3:25-cv-01539•Taylor v. National Express LLC et al
Texte intégral
Page 1 – FINDINGS & RECOMMENDATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON TODD TAYLOR, Case No. 3:25-cv-01539-JR Plaintiff, FINDINGS & RECOMMENDATION v. NATIONAL EXPRESS LLC, DURHAM HOLDING II, LLC, DURHAM SCHOOL SERVICES, LP, HIRERIGHT, LLC, AND NW ONSITE DRUG TESTING, LLC, Defendants. __________________________ RUSSO, Magistrate Judge: Plaintiff, Todd Taylor, brings this action alleging disability discrimination and negligence against defendants National Express LLC, Durham Holding II, LLC, and Durham School Services, LP (collectively Durham)1, HireRight, LLC, and NW OnSite Drug Testing, LLC. Plaintiff moves to remand this case to the Multnomah County Oregon Circuit Court and defendant HireRight moves to dismiss the claims against it. For the reasons stated below, the motion to remand is denied and the motion to dismiss is granted. 1 Plaintiff also names National Express, LLC as a defendant under the rubric of the Durham defendants. Defendant National Express is the member-manager for Durham Holding, but it does not appear to have been separately served and has not appeared in this action. It appears that National Express is now known as Summit School Services which is 100% owned by Durham Holding. Case 3:25-cv-01539-JR Document 22 Filed 12/08/25 Page 1 of 11
Page 2 – FINDINGS & RECOMMENDATION BACKGROUND and ALLEGATIONS Plaintiff initiated this action on July 15, 2025, in the Circuit Court for the State of Oregon for the County of Multnomah. On August 29, 2025, the Durham defendants removed the action to this Court based on diversity jurisdiction asserting plaintiff is a resident of Oregon and the Durham defendants (including National Express) are either organized under the laws of Delaware or have their principal place of business in Illinois. In addition, defendant HireRight is organized under the laws of Delaware with its principial place of business in Tennessee. However, defendant NW OnSite Drug Testing is an Oregon limited liability company, but the Durham defendants assert it has been fraudulently joined in this action. In the operative complaint, plaintiff alleges Durham employed plaintiff as a professional school bus driver. Complaint (ECF 1-1) at ¶ 7. On November 17, 2023, Durham subjected plaintiff to a random drug and alcohol screening, conducted by defendant NW OnSite Drug Testing where he underwent a breathalyzer test and was asked to provide a urine sample. Id. at ¶ 10. Plaintiff alleges he passed the breathalyzer test but was unable to produce a sufficient urine sample after multiple attempts with consumption of fluids. Id. at ¶ 11. Plaintiff asserts he has a history of shy bladder but that he was not provided with a shy bladder evaluation form. Id. Plaintiff alleges Durham's General Manager Michelle Hoyt then placed plaintiff on unpaid leave and sent him home. Id. at ¶ 12. Plaintiff alleges Hoyt was Durham's designated employer representative (DER) and was responsible for overseeing Durham's drug and alcohol testing program. Id. at ¶ 13. Plaintiff alleges Hoyt contacted him on November 28, 2023, and instructed him to pick up a shy bladder evaluation form to take to his doctor. Id. ¶ 14. Plaintiff asserts: On or about November 30, 2023, as instructed by Ms. Hoyt, Plaintiff submitted documentation from his health care provider, physician assistant Bryce Annis, to Case 3:25-cv-01539-JR Document 22 Filed 12/08/25 Page 2 of 11
Page 3 – FINDINGS & RECOMMENDATION Ms. Hoyt. That documentation indicated that Plaintiff was likely suffering from a legitimate shy bladder syndrome. Id. at ¶ 15. Plaintiff alleges defendant HireRight provided the medical review officer (MRO). Id. at ¶ 16. On December 14, 2023, plaintiff requested an update from Hoyt, and she responded she was still waiting to hear from HireRight regarding the documentation she had submitted on plaintiff's behalf. Id. at ¶ 17. Plaintiff asserts on January 4, 2024, Hoyt informed him HireRight had not received the documentation, and she would provide more information on January 8, 2024. Id. ¶ 18. Plaintiff asserts: Upon information and belief, HireRight rejected P.A. Annis's findings because he was not a medical doctor and because his evidence was subjective. However, on or about January 10, 2024, Annis indicated that he did have subjective evidence for Plaintiff's shy bladder syndrome, that objective evidence could be obtained by a urologist, and, that he was happy to refer Plaintiff to a urologist. Neither HireRight nor Durham took any additional action to resolve the question of whether Plaintiff had shy bladder syndrome. Id. at ¶ 19. Plaintiff alleges that on January 11, 2024, the Federal Motor Carrier Safety Administration (FMCSA) informed him that he was now listed on the FMCSA Clearinghouse website with a violation for refusal to test. Id. at ¶ 20. Plaintiff asserts he contacted Hoyt again and she promised to re-submit his documentation to HireRight and she also promised to speak with Durham's safety compliance officer. Id. Plaintiff alleges that on January 23, 2024, Hoyt terminated plaintiff stating: After a careful review by the Medical Review Officer, it has been determined that there is no qualified medical reason under DOT for the donor's inability to produce urine. Therefore, the termination is based on a refusal to test which will be reported to the FMCSA Clearinghouse. Case 3:25-cv-01539-JR Document 22 Filed 12/08/25 Page 3 of 11
Page 4 – FINDINGS & RECOMMENDATION Id. at ¶ 21. Plaintiff asserts as a result of the negative report he is prohibited from driving commercially. Id. at ¶ 22. In order to regain his commercial driving privileges, plaintiff asserts he must surrender his CDL license and participate in FMSCA's return-to-duty process which involves working with a substance abuse professional, even though he does not have a substance abuse problem. Id. Plaintiff alleges HireRight discriminated against him by failing to accommodate his disability in subjecting him to a urine test when an alternative testing method was available. Id. at ¶¶ 29-30. Plaintiff alleges HireRight was negligent by failing to: a. timely provide a Shy Bladder Evaluation Form b. confer with Plaintiff on the testing results; c. interview Plaintiff before making a verification decision; d. direct Plaintiff to another physician; e. timely notify Plaintiff of his test results; and f. timely notify Plaintiff of HireRight's duties and responsibilities in reporting positive test results. Id. at ¶ 43. Plaintiff alleges defendant NW OnSite Drug Testing (“NW OnSite”) discriminated against him by failing to accommodate plaintiff’s disability in subjecting him to a urine test when an alternative testing method was available. Id. at ¶ 33-34. Plaintiff alleges NW OnSite Drug testing was negligent by failing to: a. timely provide a Shy Bladder Evaluation Form; and b. provide an alternative testing method when Plaintiff was unable to produce a sufficient urine sample. Id. at ¶ 47. Case 3:25-cv-01539-JR Document 22 Filed 12/08/25 Page 4 of 11
Page 5 – FINDINGS & RECOMMENDATION DISCUSSION A. Remand As noted above, the Durham defendants removed this action asserting the lone non-diverse defendant was fraudulently joined. Plaintiff moves to remand this action to state court arguing he asserted a viable negligence claim against NW OnSite. A defendant may remove a civil action brought in state court if there is original jurisdiction in the district courts. 28 U.S.C. § 1441(a). Diversity removal requires complete diversity, meaning that each plaintiff must be of a different citizenship from each defendant. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, (1996). In determining whether there is complete diversity, district courts may disregard the citizenship of a non-diverse defendant who has been fraudulently joined. Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 152 (1914). Fraudulent joinder may be established by actual fraud in pleading jurisdictional facts or by the inability of plaintiff to establish a cause of action against the non-diverse party. Hunter v. Philip Morris USA, 582 F.3d 1039, 1044 (9th Cir. 2009). Here, the Durham defendants assert plaintiff cannot establish a cause of action against NW OnSite. Fraudulent joinder can be established if the Durham defendants show that an NW OnSite cannot be liable on any theory. See Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998). But if there is a possibility that the Multnomah County Court would find that the complaint states a cause of action against NW OnSite, this Court must find that joinder was proper and remand the case to the state court. See Hunter, 582 F.3d at 1046. A defendant invoking federal court diversity jurisdiction on the basis of fraudulent joinder bears a “heavy burden” since there is a “general presumption against [finding] fraudulent joinder.” Id. Case 3:25-cv-01539-JR Document 22 Filed 12/08/25 Page 5 of 11
Page 6 – FINDINGS & RECOMMENDATION Much like a motion to dismiss, courts typically look only to the plaintiff's pleadings to determine removability, but in the case of fraudulent joinder, a defendant is entitled to present facts showing the joinder is fraudulent so long as those facts go to the sufficiency of the purported claims rather than a defense exogeneous to the cause of action itself. Ritchey, 139 F.3d at 1318–19.2 In addition, courts must consider whether a deficiency in the complaint can possibly be cured by granting the plaintiff leave to amend. Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 550 (9th Cir. 2018). As discussed below, an employment discrimination claim cannot be maintained against a non-employer defendant. Plaintiff does not address the discrimination claim in his motion and the Court finds plaintiff cannot establish unlawful discrimination under Or. Rev. Stat. § 654A. 112 against defendant NW OnSite as there can be no allegation NW OnSite employed plaintiff.3 Plaintiff asserts NW OnSite can be liable on a negligence theory because it had a special relationship with plaintiff, and it failed: (1) in its duty to provide a shy bladder form to plaintiff; (2) in its duty to urge the test subject to drink up to 40 ounces of fluid up to three hours prior to the test; and (3) in its duty to immediately report the results to the DER.4 Defendant does not challenge that a special relationship existed between plaintiff and NW OnSite. See, e.g., Spiker v. Sanjivan PLLC, 2013 WL 5200209, at *11 (D. Ariz. Sept. 16, 2013) (public policy supports holding a collector accountable to the individuals whose specimens it collects). 2 For instance, where a defendant raises a defense that requires a searching inquiry into the merits of the plaintiff's case, even if that defense, if successful, would prove fatal courts decline to find fraudulent joinder. Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 548–49 (9th Cir. 2018). 3 Or. Rev. Stat. § 654A.112 prohibits employers from discriminating against employees on the basis of disability. 4 To the extent plaintiff alleges specifications of negligence not alleged in the operative complaint, the Court evaluates the specifications for purposes of determining whether plaintiff could allege a cause of action against NW OnSite in an amended complaint. Case 3:25-cv-01539-JR Document 22 Filed 12/08/25 Page 6 of 11
Page 7 – FINDINGS & RECOMMENDATION
To state a claim for negligence under Oregon law, a plaintiff must show that the defendant
owed plaintiff a duty, that the duty was breached, and that the breach caused the plaintiff harm.
See, e.g., Fazzolari v. Portland School Dist., 303 Or. 1, 14–17, 734 P.2d 1326, 1334-36 (1987).
With respect to the new allegation that NW OnSite failed to immediately report to the DER,
plaintiff alleges he was subject to the drug test on November 17, 2023, and that the DER "then
placed Plaintiff on unpaid leave and sent him home." Complaint (ECF 1-1) at ¶ 10-12. While it
appears that the regulations do indeed require immediate notification to the DER, 49 C.F.R. §
49.193(b)(1)(iv), the allegations suggest NW OnSite did just that. Moreover, plaintiff alleges
damages in the form of lost wages and benefits and distress related to loss of employment. It is not
plausible that a faster report would have mitigated this harm and indeed, the report of the failed
specimen collection is the alleged impetus behind the harm.
As to the alleged duty to urge consumption of fluids, the operative complaint alleges
plaintiff was unable to produce a sufficient urine sample after multiple attempts "consuming fluids,
and waiting unsuccessfully attempting again." Complaint (ECF 1-1) at ¶ 11. Thus, the complaint
itself negates this specification of negligence.
As to the duty to provide a shy bladder form, the regulations place that duty on the DER,
not on NW OnSite. See 40 C.F.R. § 193(a) (emphasis added) ("If an employee does not provide a
sufficient amount of specimen to permit a drug test (i.e., 45 mL of urine in a single void, or 2mL
oral fluid in a single sampling, as applicable) you, as the collector, must provide another
opportunity to the employee to do so. In accordance with the employer's instructions"); 40
C.F.R. § 193(c) ("As the DER, if the collector informs you that the employee has not provided a
sufficient amount of specimen …, you must, after consulting with the MRO, direct the employee
to obtain, within five days, an evaluation from a licensed physician, acceptable to the MRO, who
Case 3:25-cv-01539-JR Document 22 Filed 12/08/25 Page 7 of 11Page 8 – FINDINGS & RECOMMENDATION has expertise in the medical issues raised by the employee's failure to provide [urine]."). This is also crucial to plaintiff's allegation regarding a duty to collect an alternative specimen such as oral fluid.5 Defendants demonstrate that the DER instructed NW OnSite to collect a urine sample and did not instruct collection of an alternative specimen. Declaration of Michelle Aberle-Hoyt (ECF 2-1). Accordingly, plaintiff fails to establish a negligence claim against NW OnSite and thus joinder of this defendant is fraudulent and may be disregarded for purposes of removal jurisdiction. Without this defendant, complete diversity exists between the parties and the other requirements for diversity jurisdiction are met. Accordingly, the motion to remand is denied. B. Dismissal of Defendant HireRight HireRight moves to dismiss contending it cannot be liable for unlawful employment discrimination because it did not employ plaintiff and because plaintiff cannot establish a duty it owed to plaintiff in support of a negligence claim. 1. Disability Discrimination Plaintiff alleges HireRight discriminated against him by failing to accommodate his disability pursuant to Or. Rev. Stat. § 654A.112. Plaintiff does not allege HireRight is his employer. Section 654A.112 only makes an "employer" liable for discrimination in conditions of employment on the basis of disability. Accordingly, the motion to dismiss this claim is granted. 2. Negligence Plaintiff alleges HireRight was negligent in failing to timely provide the shy bladder form, failing to confer with plaintiff on the testing results, failing to interview plaintiff before making 5 In addition, collectors like NW Onsite are not currently permitted to conduct oral fluid testing. 90 Fed. Reg. 18860 (May 2, 2025). Case 3:25-cv-01539-JR Document 22 Filed 12/08/25 Page 8 of 11
Page 9 – FINDINGS & RECOMMENDATION verification decisions, failing to direct plaintiff to another physician, and failing to timely notify plaintiff of HireRight's duties and responsibilities in reporting positive test results. As noted above, to state a claim for negligence under Oregon law, a plaintiff must show that the defendant owed the plaintiff a duty, that the duty was breached, and that the breach caused the plaintiff harm. See, e.g., Fazzolari v. Portland School Dist., 303 Or. 1, 14–17, 734 P.2d 1326, 1334-36 (1987). None of these alleged duties rest with the MRO and HireRight. The DER is required to provide the shy bladder form as noted above under 49 C.F.R. § 193(c). As the DER, if the collector informs you that the employee has not provided a sufficient amount of specimen (see paragraph (b) of this section), you must, after consulting with the MRO, direct the employee to obtain, within five days, an evaluation from a licensed physician, acceptable to the MRO, who has expertise in the medical issues raised by the employee's failure to provide a urine…. (1) As the MRO, if another physician will perform the evaluation, you must provide the other physician with the following information and instructions: (i) That the employee was required to take a DOT drug test, but was unable to provide a sufficient amount of specimen to complete the test; (ii) The consequences of the appropriate DOT agency regulation for refusing to take the required drug test; (iii) That the referral physician must agree to follow the requirements of paragraphs (d) through (g) of this section. 49 C.F.R. § 40.193(c) (emphasis added). As the referral physician conducting this evaluation, you must recommend that the MRO make one of the following determinations: (1) A medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of specimen. As the MRO, if you accept this recommendation, you must: (i) Check “Test Cancelled” (Step 6) on the CCF; and (ii) Sign and date the CCF. (2) There is not an adequate basis for determining that a medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of specimen. As the MRO, if you accept this recommendation, you must: Case 3:25-cv-01539-JR Document 22 Filed 12/08/25 Page 9 of 11
Page 10 – FINDINGS & RECOMMENDATION (i) Check the “Refusal to Test” box and “Other” box in Step 6 on Copy 2 of the CCF and note the reason next to the “Other” box and on the “Remarks” lines, as needed. (ii) Sign and date the CCF. 49 C.F.R. § 40.193(d). Here, plaintiff alleges he was directed to obtain such evaluation but that he chose to use a physician assistant. The regulations do not place the duty to supply the shy bladder form on the MRO and nonetheless, the allegations show that the form was in fact provided by the DER as the regulations direct. As to the remaining allegations regarding conferral, interview, direction to another physician, and notification, these are not regulatory requirements of the MRO HireRight. The regulations only require the MRO to contact the specimen donor upon confirmed positive test results. 40 C.F.R. § 40.129. In this case, plaintiff did not submit a urine sample at all. To the extent plaintiff alleges he was directed to the wrong medical professional, it was the DER's duty to provide such direction after consulting with the MRO. There is no allegation that the MRO direct the DER to have plaintiff seek out a physician assistant to fill out the required forms. Because plaintiff cannot plausibly allege breach of any duty owed him by HireRight, the motion to dismiss the negligence claim is granted. See Lacondeguy v. Adapa, 2011 WL 9572, at *3 (E.D. Cal. Jan. 3, 2011) (Court refuses to find a duty owed based on regulatory interpretation that goes beyond the plain language of the C.F.R.). Plaintiff requests leave to amend if this motion is granted. While it is unclear if plaintiff can salvage his claims with additional factual allegations, plaintiff may seek leave to amend if he believes he can allege such facts. CONCLUSION Plaintiff's motion to remand (ECF 9) should be denied. Defendant HireRight's motion to dismiss (ECF 17) should be granted. Case 3:25-cv-01539-JR Document 22 Filed 12/08/25 Page 10 of 11
Page 11 – FINDINGS & RECOMMENDATION This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation. . DATED this 8 th day of December, 2025. _____________________________ Jolie A. Russo United States Magistrate Judge /s/ Jolie A. Russo Case 3:25-cv-01539-JR Document 22 Filed 12/08/25 Page 11 of 11
Vous vous demandez comment ce texte s’applique à votre situation ?
Consultation gratuite, sans engagement
Décrivez votre situation. Notre équipe vous recontactera par e-mail pour votre consultation.
Poursuivez vos recherches dans ChatGPT ou Claude
Connectez Omnilex pour rechercher dans le corpus juridique depuis votre assistant IA.