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Vargo v. National Exchange Carriers Association

April 12, 2005


On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3812-01.

Before Judges Newman, Axelrad and Holston, Jr.

The opinion of the court was delivered by: Holston, Jr., J.A.D.


Argued March 9, 2005

Plaintiff, John Vargo, appeals the January 28, 2004 order memorializing Judge Dumont's written opinion granting summary judgment in favor of defendants, National Exchange Carriers Association, Inc. (NECA) and Laboratory Corporation of America (LabCorp), dismissing plaintiff's nine-count amended complaint.

Plaintiff alleges: (1) invasion of his right to privacy, in violation of the common law and the state constitution (against NECA); (2) negligence (against NECA); (3) wrongful refusal to hire in violation of public policy (against NECA); (4) wrongful discharge in violation of public policy (against NECA and Accountants on Call, Inc. (AOC)); (5) discriminatory refusal to hire based upon disability or perceived disability, in violation of the New Jersey Law Against Discrimination (NJLAD) N.J.S.A. 10:5-1 to -49 (against NECA); (6) discriminatory discharge based upon disability or perceived disability, in violation of the NJLAD (against NECA and AOC); (7) retaliatory discharge in response to plaintiff's expressed intent to sue NECA for violating his civil rights, in violation of the NJLAD (against NECA and AOC); (8) tortious interference with prospective economic advantage (against NECA); and (9) negligence (against LabCorp).

NECA is a not-for-profit corporation that assists telephone companies in fulfilling the responsibilities and obligations imposed upon them by the Federal Communications Commission (FCC) by providing operational services to implement"universal service support programs" such as the"School and Libraries Program" and the"Rural Healthcare Program." These programs allow schools, libraries and rural healthcare providers to receive discounts on advanced telecommunications and information services.

For approximately eighteen months, between January 2000 and June 2001, plaintiff worked at NECA through AOC, a temporary agency through which he was compensated as a Program Integrity Assurer in the company's Schools and Libraries Division, reviewing applications from school and libraries to determine their eligibility for monetary grants.

In May 2001, plaintiff's direct supervisor at NECA, John Carey, advised plaintiff of an opening for a permanent position in NECA's Rural Healthcare Division. Plaintiff knew that it was NECA's policy to require all applicants for permanent positions to submit to a drug test and that passing the drug test was a condition of employment. Plaintiff informed Carey that he was taking certain legally-prescribed medications for degenerative disc disease that might show up on a drug test. Carey advised plaintiff to be"forthright" and inform everybody"upfront" about the medications he was taking.

On May 21, 2001, plaintiff was offered the position by Cathy Post, an associate manager of staffing in NECA's human resources department, contingent upon his passing a drug test scheduled for three o'clock that afternoon at Morristown Memorial Hospital. Plaintiff did not object to taking the drug test. NECA's drug testing policy was printed on the employment application plaintiff had completed and signed under the heading"Terms and Conditions of Employment."

NECA has had a drug-free workplace policy since the early 1990s, which originally applied only to applicants for permanent employment and not temporary employees. However, as the number of temporary employees increased over the years, NECA reconsidered that practice and presently requires all temporary and permanent employees to undergo a pre-employment drug test.

On the morning of May 21, 2001 after he received the offer of employment, plaintiff met with Carey and discussed the drug test, including the fact that he had eaten a poppy seed bagel for breakfast that morning. Carey advised plaintiff to disclose that fact to the screener because poppy seed bagels could show up on plaintiff's drug screen.

Before he left for the drug test, plaintiff met with Post to obtain the drug testing paperwork and provided her with a note from one of his physicians, disclosing that he was taking prescription medication that might show up on his drug screen. Post advised plaintiff that NECA did not need to know about his prescriptions unless the drug test came back positive, but she advised him to provide such information to the person administering the test.

When plaintiff arrived at Morristown Memorial Hospital, he proceeded to the emergency room where he met with the male nurse who was to take his urine specimen. Plaintiff advised the nurse of his prescription medications and also volunteered that he had eaten a poppy seed bagel for breakfast that morning. The nurse handed plaintiff a sealed bag containing a sample cup. He then left plaintiff alone to provide the urine sample in a private bathroom.

The sample was sent to LabCorp, an independent clinical laboratory, for analysis. NECA contracted with LabCorp to perform its drug screens and relied upon LabCorp to provide it with accurate test results.

LabCorp tested plaintiff's urine sample for drugs of abuse, including amphetamines, cannabinoids, cocaine, and opiates (codeine and morphine). Testing consisted of an initial immunoassay screen followed by a confirmatory screen using gas chromatography/mass spectrometry, which is considered the"gold standard" in the laboratory testing industry.

When analyzing samples for NECA, LabCorp has used a cutoff level of 300 nanograms per milliliter (ng/ml) for detecting opiates, meaning that any reading greater than 300 ng/ml was considered"positive" for opiates. The 300 ng/ml cutoff was standard in the industry when NECA entered into its contract with LabCorp and was the only cutoff used for opiate detection.

In 1998, the United States Department of Transportation (DOT) raised its cutoff for opiate detection from 300 ng/ml to 2000 ng/ml in order to reduce the possibility of positive results caused by innocent activity, such as the ingestion of food products containing poppy seeds. However, notwithstanding the DOT's change in its cutoff level, the majority of LabCorp's tests including those performed for NECA in 2001 continued to use a 300 ng/ml cutoff level for opiates since private industry clients were not required to follow the DOT guidelines.

Plaintiff's expert, Dr. Richard Saferstein, offered his personal opinion that LabCorp should have advised its clients that use of the 300 ng/ml cutoff could cause a positive reading as a result of innocent ingestion of certain food products and that use of a 2000 ng/ml cutoff was more appropriate than a 300 ng/ml cutoff. However, Saferstein was not aware of any standard of professional laboratory practice that required laboratories to inform their clients of the complications associated with using a 300 ng/ml cutoff nor was there a deviation from the standard of professional laboratory practice in using a 300 ng/ml cutoff.

The tests results indicated that plaintiff had tested positive for morphine at a level of 822 ng/ml. Saferstein did not dispute the accuracy of the test results nor did he contend that the testing was done improperly. Saferstein admitted that the test results could have been caused by plaintiff's use of heroin or morphine, but he opined that the results could also have been caused by the ingestion of a food product containing trace quantities of morphine.

Saferstein stated that a test, also not mandated as a standard of laboratory practice, could have been run for thebaine, a substance present in poppy seeds, which might have indicated whether plaintiff's positive test result was the product of poppy seed ingestion as opposed to drug use.

Post advised plaintiff that he had failed the drug test but, per company policy, could not reveal what plaintiff tested positive for because applicants could research possible innocent causes of positive results and then present false information to the company as an explanation for their positive test results. Therefore, NECA preferred to ask applicants to state what they thought might have caused the positive result. Consistent with that procedure, in e-mails dated May 24 and 25, 2001, after he had been informed of his positive test ...

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