Losing v. Food Lion, LLC

Mervyn D. Losing (plaintiff) worked for Food Lion, LLC (defendant) and was drug tested. Losing’s test returned as substituted, meaning the sample was not human urine. Food Lion retested the sample and confirmed the result. Food Lion’s substance-abuse policy considered a substituted urine sample as testing positive. Losing was then fired for failing a drug test under Food Lion’s zero-tolerance policy. However, Losing exercised his right to a retest, which returned as negative. Food Lion admitted that the initial result was a false positive and reinstated Losing. Subsequently, Losing sued Food Lion and his supervisor, Robert Jones (defendant), for defamation. Losing claimed that Jones made statements about his failed drug test to his coworkers, including that he tested positive, substituted nonhuman urine in the drug test, and was fired for failing the drug test. Losing argued that his drug test was not completed until he exercised his right to the retest, which found the original result was a false positive. However, the evidence showed that, under the terms of Food Lion’s substance-abuse policy, Losing failed a drug test. Although the initial test result was ultimately a false positive, a substituted sample was a failed test under Food Lion’s policy. Losing also claimed that Jones repeated the statement of Brian Sloan, an employee, telling another employee to use Losing’s attorney because the attorney could get you off for a failed a drug test. Food Lion moved for summary judgment, arguing that Losing did not establish a prima facie case for defamation. The trial court granted Food Lion’s motion for summary judgment with prejudice. Losing appealed.