530 S.W.3d 372
Ark. Ct. App.2017Background
- Larry Pingatore, a Union Pacific (UP) employee with prior inpatient treatment for alcoholism and participation in a voluntary employee-assistance program (EAP), was subject to frequent follow-up drug tests after returning to work.
- After a work injury and relocation to West Memphis, AR, Pingatore (now a one-person security guard) was tested 18 times in 11 months; he never tested positive.
- Most Arkansas tests were administered on-site by third-party collector Dennis Hatley; Pingatore alleged testing was obvious, not discrete, and that coworkers learned he was being tested and treated him as if he had a substance problem.
- Pingatore sued UP and Hatley for intrusion upon seclusion, false light, and defamation; summary judgment dismissed defamation earlier and later dismissed remaining claims with prejudice.
- The trial and appellate courts evaluated whether the testing conduct was highly offensive or falsely publicized, considering the regulated railroad context, Pingatore’s safety-sensitive position, his limited privacy expectations, and that he did not object while testing occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Intrusion upon seclusion: Did testing method/frequency constitute a highly offensive intrusion? | Testing was excessive, done in a public/trafficked guard shack, obvious to others, causing embarrassment and anxiety. | Testing was lawful, related to EAP follow-up and injury-related make-up tests; limited privacy in safety-sensitive railroad work; tests were not improperly observed. | No triable issue; summary judgment for UP and Hatley — conduct not highly offensive as a matter of law. |
| False light: Did the testing place Pingatore in a misleadingly offensive false light? | Frequent, public testing suggested an active drug/alcohol problem, creating misleading impressions among coworkers and truck drivers. | Testing disclosed only that a test occurred; no false statements or disclosure of test results; facts (past treatment) undisputed. | No triable issue; summary judgment affirmed — no misleading publicized falsity. |
| Defamation: Did UP or Hatley publish false statements harming reputation? | Conduct and context amounted to statements implying substance abuse that damaged reputation. | No express false statements were published; testing activity in a regulated industry is not an actionable defamatory statement. | Defamation claim failed as a matter of law (previously dismissed). |
| Consent/Privacy scope: Was Pingatore’s consent or expectation of confidentiality vitiated by employer actions? | Consent invalid where testing was not discreet and effectively coerced by employment consequences. | Pingatore acquiesced by years of testing without complaint; EAP and regulatory context limited privacy and required follow-up testing. | Court found no material fact showing lack of valid consent or privacy violation; summary judgment for defendants. |
Key Cases Cited
- Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (Ark. 1979) (adopts Restatement approach to invasion-of-privacy torts).
- Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (Ark. 2002) (search of an employee's home implicated strong privacy interests).
- Skinner v. Ry. Labor Execs.’ Ass'n, 489 U.S. 602 (U.S. 1989) (urinalysis in safety-sensitive transportation recognized as a search and employees have diminished expectation of privacy).
- McMullen v. McHughes Law Firm, 2015 Ark. 15, 454 S.W.3d 200 (Ark. 2015) (intrusion tort requires conduct highly offensive to a reasonable person).
- Sawada v. Walmart Stores, Inc., 2015 Ark. App. 549, 473 S.W.3d 60 (Ark. Ct. App. 2015) (elements for false-light claim and publisher’s knowledge/recklessness).
- Navorro-Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (Ark. 1989) (gestures or conduct can constitute a defamatory statement in some contexts).