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SALOMON v. ROCHE COMPUCHEM LABS.

December 13, 1995

CYNTHIA SALOMON, Plaintiff, against ROCHE COMPUCHEM LABORATORIES, INC., AMERICAN AIRLINES, INC., and DR. JAMES YIANNOU, Defendants.


The opinion of the court was delivered by: JOHNSON

 INTRODUCTION

 Cynthia Salomon, Plaintiff, brings this action for injunctive relief alleging that Roche CompuChem Laboratories, Inc. ("CompuChem"), American Airlines, Inc. ("American Airlines"), and Dr. James Yiannou (collectively, the "Defendants") violated the disclosure obligations set forth in 49 C.F.R. § 40.37 by refusing to provide Plaintiff with certain records related to certification inspections conducted in 1994. Before this Court is Defendants' motion to dismiss the Complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is granted.

 BACKGROUND

 Plaintiff was employed as a flight attendant by American Airlines. A representative of American Airlines notified Plaintiff on June 5, 1994 that she had been selected for a random drug test pursuant to 14 C.F.R. Part 121, Appendix I. On the same day, Plaintiff provided a urine sample for drug testing purposes at a collection site located at John F. Kennedy Airport, Queens, New York. Plaintiff's specimen was sent to CompuChem for testing.

 On June 9, 1994, Plaintiff's Supervisor, Rubin Flores, instructed Plaintiff to contact American Airlines Medical Review Officer, Dr. Yiannou. When Plaintiff contacted Dr. Yiannou, Dr. Yiannou informed Plaintiff that she had tested positive for cocaine. Dr. Yiannou also told plaintiff that she was suspended immediately without pay.

 By letter dated December 10, 1994, Plaintiff requested that CompuChem provide her with records relating to CompuChem's certification and information relevant to chain-of-custody issues. Specifically, Plaintiff sought records relating to CompuChem's certification in 1994 by the Department of Health and Human Services, the Substance Abuse and Mental Health Services Administration, and other certification programs. Although Plaintiff received a "Laboratory Documentation Package" which contained laboratory documents regarding Plaintiff's drug test, Plaintiff did not receive the certification documents she requested, despite repeated requests. Plaintiff made the same request to Dr. Yiannou and American Airlines. This action followed.

 DISCUSSION

 I. Rule 12(b)(6) Standard

 A motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure should be granted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Green v. Maraio, 722 F.2d 1013, 1015-16 (2d Cir. 1983) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). The court must accept as true all material facts well-pleaded in the complaint and must make all reasonable inferences in the light most favorable to the plaintiff. In re Energy Sys. Equip. Leasing Sec. Litig., 642 F. Supp. 718, 723 (E.D.N.Y. 1986).

 Plaintiff alleges that Defendants violated the disclosure obligations set forth in 49 C.F.R. § 40.37, which provides in full:

 
Any employee who is the subject of a drug test conducted under this part shall, upon written request, have access to any records relating to his or her drug test and any records relating to the results of any relevant certification, review, or revocation-of-certification proceedings.

 A private right of action is not expressly provided for in this regulation. Thus, Plaintiff's claim fails unless a private right of action exists by clear implication from the legislative scheme. Platzer v. Sloan-Kettering Institute, 787 F. Supp. 360, 364-65 (S.D.N.Y. 1992), aff'd, 983 F.2d 1086 (2d Cir. ...


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