Security guard fails drug test and is terminated. $40K offered. $1 million verdict. Fresno County.
Long-term hospital security guard fails drug test while on leave for on-the-job accident. He's fired, claims defamation, invasion of privacy and wrongful termination.
- Case Name: Mckinley Nou v. Children’s Hospital Central California
- Court and Case Number: Fresno County Superior Court / 12CECG02169
- Date of Verdict or Judgment: Thursday, October 16, 2014
- Date Action was Filed: Wednesday, July 11, 2012
- Type of Action: Defamation, Invasion of Privacy, Wrongful Termination
- Judge or Arbitrator(s): Hon. John F. Vogt
- Plaintiffs: Mckinley Nou, 51, security guard
- Defendants: Children’s Hospital Central California
- Type of Result: Jury Verdict
- Gross Verdict or Award: $1,035.050
- Net Verdict or Award: $1,035.050
- Economic Damages:
- Non-Economic Damages:
- Trial or Arbitration Time: 8 days.
- Jury Deliberation Time: 1 1/2 days.
- Jury Polls: 12-0
- Attorney for the Plaintiff:
Law Office of M. Greg Mullanax by M. Greg Mullanax, Fresno.
- Attorney for the Defendant:
Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball by K. Poncho Baker, Fresno.
- Plaintiff’s Medical Expert(s):
Edward J. Hyman, Ph.D., forensic psychology, Sausalito.
- Defendant's Medical Expert(s):
Harold L. Seymour, Ph.D., forensic psychology, Fresno.
Richard J. Geller, M.D., drug testing, Fresno.
- Plaintiff's Technical Expert(s):
- Defendant's Technical Expert(s):
Stephen R. Harper, P.E., mechanical engineering, Fresno.
Facts and Background
- Facts and Background:
On Feb. 28, 2012, plaintiff Mckinley Nou, 51, a security guard for Children's Hospital Central California ("CHCC") for 18½ years, was terminated from his position. He claimed his privacy was invaded, he was wrongfully terminated and coerced to make defamatory statements.
After an on-the-job accident February 9, 2012 in the parking lot while driving employer's security vehicle, plaintiff returned to the hospital to report his accident and was then sent to CHCC's emergency room for treatment. CHCC's physicians and nurses examined plaintiff, gave him a pain-killer, and released him. No reports of intoxication or impairment were made about plaintiff from the doctors and nurses who treated him in the ER, or by anyone else who saw him that day.
The next day, plaintiff was at home recuperating while on approved leave. In the early afternoon, he received a call from CHCC ordering him to go to the hospital to submit to a drug test before 4:00 p.m. that day. Plaintiff went to the hospital and submitted to the drug test. He was then suspended for three days without pay.
Two weeks later, plaintiff was terminated for failing the drug test. When fired, plaintiff asked about the result of the drug test but CHCC refused to inform him of the result of the test.
Plaintiff alleged invasion of privacy, wrongful termination in violation of public policy and defamation: coerced self-publication of defamatory statement.
Defendant CHCC had a Drug Free Workplace Policy in effect at the time. It applied to CHCC employees while they were on CHCC premises or on CHCC business. The Drug Free Workplace Policy provided a "reasonable suspicion" drug testing policy so in the event that there was a reasonable suspicion that an employee was impaired or intoxicated, CHCC could require the employee to be tested.
The Drug Free Workplace Policy also mandated that all employees who suspected that another employee was impaired or under the influence of drugs or alcohol to report their suspicions to management.
The Policy's post-accident drug test policy was essentially the same as it required a "reasonable suspicion" that drugs or alcohol played a role in an accident in order to require an employee to submit to a drug test.
Plaintiff was an 18+ year employee with a clean record, who had no history of drug abuse or work-related accidents. Nevertheless, CHCC required plaintiff to submit to a drug test the day after the accident while he was at home on approved leave recuperating from his accident. The drug test revealed the presence of hydrocodone. Plaintiff contended the only way he could have ingested hydrocodone was at the Emergency Room when he was given a pain pill. The hospital record shows Nou was given a Motrin in the Emergency Room.
- Plaintiff's Contentions:
That the drug test was an invasion of plaintiff’s privacy since it was administered to him when he was not on duty and the subsequent termination was a wrongful termination in violation of public policy. That the drug test did not show plaintiff was impaired at the time of the accident as it was administered the next day.
That after plaintiff was terminated there was coerced self-publication of a defamatory statement each time that plaintiff had to fill out a job application and state that he was fired for failing a drug test.
- Defendant's Contentions:
Defendant contended it acted within its Drug Free Workplace Policy and that its policy applies to all employees whether they are at work or not.
Demands and Offers
- Plaintiff §998 Demand: $132,338.50
- Plaintiff Final Demand before Trial: $200,000
- Plaintiff Demand during Trial: None.
- Defendant §998 Offer: $40,000