Carmela Mares v. Conagra Poultry Company, Inc.

971 F.2d 492, 7 I.E.R. Cas. (BNA) 997, 1992 U.S. App. LEXIS 19806, 1992 WL 166407

Opinions

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-Appellant, Carmela Mares (Mares), filed this action, which was removed to federal district court, requesting actual, compensatory and punitive damages against Defendant-Appellee, ConAgra Poultry Company, Inc. (ConAgra) for wrongfully terminating her employment following her refusal to fill out a form dealing with drug usage. Mares pled several alternate theories, including invasion of privacy, to recover for her alleged wrongful discharge.¹ The district court granted ConAgra’s summary judgment motion and dismissed all of Mares’ claims. Mares v. ConAgra Poultry Company, Inc., 773 F.Supp. 248 (D.Colo.1991). Mares appeals only from that portion of the district court’s order dismissing Count Y, the state-law claim for invasion of privacy. Mares also has moved to certify a question concerning the scope of Colorado invasion of privacy law in the private employment context. See 10th Cir.R. 27.1; Colo.App.R. 21.1. Our jurisdiction arises under 28 U.S.C. § 1291. We decline to certify the question to the Colorado Supreme Court and affirm the judgment of the federal district court.

Background

ConAgra, in implementing its drug testing policy, required that each employee complete a “Prescription Drugs and Over-the-Counter Medication Form.” The form requested disclosure of the following information: (1) names of any drugs or medications utilized, (2) dosages, (3) name(s) of prescribing physician, (4) nature of illness for which such drug was being taken, (5) any expected side effects from the use of such drug, (6) the length of time the employee expected to be taking the drug or medication, and (7) the name of any attending physician if different from the prescribing physician. The form also authorized the employee’s physician to release information to ConAgra concerning use of any disclosed medication. The form was marked “confidential” and was to be retained in a file cabinet under lock and key, according to an affidavit supporting ConA-gra’s summary judgment motion. Another affidavit submitted by ConAgra indicated that the purpose of the form was “to assure the accuracy of drug test results and to provide employees with an opportunity to explain a positive test result.” Mares, who stated that she did not object to drug testing per se, refused to complete the form or to submit to a drug test. When she declined to reconsider her refusal, she was terminated.

Discussion

Mares appeals from the grant of summary judgment. Our review is de novo and we apply the same legal standard used by the district court in evaluating the summary judgment motion, namely Fed. R.Civ.P. 56(c). Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We view the evidence and draw any inferences in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence which would require submission of the case to a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991).

Concerning the burden of proof, a mov-ant need only point to those portions of the record which demonstrate an absence of a genuine issue of material fact given the relevant substantive law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Where, as here, the nonmoving party will bear the burden of proof at trial, “Rule 56(e) ... [then] requires the nonmoving party to go beyond the pleadings and by her own affidavits or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. at 2553 (quoting Fed. R.Civ.P. 56(e)). If a movant establishes entitlement to judgment as a matter of law given uncontroverted, operative facts contained in the documentary evidence, summary judgment will lie. See Anderson, 477 U.S. at 251, 106 S.Ct. at 2511. There simply is “no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.” Celotex, 477 U.S. at 323, 106 S.Ct. at 2553.

Concerning the quantum of proof attendant to summary judgment, it is the same as that required for a directed verdict in the case. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. “[W]e are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.” Id. at 252, 106 S.Ct. at 2512. Thus, in the normal civil case, a judge must ask, based on the record and after considering who has the burden of proof, “whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.” Id.2

“In reviewing the grant of summary judgment in a suit based on diversity jurisdiction, we apply the law of the forum.” Skidmore, Owings & Merrill v. Canada Life Assurance Co., 907 F.2d 1026, 1027 (10th Cir.1990). Thus, Colorado provides the substantive law to be applied. We “review de novo a district court’s determination of state law.” Salve Regina College v. Russell, — U.S. -, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).

Colorado is an “at will employment” jurisdiction. See Continental Airlines v. Keenan, 731 P.2d 708, 711 (Colo. 1987). See also Freidman & Son, Inc. v. Safeway Stores, 712 P.2d 1128, 1131 (Colo. App.1985). That is, in the absence of an employment agreement, either the employer or the employee can terminate the employment relationship at will. Justice v. Stanley Aviation Corp., 35 Colo.App. 1, 530 P.2d 984, 986 (1974). The presumption of an at will employment relationship is not absolute, however, and there may be situations where discharge may be wrongful and thus actionable. See, e.g., Continental Airlines, 731 P.2d at 711-12 (employee may be able to enforce termination procedure in an employee manual either on a bilateral contract or promissory estoppel theory); Cronk v. Interrriountain Rural Elec. Coop., 765 P.2d 619 (Colo.App.1988) (if discharge resulted from employee’s exercising a specifically enacted right or duty, the general “at will” rule does not apply). But under the facts of this case, Mares has not cited, nor has our research disclosed, any authority which would suggest that Colorado would create an exception to the employment at will doctrine based on an employer’s mere request for medical information pursuant to a drug testing policy.

Mares argues that Colorado search and seizure decisions evidence the fact that the Colorado courts are inclined toward broader search and seizure protection than the United States Supreme Court. See, e.g., People v. Hillman, 821 P.2d 884 (Colo.App. 1991) (under Colorado Constitution, garbage placed for curbside collection may be the subject of a reasonable expectation of privacy), cert. granted, (Colo. Jan. 13, 1992); People v. Oates, 698 P.2d 811 (Colo. 1985) (under Colorado Constitution, beeper placed inside a drum of chemicals constitutes a search). Yet, Mares concedes that the search and seizure decisions of the Colorado Supreme Court, or for that matter, of the United States Supreme Court, are not applicable in the absence of any state action. It is uncontroverted that ConAgra is a private employer.

The latest case on which Mares relies, Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo.1992), reiterates that Colorado adheres to the “at will employment” doctrine, subject to a public policy exception. In that case, the plaintiff alleged that he was terminated for refusing to communicate false and misleading statements to the government on behalf of his private employer. The Colorado Supreme Court held

that a claim for wrongful discharge under the public policy exception to the at will employment doctrine is cognizable in Colorado and that, in order to withstand a directed verdict on a claim for wrongful discharge based on an employee’s refusal to perform an illegal act, the employee must establish, in addition to the elements outlined in Cronk, that the employer had actual or constructive knowledge that the employee’s refusal to perform the was act based on the employee’s reasonable belief that the act directed by the employer was unlawful.

Lorenz, 823 P.2d at 102. As noted above, Mares never contended that she was being asked to perform an illegal act and stresses that she is not complaining about the drug testing. In fact, she would have submitted to the drug tests, but for the form. Thus, her objection focuses entirely on the form she was asked to complete.

Mares contends that ConAgra’s request for medication information constitutes an invasion of privacy, a tort recognized in Colorado. See Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 755 (1970); Wells v. Premier Indus. Corp., 691 P.2d 765, 768 (Colo.App.1984); Restatement (Second) of Torts § 652A(2). Mares contends that the Colorado Supreme Court has established its own elements for the invasion of privacy and would not adopt the Restatement approach. See Aplt. Reply Brief at 12. According to Mares, under Rugg v. McCarty, she should prevail on her invasion of privacy claim because Con-Agra’s request for medical information (1) is unreasonable, (2) will cause extreme mental anguish, embarrassment and humiliation and (3) constitutes oppressive conduct and intimidation.. Aplt. Brief at 13 (citing Rugg v. McCarty, 476 P.2d at 755-56). The information sought by ConAgra, while seemingly straightforward, is termed by Mares as “substantially intrusive” and “similar to placing a listening device in a bedroom.”

We believe that Mares overstates what is being requested. As recognized by the Supreme Court, absent some allegation (not here present) that information gleaned from a medication information form is being disseminated or published, any invasion is at best insignificant. Skinner v. Railway Labor Exec. Ass’n, 489 U.S. 602, 626, 109 S.Ct. 1402, 1418 n. 7, 103 L.Ed.2d 639 (1989) (citing Whalen v. Roe, 429 U.S. 589, 602, 97 S.Ct. 869, 877, 51 L.Ed.2d 64 (1977)). While Skinner involved a Fourth Amendment claim, the Court’s conclusion regarding the nature of the “medical form invasion” is telling. In the absence of any evidence suggesting anything other than the complete confidentiality of the information requested, we hold as a matter of law that the suggested intrusion is insignificant.³

We recognize that the absence of public disclosure does not preclude an action for intrusion upon seclusion under § 652B of the Restatement (Second) of Torts. Id. comment a. Assuming, without deciding, that Colorado would recognize such a tort as part of its invasion of privacy law, Mares had the burden to prove that the form constituted a substantial interference with her seclusion, one which is “highly offensive to a reasonable person” and “to which the reasonable man would strongly object.” Id. § 652B & comment d. Mares did not carry her burden. ConAgra offered legitimate reasons for requiring employees to complete the form, such as protecting employees from false positives and maintaining the integrity of its drug testing. Although Mares contends that “the proffered explanation by ConAgra is insufficient to demonstrate a need for Mares’ private medical information,” the burden was on Mares to come forward with summary judgment evidence (not mere statements of counsel) refuting the justification, thereby supporting Mares’ assertion that the request for medical information prior to drug testing was unreasonable and an intrusion on seclusion. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. Mares cannot avoid summary judgment merely by characterizing ConAgra’s request as “oppressive conduct and intimidation” because it is a condition of employment or “unreasonable because there is no legitimate need for an employer to know the illnesses and medications of its employees.” See Aplt. Brief at 13.

Although Mares argues a need to balance the interests of the parties, and suggests that a genuine issue of material fact exists concerning whether an invasion of privacy occurred, she has not come forward with any evidence to controvert the undisputed material facts as set forth in Con-Agra’s motion and affidavits. Consequently, there is nothing to “balance.” Only factual disputes about material matters are relevant to a summary judgment determination. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. No material fact in dispute having been brought to the attention of either the district court or the appellate court, the judgment of the district court is AFFIRMED and the motion to certify a question of state law to the Colorado Supreme Court is DENIED.

1

. Mares’ second amended complaint provides in pertinent part:

NATURE OF THE ACTION

This is an action under Colorado law for compensatory and punitive damages resulting from Defendant’s wrongful discharge of Plaintiff as a result of violation of public policy, outrageous conduct, and intentional infliction of emotional distress, invasion of privacy and violation of rights secured by the U.S. Constitution.

FIFTH CLAIM FOR RELIEF

20. Defendant's insistence that Plaintiff sign a consent to the release of confidential and privileged information and her subsequent termination due to her failure to comply is an invasion of Plaintiffs privacy rights.

2

. The dissent's apparent misunderstanding of these burdens “has an obvious and critical impact on its assessment of this record." Brown v. Board of Educ., 892 F.2d 851, 863 n. 27 (10th Cir. 1989), vacated, — U.S.-, 112 S.Ct. 1657, 118 L.Ed.2d 381 (1992). The dissent contends that ConAgra never met its initial burden of showing that it was entitled to summary judgment because “ConAgra's stated justification does not eliminate all genuine issues of material fact.” Dissent at 498. As Celotex makes abundantly clear, ConAgra could (and did) meet its initial burden handily by "pointing out to the district court ... that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. at 2554. Mares at all times bears the burden of proving that the medical form at issue constitutes an invasion of privacy in the workplace, and specifically, a highly offensive intrusion upon seclusion.

The dissent contends in the alternative that, even if ConAgra met its initial summary judgment burden, ConAgra has a responsibility to provide further justification of "the arguably more intrusive requirements” on the form concerning disclosure of illnesses and authorization to contact an employee's physician. Dissent at 498. ConAgra’s desire to protect the integrity of its drug testing by such measures is reasonable on its face, but more importantly, the dissent's focus on perceived deficiencies in ConAgra’s proof flies in the face of Celotex — ConAgra was not required to produce evidence negating Mares’s claim of invasion of privacy.

According to the dissent, the medical form should be sufficient to withstand summary judgment. The dissent criticizes the fact that we "do[ ] not explain what type of evidence Mares possibly could produce” in addition to the form. Dissent at 3. We leave such strategy decisions to the attorneys and are confident that they are up to the task. The form neither refutes the stated justification nor does it establish that the information sought would be highly offensive to a reasonable person who had no objection to drug testing (like Mares), essential prerequisites to Mares proving her case under the Restatement.

The dissent’s final justification, that we “incorrectly shift[ ] the burden of producing summary judgment evidence to Mares” and "effectively foreclose!] the availability of the intrusion upon seclusion form of the invasion of privacy tort in Colorado” Dissent at 472-98, 500, is far off the mark. As noted above, Mares has the burden of proving her case; ConAgra should not be forced to disprove it. And while the legal issues in this case are interesting, we see no need to add to the Colorado Supreme Court’s workload by seeking an advisory opinion when the case can (and should) be resolved on federal summary judgment principles, with all due care taken to disclaim any opinion on the state law privacy issues. Moreover, we think that ConA-gra has a substantial interest in a prompt resolution of the case in this forum. "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.” Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2553 (footnote omitted).

3

. It is uncontroverted that Conagra never publicized information concerning Mares and did not disclose requested medical information. Thus, cases cited by Mares which involve disclosure of private medical information by third parties have no applicability. Cases cited by Mares within this category include Bratt v. I.B.M. Corp., 785 F.2d 352 (1st Cir.1986); United. States v. Westinghouse Elec. Corp., 638 F.2d 570 (3rd Cir.1980); Doe v. Borough of Barrington, 729 F.Supp. 376 (D.NJ.1990); Cronan v. New England Telephone, 1 IER Cases 658 (D.Mass. 1986).