Wiggins v. Kimberly-Clark Corp.

WILLIAM R. WIGGINS, Plaintiff, v. KIMBERLY-CLARK CORPORATION, KENDRA PRESLEY,and JAMEY GRIZZLE, Defendants.

No.: 3:12-CV-115-PLR-CCS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE

February 3, 2015

MEMORANDUM OPINION

Plaintiff, William R. Wiggins, has brought this action against his employer, Kimberly-Clark Corporation, alleging multiple tort claims under Tennessee law. All claims brought by Wiggins arise from a single incident - drug and alcohol testing of Wiggins, pursuant to Kimberly-Clarks' "for cause" testing policy on August 16, 2011, after his supervisor received a report that co-workers detected the smell of alcohol on Wiggins at work.

This matter is before the court on Defendant Kimberly-Clark's (1) objections to the Magistrate Judge's Memorandum and Order [R. 44]; (2) motion to dismiss [R. 46]; motion for summary judgment [R. 55]; Jamey Grizzle's motion to dismiss [R. 47]; and (5) Kendra Presley's motion to dismiss [R. 48].

I. Background

Wiggins is an employee of Kimberly-Clark's mill located in Loudon, Tennessee. Stacie Cole was the Team Coordinator (TC) for Wiggins' team, and Kimberly Samry was the Operations Team Leader (OTL).

Kimberly-Clark has a Code of Conduct that applies to all employees and sets forth guidelines and expectations for maintaining a safe and respectful workplace for its employees. Among other things, the Code of Conduct sets forth Kimberly-Clark's commitment to maintaining a drug-free workplace by prohibiting employees from using, selling, or being under the influence of alcohol or nonprescribed or illegal drugs in the workplace, and informing all employees that they are subject to testing if they appear to be under the influence at work, or if Kimberly-Clark has reason to believe an employee has violated its policy.

The Code of Conduct provides multiple avenues for employees to report violations and allows employees to share concerns anonymously, to encourage employees to report violations to someone with whom they feel comfortable, without fear of retaliation. Kimberly-Clark recognizes that employees may not always feel comfortable reporting a violation to a specific person; or that there may be a need to report a violation outside the employee's supervisory structure because of a supervisor's involvement in the violation or failure to take appropriate action regarding a violation.

Kimberly-Clark employees complete training on the Code of Conduct every year. Wiggins was familiar with and had reviewed the Code of Conduct on an annual basis, and was aware of the provision allowing employees to make anonymous reports of Codeof Conduct violations. In addition, the Loudon mill has an alcohol and drug testing procedure that has been in place since 2007. The Loudon mill's alcohol and drug testing procedure is intended to be used to determine if a "for cause" test of an employee is warranted, i.e., if an employee appears to be under the influence of alcohol or drugs while at work. Implementation and enforcement of the drug and alcohol policies are necessary to maintain a safe working environment, particularly in the mill, where an employee could endanger him/herself or others if operating mill machinery while intoxicated.

On August 16, 2011, Wiggins' team began its shift at 7:00 p.m. Kendra Presley and Jamey Grizzle were members of Wiggins' team. During the pre-shift meeting, Grizzle smelled alcohol when he walked by Wiggins. On the way out to the mill floor to beginning working, Presley stopped to ask Wiggins a question. During that conversation, Presley also smelled alcohol on Wiggins. Presley told Grizzle that she had smelled alcohol on Wiggins, but did not feel comfortable reporting Wiggins to TC Cole, and she was concerned about Wiggins' safety. Presley did not feel comfortable reporting to Cole because she thought Cole might not handle the report properly because Cole and Wiggins were friends. After his conversation with Presley, Grizzle left the floor and contacted OTL Samry, and told her about Wiggins smelling of alcohol.

Samry was home at the time Grizzle called her, so she headed to the mill after speaking with him. Samry called Sue Schultz, the mill Occupational Health Nurse, and asked Schultz to walk her through the drug and alcohol testing policy. Schultz told Samry where to find a prepared packet with all the documents she would need todetermine if testing was warranted and, if needed, to proceed with testing in compliance with Kimberly-Clark's policy.

When Samry arrived at the mill, she went directly to the shipping department to speak with Cole. She spoke with Cole privately and then asked Cole to retrieve Wiggings from the floor and bring him to the office. When Cole brought Wiggins to the office, Samry explained to him that she had received a report from two of his co-workers that he smelled of alcohol. Wiggins volunteered to Samry that he had a beer early that day before reporting to work. Based on Wiggins' admission, and the report of two co-workers that Wiggins smelled of alcohol, Samry determined that "for cause" testing was warranted.

Wiggins signed the form consenting to providing a breath, urine, and/or blood sample to be tested for drugs, controlled substances, and/or alcohol. Wiggins asserts Samry told him that if he did not sign the consent form, he would be fired, so he signed the form under duress.

Samry and Cole transported Wiggins to the designated local testing facility, Ft. Loudon Medical Center. Wiggins first underwent a breath alcohol test. The results of the breath alcohol test were 0.0, which was displayed to Wiggins, Cole, and Samry. Per the certified technician who completed Wiggins' breath alcohol testing, it is possible for the smell of alcohol to still be detected on an individual, even if the individual has had a negative result on the breath alcohol test.

After Wiggins' breach alcohol test was negative, before proceeding with the drug test, Samry contacted Schultz to confirm that Wiggins was supposed to undergo bothtests. Schultz confirmed that Kimberly-Clark's drug and alcohol policy requires that an employee undergoing "for cause" testing be tested for both alcohol and drugs. Wiggins then provided a urine sample for drug screening.

The drug screen results are not immediately available. Wiggins, Cole, and Samry then returned to the mill. Per the drug and alcohol policy, Wiggins was not permitted to drive himself home, because Kimberly-Clark did not have all of the test results. Samry confirmed with Schultz that Wiggins was not permitted to drive himself home, even though his breath alcohol test was negative. Wiggins called a friend and his father to come pick him up at the mill. Pending the results of the drug screen, Wiggins was placed on administrative leave. Wiggins' drug screen was negative, and as a result, his administrative leave was paid. Wiggins returned to work on August 22, 2011.

Upon his return to work, Wiggins asked the mill manager and human resources manager if he could address his team at the pre-shift meeting. Wiggins addressed his team at the end of the pre-shift meeting, telling them that he would never put himself or a team member at risk; that he was sorry a team member "thought" he or she smelled alcohol on him; that he was "pissed off" that his team member did not come to him to talk about it; and that he was "pissed off" that somebody had falsely accused him of coming to work under the influence.

Wiggins originally filed his Complaint in Loudon County Circuit Court on February 10, 2012, raising state law claims against Kimberly-Clark and an unidentified John Doe defendant. Kimberly-Clark timely removed the case to this court, on the basis of diversity jurisdiction.

On October 12, 2012, the court dismissed Wiggins' claims for breach of contract - Counts I through VII [R. 14]. The only remaining claims were for: (1) defamation against John Doe - Count VIII; (2) outrageous conduct against Kimberly-Clark and John Doe - Count IX; (3) false imprisonment against Kimberly-Clark and Joe Doe - Count X; (4) invasion of privacy against Kimberly-Clark and Joe Doe - Count XI; and (5) misrepresentation against Kimberly-Clark and John Doe - Count XI (sic).

On February 5, 2014, Wiggins filed a motion to amend his complaint to add two new defendants - Kendra Presley and Jamey Grizzle - in place of the John Doe defendant. Wiggins also sought to amend his complaint to allege the following claims against Presley and Grizzle: defamation, intentional and negligent infliction of emotional distress, invasion of privacy, and misrepresentation. Wiggins dropped his claim of false imprisonment against any John Doe defendant. He also alleged a new claim of negligence against Kimberly-Clark.

Wiggins contends that the conduct of Kimberly-Clark in administering the drug and alcohol testing constitutes intentional or negligent infliction of emotional distress. He alleges two types of invasion of privacy claims: (1) that Kimberly-Clark intrusively subjected him to a drug screen; and (2) defendants presented him in a false light by "presenting him as an employee who would endanger his co-workers by coming to work drunk." Wiggins' false imprisonment claim is based on the fact that he underwent drug and alcohol testing, was required to undergo drug testing after a negative breath alcohol test result, and was not permitted to drive himself home after the drug and alcohol testing on August 16, 2011. Wiggins' misrepresentation claim is based on his belief that Samryand Cole did not follow every step of the Loudon mill drug and alcohol policy, including "management verification." Wiggins alleges that Samry bypassed the policy because she "never come over and physically observed [plaintiff]."

On March 24, 2014, the Magistrate Judge granted Wiggins' motion to amend his complaint to name Kendra Presley and Jamey Grizzle "as the John/Jane Doe originally named as an unknown party." [R. 40].

II. Objection to Memorandum and Order

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