Tomek v. STP Nuclear Operating Co.

MICHAEL K. TOMEK Plaintiff, v. STP NUCLEAR OPERATING CO. Defendant.

CIVIL ACTION NO. 3:17-CV-00340

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

August 28, 2018

MEMORANDUM AND RECOMMENDATION

Pending before the Court is Defendant STP Nuclear Operating Company's Motion for Summary Judgment Based on Preemption ("STP's Motion for Summary Judgment"). Dkt. 16. All dispositive pretrial motions in this case were referred to this Court for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Dkt. 18. Having considered the motion, response, reply, and applicable law, the Court RECOMMENDS that STP's Motion for Summary Judgment be GRANTED and the case dismissed.

I. BACKGROUND

STP Nuclear Operating Company ("STP") owns and operates a nuclear power plant in Matagorda County, Texas. For 31 years, STP employed Plaintiff Michael K. Tomek ("Tomek"), most recently as a Supervisor in the Radiation Protection Unit.

On October 18, 2016, Tomek got off work at 6:00 a.m. After work, Tomek consumed four beers and one cocktail before going to sleep around 9:30 a.m. When Tomek returned to work at 5:00 p.m. that same day, he was subjected to a random breathalyzer and urine test in accordance with STP's fitness for duty protocol. The breathalyzer test indicated Tomek tested positive for alcohol with a Blood Alcohol Content ("BAC") of .041%. Tomek took a confirmatory test a few minutes later and he again tested positive for alcohol, this time with a BAC of .042%. Because of the failed alcohol tests, and in accordance with company policy, STP denied Tomek unescorted access at the STP plant for five years. His employment at STP was formally terminated on October 19, 2016.

Tomek criticizes the testing process utilized by STP, alleging the same breathalyzer was used for both tests and was not cleaned between the two tests, and the machine was inaccurate. Tomek further claims the positive alcohol test was incorrect because he did not consume alcohol within five hours of starting his shift. Tomek alleges the administrator of the test violated STP's policy because the administrator did not ask him if he had belched within the previous 15 minutes.

Tomek originally filed suit against STP in the 130th Judicial District Court of Matagorda County, Texas. Tomek brought two state law claims: a discrimination claim under the Texas Commission on Human Rights Act ("TCHRA") and a state common law defamation claim. As far as the TCHRA claim is concerned, Tomek alleged that STP discriminated against him on the basis of a perceived disability because he was placed on leave and then discharged after failing the alcohol test. Tomek contended that STP defamed him because it "caused to be published communications to nuclear power facilities throughout the country that confirmed he was denied access because of the failure of a drug and/or alcohol test." Dkt. 1-5 at 2-3.

STP removed the case to federal court based on federal question jurisdiction alleging that federal law and corresponding regulations governing nuclear safety completely preempt the alleged state causes of action. Tomek did not contest removal.

STP now moves for summary judgment, claiming that the doctrine of federal preemption precludes Tomek's claims for affirmative relief.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact." Bryant v. CIT Grp./Consumer Fin., Inc., 303 F. Supp. 3d 515, 522 (S.D. Tex. 2018) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case." Hicks v. BP Expl. & Prod., Inc., 310 F. Supp. 3d 754, 757-58 (E.D. La. 2018) (citation omitted). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. See Malone v. City of Fort Worth, 297 F. Supp. 3d 645, 653 (N.D. Tex. 2018).

When the moving party has met its Rule 56 burden, the nonmovant must identify specific evidence in the record and articulate how that evidence supports that party's claim. See Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). "This burden will not be satisfied by 'some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.'" Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). A genuine issue of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted." Harmon v. Dallas Cty., 294 F. Supp. 3d 548, 560 (N.D. Tex. 2018) (citing Celotex, 477 U.S. at 322-23).

III. FEDERAL REGULATIONS GOVERNING NUCLEAR SAFETY

As the operator of a nuclear power plant, STP must follow the requirements of federal nuclear laws, including the Atomic Energy Act, 42 U.S.C. § 2011 et seq., the Energy Organization Reorganization Act, 42 U.S.C. § 5801 et seq., and the accompanying regulations promulgated by the Nuclear Regulatory Commission ("NRC regulations"). The obvious purpose of these various laws and regulations is to ensure that nuclear facilities are properly operated to protect the public from a catastrophic accident.

NRC regulations require nuclear power plant licensees to implement an Access Authorization Program ("AAP") for employees seeking access to the sensitive areas of the plant. See 10 C.F.R. § 73.56(a)-(b). The AAP must "provide high assurance" that employees "are trustworthy and reliable, such that they do not constitute an unreasonable risk to public health and safety or the common defense and security, including the potential to commit radiological sabotage." 10 C.F.R. § 73.56(c). Accordingly, before an employee is granted unescorted access authorization privileges, he or she must undergo a drug and alcohol screening, a robust background investigation, and a psychological assessment. See 10 C.F.R. §§ 26.65; 73.56(d)-(e). Tomek's position as a Supervisor in the Radiation Protection Unit required him to obtain and maintain unescorted access authorization at the STP nuclear plant.

NRC regulations also impose on nuclear reactor licensees an obligation to implement a Fitness for Duty Programs ("FFD Program") to monitor those individuals who receive unescorted access to nuclear power plants. See 10 C.F.R. § 26.21. A FFD Program must:

(a) Provide reasonable assurance that individuals are trustworthy and reliable as demonstrated by the avoidance of substance abuse;

(b) Provide reasonable assurance that individuals are not under the influence of any substance, legal or illegal, or mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties;

(c) Provide reasonable measures for the early detection of individuals who are not fit to perform the duties that require them to be subject to the FFD program; [and]

(d) Provide reasonable assurance that the workplaces subject to this part are free from the presence and effects of illegal drugs and alcohol

10 C.F.R. § 26.23. As part of their FFD Program, nuclear plants must "implement drug and alcohol testing programs" and "administer drug and alcohol tests." 10 C.F.R § 26.31(a), (c). This drug and alcohol testing should not only be administered "[i]n response to an individual's observed behavior or physical condition indicating possible substance abuse" but also "[o]n a statistically random and unannounced basis, so that all individuals in the population subject to testing have an equal probability of being selected and tested." 10 C.F.R § 26.31(c)(2), (c)(5).

The NRC regulations also require nuclear licensees to establish, implement, and maintain their own written policies and procedures to meet the general performance objectives and applicable requirements of the regulations. See 10 C.F.R. § 26.27(a), (c). Those policies and procedures must, among other things, describe the consequences of violating the FFD Program. See 10 C.F.R. § 26.26(b)(8). STP had adopted a FFD Policy that is consistent with NRC regulations.

IV. FEDERAL PREEMPTION

"Under the doctrine of federal preemption, a federal law supersedes or supplants an inconsistent state law or regulation." United States v. Zadeh, 820 F.3d 746, 751 (5th Cir. 2016) (citation omitted). In determining the nature and reach of federal preemption, Congress's intent is the "ultimate touchstone." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (citation omitted).

There are three types of federal preemption: (1) express preemption; (2) field preemption; and (3) conflict preemption. Express preemption requires Congress to explicitly state its intent to preempt a state law. See English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990). "Field preemption occurs when Congress intends to 'occupy the field,' taking over a field of law to the exclusion of state or local authority." Zadeh, 820 F.3d at 751 (citing Sprietsma v. Mercury Marine, 537 U.S. 51, 64 (2002)). Finally, conflict preemption bars a state law that conflicts with federal law or "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." English, 496 U.S. at 78-79 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). The doctrines of field preemption and conflict preemption are at issue in ...