A Chicago federal judge has refused to derail a suit against Illinois Central Railroad, which alleges an employee's privacy was violated when he was forced to provide urine samples, sometimes under observation, for drug testing purposes.
The judge ruled the action was filed within the statute of limitations.
The ruling was issued Feb. 10 by U.S. District Judge Ronald Guzman. The decision favored plaintiff Mark M. Skiba in his 2018 suit against Illinois Central Railroad. The rail carrier is headquartered in Chicago.
Skiba, who was an Illinois Central employee, claimed the railroad violated his right to privacy by making him submit to unnecessary drug and alcohol testing.
From fall 2013 to summer 2016, Illinois Central improperly made Skiba furnish urine samples, according to the suit. The railroad said the U.S. Department of Transportation required the tests for the safety-sensitive job Skiba held. Skiba provided some of the samples in private, but for others, the railroad said a monitor had to watch. When a monitor was present, Skiba had to lift his shirt and lower his pants, exposing his midsection, including his genitals, then turn fully around and urinate into a cup.
Skiba said he balked at submitting samples, but furnished them for fear he would otherwise be fired. One of the early tests found marijuana in his system, for which he was suspended six months and directed to undergo drug counseling, court papers said. Skiba claimed he should not have had to provide samples, because his job was not one of the railroad jobs subject to mandatory testing.
Illinois Central described the suit as an "intrusion upon seclusion" case, with such cases having a two-year statute of limitations. According to the railroad, Skiba's suit was initiated in May 2018, meaning his allegations of misconduct prior to May 2016 were barred.
Judge Guzman acknowledged the statute of limitations period for such cases seems an "open question" in Illinois, but said the most recent authority shows courts have allowed for five years. As a consequence, Skiba brought his action with several months to spare, Guzman said.
Illinois Central also contended the suit should be tossed, under the doctrine that if a tribunal has already, or could have, decided an issue, then that issue cannot be pressed in another action.
The railroad explained Skiba made a complaint to the Illinois Department of Human Rights, which dismissed the complaint in 2019 for lack of substantial evidence and jurisdiction. Skiba took no legal steps to overturn the dismissal, so Illinois Central contended Skiba is prohibited from pursuing a suit in court.
Guzman was not persuaded, saying Skiba did not have a fair chance to contest his claim before the department, because the department never conducted a hearing, only an investigation. Further, it is not even clear the department had jurisdiction to have ruled on Skiba's claim, in Guzman's view.
The railroad also asserted federal rules and regulations that govern testing procedures overrode Skiba's right to privacy.
Guzman would have none of it.
"The Court finds that federal regulations regarding drug testing of railroad employees in safety-sensitive positions do not completely subsume the subject matter of an individual’s right, under state law, to be free from an unauthorized intrusion into a private matter, which a reasonable person would find offensive or objectionable," Guzman said.
Guzman added, quoting from a 2009 U.S. Seventh Circuit Court of Appeals ruling, Skiba's claim "does not 'conflict with or prevent achievement of federal objectives' regarding railroad safety."
Illinois Central additionally argued Skiba was required to file his suit under the Federal Employer's Liability Act, which covers injuries that result from physical contact or threat of such contact. However, Guzman brushed aside this argument by pointing out Skiba is not claiming any such contact or threat of contact. So, if Skiba had filed under the Act, he would have lost, Guzman observed.
Skiba is represented by attorney Jeffrey Kulwin and others from the firm of Kulwin, Masciopinto & Kulwin, of Chicago.
Illinois Central is defended by attorneys Susan Sullivan and Alfred E. Koehler, and others with the firm of Swanson, Martin & Bell, of Chicago.