FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CV-11-466]
HONORABLE PAMELA HONEYCUTT, JUDGE.
& 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.
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
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.
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.
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.
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
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.
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 ...