonable man could be expected to endure it. Irrespective of the confessions Plaintiffs have woefully failed to come forth with any evidence suggesting that the distress inflicted approaches the level contemplated by the Restatement drafters. Therefore relying on Celotex v. Catrett, *fn9 Defendant's Motion for Summary Judgment as to Counts III and VII is GRANTED.

V. NEGLIGENCE

In Count IV of their Complaint Plaintiffs set forth an action sounding in negligence maintaining that Defendant had a duty to perform the urinalysis fairly and scientifically; a duty allegedly breached. In Michigan an action in tort requires a breach of duty separate and distinct from a breach of contract. *fn10 The Michigan Supreme Court in Hart opined that "if a relationship exists which would give rise to a legal duty without enforcing the contract promise itself the tort action will lie otherwise not." *fn11 It is indisputable that Plaintiffs' positions with EDS were the only reason they were tested for use of illegal drugs. Without the employment contract the tests would never have occurred. In actuality Plaintiffs' claim is for wrongful discharge a cause of action which they chose not to plead. Finding that no independent action in tort exists Count IV of Plaintiffs' Complaint is DISMISSED.

VI. INVASION OF PRIVACY

In Count VI of their Complaint Plaintiffs aver that EDS by subjecting them to a urinalysis test invaded their privacy. Specifically Plaintiffs allege:

"The acts by Defendant EDS through its agents representatives or employees of subjecting Plaintiffs to a urinalysis test with the concomitant probing into Plaintiffs' personal lives unconnected with their duties as employees of Defendant EDS were an intrusion which was highly offensive to Plaintiffs and which would be highly offensive to any reasonable person. . ." *fn12

The tort of invasion of privacy has been divided into four separate types of claims. The four are: (1) intrusion upon plaintiff's seclusion or solitude or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation for the defendant's advantage of the plaintiff's name or likeness. *fn13

The first two forms are pertinent to this action. In Michigan to sustain an action for intrusion Plaintiff must prove; (1) an intrusion by defendant; (2) into a matter which Plaintiff has a right to keep private; and (3) by the use of a method which is objectionable to the reasonable person. *fn14 It is Plaintiffs' contention that their off duty illegal drug use is by right a private matter unless or until Defendant can show that it effects their work performance. With this Court disagrees.

The Michigan Court of Appeals in Erp v. Detroit, *fn15 noted that the right to be free from intrusion is not absolute. It held that such a right does not extend so far as to subvert those rights which spring from social conditions including business relations.

In the instant case it is undisputed that as guards Plaintiffs were responsible for maintaining security at their respective locations; a task which involved the safety and well being of other individuals. Plaintiffs were extensively trained in the operation of firearms and could be transferred to a facility requiring the use of firearms. *fn16 There is no question that EDS had a significant interest in assuring that their security officers were free from drug use prior to the formation of any reasonable suspicion. In fact, had an incident occurred, which one Plaintiff was unable to handle resulting in an injury to another EDS would likely be liable for failing to test its security personnel for potential drug use.

Lastly this Court finds no merit to Plaintiffs allegations that the method employed to secure the test results was objectionable to the reasonable person. Each Plaintiff admitted in deposition testimony that the urine sample was extracted in private with two male managers from the security department outside the bathroom stall to maintain the chain of custody of each sample. *fn17

Plaintiffs also claim that they are entitled to recovery under the second form of invasion of privacy; public disclosure of embarrassing private facts. To sustain an action founded on this theory plaintiffs must prove; (1) public disclosure of information; (2) that would be highly offensive to a reasonable person and of no legitimate concern to the public. *fn18 Each Plaintiffs' deposition testimony reveals that they are unable to identify anyone informed by EDS of the urinalysis results. *fn19 Finding that Plaintiffs have failed to come forth with a shread of evidence to support this claim it must fail. Accordingly Defendant's Motion for Summary Judgment regarding Count VI Invasion of privacy is GRANTED.

VII. MICHIGAN HANDICAPPERS CIVIL RIGHTS ACT

Contending that drug addiction is a handicap within the meaning of the Michigan Handicappers Civil Rights Act, M.C.L.A. SEC. 37.1103 Plaintiffs assert that EDS terminated their employment on the basis of the alleged condition of addiction of marijuana. Further Plaintiffs suggest that EDS violated, M.C.L.A. SEC. 37.1202(e) which provides:

"An employer shall not discharge or take other discriminatory action against an individual on the basis of physical or mental examinations that are not directly related to the requirements of the specific job."

To support their claim Plaintiffs merely state that "Defendant should not now be able to hide behind Plaintiffs conduct which would not require termination in order to claim that no violation of the Handicappers Act exists. Defendant terminated Plaintiffs for what they believed to be a handicap and may not now stand behind its error in support of its position." *fn20 However in their deposition testimony each Plaintiff denies any impairment or handicap resulting from drug use. *fn21 In fact their claims are based on the premise that their drug use did not in any manner effect their job performance.

VIII. RACE DISCRIMINATION

In their response to Defendant's Motion Plaintiffs voluntarily abandon their claim founded on race discrimination. As such Count V of their Complaint is DISMISSED.

IX. CONCLUSION

Viewing the evidence in a light most favorable to the Plaintiffs and for reasons delineated in this opinion Defendant's Motion to Dismiss or alternatively for Summary Judgment is GRANTED.

 
Notes:

*fn1 See Plaintiffs' Complaint at paragraph 18.

*fn2 Lynas v. Maxwell Farms 273 N.W.2d 315 (1937).

*fn3 316 N.W.2d 710 (1982).

*fn4 Id. at 711 712.

*fn5 The Michigan Supreme Court has expressly held that Article I Section 11, does not provide any greater protection than the Fourth Amendment to the United States Constitution. (People v. Catania, 398 N.W.2d 343 (1986)). The Fourth Amendment to the United States Constitution is wholly inapplicable to a search or seizure even an unreasonable one effected by a private individual not acting as an agent of the government or with the participation or knowledge of any government official. (United States v. Jacobsen, 104 S.Ct. 1652 (1984)).

*fn6 People v. Wagner, 320 N.W.2d 251 (1982).

*fn7 374 N.W.2d 905 (1985).

*fn8 372 N.W.2d 905 (1985) citing Restatement Torts 2d SEC. 46 comment j p. 77.

*fn9 106 S.Ct. 2548 (1986).

*fn10 Hart v. Ludwig, 79 N.W.2d 895 (1956).

*fn11 Id. at 898.

*fn12 See Plaintiffs' Complaint at paragraph 74.

*fn13 Lewis v. Dayton Hudson Corp., 339 N.W.2d 857 (1983) citing Beaumont v. Brown, 257 N.W.2d 522 (1977).

*fn14 Lewis 339 N.W.2d 857 (1983).

*fn15 167 N.W.2d 841 (1969).

*fn16 See Defendant's Exhibit M.

*fn17 See Exhibits E at 60 61; F at 55; G at 63-65; and H at 66 attached to Defendant's Motion for Summary Judgment.

*fn18 Ledsinger v. Burmeister, 318 N.W.2d 558 (1982).

*fn19 Plaintiff Ditomaso in his deposition at page 127 responded:

"Q. Can you tell me the name of any EDS representative who told anyone that your test result was positive?

A. No."

Plaintiff Tracz testified regarding confidentiality of his test results at page 108 of his deposition:

"Q. To your knowledge did EDS tell anyone?

A. Not to my knowledge."

Also see Edward's deposition at 99 and Hunter's deposition at 92-95.

*fn20 See Plaintiffs' response to Defendant's Motion at 7.

*fn21 See Exhibits E at 50-52; F at 92, 106; G at 93, 94 and H at 107 annexed to Defendant's Motion for Summary Judgment.