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Pingatore v. Union Pacific Railroad Co.

Court of Appeals of Arkansas, Division I

September 20, 2017



          Easley & Houseal, PLLC, by: B. Michael Easly, for appellant.

          Friday, Eldredge & Clark, LLP, by: H. Wayne Young, Jr., for appellee Union Pacific Railroad Company.

          Williams & Anderson, PLC, by: Heather G. Zachary and David M. Powell, for appellee Denis Hatley.

          BRANDON J. HARRISON, Judge.

         This summary-judgment case involves an employee's privacy rights in the employment drug-testing context. Larry Pingatore has been employed by Union Pacific Railroad (UP) since at least 2002. He worked as a signalman in California for UP. He took a two-month leave of absence in 2002 and a six-month leave in 2005. In 2005 Pingatore went through inpatient substance-abuse treatment for alcoholism. After that absence, the company began drug testing him more frequently.

         A third leave of absence was taken in 2007, for four months, when Pingatore on his own initiative participated in an employee-assistance program for alcoholism. An element of the program was a three-year follow-up plan, which required that Pingatore be tested six times during the first year, nine times the second year, and six times the third year. Pingatore did not sign any consent forms related to the testing. But under UP's voluntary-referral policy, if Pingatore did not follow the "rehabilitation instructions, " then he would have been placed in a medically disqualified status. UP's drug-and-alcohol policy treats an employee's voluntary "referral and subsequent handling, including counseling and treatment, as confidential, subject to the exceptions set forth in the EAP policy and procedures." Drug testing resumed after Pingatore returned to work; he took approximately five tests in seven months.

         Pingatore was injured on the job in April 2008 and was granted another leave until November 2009. When he returned to work UP relocated him from California to West Memphis, Arkansas, where he became a security guard because he could no longer work as a signalman. His duties at the West Memphis facility included counting trucks entering and leaving the facility in a one-person guard shack. Some testimony stated that as many as 1400 truck drivers go in and out of the facility each day.

         After his arrival in West Memphis, UP drug tested Pingatore more frequently. He was required to take eighteen tests in eleven months (from November 2009 to October 2010), which was more than the company's assistance plan called for. UP maintained that the frequency was caused by "the computer" trying to catch Pingatore up on the tests he had missed while he was out for his work-related injury.

         Most of the Arkansas-based urine tests were administered by a third-party contractor at Pingatore's work site. The contractor was Alcohol Drug Testing Services; the certified tester's name was Dennis Hatley. Pingatore claimed that it was apparent to anyone who was present that he was undergoing a drug test and that it was not uncommon for truck drivers to request to use the bathroom while a test was being administered. According to Pingatore, some truck drivers started referring to him as "pothead" because of the frequency and number of tests that were administered. On one occasion a coworker would rev his engine up when Pingatore would walk by and would say, "You're a little jumpy, aren't you?" He maintained that the testing was not done discretely because truck drivers and others would come into the shack while tests were being administered, Hatley would wear a white lab coat when he performed the tests, Hatley's vehicle was distinctive, and Hatley (and Pingatore's supervisor) told people that a drug test was underway. Pingatore felt that the tests were administered in a public place as a part of an effort to get rid of him because he had complained. UP maintained that Pingatore provided urine samples privately in the restroom, that the collector did not generally observe the test, that managers have discretion in the setting and time of day to test, and that Pingatore did not object to them. The last test was administered in October 2010. Pingatore never tested positive and fully cooperated with the railroad's employee-assistance program.

         Pingatore sued Union Pacific and Hatley (individually) in August 2011, alleging that they had invaded his privacy and defamed him. Summary judgment was granted on the defamation claims in November 2013. The remaining claims were dismissed with prejudice in a second summary-judgment order entered in April 2016. Pingatore appeals the dismissals.


         Summary judgment may be granted by a circuit court when there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Patrick v. Tyson Foods, Inc., 2016 Ark.App. 221, at 3, 489 S.W.3d 683, 688 (internal citations omitted). Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and ...

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