Facts

Defendant Chem Chek is a Dallas-based outsourcer of drug and alcohol testing services, principally to the aviation industry. Plaintiff Richard Garcia worked as an airplane mechanic supervisor for UPS at the Ontario Airport in Ontario, California. He had been employed there for six years. Defendant Eduardo Tellez was an independent contractor who was requested by Chem Chek to test plaintiff Garcia at Ontario Airport. Defendant Becky Smith was a scheduling clerk who worked for defendant Chem Chek in Dallas.

On Oct. 13, 2005, UPS and Chem Chek requested that Tellez go to the Ontario Airport and perform a drug test on plaintiff. Upon arrival, plaintiff informed Tellez that he was too busy to be tested at the moment because he had two aircrafts down, but that he would be in later. Tellez waited for approximately an hour and a half and then left without notifying plaintiff. Plaintiff later returned to the testing room and learned that Tellez had left a few minutes before.

Plaintiff left on a ten day vacation without informing any supervisor that he had missed this drug screening event. The next morning, Tellez informed Smith in Dallas that plaintiff had failed to submit for testing. Smith in turn reported a "possible refusal" to be tested to UPS management in Louisville, Kentucky.

Plaintiff was terminated on Oct. 31, 2005 and his FAA mechanic's license was revoked shortly thereafter. Plaintiff appealed the FAA ruling and his license as well as his employment was reinstated in April, 2006.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that he never "refused" to be tested. One of the planes he was supervising repairs for was a time-sensitive flight, which demanded his personal involvement, and an hour and a half was a reasonable time for him to complete his work and appear for testing. Further, an hour and a half was an insufficient period of time for the tester to wait under the circumstances. He also claimed that Tellez knew that if plaintiff did not get tested before he left, plaintiff could lose his FAA license and his job. It was uncontested that Chem Chek's own written guidelines require that, when there is a refusal to be tested, the tester must, prior to leaving the premises, call defendant Smith in Dallas. Smith was then required to call the Designated Employer Representative "DER" for UPS in Louisville. Tellez did not initiate that telephone tree until the next morning. Since UPS and FAA require that employees submit for testing "immediately" upon being notified, and he had not done so, he was terminated by UPS. Plaintiff claimed that if Tellez had initiated the phone tree and someone from UPS had called him and told him to drop everything and be tested, he would have done so.

Additionally, plaintiff claimed that he never actually said he would not be tested and therefore, defendants slandered him by incorrectly reporting to UPS that he had refused. As a result, his reputation in the aviation industry and within the UPS group of mechanics which he supervises has been damaged as people assume he did not submit to a drug test because he is a drug addict who was afraid of testing positive.

DEFENDANTS' CONTENTIONS:
To the claim of defamation/slander, defendants asserted the affirmative defenses of truth (failure to immediately appear for testing upon being notified is deemed by the FAA and UPS to be a "refusal" and privilege (the only communication of plaintiff's failure to be tested was made without malice to the UPS DER who had a need to know.)

Defendants admitted the negligence of Tellez in closing argument, but asserted a lack of causal connection between the negligence and plaintiff's claimed injuries, as there was testimony that plaintiff was terminated primarily because he failed to notify his supervisors of his failure to appear prior to leaving for vacation that night.

Settlement Discussions

Plaintiff's pretrial demand was $450,000. Defendant timely served a CCP section 998 offer for $75,000.

Damages

Garcia claimed $34,000 in attorney fees to appeal the FAA's order of license revocation, $55,000 in lost salary and benefits, $600,000 for damage to reputation, $1 million in general damages, and an unspecified amount of punitive damages.

Injuries

The plaintiff claimed emotional distress, loss of his FAA mechanic's license and loss of employment.

Result

After a two week trial, a 12-0 verdict was returned in favor of defendants Smith and Chem Check, and a 9-3 verdict in favor of defendant Tellez. Defendants were awarded their costs, including expert witness fees in accordance with CCP section 998.

Other Information

FILING DATE: Oct. 12, 2006.