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Ziemkiewicz v. R Carriers, Inc.

United States District Court, D. Maryland

February 6, 2014

R CARRIERS, INC., et al., Defendants

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For Ireneusz Ziemkiewicz, Plaintiff: Dominik Rostocki, PRO HAC VICE, The Rostocki Law Firm LLC, Philadelphia, PA; Henry Mark Stichel, Gohn Hankey and Stichel LLP, Baltimore, MD; Timothy P Creech, PRO HAC VICE, Creech Law LLC, Philadelphia, PA.

For R Carriers, Inc., R& L Carriers Shared Services, L.L.C. ABC Corporation, Defendants: C Dennis Southard, IV, LEAD ATTORNEY, Thompson Hine LLP, Washington, DC; Anthony C White, Jennifer Mingus Mountcastle, PRO HAC VICE, Thompson Hine LLP, Columbus, OH.



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Richard D. Bennett, United States District Judge.

The Plaintiff Ireneusz Ziemkiewicz asserts claims against his former employer Defendant R& L Carriers Shared Services, LLC, and the Defendant R Carriers, Inc. (collectively, " Defendants" ) for defamation, unlawful interference with contract, and unlawful interference with prospective economic benefit, based on allegations that the Defendants falsely represented to prospective employers that he had refused a drug test, making him ineligible to drive a commercial truck under the Federal Motor Carrier Safety Regulations, codified in Title 49 of the Code of Federal Regulations. Pending before this Court are Plaintiff's Motion for Partial Summary Judgment (ECF No. 104), Defendant R Carriers, Inc.'s Motion for Summary Judgment (ECF No. 108), and Defendant R& L Carriers Shared Services, LLC's Motion for Summary Judgment (ECF No. 109). Also pending are Defendants' Choice of Law Brief (ECF No. 80) and Plaintiff's Choice of Law Brief (ECF No. 103) on the issue of punitive damages. A hearing was held on January 27, 2014.[1] See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, Plaintiff's Motion for Summary Judgment (ECF No. 104) is DENIED, Defendant R Carriers, Inc.'s Motion for Summary Judgment (ECF No. 108) is DENIED, and Defendant R& L Carriers Shared Services, LLC's Motion for Summary Judgment (ECF No. 109) is DENIED. In addition, the issue of punitive damages will be governed by Maryland law. A period of discovery on punitive damages will be set by separate Order.


The Plaintiff, Ireneusz Ziemkiewicz, is a Pennsylvania resident who was formerly employed as a commercial truck driver at Defendant R& L Shared Services, LLC's (" Shared Services" ) Hagerstown, Maryland terminal. Am. Compl. ¶ ¶ 1-3, 10, ECF No. 12; Deposition of Ireneusz Ziemkiewicz 73, ECF No. 109-2. Defendant R Carriers, Inc. (" Carriers" ) is a holding company that owns a portion of Shared Services but does not engage in motor carrier operations. Ziemkiewicz, who had been a truck driver for approximately fifteen years, worked for Shared Services for approximately five months from January 2011 through June 17, 2011. Am. Compl. ¶ ¶ 15, 21-22, 35. He was hired by Shared Services employee Charles Stefaniak, who had recently started work as Terminal Manager at the Hagerstown, Maryland service center. Deposition of Charles Stefaniak 21, 39, 120, ECF No. 109-3. During Ziemkiewicz's employment, Shared Services discovered that although the Plaintiff had listed only one previous accident in his job application, he had been involved in seven total accidents. PX 24 at D000062-64, ECF No. 109-5. Ziemkiewicz

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was also involved in disciplinary matters during his employment with Shared Services, PX 25 at D000095-97, but his supervisor Stefaniak stated that they had a good working relationship. Stefaniak Dep. 39.

On June 17, 2011, Stefaniak called the Plaintiff to the office for a meeting. According to Stefaniak, the purpose of the meeting was to deliver Ziemkiewicz a written warning for damaging freight and to inform him that he had been selected for a random drug test in accordance with Department of Transportation Regulations. Stefaniak Dep. 23-24, 29-30. At the beginning of the meeting, Stefaniak contends that he had placed a drug test sample cup on his desk. Id. at 24, 36. Stefaniak also stated that he had prepared to give Ziemkiewicz the accompanying paperwork for the drug test. Id. at 13-14; Pl.'s Exs. L D000035, (Shared Services' internal Random Controlled Substance Test Selection form with Terminal Manager Instructions); Pl.'s Ex. N (Federal Drug Testing Custody and Control Form), ECF No. 104-2. Stefaniak states that Ziemkiewicz saw the cup on the desk and asked if it was for him. Stefaniak testified to then informing Ziemkiewicz that the cup was for his random drug test and that, after discussing the damaged freight incident, Ziemkiewicz would be required to report to Health@Work, the employee clinic. Stefaniak Dep. 24-26, 36-37; Emails of July 1, 2011, Pl.'s Ex. CC, D000036-37, ECF No. 104-2. Stefaniak and Ziemkiewicz then discussed the written warning for the damage to freight. During this conversation, Ziemkiewicz disagreed with the determination that a warning was warranted and resigned his employment. Stefaniak Dep. 22-23. Stefaniak testified that he attempted to calm Ziemkiewicz down and told him that the incident was minor and not worth resigning over. Id. Ziemkiewicz turned in his time and fuel cards, and left the office. According to Stefaniak, Ziemkiewicz did not sign the warning for damaging freight or take the sample cup and drug testing paperwork. Id. at 22-26.

However, Ziemkiewicz's account of the meeting differs significantly from Stefaniak's. Ziemkiewicz flatly denies seeing a sample cup or paperwork and denies that any drug test was mentioned at this meeting.[2] Ziemkiewicz Dep. 22-23. He testified that " nobody from [Defendants] asked me about the random. I am a driver with 15 years' experience and I know what it means [ ] from the driver's side." Id. at 22. He stated that he " never refused a test" and that he had no reason to do so because he has never taken a drug in his life, and he knew the consequences of a refusal. Id. at 22-23. Under the Federal Motor Carrier Safety Regulations, 49 C.F.R. § 350, et seq. (the " Regulations" ), the consequence of refusing a drug screening required by the Department of Transportation (" DOT" ) is that the employee is deemed to be unqualified to operate a commercial vehicle. See also 49 C.F.R. § 40, et seq. (" Procedures for Transportation Workplace Drug and Alcohol Testing Programs" ). A refusal is equivalent to a positive test. 49 C.F.R. § § 40.191, 383.51. On the other hand, a refusal to take a drug test other than one mandated by the DOT, for exa; mple an employer's internal test, carries no regulatory consequences. Id. § 40.191(e).

Later the same day, Stefaniak made handwritten notes of the meeting so that he would not later be accused of terminating the Plaintiff.[3] Stefaniak Dep. 78; Pl.'s

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Ex. I, D000027-28, ECF No. 104-2. It was not immediately apparent to Stefaniak that the Plaintiff's conduct amounted to a refusal of a drug test, and Stefaniak did not report it as such. Stefaniak was not knowledgeable about the Regulations, and in his approximately six months as Terminal Manager, he had never had an employee refuse a test. Stefaniak Dep. 34-35, 116. The Defendants state that it is not unusual for a Terminal Manager, who is not a Commercial Driver's License holder, to be ignorant of these Regulations, specifically the consequences of a DOT-mandated drug test refusal. Shared Services' Mot. 6, ECF No. 109-1 (citing Deposition of Dean Kuska 114-15, ECF No. 109-11)). On the other hand, the Defendants assert that any Commercial Driver's License holder, such as Ziemkiewicz, would be aware of such consequences. Id. Furthermore, the Defendants asserted at the hearing that employees at the Hagerstown, Maryland terminal would know that only DOT-mandated tests were administered there, as opposed to internal company tests that are not subject to the same Regulations. Declaration of Sheila Phillips ¶ 3, ECF No. 116-5.

Following the meeting, Penny Foley, a Safety Compliance Coordinator at Shared Services headquarters in Wilmington, Ohio could not locate the results of Ziemkiewicz's scheduled random drug and alcohol screen in the company computer system. Deposition of Penny Foley 24, ECF No. 109-13; Emails of July 1, 2011, Pl.'s Ex. CC, D000036-37, ECF No. 104-2. She asked Stefaniak by email if he had the results, and in response, Stefaniak briefly recounted the events of the June 17, 2011 meeting. Pl.'s Ex. CC, D000036-37. Based on Stefaniak's reply email, Foley preliminarily determined that Ziemkiewicz had refused a drug test. Foley Dep. 26. In order to confirm her interpretation of the events, Foley contacted Sheila Phillips, another Shared Services Safety Compliance Coordinator in the same office. Phillips Dep. 24; Pl.'s Ex. CC, D000036-37. Phillips responded with the final decision that the Plaintiff refused the drug test, confirming Foley's conclusion. Foley Dep. 26; Phillips Dep. 25. Stefaniak took no part in the determination, other than reporting the events of the meeting. Stefaniak Dep. 79.

In a letter to the Plaintiff dated June 30, 2011 and received by the Plaintiff on July 9, 2011, Foley stated that his conduct amounted to a " Positive Drug and/or Alcohol Test Result," and informed him that in order to return to safety-sensitive duty, he would be required to submit to an evaluation and testing by a Department of Transportation Substance Abuse Professional pursuant to 49 C.F.R. § 40 subpt. O. Pl.'s Ex. D, D000051, ECF No. 104-2; Foley Dep. 28-29. Ziemkiewicz contends that he telephoned the Wilmington, Ohio office many times to attempt to challenge to determination that he refused the drug test. Foley Dep. 31-32. Foley informed her supervisor, Gary Moyer, that she was receiving multiple daily calls from Ziemkiewicz regarding the refusal determination. Id. 37, 63, 8-9. Moyer told the Plaintiff to stop calling Foley. Ziemkiewicz Dep. 27-30.

As a result of the Plaintiff's challenge to the refusal determination, Shared Services' Human Resources Department, also located in Wilmington, Ohio, further reviewed the matter. Karen Curl, the Director of Human Resources, spoke to Ziemkiewicz and Stefaniak and concluded that the Plaintiff did refuse the drug screen. Deposition of Karen Curl 22, 28, ECF No. 109-15. In particular, she noted that Ziemkiewicz's responses to her questions were " evasive," while Stefaniak's account was " very credible." Curl Dep. 14-15, 51-52, 65. Curl also noted Ziemkiewicz's past performance and credibility issues during

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his employment with Shared Services, but testified that she found Stefaniak had no motive to lie and that he treated it as a resignation, not a refusal. Id. at 52-53, 65. Furthermore, Curl noted her conclusion that Shared Services had no choice to report the refusal " or else we would be out of compliance." Emails of July 11, 2011, Pl.'s Ex. H, ECF No. 104-2.

Prior to his resignation from Shared Services, the Plaintiff had applied to work at the United Parcel Service (" UPS" ). See Application of May 12, 2011, UPS000001-02, ECF No. 109-16. By the time he received the June 30, 2011 letter informing him of the positive test, Ziemkiewicz was already employed by UPS. The Plaintiff testified that because he was concerned about the effect of the refusal determination, he showed the letter from Shared Services to his manager at UPS, Michael Schnabel. Ziemkiewicz Dep. 168. Eventually, UPS terminated the Plaintiff on August 31, 2011, stating that he " wasn't living up to the standards that [UPS] set forth." Deposition of Michael Schnabel 21-22, ECF No. 109-17. The manager at UPS testified that the letter regarding the drug test refusal did not play a role in the determination to discharge Ziemkiewicz. Id. at 48-49.

The Plaintiff hired a lawyer, who sent Shared Services a letter seeking to " clear up" the matter of the positive test determination. Letter of August 2, 2011 from Thomas Kwiatkowski, Esq., Pl.'s Ex. P, ECF No. 104-2. At that time, the Plaintiff did not file a rebuttal as permitted pursuant to 49 C.F.R. § 391. Karen Curl of the Human Resources Department testified that she forwarded the attorney's letter to Shared Services' legal department. Curl Dep. 35-36. On October 11, 2011 and again on November 2, 2011, the Plaintiff wrote to Foley himself, stating that he had not received documents relating to a drug and alcohol test or a request for a test, and requesting that they be sent to him. Pl.'s Exs. Q-R, ECF No. 104-2. Receiving no response, the Plaintiff then enlisted the help of Department of Transportation (" DOT" ) Representative Jim Keenan, who demanded on Ziemkiewicz's behalf that the Defendants provide documentation relating to the refusal determination. Pl.'s Ex. S, ECF No. 104-2. Ultimately, the Defendants produced the requested documents. Id.

Subsequently, the Plaintiff applied for employment with other carriers. As part of the applications, he signed release forms giving permission to his former employers to disclose his drug and alcohol testing history. See, e.g., Release Form, NFI000032, ECF No. 109-18. The federal Regulations require former employers to respond to requests for substance screening history from prospective employers. 49 C.F.R. § 391.23(g). In response to such requests, the Defendants sent standardized form reports indicating that Plaintiff refused to submit to a DOT-required random drug test. See, e.g., Pl.'s Ex. A, ECF No. 104-2. The reports stated that they were sent from Shared Services, and were signed by Diana Cline, an administrative assistant employed by Shared Services in Wilmington, Ohio who played no substantive role in the refusal determination or the publication thereof. Id.; Curl Decl., ECF No. 116-18. However, Carriers had granted Shared Services the right to use its trademarked brand name, and the reports were printed with a logo reading " R® Carriers" across the top. See, e.g., Pl.'s Ex. A, ECF No. 104-2.

The reports, in substantially identical form, were published to several other entities. In July 2011, the Plaintiff applied for work at NFI Interactive Logistics, a carrier in New Jersey, but NFI determined based on Defendants' disclosure of his refusal to take a drug test that he was not

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qualified for hiring. NFI000054, ECF No. 109-18. Similarly, in September 2011, Defendants informed Black Horse Carriers of the refusal. Pl.'s Ex. B, ECF No. 104-2. Ziemkiewicz's application for employment with Black Horse in Maryland was rejected, but there is no evidence indicating a reason. Deposition of David Schneider, ECF No. 109-21; BH001-04, 14-15, 41-51, ECF No. 109-20. Notably, Ziemkiewicz did not file a rebuttal to the drug screen history report sent to NFI or Black Horse.

Soon after, the Plaintiff applied for a position with Vitran Inc., a motor carrier in Maryland. Ziemkiewicz Dep. 197-98. Ziemkiewicz signed a release form and Vitran requested Ziemkiewicz's drug screening records from Shared Services. VE000012-13, 24-27, ECF No. 109-22. While awaiting a response, Ziemkiewicz was allowed to begin driving for Vitran. On October 21, 2011, Vitran received the form from Shared Services indicating the drug test refusal. At that time, the Plaintiff was on the road actively driving a Vitran truck. Vitran called him and instructed him to pull over immediately so another driver could take his place because the refusal rendered him ineligible to drive. Kuska Dep. 86-87. He was then terminated. VE000002. On November 2, 2011, Ziemkiewicz first filed a rebuttal to charges of failing to take a drug test, after being terminated from Vitran. VE000003.

Ziemkiewicz alleges that as a result of the Defendants' publications of false information, he has been unable to obtain or maintain employment as a commercial truck driver. He specifically alleges that he was terminated from, or prevented from being hired by, UPS, Black Horse, and Vitran in Maryland, and NFI in New Jersey. Ziemkiewicz also suspects that the Defendants' publication of the refusal determination was the reason he was unable to obtain employment from Weiss Brothers, Chopper 79, and Coca Cola, all in Maryland, but he was unable to confirm through discovery that the report was sent to those companies. Pl.'s Mem. 22, ECF No. 104-1. In addition, the Plaintiff received a response from Schneider Trucking in Pennsylvania to his inquiry about possible ...

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