Williams v. BHI Energy I Power Servs.

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Marilyn Williams, Plaintiff, v. BHI Energy I Power Services, LLC, Defendant.

No. 0:21-cv-1186 (KMM/DTS)

United States District Court, D. Minnesota

August 24, 2023

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

Katherine M. Menendez, United States District Judge

While working as a payroll specialist at a Minnesota nuclear facility, Plaintiff Marilyn Williams failed a mandatory drug test and was fired by her employer that same day. She maintains that she had been drinking a weight-loss tea that purported to be free of marijuana, and that she failed the drug test due to the tea's false advertising. In a separate action, she settled with the tea manufacturer. But this case concerns her termination, and whether it was lawful under Minnesota's Drug and Alcohol Testing in the Workplace Act (“DATWA”).

Although Ms. Williams worked at a nuclear facility operated by Xcel Energy, she was employed by Defendant BHI Energy I Power Services, LLC, one of the 300 contractors Xcel uses to run its operations. All parties agree that if Xcel had been Ms Williams's employer and the defendant in this case, her state-law claims against Xcel would be preempted by federal law. However, the issue presented by this case is whether her claims against BHI-a staffing contractor for a nuclear licensee rather than the licensee itself-are also preempted. The Court answers that question in the negative and denies BHI's motion for summary judgment on that basis. It also grants Ms. Williams's motion seeking affirmative partial summary judgment. Though the parties dispute the reason for Ms. Williams's termination, the dispute is not material because both reasons proffered by the parties flow directly from the initial positive test. Thus, the Court holds as a matter of law that BHI violated DATWA.

BACKGROUND

I. Regulatory Background

A. The Atomic Energy Act

Pursuant to the Atomic Energy Act (“AEA” or “the Act”), 42 U.S.C. § 2011 et seq., the federal government regulates the creation, storage, and transportation of nuclear energy nationwide. See Va. Uranium, Inc. v. Warren, 139 S.Ct. 1894, 1900-01 (2019) (citing 10 C.F.R. § 40 et seq.). The Act delegates authority to the Nuclear Regulatory Commission (“NRC” or “the Commission”) to issue federal licenses to private entities to construct, own, or operate nuclear power facilities, and the Act delegates authority to the NRC to impose conditions on those licenses “by rule or regulation” to “effectuate the purposes and provisions” of the Act. 42 U.S.C. § 2133(a); see also id. at § 2201(b); 10 C.F.R. § 1.11(b). One such purpose, expressly declared by Congress in passing the Act, is to “assure public health and safety” while increasing “the productivity of the national economy and . . . to make the Nation self-sufficient in energy.” 42 U.S.C. § 5801(a). Nuclear licensees must “agree to observe such safety standards to protect health and to minimize danger to life or property” as the NRC may promulgate. Id. at § 2133(b). The NRC has “issued an array of rules on these subjects.” Va. Uranium, 139 S.Ct. at 1901.

A few years after the Atomic Energy Act's passage, Congress amended it to allow the NRC to offload some of its regulatory powers to the States. See 42 U.S.C. § 2021. The enumerated purposes of this provision include to “recognize the interests of the States” in using nuclear energy, “establish programs for, cooperation between the States and the Commission,” and “promote an orderly regulatory pattern between the Commission and State governments with respect to nuclear development and use.” Id. at 2021(a). Under this provision, the NRC may enter agreements with the States to pass on some of the commission's preexisting regulatory authority. Section 2021, however, specifies that the NRC shall retain authority over core areas, such as the operation of any nuclear facility. Id. at § 2021(c). Yet it expressly provides that nothing in the section “shall be construed to affect the authority of any State or local agency” to regulate conduct “for purposes other than protection against radiation hazards.” Id. at § 2021(k). As the Supreme Court made clear, § 2021 did not extend the NRC's power to activities “historically beyond its reach” and confirmed that “States remain free to regulate” activities “for purposes other than nuclear safety.” Va. Uranium, 139 S.Ct. at 1902.

B. Fitness-For-Duty Regulations

Among the various safety-related topics on which the NRC has promulgated rules is drug testing of employees in nuclear facilities. The NRC requires nuclear licensees and certain other entities to adopt and operate fitness-for-duty programs. 10 C.F.R. § 26.1. A compliant fitness-for-duty (or “FFD”) program must, among other objectives, “[p]rovide reasonable assurance that individuals are not under the influence of any substance, legal or illegal . . . which in any way adversely affects their ability to safely and competently perform their duties.” Id. at § 26.23(b).

Several types of entities are required to have fitness-for-duty programs and comply with the federal regulations: (1) licensees that are “authorized to operate a nuclear power reactor,” (2) licensees that are “authorized to possess, use, or transport formula quantities of strategic special nuclear material,” and (3) “licensees and other entities” that receive “special nuclear material in the form of fuel assemblies.” 10 C.F.R. § 26.3(a)-(c). In addition, some federal contractors are subject to the federal fitness-for-duty regulations, namely, those:

Contractor/vendors (C/Vs) who implement FFD programs or program elements, to the extent that the licensees and other entities specified in paragraphs (a) through (c) of this section rely on those C/V FFD programs or program elements to meet the requirements of this part.

Id. at § 26.3(d).^[1] Therefore, for the regulations to apply to a contractor, a contractor must implement an entire fitness-for-duty program or one of the enumerated program elements, and the nuclear licensee must rely on the contractor's program or program elements to meet its requirements under the federal regulations.

All individuals “who are granted unescorted access to nuclear power reactor protected areas” by licensees are subject to a regulated fitness-for-duty program. 10 C.F.R. § 26.4. The regulations identify “minimum sanctions” that regulated entities must impose when an individual has violated the drug and alcohol provisions of their fitness-for-duty program, but the regulations also allow regulated entities to “impose more stringent sanctions” for violations. Id. at § 26.75(a).

Ordinarily, a licensee or regulated entity cannot terminate someone's access or subject them to other administrative action based only on an initial, unconfirmed positive test. Id. at § 26.75(h). However, the regulations carve out an exception for what regulated entities may do in response to initial, unconfirmed tests that are positive for marijuana or cocaine metabolites. If an individual has an initial, unconfirmed positive drug test for marijuana or cocaine metabolites from a valid specimen, a licensee may “administratively withdraw” their site access or may “take lesser administrative actions,” provided that there is “no loss of compensation or benefits” to the individual during the “period of temporary administrative action.” Id. at § 26.75(i).

Once an initial positive test has been confirmed positive for any type of drug, the violation must result in a minimum of “termination of the individual's authorization” for site access “for at least 14 days.” Id. at § 26.75(e)(1). Regulated entities can “impose more stringent sanctions” for violations of their fitness-for-duty programs. Id. at § 26.75(a).

C. Minnesota's Protections

Minnesota's law governing drug and alcohol testing in the workplace, DATWA, affords protections to employees and job applicants, and it places limits on an employer's ability to use drug and alcohol testing in employment decisions. Minn. Stat. §§ 181.960-67.^[2] DATWA has a provision that expressly speaks to federal preemption, stating that the statute does “not apply to employees and job applicants where the specific work performed requires those employees and job applicants to be subject to drug and alcohol testing pursuant to . . . federal regulations or requirements necessary to operate federally regulated facilities.” Minn. Stat. § 181.957, subd. 1. But, a subsequent provision clarifies that the employers of employees subject to federal drug testing must still comply with DATWA's protections for employees “to the extent” that they “are not inconsistent with or specifically preempted by the federal regulations.” Minn. Stat. § 181.957, subd. 2.

DATWA provides greater affirmative protections to workers than what is required by the federal regulations governing drug testing of individuals at nuclear facilities. For instance, DATWA requires that employers give employees the right to explain a positive test:

If an employee or job applicant tests positive for drug use, the employee must be given written notice of the right to explain the positive test and the employer may request that the employee or job applicant indicate any over-the-counter or prescription that the individual is currently taking or has recently taken and any other information relevant to the reliability of, or explanation for, a positive test result.

Minn. Stat. § 181.953, subd. 6(b). Another provision prohibits employers from terminating employees based upon an initial, unconfirmed positive test:

An employer may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of a positive test result from an initial screening test that has not been verified by a confirmatory test.

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