Opinion
Case No. 1:03-CV-4
February 12, 2003
OPINION
Defendant USF Holland, Inc. has moved to dismiss Plaintiff Randall Mayo's pro se Complaint against it pursuant to Federal Rule of Civil Procedure 12(b)(6). Oral argument is unnecessary given the briefing and the pertinent issues. For the reasons which follow, the Motion to Dismiss will be granted.
PROCEDURAL BACKGROUND
On September 11, 2002, Plaintiff filed the instant suit in the Circuit Court for the County of Allegan against the Defendant, his former employer. Defendant was served by mail on or about December 5, 2002. Defendant then timely removed the action, without objection, to this Court based on federal subject matter jurisdiction. This lawsuit follows the dismissal, without prejudice, of an identical federal lawsuit between the parties, by Order of March 22, 2002, due to failure to prosecute.
Plaintiff's Complaint alleges that he was dismissed from his motor transportation carrier position with Defendant in violation of federal regulations, 49 U.S.C. § 382.601(a)(1), in that his employer failed to give him copies of updates to its educational materials, policies and procedures relating to drug and alcohol testing. Plaintiff was allegedly discharged for refusing to submit to drug and alcohol testing. Plaintiff maintains that the materials referenced were necessary to provide him adequate notice as to the testing, including the requirement that the testing was mandatory.
DISMISSAL STANDARDS
Under Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King Spalding, 467 U.S. 69, 73 (1984). The allegations of a complaint must be construed in favor of the plaintiff Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The rules generally require only a "short and plain statement of the claim" and not detailed allegations. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993). Nevertheless, the complaint "'must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (citation omitted.) The Court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).
LEGAL ANALYSIS
As noted in the legal briefing, the instant case begs the question of whether or not the referenced federal regulation implies a cause of action against defendant employers. The pertinent statutory authority here is the Federal Omnibus Transportation Employee Testing Act of 1991 ("FOTETA"), 49 U.S.C. § 31306. FOTETA authorized the Secretary of Transportation to prescribe regulations relating to the establishment of drug testing programs as to commercial motor vehicle transportation. Pursuant to that authority, the Secretary has prescribed regulations "to establish programs designed to prevent accidents and injuries resulting from the misuse of alcohol or use of controlled substances by drivers of commercial motor vehicles." 49 U.S.C. § 382.101. One of the regulations in question, 49 U.S.C. § 382.601(a)(1), provides that employers shall promulgate policies on alcohol misuse and use of controlled substances and shall provide educational materials to employees explaining policies and practices.
Since neither the statute or the regulation creates any express cause of action, the Court turns to the familiar analysis under Cort v. Ash, 422 U.S. 66 (1975) as to whether the statute or regulation intended to create an implied cause of action. A prolonged discussion of this subject is not necessary since the Sixth Circuit Court of Appeals addressed whether FOTETA and a parallel drug testing regulation created a private cause of action in Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299 (6th Cir. 2000). What the Sixth Circuit said in Parry is worthy of quoting at length:
In Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court articulated a four-part test to determine whether an implied right of action exists in a federal statute. The four-part test established in Cort requires that the court consider: (1) whether plaintiffs are among the class of persons intended to benefit from the enactment of the statute; (2) whether there is any evidence of legislative intent to provide or deny a private remedy; (3) whether a private remedy would be consistent with the underlying purposes of the legislative scheme; and (4) whether the action is one traditionally delegated to state law so it would be inappropriate to imply a federal remedy. 422 U.S. at 78, 95 S.Ct. 2080. Since the issuance of Cort, however, the Supreme Court has refined this inquiry and the focal point is whether Congress, expressly or by implication, intended to create a private cause of action. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Touche Ross Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). . . .
Defendants rely upon Salomon v. Roche Compuchem Laboratories, Inc., 909 F. Supp. 126 (E.D.N.Y. 1995) in support of their claim that § 40.25(f)(22)(ii) does not provide for a private cause of action. In Salomon, the plaintiff was a flight attendant for American Airlines and brought suit alleging that the defendant violated 49 C.F.R. § 40.37, the regulation governing employee access to drug testing records. The district court concluded that the statute was framed as a general mandate to the Federal Aviation Administration to establish drug testing regulations, not to address the concerns of a specific class of persons. See id. at 128. Other courts have similarly concluded that the regulations promulgated under 49 C.F.R. Part 40 do not provide for a private cause of action. See, e.g., Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170-71 (2d Cir. 1998) (affirming district court's conclusion that plaintiff did not have a private cause of action under 49 C.F.R. Part 40); Schmeling v. NORDAM, 97 F.3d 1336, 1343-44 (10th Cir. 1996) (concluding that 49 C.F.R. § 40.35 did not provide for a private cause of action); Abate v. Southern Pacific Transp. Co., 928 F.2d 167 (5th Cir. 1991) (concluding that Federal Railroad Safety Act provides no private cause of action to enforce regulations implementing federally mandated drug-testing programs set forth in 49 C.F.R. Part 40).
This Court similarly concludes that the FOTETA is framed as a general mandate to the Department of Transportation as the regulations promulgated under part 40 are applicable to the Federal Highway Administration, Federal Railroad Administration, Federal Transit Administration and Federal Aviation Administration. See 49 C.F.R. § 40.25(f)(10)(B). This regulatory scheme does not evince a concern for the protection of drivers who believe that they have been aggrieved through the drug testing process. Cf Drake, 147 F.3d at 170-71; Schmeling, 97 F.3d at 1343-44. Furthermore, federal regulations in and of themselves cannot create a private cause of action unless the action is at least implied from the applicable statute. See Smith v. Dearborn Fin. Servs., Inc., 982 F.2d 976, 979 (6th Cir. 1993). Therefore, this Court holds that the district court properly concluded that the FOTETA or the regulations promulgated thereunder do not imply a private cause of action and properly granted summary judgment on Plaintiff's claim.Parry, 236 F.3d at 308-09. See also Wilder v. GL Bus Lines, 2000 W.L. 959751 (S.D.N.Y. 2000) (holding that FOTETA and 49 U.S.C. § 382.601 do not create a private right of action).
Based on such case law, a conclusion is warranted that Congress did not intend to create a private cause of action under FOTETA and the FOTETA regulation in question. As such, Plaintiff's Complaint fails to state a claim.
CONCLUSION
For the reasons given, a Judgment shall enter granting Defendant's Motion to Dismiss and dismissing Plaintiff's Complaint with prejudice.
RANDALL MAYO, Plaintiff, v. USF HOLLAND, INC., Defendant. Case No. 1:03-CV-4 United States District Court, W.D. Michigan, Southern Division February 12, 2003
JUDGMENT
RICHARD ALAN ENSLEN, United States District Judge
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Defendant USF Holland, Inc.'s Motion to Dismiss (Dkt. No. 6) is GRANTED and that this suit is DISMISSED WITH PREJUDICE.