JANE MAGNUS-STINSON, District Judge.
Plaintiff Nikki Vestal worked as a Certified Nursing Assistant for a short time at Lyons Health and Living Center, operated by Defendant Heart of CarDon, LLC (which the Court will refer to as "
Taken together, Ms. Vestal asserts that Lyons' explanation for her termination—that she was working while under the influence of methamphetamine—is a pretext and that Lyons actually terminated her because she was diabetic or because it did not want to accommodate her diabetes. In addition to this claim, brought under the Americans with Disabilities Act ("
A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).
In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not suffice to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them," Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).
The following factual background is set forth pursuant to the standards detailed above. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to "the party against whom the motion under consideration is made." Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
Ms. Vestal began working for Lyons as a Certified Nursing Assistant on January 13, 2016. [
Between January 13, 2016, when she began working for Lyons, and her termination on May 2, 2016, Ms. Vestal suffered four diabetes-related episodes at work during which her blood sugar dropped severely. [
On April 13, 2016, Ms. Jackson gave Ms. Vestal an "Employee Communication Form" with a box marked "Absenteeism" checked. [
[
On May 2, 2016, Ms. Vestal suffered another episode at work after changing her diabetes medication from Faxiga to Invokana. [
Two Lyons employees, Ms. Jackson and Assistant Director of Nursing Cathy Crane, witnessed Ms. Vestal's episode and testified that they believed Ms. Vestal's episode to be symptomatic of drug use. [
Upon observing Ms. Vestal, Ms. Jackson requested that Ms. Vestal take a urine drug test. [
In her summary judgment briefing however, Ms. Vestal now seeks to embrace parts of Lyons' version of the facts, which is that she was able to provide a sample, but the positive result was fabricated because she had not used methamphetamine. Further, she complains that the testing failed to comply with any of Lyons' policies for drug testing, which provides in part:
[
Nor did the testing comply with the drug test's instructions, which provided in part:
[
Whether Ms. Vestal was able to provide a urine sample or not, the parties largely agree on the rest of the story, at least as filtered through the proper summary judgment standard.
Later that day, Ms. Jackson called Ms. Vestal and informed her that her drug test was positive for illegal drugs and that she was fired. [
Ms. Vestal filed suit against Lyons on April 5, 2017, [
The Court addresses Lyons' summary judgment arguments as to each of Ms. Vestal's claims in turn.
Lyons argues that Ms. Vestal cannot establish a prima facie case under the ADA for either discrimination or failure to provide a reasonable accommodation. [
In response, Ms. Vestal argues that Lyons has sufficient evidence of pretext to require a jury trial on her ADA claim. [
In reply, Lyons argues that it is not shifting its explanation, but rather is taking as true Ms. Vestal's testimony that she did not complete a urine test—as it was required to on summary judgment. [
In surreply, Ms. Vestal argues that her pretext argument prevails regardless of whether a jury believes that she actually provided a urine sample. [
The ADA provides that "no [employer] shall discriminate against a qualified individual on the basis of disability . . . . ." 42 U.S.C. § 12112(a). Both Ms. Vestal's discrimination and failure to accommodate theories share two elements, neither of which is contested by Lyons on summary judgment: Ms. Vestal must show that 1) she is a "person with a disability" as defined in the ADA and 2) she is "qualified to perform the essential functions of her job with or without a reasonable accommodation." Guzman v. Brown Cty., 884 F.3d 633, 641 (7th Cir. 2018).
To survive summary judgment on her disability discrimination theory, Ms. Vestal must additionally identify evidence which, if credited at trial, would establish that she suffered an adverse employment decision because of her disability. Id. This means that Ms. Vestal must show that there is a genuine issue of material fact as to whether Ms. Vestal's "disability was the `but for' cause of h[er] discharge." Monroe v. Ind. Dep't of Transp., 871 F.3d 495, 504 (7th Cir. 2017). The plaintiff may show this with "direct" evidence, such as an admission of discriminatory animus, or by "circumstantial" evidence, but as long as the plaintiff provides "enough to allow the trier of fact to conclude that it is more likely than not that discrimination lay behind the adverse action, then summary judgment for the defendant is not appropriate." Id. (quoting Morgan v. SVT, LLC, 724 F.3d 990, 996 (7th Cir. 2013)); see Lauth v. Covance, Inc. 863 F.3d 708, 716 (7th Cir. 2017) ("[W]e no longer recognize a distinction between direct or indirect evidence, and instead consider all of the record to determine whether a causal link exists."); Monroe, 871 F.3d at 504 ("[W]e have tried to move away from the many multifactored tests in employment discrimination cases and decide, when considering the evidence as a whole, `whether the evidence would permit a reasonable factfinder to conclude that . . . . [a] proscribed factor caused the discharge." (internal quotation omitted)). Among the types of evidence that may undermine an employer's claim to a legitimate reason for termination include an "employer's shifting or inconsistent explanations for the challenged employment decision," Appelbaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d 573, 579 (7th Cir. 2003), an employer's noncompliance with its own policies, Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 882 (7th Cir. 2016), evidence of a "pretextual reason" for the termination, Teruggi v. CIT Group/Capital Fin., Inc., 709 F.3d 654, 660 (7th Cir. 2013), and suspicious timing, id. at 659.
Contrary to Ms. Vestal's assertion, Lyons' argument on summary judgment that Ms. Vestal did not produce a drug test is not evidence of a shifting explanation—rather, it is Lyons' attempt to adhere to the summary judgment standard and credit Ms. Vestal's testimony. Cf. Weinmann v. McClone, 787 F.3d 444, 446 (7th Cir. 2015) ("[A]s is generally true when summary judgment is involved, we accept the plaintiff's version of the facts, without vouching for their ultimate accuracy."). Nonetheless, even without the evidence of a shifting explanation, the Court agrees with Ms. Vestal that her discrimination claim cannot be resolved on summary judgment.
First, Ms. Vestal has identified evidence suggesting that Lyons' reason for firing her was pretextual—that is, that "the employer is dissembling" and has proffered an explanation for Ms. Vestal's firing that is "unworthy of credence" due to "weaknesses, implausibilities, inconsistencies, or contradictions." Castro v. DeVry Univ., Inc., 786 F.3d 559, 565 (7th Cir. 2015) (internal quotations omitted). Taking the evidence in the light most favorable to Ms. Vestal, Lyons fabricated a positive drug test. Ms. Vestal testified that she never used methamphetamine, so whether the test occurred or not, the positive result was a fabrication. This is exactly the type of evidence that, if credited by a jury, would undermine Lyons' assertion that it terminated Ms. Vestal because she worked under the influence of methamphetamine. Cf. id. at 572 ("If, as Florez contends, Strauss and Berry are lying about these events, then a reasonable trier of fact could find that Strauss and Berry fabricated their reports to create a false reason for terminating him. Under these circumstances, summary judgment is not appropriate.").
The wafer-thin distinction Lyons seeks to draw in the face of this evidence is that it terminated Ms. Vestal not because she tested positive or was in fact under the influence of methamphetamine, but because its employees reasonably perceived Ms. Vestal to be under the influence of methamphetamine. In support of this distinction, Lyons cites to the unremarkable proposition that an employer must prevail where it terminates an employee based upon a sincere belief that the employee engaged in misconduct. But the evidence contradicts Lyons assertion that it fired Ms. Vestal merely because its employees perceived Ms. Vestal to be under the influence of methamphetamine and not because of the positive drug test. [E.g.,
Bolstering this conclusion is the evidence that Lyons failed to comply with its policies for drug testing, including by failing to offer Ms. Vestal an opportunity for a follow-up confirmation test. Nor did Lyons comply with the procedures outlined in the drug test kit itself, which warned that any results were preliminary unless and until the sample was tested using a second analytical method. Even more problematic for Lyons, no record whatsoever exists of Ms. Vestal's positive test. In short, Ms. Vestal's assertion that the positive test was fabricated and therefore not the genuine reason for her termination carries with it substantial circumstantial evidence.
Finally, Ms. Vestal has also identified evidence of suspicious timing. Her May 2, 2016 termination followed less than three weeks after Ms. Jackson issued Ms. Vestal a written warning threatening termination for absenteeism if Ms. Vestal again missed work, despite knowing that Ms. Vestal had diabetic episodes requiring her to leave work early. And it was Ms. Jackson who first accused Ms. Vestal of having used methamphetamine and requested the drug test. A juror could reasonably infer that Lyons sought to remove Ms. Vestal following the written warning and that the accusation of drug use, coupled with the contrived test, was a means to accomplish this end. A juror could also reasonably infer based upon all of this evidence that Lyons sought to remove Ms. Vestal because of her particular disability.
Lyons argues that this does not make sense because both Ms. Jackson and Ms. Bloesing also suffer from diabetes and because it hired Ms. Vestal despite knowing that she was diabetic. The Seventh Circuit very recently "rejected entirely" the argument Lyons raises here, recognizing that "[t]here are many reasons why" persons of a particular class "might tolerate discrimination against members of their own class, or why they might participate in discriminatory acts themselves." Johnson v. Advocate Health & Hosps. Corp., 2018 WL 2753066, at *14 (7th Cir. 2018) (publication pending). Moreover, hiring Ms. Vestal while knowing generally that she was diabetic is a far cry from tolerating her particular disability, and diabetes manifests itself far more seriously for some people than others. At most, Lyons' argument demonstrates that there is evidence that may support a jury verdict in its favor. It does not, however, permit the Court to resolve the competing inferences raised by the evidence in Lyons' favor on summary judgment.
This same evidence also permits a reasonable inference that Lyons failed to reasonably accommodate Ms. Vestal's disability. "Failure to accommodate is a form of ADA discrimination." Hooper v. Proctor Health Care Inc., 804 F.3d 846, 851 (7th Cir. 2015). "[A] plaintiff alleging a failure to accommodate . . . must show that the employer was aware of her disability and still failed to reasonably accommodate it." E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 803 (7th Cir. 2005) (internal quotation omitted). This means that the employee has an "initial duty" to "indicate to the employer that she has a disability and desires an accommodation. . . . Where notice is ambiguous as to the precise nature of the disability or desired accommodation, but it is sufficient to notify the employer that the employee may have a disability that requires accommodation, the employer must ask for clarification." Id.
Here, Lyons does not argue that unpaid leave for the occasional diabetic episode would be an unreasonable accommodation. Instead, Lyons argues that it provided Ms. Vestal with all reasonable accommodations because she never requested the particular accommodation of needing additional leave when she suffers a debilitating diabetic episode. Lyons further argues that Ms. Vestal never made any request through the formal channels as required by Lyons' policies. But the ADA requires neither that Ms. Vestal request the particular accommodation nor that she follow the formal request policy. Rather, Ms. Vestal must do enough to "indicate to her employer" her need for an accommodation. Id. Ms. Vestal has proffered uncontroverted evidence that she did just that—she told her coworkers and supervisors, including Ms. Jackson, about her diabetes and what she needed done in the event she suffered a diabetic episode. Furthermore, Lyons knew that Ms. Vestal had diabetic episodes on four occasions that required her to leave work. When considered along with the evidence above, which if believed raises a reasonable inference that Ms. Vestal was fired because of her disability, "a reasonable jury could conclude that [Lyons] was sufficiently aware of [Ms. Vestal's] disability" and decided to terminate Ms. Vestal rather than address Ms. Vestal's need for further accommodations. Id.
Without the "rat's nest of surplus `tests'" that formerly governed consideration of employment discrimination claims, Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 766 (7th Cir. 2016), the Court's sole task is to evaluate whether the evidence, "considered as a whole," would "permit a reasonable factfinder to conclude that the plaintiff's" disability and/or need for accommodation "caused the discharge," id. at 765. Ms. Vestal has identified evidence that, if credited by a jury, could permit such a finding. Therefore, the Court
Lyons next argues that it is entitled to summary judgment on Ms. Vestal's Rehabilitation Act claim because there is no evidence to suggest that Lyons believed Ms. Vestal to be a drug addict. [
In response, Ms. Vestal argues that her claim is based upon Lyons erroneously believing that she was engaged in illegal drug use, not that it believed her to be a drug addict. [
In reply, Lyons argues that the Rehabilitation Act provides no protection to Ms. Vestal because she denies using illegal drugs and because there is no evidence to suggest that Lyons regarded Ms. Vestal as an illegal drug user. [
The Rehabilitation Act provides certain protections to individuals with disabilities as defined by the statute. See Branham v. Snow, 392 F.3d 896, 902-03 (7th Cir. 2004). "The Rehabilitation Act defines an individual with a disability as `any person who (i) has a mental or physical impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment.'" Id. at 902 (quoting 29 U.S.C. § 705(20)(B)). The provision upon which Ms. Vestal relies provides as follows:
29 U.S.C. § 705(20)(C); see 42 U.S.C. § 12114(a)-(b) (materially identical provision from the ADA); Scheerer v. Potter, 443 F.3d 916, 919 (7th Cir. 2006) (noting relevance of ADA case law to Rehabilitation Act cases); Washington v. Indiana High Sch. Athletic Ass'n, Inc., 181 F.3d 840, 846 (7th Cir. 1999) (same).
Ms. Vestal specifically relies upon subclause (III), arguing that Lyons "erroneously regarded [her] as engaging" in illegal drug use, despite the fact that she was "not engaging in such use." 29 U.S.C. § 705(20)(C)(ii)(III). But, while such an "erroneously regarded" employee "is not excluded from the protection of the ADA [or Rehabilitation Act], an employee is not automatically protected or a `qualified person with a disability' when the employer makes such an erroneous determination." Bailey v. Real Time Staffing Servs., Inc., 927 F.Supp.2d 490, 499 (W.D. Tenn. 2012), aff'd, 543 F. App'x 520 (6th Cir. 2013). Rather, "the erroneous perception of being an illegal drug user is to be treated like any other perception of a disability, and is only to be considered a qualifying disability if the employer perceives the disability to substantially limit a major life activity." Nielsen v. Moroni Feed Co., 162 F.3d 604, 610 (10th Cir. 1998) (collecting cases); Bailey, 927 F. Supp. 2d at 499-500 ("Thus, an erroneous belief about drug use will only be a qualifying disability if the employer regarded the perceived drug use as an impairment and took action against the employee because of that perceived impairment. It is not enough that the employer perceived the employee to simply be an illegal drug user to receive ADA protection; perceiving someone as having an impairing substance abuse problem is very different from perceiving them to be a casual or recreational drug user.").
Ms. Vestal is incorrect that the Rehabilitation Act provides for liability whenever an employer incorrectly believes that an employee used illegal drugs. Rather, as the statutory text and case law indicate, the erroneous perception of drug use is relevant only as an exception to the rule that current illegal drug use is not a qualifying disability. Ms. Vestal must still demonstrate that Lyons regarded her as having an impairment due to drug usage. Ms. Vestal argues that Lyons claims that it fired Ms. Vestal for violating workplace policy by working under the influence of drugs. Whether or not that claim is honest or correct, it does not trigger liability under the Rehabilitation Act in the absence of evidence showing that Lyons believed her to have an impairment due to drug use. Ms. Vestal has provided no such evidence, and in fact has denied that she used drugs or that Lyons had any reason to believe her to be impaired due to drug usage. The Court therefore
Lyons next argues that it is entitled to summary judgment on Ms. Vestal's negligent drug testing claim because Indiana law does not, and would not, impose a duty on private employers to perform drug tests with reasonable care. [
In response, Ms. Vestal argues that two Indiana federal court decisions and the decisions in several other states point to the imposition of a duty in this case. [
In reply, Lyons reiterates its arguments and distinguishes the cases upon which Ms. Vestal relies. [
As a federal court applying state law, the Court is tasked with making "a predictive judgment as to how the supreme court of the state would decide the matter if it were presented presently to that tribunal." Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 635 (7th Cir. 2002). In undertaking this task, the Court is mindful of the Seventh Circuit's guidance in dealing with state law:
Insolia v. Philip Morris Inc. 216 F.3d 596, 607 (7th Cir. 2000); Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 636 (7th Cir. 2007) (same). "If there are no directly applicable state decisions at all, then we may consult relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data that might be persuasive on the question of how the Indiana Supreme Court would likely rule." BMD Contractors, Inc. v. Fid. & Deposit Co. of Md., 679 F.3d 643, 648 (7th Cir. 2012).
Under Indiana law, a negligence action requires "duty owed to plaintiff by defendant," breach of that duty, and damages caused by the breach. Goodwin v. Yeakle's Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). At issue here is duty, without which a plaintiff's negligence claim must fail. Id. Duty is determined as a matter of law by the court. Id. at 386-87.
As both parties recognize, no Indiana decision, either by a state appellate court or a federal court applying state law, has found a duty of care with respect to an employer-conducted drug test. However, it also appears that no decision has rejected such a duty. In the absence of such a decision, the Court must broaden its search, mindful of the general preference that federal courts decline to broaden state law. Both parties look to Indiana's thee-part balancing test, which the Indiana Supreme Court has endorsed as a "useful tool in determining whether a duty exists . . . in those instances where the element of duty has not already been declared or otherwise articulated." Id. at 387 (internal quotation omitted). This test requires the Court to analyze "(1) the relationship between the parties; (2) the foreseeability of harm; and (3) public policy concerns."
Lockhart v. ExamOne World Wide, Inc., 904 F.Supp.2d 928 (S.D. Ind. 2012), an opinion discussed by both parties in their briefing, begins to address some of the factors that are relevant to the duty analysis in the employment drug testing context.
As Lockhart and Indiana's three-prong test recognize, the at-will employment relationship is relevant, but not determinative, in assessing whether Indiana law would impose a duty on employers conducting drug testing. In Lockhart, the undersigned certified the following question to the Indiana Supreme Court: "Does a private employer owe a duty of care to an at-will employee in the context of workplace drug testing? If so, what is the nature of any duty owed?"
This at-will employment relationship suggests that the Indiana courts would exercise great restraint before imposing a duty on an employer to reasonably perform a drug test. As Ms. Vestal's argument demonstrates, the parameters of a negligence drug testing claim may differ in several ways from a wrongful discharge claim. For example, a negligently conducted positive drug test could carry with it compensable collateral consequences that would not be recoverable for a mere wrongful discharge. Ms. Vestal raises important public policy concerns in this regard. But Lyons likewise raises important public policy concerns, such as the possibility that an employer, which may properly terminate an employee upon a mere suspicion of illegal drug use, would elect to entirely forego drug testing should it face the possibility of liability. Moreover, it seems incongruous for an employer to be able to terminate an employee based upon an incorrect, untested finding that an employee is under the influence, but nonetheless face liability for an incorrectly administered drug test. This discussion highlights the sensitive policy determinations at play in recognizing a new duty, determinations that the Seventh Circuit has held should be left to the state courts.
One option would be, as Ms. Vestal suggests, to certify the issue to the Indiana Supreme Court, as the Court did in Lockhart. But certification is not appropriate merely because there is an absence of state-court authority on a particular issue, as courts "simply cannot certify every creative but unlikely state cause of action that litigants devise from a blank slate." Insolia, 216 F.3d at 607. Ms. Vestal's proposed extension of Indiana law does not rest on a completely blank slate, but recognizing a duty in this case would require an even greater expansion of state law than would have been required in Lockhart. Most importantly, the authority supporting Ms. Vestal's claim fails to generate "genuine uncertainty" as to how the Indiana Supreme Court would resolve the issue. In re Zimmer, NexGen Knee Implant Prods. Liab. Litig., 884 F.3d 746, 754 (7th Cir. 2018).
Ms. Vestal has failed to identify any Indiana authority suggesting a willingness to expand employer liability. Ms. Vestal identifies out-of-state authority from several states, but these cases arise in a very different context, imposing a duty of care on third-party drug testers and not the employers themselves. See generally Webster v. Psychemedics Corp., 2011 WL 2520157, at *4-5 (Tenn. Ct. App. 2011) ("Significantly, the appeal before us does not involve an employer. Rather, it concerns a negligence action against a laboratory.") (collecting cases from several jurisdictions imposing a duty of reasonable care on third-party drug testers). Ms. Vestal does not direct the Court to any decisions imposing such a duty on employers, and the Court's research on the matter revealed only decisions declining to do so. E.g., Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 716 (Tex. 2003) ("Just as we have consistently preserved the doctrine of employment-at-will from encroachment by other liability theories, we decline Solomon's invitation to adopt a new theory of liability for negligent drug testing."); Bellinger v. Weight Watcher Gourmet Food Co., 756 N.E.2d 1251, 1257 (Ohio Ct. App. 2001) ("Weight Watchers owed no duty to appellant as to drug testing as appellant was an employee-at-will. Weight Watchers could have discharged appellant without even conducting drug tests."); Baca v. Fisher Sand & Gravel, Co., 2010 WL 11493830, at *7 (D.N.M. 2010) (interpreting New Mexico law) ("In this case, Plaintiffs Baca and Ulibarri do not dispute they were at-will employees. Consequently, Fisher owed no duty to Plaintiffs Baca and Ulibarri to conduct drug testing in any particular manner, and it was entitled to discharge them whether they failed or passed the drug test or give no reason at all for their termination."). Several states have imposed a duty of care by way of statute. E.g., Mike v. Prof'l Clinical Lab., Inc., 450 F. App'x 732, 735-37 (10th Cir. 2011) (applying Oklahoma law); Lewis v. Ashland, Inc., 813 F.Supp.2d 1113, 1117 (D. Minn. 2011) (applying Minnesota law). The Court is persuaded that Indiana would leave expansion of employer tort liability to the legislature, just as it concluded that "revision or rejection" of the atwill employment doctrine "is better left to the legislature." Myers, 861 N.E.2d at 707 (internal quotations and alteration omitted). The weight of authority supports this conclusion, and the Court therefore declines both to recognize the new duty and to certify the issue to the Indiana Supreme Court.
Ms. Vestal's alternative theories do not save her negligent drug testing claim. Ms. Vestal suggests that Lyons voluntarily assumed the duty of reasonable care in performing the drug test. The scope of the voluntary assumption doctrine would swallow the rule if it created a duty here where Indiana law does not recognize a duty. But the doctrine is not so broad, as it applies only where the actor, undertaking services to another, "knows or should know that the services will reduce the risk of physical harm to the other." Yost v. Wabash College, 3 N.E.3d 509, 517 (Ind. 2014) (quoting Restatement (Third) of Torts: Physical & Emotional Harm § 42 (2012)). The Indiana Court of Appeals "decline[d] to extend the assumption of duty doctrine," as set forth in the Restatement, "to situations involving non-physical harm, such as harm to one's reputation." McCollough v. Noblesville Schs., 63 N.E.3d 334, 346 (Ind. 2016). This limitation is dispositive as to Ms. Vestal's voluntary assumption theory.
Finally, Ms. Vestal's claim is not saved by the longstanding "principle that it is an employer's duty to protect its employees from its own negligence." Kottlowski v. Bridgestone/Firestone, Inc., 670 N.E.2d 78, 84 (Ind. Ct. App. 1996). While "typically applied in reference to physical injuries incurred in the employer/employee relationship," Ms. Vestal correctly points out that, in limited circumstances, "this general principle has also been extended to include economic injury." Id. at 85. The principle, as referenced in the cases to which Ms. Vestal cites, appears to be a background principle concerning the employment relationship, and not a freestanding basis for imposing liability. Critically, however, even on its own terms this principle is triggered only where the employer (or its agent) committed an underlying negligent act—which again requires that the law recognize a duty to perform the underlying act with reasonable care. For the reasons described above, Indiana law does not impose a duty on employers to conduct employee drug tests with reasonable care. The principle that the employer must protect its employees from its negligence has no application in this case.
The foregoing discussion does not diminish the important concerns Ms. Vestal has raised in support of a duty of care in employer-conducted drug testing. However, the Court is required to "choose the narrower interpretation [of state law] that restricts liability" absent strong evidence that the Indiana Supreme Court would decide the issue differently. Insolia, 216 F.3d at 607. Ms. Vestal has not come forth with such authority and, in fact, the weight of authority militates against recognizing a judicially-created duty in this context. The Court therefore
Finally, Lyons argues that it is entitled to summary judgment on Ms. Vestal's negligent infliction of emotional distress claim because it did not breach a duty to Ms. Vestal, because there was no direct impact, and because Ms. Vestal has failed to establish emotional distress resulting from the drug test. [
"The right to seek damages for emotional distress in actions for negligence often referred to as actions for negligent infliction of emotional distress, is carefully circumscribed under Indiana jurisprudence." Spangler v. Bechtel, 958 N.E.2d 458, 466 (Ind. 2011). It is not a stand-alone cause of action, but instead is permitted, as relevant here, where the "defendant's breach of a legal duty to the plaintiff" causes a "direct impact" upon the plaintiff. Id. The emotional distress required to sustain such a claim must be "serious in nature and of a kind and extent normally expected to occur in a reasonable person." Atl. Coast Airlines v. Cook, 857 N.E.2d 989, 995-96 (Ind. 2006) (internal quotation omitted). But where the direct impact is minimal, Indiana law requires the Court to scrutinize whether the "alleged mental anguish" is "likely speculative, exaggerated, fictitious, or unforeseeable." Id. at 999.
Lyons argues that the factual record does not yield the reasonable inference that a direct physical impact (Ms. Vestal asserts that Ms. Crane helped Ms. Vestal undress to conduct the drug test) occurred. But the Court need not address this argument because, even assuming that Ms. Crane helped Ms. Vestal undress, Ms. Vestal's claim nonetheless fails. First, as Spangler explains, negligent infliction of emotional distress is not an independent tort, but requires a breach of a legal duty by the defendant to the plaintiff. As explained above, Lyons did not owe a legal duty of care with respect to the drug testing, and certification of this issue is not warranted.
Second, even if Lyons did owe a duty, Ms. Vestal fails to establish serious mental anguish as a result of the drug test. In response to Lyons' interrogatory asking Ms. Vestal to describe her emotional distress "with particularity," Ms. Vestal responded that she "certainly experienced significant stress and anxiety after my wrongful termination." [
Ms. Vestal seeks to establish mental anguish from the drug test based upon her inability to recall what happened and her "alleg[ations]" that she suffered emotional distress as a result. [
Ms. Vestal has not established that Lyons owed her a duty of reasonable care with respect to the drug test or that a genuine issue of material fact exists with respect to her claim of serious emotional distress as a result. The Court therefore
Ms. Vestal has provided sufficient evidence that, if credited, could convince a reasonable jury that she was terminated not because she had used drugs, but because she was diabetic and because Lyons did not wish to accommodate her diabetes. The Court therefore
The Court requests that the Magistrate Judge confer with the parties regarding the possibility of settlement. Should settlement efforts fail to fully resolve the remaining claim, the Court will establish a schedule for the trial of this matter.
