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Oliveri v. U.S. Food Service

February 9, 2010


The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)


Before the court for disposition is a motion (Doc. 9) to dismiss Plaintiff Ronald Oliveri's complaint filed by Defendant U.S. Food Service d/b/a North Star Food Service. The matter has been fully briefed and is ripe for disposition.


Defendant U.S. Food Service d/b/a North Star Foodservice, a commercial motor carrier, employed the plaintiff at its Pittston, Pennsylvania location beginning on January 15, 2007. (Doc. 1, Compl. ¶ 6). He reported directly to the company's Transportation Manager Pat Sporing ("Sporing"). (Id. at ¶ 8). Over the course of his employment plaintiff's employment relationships forced him to confront incidents of illegal drug use by his co-workers. (Id. at ¶¶ 11, 18).

Because the defendant is a commercial motor carrier, it is regulated by the Federal Department of Transportation (hereinafter "DOT"). (Id. at ¶ 19). The Federal Motor Carrier Safety Administration (hereinafter "FMCSA"), a part of DOT enforce federal safety regulations applicable to commercial motor carriers. (Id.)

Pursuant to DOT regulations, commercial motor carriers must perform drug testing of drivers with commercial drivers licenses-- including random drug testing. (Id. at ¶ 20). Employers such as defendant are responsible for carrying out these random tests. (Id. at ¶ 21). If a driver tests positive for drugs, he must be removed from safety-sensitive duty such as driving. (Id. at ¶ 22). The regulations further provide that the driver may not return to driving until he is evaluated by a substance abuse professional and successfully completes a drug counseling program. (Id. at ¶ 23). Additional DOT regulations require that motor carriers systematically inspect, repair and maintain all commercial motor vehicles under their control. (Id. at ¶ 24). Defendant outsourced certain functions with regard to random drug testing responsibilities to a third-party administrator, First Advantage. (Id. at ¶ 25). First Advantage selected drivers at random for testing and provided a list to the defendant. (Id. at ¶ 26). Sporing required that plaintiff seek prior approval from him before any testing occurred. (Id. at ¶ 29). Sporing delayed or excused testing on several drivers. (Id. at ¶¶ 31-33, 36-38, 48, 52). Additionally, when one driver's test returned positive for cocaine, Sporing indicated that he believed the results were inaccurate and that the driver should be re-tested at a later date. He indicated that he would allow him to return to driving if the second test came back negative, in violation of DOT regulations. (Id. at ¶¶ 41-43).

Plaintiff complained several times to John Reedy, the defendant's area Human Resources Manager about Sporing's failure to comply with DOT drug testing regulations. (Id. at ¶¶ 34-45). Ultimately, Reedy told plaintiff that Sporing was "the Operations Manager, he knows what needs to be done" and "[t]his is [Sporing's] operation, let him run it." (Id. at ¶ 47).

Plaintiff also complained to Sporing and Reedy about the safety of defendant's vehicles. (Id. at ¶ 59). He asserted that the vehicles were not roadworthy and the equipment needed immediate inspection. (Id. at ¶¶ 59, 67).

On October 14, 2008, plaintiff contacted the defendant's "Check-In Line" an anonymous hotline for employees to make complaints. (Id. at ¶¶ 71, 77). Plaintiff complained of the drug testing situation.

The next day, Sporing indicated to plaintiff that he knew plaintiff had complained to the hotline and terminated his employment. (Id. at ¶¶ 79, 82). As a reason for his termination the defendant indicated that plaintiff had engaged in "gross misconduct" and violated company policy. (Id. at ¶¶ 87-89). Plaintiff avers that the actual reason for his termination is that he complained about the company's safety practices and refused to violate DOT safety regulations. (Id. at ¶ 90).

Based upon these facts, plaintiff filed the instant two-count action. The complaint alleges: 1) wrongful discharge/retaliation in violation of the Surface Transportation Assistance Act, 49 U.S.C. § 31105 et seq.; and 2) wrongful discharge in violation of public policy under Pennsylvania law. Defendant has filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), bringing the case to its present posture.


As this case is brought pursuant to a federal statute, we have jurisdiction under 28 U.S.C. ยง 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have supplemental ...

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