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Jim Ritchie; Mike Truhlicka; Gary Wergin; Louis Burchfield; Charles Jaudon; Scott Kobza; Mitch Gabel; Don Gehle, Appellants
vs.
Walker Manufacturing Company, Appellee.
 
Case:
No. 91-1307
 
Location:
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
 
Date:
October 14, 1991, Submitted
 
Attorneys:
Counsel who presented argument on behalf of the appellant was Patricia A. Knapp Lincoln Nebraska. Thom K. Cope Lincoln Nebraska appeared on appellants brief.
Counsel who presented argument on behalf of the appellee was William R. Sullivan Jr. Chicago Illinois. Carl E. Johnson and Kathryn M. Hartrick Chicago Illinois and Neal Stenberg Lincoln Nebraska appeared on appellee's brief.
 
Court:
Before FAGG, Circuit Court; HEANEY, Senior Circuit Court and BOWMAN Circuit Court.
 
Author:
The Hon. Justice Heaney
 

After being terminated from their jobs for failing a drug test Jim Ritchie and several other employees (collectively referred to as "Ritchie") of Walker Manufacturing Company ("Walker") commenced this action in Nebraska state court. In his complaint Ritchie alleged that his termination violated his employment contract as well as state and federal constitutional and statutory provisions. Walker removed the case to federal court pursuant to 28 U.S.C. SEC. 1441. *fn1 Subsequent to removal the district court granted Walker's motion to dismiss the plaintiffs' complaint under Fed. R. Civ. Pro. 12(b)(6) for failure to state a claim upon which relief can be granted. Ritchie appeals. We affirm.

BACKGROUND

Ritchie's five count complaint alleged that 1) Walker breached its employment contract with him 2) Walker violated Nebraska's and the United States' public policies against unreasonable search and seizures as embodied in the Nebraska and United States Constitutions 3) Walker violated Nebraska's statutory right to privacy 4) Walker deprived Ritchie of rights secured by the federal Constitution and Neb. Rev. Stat. SEC. 20-148 and 5) Walker deprived Ritchie of rights secured by the Nebraska Constitution and section 20-148. The district court dismissed each of these claims pursuant to Rule 12(b)(6).

With respect to Ritchie's employment contract claim the district court focused on two provisions of Walker's alcohol and drug abuse program which provide:

Employees will be subject to discharge in connection with this policy for:

2. Being under the influence of alcohol or drugs on company property or on company time;

3. Selling or using alcohol or drugs on company property or on company time;

4. Failure to consent to a drug or alcohol test when there is probable cause; and/or

5. Conviction of a drug related crime. and

The company may require a blood test urinalysis or other drug/alcohol screening of persons suspected of using or being under the influence of a drug or alcohol . . . Positive results on or failure to consent to a drug or alcohol test may result in discharge.

Ritchie did not contest Walker's conclusion that he violated the company's drug policy. Accordingly the district court ruled that Ritchie could not prevail on a breach of contract claim.

The district court next dismissed Ritchie's public policy claim. According to the district court Nebraska's public policy anticipates and condones "the discharge of employees who use drugs or refuse to consent to a test to detect such use" see Neb. Rev. Stat. SEC.(s) 48-1903 and 48-1910 (1988) and "therefore the conduct of [Walker] appears to be consistent with rather than contrary to

a clear legislative mandate of public policy. " As for constitutionally-inspired public policy the district court held that the federal and state constitutions only prohibit state actors from conducting unreasonable search and seizures and thus did not apply to Walker a private employer. See Jackson v. Metropolitan Edison Co. 419 U.S. 345 349 42 L. Ed. 2d 477 95 S. Ct.449 (1974); State v. Jolitz 231 Neb.254 435 N.W.2d 907 911-12 (Neb.1989).

The district court then decided that Nebraska's statutory right to privacy see Neb. Rev. Stat. SEC. 20-203 (1988) did not apply to a bodily invasion. The district court reached this conclusion based on a literal reading of the statute which protects a "person in his or her place of solitude or seclusion " but which does not equate such protection with ensuring bodily integrity. Id.

The district court finally ruled that neither Ritchie's fourth nor fifth causes of action could survive a 12(b)(6) motion for dismissal. According to the district court in order for Ritchie to recover damages for violating his federal and state constitutional rights there must be state action which is missing here. See Jackson 419 U.S. at 349; Jolitz.435 N.W.2d at 911-12. *fn2

DISCUSSION

In reviewing a 12(b)(6) dismissal we follow of course the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Conley v. Gibson 355 U.S. 41 45-46 2 L. Ed. 2d 80 78 S. Ct. 99 (1957).

A. Constitutional Causes of Action

Ritchie's second cause of action alleges that his discharge violated public policy. See Schriner v. Meginnis Ford Square Ltd. 228 Neb.85 421 N.W.2d 755 759 (Neb.1988) (recognizing public policy exception to the employment-at-will rule). More specifically he contends that Walker violated the federal and state constitutional prohibitions against unreasonable search and seizures *fn3 in contradiction of a series of decisions holding drug tests unconstitutional. See e.g. Willner v. Thornburgh 738 F.Supp.1 (D.D.C. 1990); Beattie v. City of St. Petersburg Beach 733 F.Supp.1455 (M.D. Fla. 1990).

In relying on these cases and the public policy that emanates from them Ritchie fails to note that each of the cases involves state action which is not present here. Without state action Ritchie cannot claim a violation of the federal fourth amendment. See Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602 614 103 L. Ed. 2d 639 109 S. Ct. 1402 (1989). The Nebraska Constitution's prohibition against unreasonable search and seizures is subject to the same limitation. See Jolitz 435 N.W.2d at 911-12. Accordingly the district court correctly dismissed Ritchie's second cause of action.

B. Statutory Causes of Action

Ritchie asserts that Nebraska statutory law prohibits private employers in non-sensitive *fn4 industries from discharging non-sensitive employees with impeccable work records for refusal to take a drug test or for failing to pass a drug test taken under the threat of discharge. We do not believe that Nebraska statutory law prohibits such discharges if the employer has probable cause to believe that the employees are using or under the influence of drugs on company property or on company time as was the case here. *fn5

Three sets of Nebraska statutes guide this conclusion: Neb. Rev. Stat. SEC.(s) 20-148 20-201-211 and 48-1901-1910 (1988).

1. Section 20-148

Ritchie's fourth cause of action claims that section 20-148 entitles him to sue Walker for depriving him of rights recognized under the first fourth fifth and fourteenth amendments to the United States Constitution. Ritchie's fifth cause of action similarly alleges that section 20-148 entitles him to sue Walker for infringing analogous rights under the Nebraska constitution. *fn6 The district court dismissed these causes of action based on the absence of state action.

Section 20-148 reads as follows:

(1) Any person or company as defined in section 49-801 except any political subdivision who subjects or causes to be subjected any citizen of this state or other person within the jurisdiction thereof to the deprivation of any rights privileges or immunities secured by the United States Constitution or the Constitution and laws of the State of Nebraska shall be liable to such injured person in a civil action or other proper proceeding for redress brought by such person.

Neb. Rev. Stat. SEC. 20-148 (1988). On its face this statute would appear to support Ritchie's claims. It does not require state action as a predicate element for claiming a constitutional deprivation. It clearly states that "any . . . company . . . who subjects . . . any citizen of this state . . . to the deprivation of any rights privileges or immunities secured by the United States Constitution or the Constitution and laws of the State of Nebraska shall be liable to such injured person in a civil action . . . ."

Despite the apparent clarity of this statute for several reasons we agree with the district court's dismissal of Ritchie's claims under section 20-148. First in the words of the district court this section does not purport to create new causes of action or rights but merely provides a civil avenue of recovery for violations of constitutional or statutory civil rights provisions. Section 20-148 does not create a civil remedy for conduct which would violate the concept or spirit of a constitutional or statutory provision but for the absence of a jurisdictional fact. Rather it provides a civil remedy for violations of constitutional or statutory right. Therefore the plaintiffs can succeed on these causes of action only if the pertinent constitutional provisions were actually violated.

Jim Ritchie et al. v. Walker Mfg. Co. No. CV90-L-329 (D. Neb. Jan. 4 1991). Second as previously discussed and as the above statement implies absent state action Ritchie's constitutional rights have not been violated. Third and perhaps most importantly the statute's legislative history indicates that its purpose was limited. Summarizing section 20-148 its sponsor explained that "the bill is designed to allow people who have complaints of discrimination to go into court rather than being compelled to go only through the Equal Opportunity Commission." Floor Debate L.B.66 Judiciary Committee 86th Leg. 1st Sess. 434-35 (Feb. 11 1977). Thus the intent of section 20-148 is to allow plaintiffs to bypass the time-consuming administrative procedures of the Equal Employment Opportunity Commission. This legislative history demonstrates that the statute does not sweep as far as it first appears. Indeed section 20-148 merely usurps the jurisdiction of the EEOC which by statute already entertains claims charging private discrimination. *fn7 Conversely no analogous state or federal statute reaches the private search and seizure involved here. We thus agree with the district court's conclusion that section 20-148 does not apply to drug-testing by private employers.

2. Sections 20-201-211

While Ritchie cites a block of statutes to support his right to privacy claim we find that the only relevant one is Neb. Rev. Stat. SEC. 20-203. That statute provides:

Any person firm or corporation that trespasses or intrudes upon any natural person in his or her place of solitude or seclusion if the intrusion would be highly offensive to a reasonable person shall be liable for invasion of privacy.

Although we agree with the district court that this statute does not provide Ritchie's with a sustainable cause of action our reasoning differs from that of the district court.

Noting that section 20-203 "specifically limits the tort to a place" and that no Nebraska law defines a person's body as a "place " the district court ruled that section 20-203 does not apply to drug testing. We do not agree with this analysis.

The legislative history behind section 20-203 specifically recognized offices as a place of solitude or seclusion:

This section is premised upon a place or a physical location to which one is reasonably entitled to a sense of privacy a home an office a restroom a telephone booth that you are occupying or the like and it says that where there is a physical intrusion into your solitude and seclusion you may sue for damages.

Floor Debates L.B. 394 Neb. Leg. 86th Sess. 2368 (March 29 1979). Nebraska's statutory right of privacy therefore extends to Ritchie's place of employment and requiring an employee to submit to drug-testing certainly infringes upon a worker's sense of privacy. *fn8 To recover under section 20-203 however the intrusion upon Ritchie's privacy must "be highly offensive to a reasonable person." Neb. Rev. Stat. SEC. 20-203. This is not the case here.

To detect drug use among its employees Walker hired an investigator who identified-Ritchie as using or being under the influence of drugs on company property or company time. In other words before requiring Ritchie to take a drug test Walker reasonably believed that he was violating its drug policy. This approach conformed with Walker's drug-testing policy which specifically limits drug-testing to employees who are "suspected of using or being under the influence of a drug."

Walker's drug-testing policy and its actions to discharge employees who are using or under the influence of drugs on company property or on company time reflect Nebraska law which expressly permits the dismissal of an employee who fails a drug test and of "any employee who refuses the lawful directive of an employer to provide a body fluid." See Neb. Rev. Stat. SEC.(s) 48-1903 and 48-1910 (1988). Indeed Section 48-1903 *fn9 details the drug-testing procedures which an employer must follow before disciplining an employee for drug use. Ritchie does not contend that Walker violated these procedures. Thus not only did Walker's drug-testing policy incorporate the probable cause typically required to justify an invasion of an individual's liberty it also conformed with Nebraska's statutorily-imposed drug-testing procedures. Given these facts Walker's drug-testing of Ritchie cannot be considered unreasonable. Therefore Ritchie's claim that Walker violated his right of privacy cannot survive 12(b)(6) review.

Accordingly we affirm the district court's dismissal of Ritchie's claims.

 
Notes:

*fn1 Walker removed the action on several grounds: 1) complete diversity of citizenship existed between the plaintiffs who were all citizens of Nebraska and the defendant which is incorporated in Delaware and has its principal place of business in Wisconsin; 2) the federal district court had pendent jurisdiction of Ritchie's state law claims because Ritchie's federal claims and state claims derive from a common nucleus of operative fact; and 3) because Ritchie seeks relief under the United States Constitution the district court had federal question jurisdiction.

*fn2 Ritchie appeals the dismissal of counts two through five but does not appeal the dismissal of the first count. Ritchie also appeals the district court's refusal to certify the question of whether Neb. Rev. Stat. SEC. 20-148 creates a cause of action for constitutional violations by private employers. After reviewing the certification issue we affirm the district court's decision. See Hatfield v. Bishop Clarkson Memorial Hosp. 701 F.2d 1266 1267-68 (8th Cir.1983).

*fn3 Article 1 section 7 of the Nebraska Constitution mirrors the federal fourth amendment.

*fn4 "Non-sensitive" summarizes Ritchie's claim that he did not have special duties of particular consequence and that he was not involved in jobs affecting public safety. See generally Skinner 489 U.S. at 606-608 (discussing relevance of job requirements)

*fn5 A Walker-hired investigator detected Ritchie's drug use and reported it to the company. Ritchie has not contested the investigator's conclusion that he violated Walker's drug policy.

*fn6 Article I section 1 of the Nebraska Constitution states:

All persons are by nature free and independent and have certain inherent and inalienable rights; among these are life liberty the pursuit of happiness and the right to keep and bear arms for security or defense of self family home and others and for lawful common defense hunting recreational use and all other lawful purposes and such rights shall not be denied or infringed upon by the state or any subdivision thereof. To secure these rights and the protection of property governments are instituted among people depriving their just powers from the consent of the governed.

Article I section 3 provides:

No person shall be deprived of life liberty or property without due process of law.

Article I section 7 states:

The right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the person or thing to be seized.

*fn7 See 42 U.S.C. SEC.(s) 2000e-2 through 2000e-5 (1988).

*fn8 As the 5th Circuit explained:

There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed its performance in public is generally prohibited by law as well as social custom.

National Treasury Employees Union v. Von Raab 816 F.2d 170 175 (5th Cir.1987) aff'd and rev'd 489 U.S. 656 103 L. Ed. 2d 685 109 S. Ct. 1384 (1989).

*fn9 This section provides:

Any results of any test performed on the body fluid or breath specimen of an employee as directed by the employer to determine the presence of drugs or alcohol shall not be used to deny any continued employment or in any disciplinary or administrative action unless the following requirements are met:

(1) A positive finding of drugs by preliminary screening procedures has been subsequently confirmed by gas chromatography-mass spectrometry or other scientific testing technique which has been or may be approved by the department; and

(2) A positive finding of alcohol by preliminary screening procedures is subsequently confirmed by either;

(b) Gas chromatography with a flame ionization detector or other scientific testing technique which has been or may be approved by the department; or

(b) A breath-testing device operated by a breath-testing-device operator. Nothing in this subdivision shall be construed to preclude an employee from immediately requesting further confirmation of any breath-testing results by a blood sample if the employee voluntarily submits to give a blood sample taken by qualified medical personnel in accordance with the rules and regulations adopted and promulgated by the department. If the confirmatory blood test results do not confirm a violation of the employer's work rules any disciplinary or administrative action shall be rescinded.

Except for a confirmatory breath test as provided in subdivision (2)(b) of this section all confirmatory tests shall be performed by a clinic hospital or laboratory which is licensed pursuant to the federal Clinical Laboratories Improvement Act of 1967 42 U.S.C. 263a or which is accredited by the College of American Pathologists.