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April 7, 1993



The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 The defendants, Dr. John Herrlin ("Herrlin"), Rose Tulli ("Tulli"), and Metro-North Commuter Railroad ("Metro-North") (collectively, the "Defendants") have moved pursuant to Rule 12(b)(1) and (6), Fed. R. Civ. P., for an order dismissing the Complaint of plaintiffs John V. Milam ("Milam") and Vivian Milam (collectively, the "Plaintiffs") for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.

 The Plaintiffs have moved pursuant to 28 U.S.C. § 1447 for an order remanding this action to the New York State Supreme Court from which it was removed.

 For the reasons set forth below, the Plaintiffs' motion to remand is denied, and the Defendants' motion to dismiss the Plaintiffs' Complaint is granted.

 The Parties

 Milam is and was at the time of the drug test about which he complains an employee of Metro-North, working as a tower operator as defined by 45 U.S.C. § 51.

 Plaintiff Vivian Milam is Milam's wife.

 Metro-North is a corporation duly organized, created, and existing under the laws of the State of New York and is a common carrier in interstate transportation and commerce by railroad.

 Herrlin is an employee of Metro-North, serving as its Medical Director and designated Medical Review Officer pursuant to 49 C.F.R. part 40 and 49 C.F.R. § 219.707. Herrlin is sued in his official capacity as an agent of Metro-North.

 Tulli is an employee of the Metro-North. She serves as Manager of Metro-North's Random Testing Program and is sued in her official capacity as an agent of Metro-North.

 Prior Proceedings

 This action originally was brought by the Plaintiffs in the New York State Supreme Court, New York County, seeking damages pursuant to the Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq. (the "FELA"). On July 17, 1992, the Defendants removed this action pursuant to 28 U.S.C. §§ 1441 et seq. from that court to the United States District Court for the Southern District of New York with the alleged original and removal jurisdiction of this Court being premised on a claim of right under the Constitution, treatise, or laws of the United States pursuant to 28 U.S.C. §§ 1331, 1337, and 1441 et seq.

 The Defendants filed their motion on July 27, 1992, and the Plaintiffs submitted their motion to this Court on August 6, 1992. Oral argument was heard on both motions on November 25, 1992, and they are considered fully submitted as of that date.


 On a Rule 12(b)(6) motion to dismiss, the factual allegations of the complaint are presumed to be true and all factual inferences must be drawn in their favor and against the defendants. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989); Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir. 1985). Accordingly, the factual allegations considered here and set forth below are taken from the Plaintiffs' Complaint and do not constitute findings of fact by the Court. They are presumed to be true only for the purpose of deciding the present motions. *fn1"

 In his capacity as a tower operator for Metro-North, Milam is responsible for performing duties involving the movement of freight in interstate and foreign commerce. He is subject to the Hours of Service Act, 45 U.S.C. §§ 61 et seq., which regulates the hours of service of employees "actually engaged in or connected with the movement of any train, including hostlers." 45 U.S.C. § 61(2). The rates of pay, rules, and working conditions of his employment are governed by the collective bargaining agreement (the "Agreement") entered into between Metro-North and the Transportation Communications International Union, which was formed according to and is governed by the provisions of the Railway Labor Act, 45 U.S.C. §§ 151 et seq. (the "RLA"). Metro-North's Substance Abuse Policy and Rule G *fn2" of the Rules of the Operating Department (the "Department"), which restrict an employee's use of alcohol and controlled substances, are deemed by past practice to be part of Metro-North's collective bargaining agreements. See Railway Labor Executives' Ass'n v. Metro-North Commuter R.R. Co., 759 F. Supp. 1019, 1023 (S.D.N.Y. 1990); see also Consolidated Rail Corp. v. Railway Labor Executives' Ass'n, 491 U.S. 299, 314-15, 105 L. Ed. 2d 250, 109 S. Ct. 2477 (1989) (Rule G has industry-wide application) ("Conrail").

 Milam is required pursuant to the Federal Railroad Administration ("FRA"), 49 C.F.R. part 219 (1991) ("Part 219"), and the Agreement to participate in Metro-North's random drug testing program and must supply a urine sample when ordered to do so by Metro-North. The FRA regulations define the "Hours of Service" employees' use of alcohol an legal controlled substances and prohibit the use of illegal drugs. See 49 C.F.R. §§ 219.101-219.103. The regulations also set forth the carriers' duties with regard to alcohol and drugs, providing that when "a positive test result [is] reported by the railroad's Medical Review Officer," the railroad has "reason to believe that an employee has violated" the alcohol or drug prohibition, and "the railroad shall immediately remove the employee from covered service." 49 C.F.R. § 219.104(a). Finally, the FRA regulations provide a hearing procedure in the event an employee contests the validity of a test result. 49 C.F.R. § 219.104(c).

 On January 16, 1990, pursuant to 49 C.F.R. § 219.601(d)(2), Metro-North commenced random testing of employees covered under the FRA and the Agreement. Milam's drug test, which constitutes the source of this action, was conducted on August 9, 1990. On August 17, 1990, Herrlin notified Milam that the laboratory report showed positive for opiates, and Tulli ordered Milam to be taken out of service as of that date. The Department then formally charged Milam with a violation of Rule G on August 20, 1990.

 Milam requested that Metro-North and its medical department submit his urine sample to a further test, which was available and would have revealed that the positive reading on the sample in question was a false positive. *fn3"

  Milam also requested that the formal disciplinary investigation scheduled pursuant to Rule 50 of the Agreement *fn4" be postponed from August 28, 1990 to September 10, 1990. On September 10, however, instead of proceeding with the disciplinary investigation, Milam signed a "Waiver Letter: Substance Abuse," waiving his right to an investigation within the contractual time limits and agreeing to follow a treatment program prescribed by Metro-North's Employee Assistance Program ("EAP"). *fn5"

 On September 21, 1990, Herrlin notified the Department that a further test of Milam's urine sample revealed it to be negative, and, accordingly, Tulli authorized Milam's return to service that same day. On September 24, 1990, the Department formally notified Milam that the disciplinary investigation was cancelled and that he would be compensated for his time out of service pursuant to the Agreement. Milam was reinstated with pay for all time last and has continued to work for Metro-North without incident since that time.

 Milam alleges that the urinalysis was "negligently and improperly performed," resulting in a "false positive" reading, Compl. at PP 7, 8, and in Milam's removal from service, id. at P 11. In his first cause of action, Milam contends that the Defendants violated the FELA by negligently causing him "to suffer mental anguish, depression, [and] emotional distress, and . . . to seek psychiatric treatment." Id. Milam also contends, in the second cause of action, that the Defendants owed him a duty to keep the result of the urine test confidential, and that the Defendants breached this duty when they "negligently removed him from his job and negligently exposed him to public ridicule and humiliation." Id. at P 20. Again, Milam asserts as his injury resulting from the Defendants' negligence, mental anguish, emotional distress, and depression which required him to seek psychiatric treatment.

 In the third cause of action, Vivian Milam sues derivatively under the common law theory of loss of consortium. She allege that, as a result of the Defendants' negligent actions, she:

has been deprived of the aid, companionship, company, society, comfort and services of her husband, . . ., has suffered loss of consortium . . . [; and] has also incurred medical and hospital bills as a result ...

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