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Spears v. Cardinal Health 200, LLC

Superior Court of Connecticut, Judicial District of Hartford, Hartford

August 17, 2016

Fredrick Spears
v.
Cardinal Health 200, LLC

          MEMORANDUM OF DECISION RE MOTION TO STRIKE

          A. Susan Peck, Judge Trial Referee.

         On November 10, 2015, the plaintiff, Fredrick Spears, filed a four-count complaint against the defendant, Cardinal Health 200, LLC. The defendant removed the action to federal court on the basis of diversity of jurisdiction. Thereafter, it was remanded to state court on the ground that complete diversity did not exist. Upon remand, on February 17, 2016, the plaintiff filed an amended complaint adding a fifth count alleging common-law wrongful termination in violation of public policy.

         The amended complaint contains the following factual allegations: The plaintiff is a black male who was hired as a Machine Operator in June 2010, by AeroMed. As a condition of his employment with AeroMed, the plaintiff was required to take and pass a urinalysis drug test, which he did. AeroMed required periodic urinalysis drug testing every six months and the plaintiff always passed. In November 2014, AeroMed was purchased by the defendant. Towards the end of November 2014, the acting president of AeroMed, Sherry Grey, announced to all of the production employees that the defendant was requiring another round of drug testing. Rather than performing urinalysis drug testing, the defendant performed hair follicle testing. Hair follicle testing can detect drug exposure from as far back as five to seven years prior to the test and has the potential to detect possible drug exposure from a time before the plaintiff began working for AeroMed, the predecessor to the defendant.

         Roughly fifteen employees in the plaintiff's department were required by the defendant to take this new form of drug test and, of the fifteen, at least seven results, including that of the plaintiff, came back positive for some type of drug. The plaintiff received the results on or about December 9, 2014, and on December 18, 2014, the plaintiff's employment with the defendant was terminated based on the positive test results, effective December 31, 2014. The plaintiff alleges that several of his black and/or Hispanic coworkers were also terminated for positive test results; however, similarly situated white coworkers with positive test results were not terminated.

         Pending before the court is the defendant's motion to strike counts two, three, four, and five of the amended complaint on March 17, 2016. This matter has been fully briefed by the parties and was argued at short calendar on May 2, 2016.

         I

         MOTION TO STRIKE STANDARD

         " The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) JP Morgan Chase Bank, N.A. v. Winthrop Properties, LLC, 312 Conn. 662, 670, 94 A.3d 622 (2014). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

         II

         DISCUSSION

         Counts Two and Three--Violations of § § 31-51u and 31-51x

         The court granted the motion to strike counts two and three in open court at the time of oral argument on May 2, 2016, concluding that the allegations set forth therein fail to support a claim on which relief may be granted because the statutes upon which these counts rely assume drug testing by urinalysis, and not the hair analysis drug testing that was performed. See Schofield v. Loureiro Engineering Associates, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-14-6024702-S (May 22, 2015, Roraback, J.) (60 Conn.L.Rptr. 419, 420, ) (allegations and arguments almost identical to the present case).

         Count Four--Invasion of Privacy

         According to the Restatement, " [o]ne who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other." 1 Restatement (Second), Torts § 652A (1977). In Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127-28, 448 A.2d 1317 (1982), the Supreme Court listed four categories of invasion of privacy, the " unreasonable intrusion upon the seclusion of another, " being one of them. Since Goodrich, the common-law tort of invasion of privacy has been, and continues to be, applied in the employment context. " One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to ...


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