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applying Johnson rationale to dismiss plaintiff's claim for negligent discharge against employer based on results of breathalyser test administered in unreliable manner
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CIVIL ACTION NO. 03-2024 SECTION "N" (4)
December 23, 2003
ORDER AND REASONS
Before the Court are (1) Defendant Diamond Offshore Management Company's Partial Motion to Dismiss (Rec. Doc. No. 6) and (2) the Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted filed by Defendant Civigenics, Inc., d/b/a Secon (Rec. Doc. No. 7). As stated herein, both motions are GRANTED IN PART AND DENIED IN PART. This ruling is without prejudice to Plaintiff's right to amend his petition within twenty (20) calendar days from entry of this Order. Should Plaintiff undertake to amend his petition in accordance with this Order, Plaintiff is directed to file a superceding complaint that includes the allegations in its original petition on which Plaintiff continues to rely, as well as Plaintiffs amendments.
Background
Plaintiff is a former employee of Defendant Diamond Offshore Management Company ("Diamond"). Plaintiff was discharged on or about June 1, 2002, after he tested positive and over the allowable limits for alcohol. Defendant Civigenics, Inc., d/b/a Secon ("Secon"), was retained by Diamond to administer the breath analysis test to Plaintiff. Plaintiff alleges the test lacked reliability and that those performing the test knew or should have known that the test was unreliable. Plaintiff further contends that Diamond knew that the test had been performed in an unreliable manner.With respect to Diamond, Plaintiff appears to assert the following: (1) that Diamond discriminated against him on the basis of race by terminating his employment for failing a breath analysis test, while allowing Caucasian employees, who had not previously complained of overtime pay issues, but had tested over the allowable limits, to remain employed; (2) that Diamond terminated him in retaliation for his filing of a race discrimination suit against it in 1996; (3) that Diamond failed to properly pay him overtime in violation of his rights under the Fair Labor Standards Act (FLSA) and Louisiana law; (4) that Diamond terminated him in retaliation for his complaints pertaining to overtime pay; (5) that Diamond terminated him in retaliation for "threatening to advise the labor board of the various states and federal government of the infractions committed by Diamond"; (6) that Diamond negligently discharged him based on a breath analysis test when Diamond knew or should have known that the test was unreliable; and (7) that Diamond intentionally inflicted Plaintiff with emotional distress by insisting that Plaintiff's blood alcohol level was greater than the legal limit, despite its knowledge that the test had been performed in an unreliable manner. With its motion, Diamond seeks dismissal of all of Plaintiff's claims, except his claims for overtime under the FLSA and retaliation for complaining of a failure to pay overtime under the FLSA.
Id. at ¶¶ 7-8.
Id. at ¶ 8.
Id. at ¶ 6.
Id. at ¶ 4.
Id. at ¶ 9.
Id. at ¶¶ 3-4, 10.
Id. at ¶¶ 4, 10.
Regarding Secon, it appears that Plaintiff seeks to assert a negligence claim and an intentional infliction of emotional distress claim. Plaintiff argues that the persons performing the breach analysis test knew or should have known that the test was unreliable. Additionally, as with Diamond, Plaintiff argues that Secon intentionally inflicted him with emotional distress by insisting that his blood alcohol level was greater than the legal limit, despite its knowledge that the test had been performed in an unreliable manner. Assuming Plaintiff's factual allegations are true, Secon argues that Plaintiff has no right of recovery against it and seeks dismissal from this suit.
Id. at ¶¶ 2-3, 10.
Id.
Id.
Law and Analysis
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief" To satisfy this requirement, the statement must provide the defendant with "fair notice of what the plaintiffs claim is and the grounds upon which it rests." Swierkiewicz v. Sorema, 534 U.S. 506, 511, 122 S.Ct. 992, 998 (2002) (internal citations omitted); see also Christopher v. Harbury, 536 U.S. 403, 416, 122 S.Ct. 2179, 2187 (2002) (the elements of the plaintiffs claim(s) "must be addressed by allegations in the complaint sufficient to give fair notice to a defendant").Given this simplified notice pleading standard, motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure are "viewed with disfavor and [are] rarely granted." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (internal citations omitted). Further, a Rule 12(b)(6) motion to dismiss should be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" in the complaint. Swierkiewicz, 534 U.S. at 514, 122 S.Ct. at 998 (internal citations omitted); see also Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999) ("dismissal will not be affirmed if the allegations support relief on any possible theory") (internal citations omitted). In making this determination, the Court "must accept all well-pleaded facts as true, and . . . view them in the light most favorable to the plaintiff." Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir.), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279 (1986). "All questions of fact and any ambiguities in the controlling substantive law must be resolved in the plaintiffs favor." Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001). Finally, if the complaint "fails to specify the allegations in a manner that provides sufficient notice," a motion for more definite statement, pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, is appropriate. Swierkiewicz, 534 U.S. at 514, 122 So. Ct. at 998.
I. Claims Against Diamond Offshore Management Company
A. Title VII Claims of Race Discrimination and Retaliation for Filing of 1996 Race Discrimination Suit
Courts do not have jurisdiction over Title VII claims for which the party seeking relief has not exhausted administrative remedies. See 42 U.S.C. § 2000e-5; National Ass'n of Gov't Employees v. City Pub. Serv. Bd of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994); Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1279 (5th Cir. 1994). Here, Plaintiff has not alleged that he has filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Thus, to the extent that Plaintiff seeks to assert a claim for race discrimination under Title VII, the Court does not have jurisdiction over that claim and, therefore, dismisses it.
With respect to Plaintiffs claim of retaliation for the 1996 race discrimination suit, the Fifth Circuit has recognized an exception to this exhaustion requirement with certain retaliation claims asserted under Title VII. Specifically, it has held that a "district court has ancillary jurisdiction" over a retaliation claim growing out of an earlier "administrative charge that is properly before the Court." Gupta v. East Texas State Univ., 654 F.2d 411, 413-14 (5th Cir. 1981) (Unit A); see also Gottlieb v. Tulane Univ. of Louisiana, 809 F.2d 278, 283-84 (5th Cir. 1987). Practicality and policy considerations justify such a rule because retaliation claims often are based on actions allegedly resulting from the filing of a complaint with the EEOC. Gupta, 654 F.2d at 414; Gottlieb, 809 F.2d at 284. Such ancillary jurisdiction only applies, however, when the retaliation claim arises out of a properly filed administrative claim that is presently and properly pending before the Court. See Barrow v. New Orleans Steamship Ass'n, 932 F.3d 473, 479 (5th Cir. 1991) (because one discrimination claim was untimely and the other was not presented to EEOC, retaliation claim was not attached to claim properly before the court); Jones v. United States Postal Service, 2000 WL 341254, *2-3 (N.D. Miss. 2000) (court had jurisdiction over retaliation claim because it was based on an EEOC complaint that was properly before the Court).
In Jones, 2000 WL 341254 at *3, the Court explained this exception to the exhaustion requirement as follows:
In other words, if a plaintiff . . . has filed an EEO complaint and his employer retaliates against him for filing it, the plaintiff may pursue that retaliation claim in federal court without first exhausting his administrative remedies so long as the original EEO complaint is properly before the Court.
Here, the 1996 discrimination suit was settled and, thus, is no longer pending before this Court. Accordingly, it offers no basis of jurisdiction for Plaintiff's retaliation claim. For this reason, Plaintiff's Title VII claims are dismissed.
B. Claims of Race Discrimination Under Louisiana Law
Plaintiff's state law discrimination claim also suffers from procedural defects. Specifically, Louisiana Revised Statute 23:303(C) provides:
A plaintiff who believes he or she has been discriminated against, and who intends to pursue court action shall give the person who has allegedly discriminated written notice of this fact at least thirty days before initiating court action, shall detail the alleged discrimination, and both parties shall make a good faith effort to resolve the dispute prior to initiating court action.
Compliance with the notice component of this statute requires written notice, within thirty days before filing suit, of the Plaintiff's intent to pursue court action and the details of the alleged discrimination. See Trahan v. Lowe's, 2002 WL 1560272 at *6 (E.D. La.); Dunn v. Nextel South Corp., 207 F. Supp.2d 523, 524 (M.D. La. 2002); see also Parquet v. Universal Health Servs., Inc., 2003 WL 145429 at *4 (E.D.La.). Failure to satisfy this notice requirement, unless the Plaintiff has filed a charge of discrimination regarding the same conduct with the EEOC, warrants dismissal without prejudice. See Legania v. East Jefferson Gen'l Hosp. Dist. No. 2, 2003 WL 21277127, at *4-5 (E.D. La.); Dunn, 207 F. Supp.2d at 524.
Filing a charge of discrimination with the EEOC within the appropriate time period has been found to accomplish the same result as the written notice required by La.R.S. 23:303(C). See Trahan, 2002 WL 1560272 at *6; Snear v. Turnbull Cone Baking Co. of Louisiana, 1994 WL 34031 (E.D. La. 1994).
In his opposition memorandum, Plaintiff appears to suggest that an unemployment claim he filed with the State of Texas satisfies the notice requirement found in La.R.S. 23:303(C). Plaintiff's complaint, however, does not contain this assertion. In any event, Plaintiff's statement on this point does not inform the Court when the unemployment claim was filed. It also does not demonstrate that the unemployment claim sufficiently advised Diamond of Plaintiff's intent to initiate court action on his state law discrimination claim. Thus, as presently pled, Plaintiff's state law race discrimination claim is dismissed.
C. Failure to Pay Overtime
Diamond has not sought dismissal of Plaintiff's claim for failure to pay overtime asserted under the PLS A. Rather, it argues that Louisiana law does not mandate payment of overtime wages. The Court agrees. See Barrois v. Hilton Title, 1996 WL 312063 at *1 (E.D. La.) (employee's right to overtime wages is governed exclusively by the FLSA; there is no Louisiana state law requiring payment of overtime wages); see also Odom v. Respiratory Care, Inc., 754 So.2d 252, 256 (La.App. 1 Cir. 1999) (payment of overtime wages governed by FLSA, not La.R.S. 23:631). Hence, the Court grants Diamond's motion to dismiss with respect to this claim.
To the extent that Plaintiff seeks recovery of regular wages, not paid in accordance with La.R.S. 23:631, and resulting penalties under La.R.S. 23:632, Plaintiff's complaint does not provide adequate notice of that claim. Should Plaintiff wish to pursue that claim further, the Court, pursuant to Rule 12(e), requires that he amend his petition to sufficiently identify the claim and the grounds on which it rests.
D. Retaliation Claims Asserted Under Louisiana Law
Plaintiff's complaint states that he was terminated because he demanded overtime pay and "threaten[ed] to advise the labor board of the various states and federal government of the infractions committed by Diamond." He also contends that he was discharged in retaliation for the 1996 race discrimination suit that he filed against Diamond. As previously stated, Diamond does not seek dismissal of Plaintiff's claim of retaliation for failure to pay overtime wages under the PLS A. Diamond disagrees, however, that Plaintiff can maintain a similar retaliation claim under Louisiana law. Apparently addressing Plaintiff's assertion that he was discharged in retaliation for his 1996 race discrimination suit, Diamond further contends that the Louisiana Employment Discrimination Law, La.R.S. 23:301, et seq., does not provide a cause of action for retaliation. Finally, though recognizing that Louisiana's Whistleblower Protection Act, La.R.S. 23:967, protects certain activities from retaliation, Diamond contends the prerequisites to suit under that statute are not satisfied here.
Complaint at ¶¶ 4, 9.
Id. at ¶ 8.
Louisiana's Whistleblower Protection Act, La.R.S. 23:967, provides, in pertinent part:
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of the law.
Because Louisiana law does not mandate payment of overtime wages, the Court agrees that Diamond's failure to pay those wages does not constitute a violation of state law. Thus, Diamond's alleged retaliation against Plaintiff for threatening to report that action does not state a claim under La.R.S. 23:967(A)(1). The Court therefore grants Diamond's motion to dismiss insofar as it seeks dismissal of that particular retaliation claim.
The Court notes that Paragraph 6 of Plaintiff's petition indicates that he made a demand for overtime pay "through the United States Department of Labor." It is not clear from Plaintiff's petition, however, whether Plaintiff contacted the Department of Labor before or after his discharge. If Plaintiff was discharged after the Department of Labor became involved, the provisions of La.R.S. 23:967(A)(2) arguably may be implicated. Neither party, however, addressed this particular issue in their memoranda. In any case, if Plaintiff does intend to pursue such a claim, the Court finds it appropriate, pursuant to Rule 12(e), to require Plaintiff to amend his petition to provide Diamond and the Court with adequate notice of the claim and the grounds on which it rests.
With respect to Plaintiff's allegations of retaliation based on his 1996 race discrimination suit against Diamond, the Court notes that retaliation for such actions is not addressed in the provision of the Louisiana Employment Discrimination Law dealing with race discrimination, La.R.S. 23:332. Prior to 1997, such claims apparently were actionable under the retaliation provision of the Louisiana Human Rights Act, La.R.S. 51:2256, which made it unlawful for any person to retaliate against someone opposing unlawful employment discrimination. See Miller v. Blanchard, 2002 WL 31819122 at *2 (E.D. La.); Johnson v. Integrated Health Servs., Inc., 2002 WL 31246762 at * 2 (E.D. La.); Trahan, 2002 WL 1560272 *8-9. Because the provisions of the Human Rights Act making employment discrimination were repealed and replaced, in 1997, with the Louisiana Employment Discrimination Law, La.R.S. 23:301, et seq., however, the anti-retaliation provision of the Louisiana Human Rights Act no longer applies to unlawful employment discrimination. Miller, 2002 WL 31819122 at *2; Johnson, 2002 WL 31246762 at *2; Trahan, 2002 WL 1560272 at *S-9. Nonetheless, if the prerequisites to Louisiana's Whistleblower Protection Act are satisfied, such retaliation claims presently can be asserted under that statute. See Trahan, 2002 WL 1560272 *9 ("whistle-blower" statute provides a cause of action for redress of retaliatory conduct by employer resulting from employee's opposition of sexual job discrimination); see also Kimble v. Georgia Pacific Corp., 245 F. Supp.2d 862, 876 n. 22 (M.D. La. 2002) ("Plaintiff's action for redress under Louisiana state law is not under the Louisiana Employment Discrimination law, but under the "whistle blower" statute located at La.R.S. 23:967(A); aff'd, 67 Fed. Appx. 248, ___ F.3d ___, 2003 WL 21145752 (5th Cir. 2003).
If Plaintiff's 1996 race discrimination suit against Diamond asserted that he was discharged because of his race, it seems very likely that Plaintiff's suit "disclose[d] . . . a workplace act . . . that [was] in violation of state law," as contemplated by La.R.S. 23:967(A)(1). Additionally, though not addressed by either party, the Court does not rule out the possibility that Diamond's alleged retaliation based on the 1996 race discrimination suit also may be actionable under La.R.S. 23:967(A)(2), because Plaintiff would have provided information to the EEOC, if a complaint was filed with that agency. Accordingly, the Court declines to grant Diamond's motion to dismiss with respect to Plaintiff's possible state law claim of retaliation based on the 1996 race discrimination suit at this juncture. Nonetheless, the Court does not find Plaintiff's complaint, in its present form, to sufficiently identify this state law retaliation claim and, moreover, the specific grounds giving rise to that claim. Accordingly, should Plaintiff desire to pursue a retaliation claim under Louisiana law, based on his 1996 race discrimination suit, he must amend his petition to cure these pleading deficiencies.
E. Negligent Discharge
Diamond construes Plaintiff's allegation that "Diamond discharged him knowing the [breath analysis] test had been performed in an unreliable manner" to attempt to state a claim for negligent discharge. Such a claim, Diamond contends, is contrary to at-will employment and cannot be maintained. Plaintiff offered no response to Diamond's contention or opposition to its request for dismissal of this claim. For this reason alone, the Court is inclined to grant Diamond's motion with respect to this claim. In any event, as this claim against Plaintiff's employer presently is stated, the Court finds relevant case law to support Diamond's position with respect to an at-will employee such as Plaintiff. See Johnson v. Delchamps, Inc., 897 F.2d 808, 810-11 (5th Cir. 1990) (if employer was at liberty under the employment at will doctrine to discharge an employee for no reason, it was equally at liberty to discharge the employee for a reason based on incorrect information, even if that information was gathered through a negligently administered polygraph examination); Herbert v. Placid Refining Co., 564 So.2d 371, 372 (La.App. 1 Cir.) (applying Johnson rationale in dismissing claim against an employer based on employee's discharge resulting from testing laboratory's negligent performance of drug test), writ denied, 569 So.2d 981 (La. 1990). Thus, the Court dismisses Plaintiff's negligent discharge claim, as it presently is stated, against Diamond.
See Memorandum in Support of Diamond Offshore Management Company's Partial Motion to Dismiss (Rec. Doc. No. 6) at 2, 12-14.
In Sanchez v. Georgia Gulf Corporation, the trial court concluded that La.R.S. 49:1001-1021, the statutory scheme governing random drug testing, and particularly 49:1012, provided a cause of action for wrongful termination to an at-will employee fired because of test results obtained without compliance with the drug testing provisions set forth in those statutes. The Louisiana First Circuit Court of Appeal denied the writ of supervisory review filed by the employer. Thereafter, the Louisiana Supreme Court remanded the matter to the First Circuit with instructions "to address the relationship between the drug testing requirements set forth in La.R.S. 49:1001 et seq., and the employment at-will doctrine." See Sanchez, 836 So.2d 9 (La. 2002). On remand, the First Circuit held that the drug testing statutes identified herein do not prohibit an employer from discharging an at-will employee, even though the employer failed to comply with the statutory procedures for conducting drug tests. See Sanchez, 2003 WL 22660637 at *3-4 (La.App. 1 Cir.) (opinion subject to revision or withdrawal because not yet released for publication in the permanent law reports). In other words, as the First Circuit stated, "La.R.S. 49:1001-1021 [do] not provide for an exception to the employment at-will doctrine." Id. at *4. In any event, Plaintiff has not asserted that the breath analysis test in question here did not comply with the provisions of La.R.S. 49:1001-1021.
F. Intentional Infliction of Emotional Distress
Diamond asserts that Plaintiff has failed to allege facts sufficient to maintain a claim for intentional infliction of emotional distress under Louisiana law. Though hardly a model of clarity, the Court finds Plaintiff's allegations that "Diamond . . . discharged him knowing that the [breath analysis] test had been performed in an unreliable manner," and that he "is entitled to general damages [caused by] the defendants' intentional infliction of emotional distress, and the mental anguish caused by both defendants insistence that Plaintiff's blood-alcohol level was in excess of allowable limits," to be relevant to this inquiry.
Complaint at ¶ 4.
Complaint at ¶ 10.
To prevail on a claim for intentional infliction of emotional distress under Louisiana law, a plaintiff must prove the following elements: (1) that the defendant's conduct was extreme and outrageous; (2) that the Plaintiff's emotional distress was severe; and (3) that the defendant desired to inflict severe emotional distress or knew to a substantial certainty that severe emotional distress would result from his conduct. White v. Monsanto, 585 So.2d 1205, 1209 (La. 1991). Furthermore, as explained in Nicholas v. Allstate Ins. Co., 765 So.2d 1017, 1022, 1026-27 (La. 2000):
[a]lthough recognizing a cause of action for intentional infliction of emotional distress in a workplace setting, this state's jurisprudence has limited the cause of action to cases which involve a pattern of deliberate, repeated harassment over a period of time The distress suffered by the employee must be more than a reasonable person could be expected to endure. Moreover, the employer's conduct must be intended or calculated to cause severe emotional distress, not just some lesser degree of fright, humiliation, embarrassment, or worry. It has not been enough that the defendant has acted with an intent which is tortuous or even criminal, or that he has intended to inflict emotional distress, or even that this conduct has been characterized by "malice" or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and leave him to exclaim, "Outrageous!"
Diamond argues that its alleged conduct was not extreme and outrageous and, thus, seeks dismissal of this claim. As with Plaintiff's claim for negligent discharge, Plaintiff's opposition memorandum offers no response to Diamond's request for dismissal of his intentional infliction of emotional distress claim. Moreover, accepting the allegations in Plaintiff's complaint as true, the Court does not find those allegations to be sufficient to state a claim for intentional infliction of emotional distress. Even if Diamond's alleged workplace conduct qualifies as "extreme and outrageous," which the Court does not decide, Plaintiff has not adequately alleged that he suffered severe emotional distress as a result of Diamond's conduct. Nor has he alleged that Diamond's conduct was intended or calculated to cause severe emotional distress, rather than a lesser degree of fright, humiliation, embarrassment or worry. The Court therefore dismisses Plaintiff's intentional infliction of emotional distress claim asserted against Diamond.
IL Claims Against Civigenics, Inc., d/b/a Secon
A. Negligent Testing
Relying on the at-will employment doctrine, Secon argues that Plaintiff can have no negligence claim against it for facilitating conduct for which the at-will employer cannot be held liable. Herbert, supra, provides some support for this proposition. There, the Louisiana First Circuit Court of Appeal concluded that a laboratory retained by Placid Refining Company to conduct urine tests of its employees for alcohol and drugs owed no tort duty to an employee discharged because of a negligently performed test. Herbert, 564 So.2d at 373-74. In reaching this conclusion, the First Circuit reasoned that Louisiana law does not recognize a cause of action for negligent interference with contractual rights. Id. at 374. Other Louisiana courts of appeal, however, have concluded that independent testing laboratories, hired by an employer, do owe a duty of reasonable care to employees who are tested. See Nehrenz v. Dunn, 593 So.2d 915, 918 (La.App. 4th Cir. 1992); Lewis v. Aluminum Co. of America, 588 So.2d 167, 170 (La.App. 4th Cir. 1991), writ denied, 592 So.2d 411 (La. 1992); see also Elliott v. Laboratory Specialists, Inc., 588 So.2d 175, 176 (La.App. 5th Cir. 1991) (to suggest that drug testing laboratory, hired as an independent contractor by the employer, owed no duty of reasonable care to the tested patient is an abuse of fundamental fairness and justice, writ denied, 592 So.2d 415 (La. 1992).
Here, Plaintiff asserts that Secon holds itself out as "an expert in employee testing" and that Secon knew or should have known that the test administered to Plaintiff lacked reliability. Because Secon was aware that it was administering the test in question to a Diamond employee, Secon had to have realized that adverse employment actions could result from those test results. Given these considerations, as well as the approach taken by the Louisiana Fourth and Fifth Circuit Courts of Appeal in Nehrenz, Lewis, and Elliot, the Court does not find dismissal of Plaintiff's negligence claim against Secon to be warranted at this juncture of the proceeding. This determination, however, is without prejudice to Defendant's right to re-urge dismissal of this claim in a properly supported motion for summary judgment, if it believes such a motion to be justified.
Complaint at ¶ 3.
The Court finds the following language from Lewis, 588 So.2d at 170, to be particularly compelling:
The precept that liability does not extend to negligent interference with contract rights is not applicable to Lewis's [the tested employee] claims. He was not an unknown third party to LSI [the testing laboratory]. Rather, when LSI analyzed Lewis's sample, it was aware that negligent testing on its part could wrongfully identify him as a drug user. LSI was cognizant that if the test results it submitted [to the employer] were inaccurate, both Lewis's reputation and his employment opportunities would be compromised. These damages were foreseeable. Thus, as the chance of Lewis being harmed was not remote, extending LSI's liability to encompass [Lewis] does not create an undue burden on LSI's freedom of action. Instead it should foster a greater sense of responsibility within it to perform its drug testing services in a skillful and competent manner.
B. Intentional Infliction of Emotional Distress
The Court finds Plaintiff's assertion of a claim for intentional infliction of emotional distress against Secon to fail for the same reasons as its analogous claim against Diamond. Accordingly, that claim likewise is dismissed.
Conclusion
Diamond has not sought dismissal of Plaintiff's claims for overtime under the FLSA and retaliation for complaining of a failure to pay overtime under the FLSA. Accordingly, those claims remain viable. Regarding the claims for which the defendants have sought dismissal, the defendants' motions are GRANTED IN PART and DENIED IN PART, as stated herein. With respect to the claims that the Court has dismissed, Plaintiff shall have twenty (20) calendar days from entry of this Order within which to amend the allegations in his petition. Amendments that the Court has required, pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, likewise must be filed within twenty (20) calendar days from entry of this Order. In making its amendments, Plaintiff is directed to file a superceding complaint that includes the allegations in its original petition on which Plaintiff continues to rely, as well as Plaintiff's amendments.