United States Court of Appeals

for the Fifth Circuit

No. 20-30009

Summary Calendar

Emile Tilson, Jr.; Debra Tilson, 

Plaintiffs—Appellants,

versus

DISA, Incorporated; DISA Global Solutions, 

Incorporated, 

Defendants—Appellees.

Appeal from the United States District Court 

for the Middle District of Louisiana 

USDC No. 3:17-CV-240

Before Jolly, Elrod, and Graves, Circuit Judges.

Per Curiam:*

Emile Tilson lost his job at an Exxon petrochemical plant after he 

failed a drug test. He and his wife then sued most every party involved with 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 10, 2020

Lyle W. Cayce

Clerk

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the test, including the administrator of the drug testing program, DISA.1 The 

district court dismissed the Tilsons’ claims against DISA for violations of the 

Louisiana Drug Testing Statute (“LDTS”), negligence, and defamation 

because, respectively, the LDTS did not apply, there was no evidence to 

support a negligence claim, and any statements DISA published were true. 

We affirm.

I.

Mr. Tilson worked as a boilermaker, pipefitter, and as a member of the 

reactor crew, at Exxon Mobil’s Baton Rouge petrochemical plant. His 

employer was an Exxon contractor named Turner Industries. Exxon requires 

anyone working on site to pass a drug test whether they are employees of 

Exxon or employees of a contractor like Turner. As such, Exxon joined a 

centralized drug testing program with which all contractors on their site must 

comply. 

DISA is a third party that contracts with employersto administer drug 

screening programs. To ensure compliance across multiple sites, DISA 

maintains a database that all employers, like Exxon and Turner, can access in 

order to tell if employees are complying with the substance abuse policy. This 

database prevents employees terminated by one contractor for failing a drug 

test from regaining employment at the facility by going to work for a different 

contractor. Compliant employees bear an “active” status in the database, 

while noncompliant employees—e.g., those who have failed a drug test or 

refused testing—are listed as “inactive.” No one can work at Exxon’s Baton 

Rouge facility without maintaining active status. 

1 DISA, Inc., and DISA Global Solutions, Inc., are collectively referred to as DISA. 

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DISA’s role in Exxon’s and Turner’s drug testing program was 

administrative and logistical. DISA provided Turner with a list of approved 

specimen collection centers, forwarded specimens for testing at third-party 

labs, reported positive results to a medical review officer, and entered test 

results in the database. DISA did not collect or test specimens. And the only 

direct relationship between Mr. Tilson and DISA involved a consent 

agreement that allowed DISA to release his test results to his employer. 

In September 2016, a Turner Industries employee collected a urine 

sample from Mr. Tilson during a random drug test and sent that sample to 

another third party, Clinical Reference Laboratories (“CRL”), where it 

tested positive for marijuana metabolites. After a confirmatory test, Mr. 

Tilson’s test results showed a marijuana metabolite level of 14 ng/ml, which 

exceeded Exxon’s cutoff of 10 ng/ml. 

After the positive test, the specimen was forwarded to a medical 

review officer (an independent, third party hired to ensure the integrity of 

drug tests) who worked for a company called University Services. The 

medical review officer asked Mr. Tilson whether he had an explanation for 

the results. Because Mr. Tilson had no legitimate reason for testing positive, 

the results were reported to DISA. DISA then changed Mr. Tilson’s status 

in its database to inactive, which led Turner Industries to fire him. 

Appellants (Mr. Tilson and his wife) then filed a lawsuit that brought 

a multitude of claims against several defendants. The Tilsons alleged 

violations of the LDTS, employment discrimination, negligence, defamation, 

violations of constitutional rights, invasion of privacy, tortious interference 

with a contract, loss of consortium, violations of several federal statutes, 

including the Americans with Disabilities Act and HIPAA, and violations of 

various state statutes. These claims were added and discarded through the 

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Tilsons’ five amended complaints, nonsuits against various defendants, and 

briefing on summary judgment. 

After dismissing the claims against the other defendants, the district 

court granted summary judgment on all of the Tilsons’ claims against DISA. 

The Tilsons’ appeal challenges the district court’s grant of summary 

judgment on their claims brought under the LDTS and their state law 

negligence and defamation claims.

II.

We review a grant of summary judgment de novo. United States v. 

Lawrence, 276 F.3d 193, 195 (5th Cir. 2001). Summary judgment is 

appropriate when “there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

Summary judgment may be affirmed for any reason supported by the record. 

Lyles v. Medtronic Sofamor Danek, USA, Inc., 871 F.3d 305, 310 (5th Cir. 

2017).

III.

Mr. Tilson argues that DISA violated the LDTS by setting the 

threshold for reporting a positive test based on marijuana metabolites too 

low. See La. Stat. Ann. § 49:1005(B). The LDTS establishes protocols 

for drug testing. If an organization abides by those protocols, the LDTS 

shields it from certain types of lawsuits related to administering drug tests. 

Id. § 1012(B). As part of that scheme, the LDTS says that organizations 

should use a cutoff of 50 ng/ml for marijuana metabolites, meaning that if an 

organization wants to comply with the statute, any test below 50 ng/ml 

should not be reported as a positive drug test. Id. § 1005(B). So in one sense, 

Mr. Tilson is right, the cutoff applied to his test was lower than what the 

statute mandates, and a compliant organization would not have reported a 

positive test based on those results.

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But the requirements of the LTDS are inapplicable here because the 

statute states that its provisions do not apply to “any person, firm, or corporation engaged or employed in the exploration, drilling, or production of oil 

or gas in Louisiana . . . .” La. Stat. Ann. § 49:1002(H). It also states that 

the cutoff level for marijuana testing of 50 ng/ml “may be reduced or modified by any person, firm, or corporation engaged in construction, maintenance, or manufacturing at any refining or chemical manufacturing facility.” 

Id.

As a boilermaker, pipe fitter, and member of the reactor crew at 

Exxon’s Baton Rouge petrochemical facility, Mr. Tilson is a “person . . . engaged or employed in the . . . production of oil or gas in Louisiana . . . .” Id.

Moreover, his employer, Turner Industries, is a “firm[] or corporation engaged in construction, maintenance, or manufacturing at [a] refining or 

chemical manufacturing facility[,]” which means it can reduce the cutoff 

level for marijuana testing below 50 ng/ml. Id.

Mr. Tilson’s situation is like the one addressed by the Louisiana

appellate court in Russo v. Int’l Drug Detection, L.L.C., 18-93 (La. App. 5 Cir. 

5/30/18), 250 So. 3d 1100. There the court found that a communications 

technician who serviced offshore oil platforms was employed in the 

production of oil and gas and therefore precluded from relying on the LDTS

to show that the laboratory that tested his sample breached a duty of care 

owed to him by failing to comply with the LDTS. Id. at 1103–04. 

Consequently, the court dismissed the technician’s negligence claim. Id. at

1104. 

Based on the above, the district court’s grant of summary judgment 

on claims brought under the LDTS is affirmed. 

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IV.

The district court found that the Tilsons, despite five amended 

complaints, had failed to put forth facts or an argument that supported a 

negligence claim. That claim fares no better on appeal. 

The Tilsons’ argue that any violation of the LDTS amounts to 

negligence per se or that the LDTS creates a duty of care that DISA breached.

But because DISA cannot violate an inapplicable statute, both arguments fail.

DISA played an administrative role here, and the Tilsons do not

explain how DISA would be liable for negligent collection of a specimen, 

given that it did not conduct the drug test (administered by a Turner 

employee), provide lab analysis (analyzed by CRL), or conduct a medical

review (reviewed by University Systems’ employee). 

The Tilsons also fail to show that DISA acted negligently by failing to 

exclude alternative reasons for Mr. Tilson’s positive test before reporting 

him as inactive. The sole piece of evidence on this point comes in the form of 

a second drug test administered by another company five days after the first 

that returned negative. But subsequent negative drug tests are often of little 

evidentiary value. See, e.g., Pride v. Laboratory Corp. of America , 376 F. App’x

925, 927–28 (11th Cir. 2010); Meza v. Dep’t of Homeland Sec., 275 F. App’x 

987, 991–92 (Fed. Cir. 2008). And, as the Tilsons’ expert admits, the second 

test may have been negative simply because the second lab applied a higher 

cutoff for marijuana metabolites than the one used by Turner and Exxon. 

The Tilsons submitted three affidavits that could be construed as 

attempts to show that DISA played a role in overseeing an allegedly negligent

drug testing program. But they did not discuss these affidavits in briefing 

before the district court and did not include their own statement of 

undisputed material factsfor the district court to review. As the district court 

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noted, it was under no obligation to scour the record looking for issues of 

material fact. RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).

In any event, the affidavits are insufficient. One affidavit contains no 

facts pertinent to Mr. Tilson. Another addresses vague concerns with drug 

testing procedures at Turner Industries that the affiant observed in 2007–

2011, long before Mr. Tilson’s drug test. And the final affidavit is from a

former employee who worked at Exxon’s Corpus Christi facility who was 

fired in January 2016, so his statements have nothing to do with Mr. Tilson’s 

test or the testing procedures in place at the Baton Rouge facility in 

September 2016.

Consequently, the district court’s grant of summary judgment on the 

Tilsons’ negligence claim is affirmed. 

V.

Defamation requires the Tilsons to show that DISA published a false

and defamatory statement to a third party that resulted in an injury. Kennedy 

v. Sheriff of E. Baton Rouge, 935 So.2d 669, 674 (La. 2006). 

The Tilsons’ defamation claim fails because the results DISA released

were true, and its classification of him as inactive was correct considering 

Turner Industries’ and Exxon’s policies. No evidence exists to contradict

that Mr. Tilson’s test showed marijuana metabolite levels that were in excess 

of the 10 ng/ml cutoff. Neither DISA’s reporting of his 14 ng/ml test results 

as positive nor its classification of Mr. Tilson as inactive wasfalse. Since truth 

is a complete defense to defamation, the district court rightly granted 

summary judgment in favor of DISA on this claim. Thompson v. Lee, 38-930 

(La. App. 2 Cir. 10/27/04), 888 So. 2d 300, 304, writ denied, 2004-2936 (La. 

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2/4/05), 893 So. 2d 873 (“It is well settled that truth is an absolute defense 

to an action for defamation.”). 

AFFIRMED.

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