Baker

MEMORANDUM **

Appellant Elizabeth Baker appeals the district court’s summary judgment in favor of Delta Air Lines (“Delta”), in her diversity action alleging wrongful termination in violation of Montana’s Wrongful Discharge from Employment Act (‘WDEA”), Mont. Code. Ann. § 39-2-901, et seq., following a positive drug test which indicated the presence of cocaine in her system. To the extent that Baker advanced a claim premised on “drug testing of aviation personnel performing safety-sensitive functions,” that claim was preempted by the Omnibus Transportation Employee Testing Act of *452 1991 (“Testing Act”). See, e.g., Frank v. Delta Airlines, Inc., 314 F.3d 195 (5th Cir.2002) (holding that the Testing Act preempted state law claims asserting theories of negligence, intentional infliction of emotional distress, and defamation). Cf. Ishikawa v. Delta Airlines, Inc., 343 F.3d 1129, 1132-33 (9th Cir.2003) (concluding that a state law negligence claim was not preempted due to the Testing Act’s “express preservation] rather than preemption]” of negligence claims).

Baker’s wrongful termination claim may survive preemption, but Baker’s drug test indicating the presence of cocaine…