Todd Whitman v. Casey's General Stores, Inc. and Casey's Marketing Company ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1320
Filed September 25, 2019
TODD WHITMAN,
Plaintiff-Appellant,
vs.
CASEY'S GENERAL STORES, INC. and CASEY'S MARKETING COMPANY,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.
Plaintiff appeals the district court’s denial of his motion for judgment
notwithstanding the verdict and for a new trial following the jury verdict for
defendants on his claims of improper drug testing. AFFIRMED.
Matthew M. Sahag of Dickey & Campbell Law Firm, PLC, Des Moines, and
Michael J. Carroll of Coppola, McConville, Coppola, Carroll, Hockenberg &
Scalise, West Des Moines, for appellant.
Andrew Tice and Lindsay Vaught of Ahlers & Cooney, P.C., Des Moines,
for appellees.
Heard by Potterfield, P.J., Greer, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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SCOTT, Senior Judge.
Todd Whitman appeals the district court’s denial of his motion for judgment
notwithstanding the verdict and for a new trial following the jury verdict for Casey’s
General Stores, Inc. and Casey’s Marketing Company (Casey’s). We find (1) the
district court did not err in denying Whitman’s motion for judgment notwithstanding
the verdict on his claim Casey’s improperly required him to take a drug test;
(2) Whitman was not entitled to a new trial based on inconsistent verdicts;
(3) Whitman is not entitled to a new trial based on improper jury instructions; and
(4) the court did not abuse its discretion in awarding attorney fees. We affirm the
decision of the district court.
I. Background Facts & Proceedings
From the evidence presenting during the trial, the jury could find the
following facts. In 2006, Whitman applied for a job at the Casey’s warehouse in
Ankeny. On the application question, “Have you ever been convicted of a crime
other than a routine traffic violation,” Whitman wrote down he had a 1998
conviction for conspiracy. He signed the application, which stated, “Any material
misrepresentation or deliberate omission on my application may subject me to
immediate dismissal.” After an interview with the warehouse manager, William
Brauer, Whitman was hired as a heavy-duty warehouse employee. Casey’s felt it
was essential to maintain safety in the warehouse due to the busy work
environment and the use of heavy machinery, such as forklifts.
On November 5, 2014, Whitman used methamphetamine in his off-duty
hours, then reported to work on November 6. He again used methamphetamine
after work on November 6, then worked on November 7. In the evening on Friday,
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November 7, Whitman was arrested for possession of illegal drugs. He was
impaired at the time of his arrest. Over the weekend, Whitman smoked marijuana.
He worked his next regular shift at Casey’s on Tuesday, November 11. By the end
of the day, Brauer and Marcella Burkheimer, the director of human resources,
learned of Whitman’s arrest on November 7.
On the morning of November 12, Whitman was asked to meet with Brauer
and Rick Buckroyd, a shift supervisor. Whitman admitted to his recent arrest and
stated he had smoked marijuana over the weekend. Brauer stated Whitman “got
very loud, and he just started talking erratically, and it was just kind of a chaotic
situation.” He told Whitman he needed to take a drug test. Whitman asked to go
to treatment and mentioned he had post-traumatic stress disorder (PTSD).
Buckroyd drove Whitman to the drug test. He noticed Whitman drank a large
quantity of water before taking the test. Whitman was suspended from work but
was paid for November 12 to 15.
On November 14, the human resources department received the results of
the drug test, which were negative. Brauer stated he was not yet aware of the
results of the drug test when he decided to terminate Whitman. Burkheimer looked
at Whitman’s criminal history and found he had many more convictions than he put
on his application. Brauer and Burkheimer determined Whitman should be
discharged because of his admitted drug use and his failure to fully disclose his
criminal convictions on his application. On November 19, Brauer called Whitman,
who was then in a substance-abuse treatment facility, to tell him he was terminated
from employment at Casey’s.
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On November 4, 2016, Whitman filed an action alleging Casey’s had
engaged in disability discrimination, improperly required him to take a drug test
based on the provisions in Iowa Code section 730.5 (2016), and violated chapter
91A by failing to pay him all of his wages. The jury found Whitman was “currently
engaged in the illegal use of drugs at the time of his termination”; he did not prove
his disability discrimination claim based on PTSD; Casey’s complied with section
730.5, and even if there had been a violation of section 730.5, Whitman would
have been terminated anyway; and Whitman was entitled to $336 in back pay.
Whitman filed a combined motion for new trial and for judgment
notwithstanding the verdict. The district court found the jury did not give
inconsistent answers on Whitman’s wage claim, as the award of back pay was
“ostensibly for shifts available to [Whitman] between November 16-19, 2014,” and
was not inconsistent with a finding there was no violation of section 730.5. The
court also determined there was substantial evidence in the record to support the
jury’s verdict Casey’s terminated Whitman’s employment for “valid reasons
independent and separate from the drug test results.” The court denied Whitman’s
complaints about certain jury instructions. The court also found the jury’s verdict
was not contrary to the weight of the evidence. The court awarded Whitman
attorney fees of $3360 based on his successful wage claim for $336. Whitman
now appeals.
II. Section 730.5
Whitman claims the district court should have granted his motion for
judgment notwithstanding the verdict because Casey’s did not follow the provisions
in section 730.5 when it required him to take a drug test. He states Casey’s failed
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to (1) adequately train supervisory personnel, (2) have reasonable suspicion to
test him, (3) reinstate him after his negative drug test, and (4) follow its written
policies concerning drug testing.
We review a district court’s ruling on a motion for judgment notwithstanding
the verdict for the correction of errors at law. Thornton v. Am. Interstate Ins. Co.,
897 N.W.2d 445, 460 (Iowa 2017). “On review, we ‘determine whether sufficient
evidence existed to justify submitting the case to the jury at the conclusion of the
trial.’” Garr v. City of Ottumwa, 846 N.W.2d 865, 869 (Iowa 2014) (quoting Lee v.
State, 815 N.W.2d 731, 736 (Iowa 2012)). “To justify submitting the case to the
jury, substantial evidence must support each element of the plaintiff’s claim.”
Smith v. Iowa State Univ. of Sci. & Tech., 851 N.W.2d 1, 18 (Iowa 2014).
“Evidence is substantial if a jury could reasonably infer a fact from the evidence.”
Winger v. CM Holdings, L.L.C., 881 N.W.2d 433, 445 (Iowa 2016). We review the
evidence in the light most favorable to the nonmoving party. Dinsdale Constr., LLC
v. Lumber Specialties, Ltd., 888 N.W.2d 644, 649 (Iowa 2016).
“[A] discharge from employment may be based on an employee drug-testing
program only if that program is being carried out in compliance with the governing
statutory law.” McVey v. Nat’l Org. Serv., Inc., 719 N.W.2d 801, 803 (Iowa 2006).
This rule applies to a termination from employment “based on an employee drug-
testing program.” See id. (emphasis added). In Sims v. NCI Holding Corporation,
759 N.W.2d 333, 340 (Iowa 2009), the Iowa Supreme Court determined an
employee’s employment “was not adversely affected” by the employer’s failure to
timely inform him of his right to have a confirmatory drug test as required by section
730.5(7), as his initial drug test was not erroneous, and the employee was not
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therefore entitled to reinstatement of his employment. Thus, an employee is
entitled to relief only if the employee’s employment was “adversely affected” by an
improper drug test. See Sims, 759 N.W.2d at 340; see also Iowa Code
§ 730.5(15)(a)(1).
The jury found Whitman was “currently engaged in the illegal use of drugs
at the time of his termination,” and his “employment [would] have been terminated
even if there had been no violation of Iowa Code section 730.5.” In denying the
motion for judgment notwithstanding the verdict, the district court stated:
[T]he court finds the jury’s verdict is supported by substantial credible
evidence presented at trial. Casey’s would not have been compelled
or obligated to reinstate [Whitman’s] employment because the jury
heard credible evidence that would permit them to find [Whitman]
would ultimately have been terminated—and was terminated—by
Casey’s for valid reasons independent and separate from the drug
test results.
A motion for judgment notwithstanding the verdict should be denied if the
jury’s verdict is supported by substantial evidence. Winger, 881 N.W.2d at 435.
Brauer testified he made the decision to terminate Whitman before he knew the
results of the drug test and the results of the test did not change his mind.
Burkheimer testified Whitman should have been terminated on November 12 when
he admitted using illegal drugs and the drug test did not have “any adverse effect”
on Whitman’s employment. We find no error in the district court’s decision denying
the motion for judgment notwithstanding the verdict.
III. Inconsistent Verdicts
Whitman claims the district court should have granted his motion for new
trial on the ground the jury gave inconsistent verdicts. He states the jury’s verdict
finding Casey’s had violated chapter 91A was inconsistent with its finding Casey’s
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complied with section 730.5. He asserts the award of $336 in back pay was in
recognition of a violation of section 730.5 by Casey’s.
“A motion for a new trial based on the question of inconsistent verdicts is a
question of law, so our review is for correction of errors at law.” Westco Agronomy
Co., LLC v. Wollesen, 909 N.W.2d 212, 219 (Iowa 2017). “When deciding if a
verdict is inconsistent, we liberally construe the jury’s verdict to give effect to the
jury’s intention and harmonize the jury’s answers if possible.” Pavone v. Kirke,
801 N.W.2d 477, 498 (Iowa 2011). “We also must determine whether the verdicts
can be reconciled in a manner reasonably consistent with the evidence and the
jury instructions.” Id.Burkheimer testified Casey’s records showed Whitman had not been paid
for November 17 to 19, and he was discharged from his employment on November
19. The district court found, “The two days of wages awarded by the jury under
the chapter 91A wage claim were ostensibly for shifts available to [Whitman]
between November 16-19, 2014, which were not ‘prior to receipt of the final [drug
test] results.’” The court concluded, “[T]the jury award of wages for these two days
was not inconsistent with section 730.5(10)(b).” We find no error in the district
court’s conclusion, which logically reconciled the jury’s verdicts in this case.
IV. Jury Instructions
Whitman contends the district court should have granted his motion for new
trial on the ground the court improperly gave two jury instructions, which he states
were misstatements of the law. We review a challenge to the jury instructions for
the corrections of errors at law. Haskenhoff v. Homeland Energy Sols., LLC, 897
N.W.2d 553, 570 (Iowa 2017). A jury’s verdict should be reversed if there has
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been a material misstatement of the law in the instructions. Rivera v. Woodward
Res. Ctr., 865 N.W.2d 887, 902 (Iowa 2015). A verdict should also be reversed if
the “instructions are misleading and confusing.” Id.A. Instruction number 11 provided:
Defendants have the burden to prove whether an employee is
currently engaged in the illegal use of drugs and that Defendants had
actual knowledge of such use.
The law does not protect an employee who is currently
engaged in the illegal use of drugs when the employer acts on the
basis of such use. An employee is considered to be “currently
engaging in the illegal use of drugs” at the time of his termination if
drug use was sufficiently recent to justify the employer’s reasonable
belief that illegal drug use was an ongoing problem rather than a
problem that was in the past. Currently engaging in the illegal use of
drugs is not limited to situations where the employee is presently
under the influence of drugs at the time of his termination. If Plaintiff
used illegal drugs in the weeks and months preceding his
termination, then he was currently engaging in the illegal use of drugs
at the time of his termination.
In particular, Whitman objects to the last sentence, “If Plaintiff used illegal
drugs in the weeks and months preceding his termination, then he was currently
engaging in the illegal use of drugs at the time of his termination.” Whitman claims
this instruction misstates the law because it should have required proof the
employer had knowledge of the employee’s current drug use. Also, he states the
instruction should have required evidence he used drugs while at work or was
intoxicated at work.
The district court stated the instruction was “a correct synthesized statement
of the missing definition in other jurisdictions.” See Greer v. Cleveland Clinic
Health Sys., 503 F. App’x 422, 431 (6th Cir. 2012); Johnson v. City of Columbus,
No. C2-99-531, 2001 WL 605040, at *6 (S.D. Ohio May 29, 2001); Vedernikov v.
W. Va. Univ., 55 F. Supp. 2d 518, 523 (N.D.W.V. 1999); Baustian v. Louisiana,
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910 F. Supp. 274, 277 (E.D. La. 1996); Wormley v. Arkla, Inc., 871 F. Supp. 1079,
1084 (E.D. Ark. 1994). The court also found Whitman did not show he was
prejudiced by the instruction, as the evidence showed he used methamphetamine
and marijuana shortly before he was discharged by Casey’s. Burkheimer testified
it violated Casey’s drug and alcohol policy for an employee to use illegal drugs
outside of work in order to protect the safety of the other employees.
We find instruction number 11 is not a material misstatement of the law.
Furthermore, even if the instruction was a material misstatement of the law,
Whitman has not shown he was prejudiced by the instruction. See Mumm v.
Jennie Edmundson Mem’l Hosp., 924 N.W.2d 512, 518 (Iowa 2019) (“However, it
is well-settled that an instructional error must be prejudicial to warrant reversal.”).
During the trial, Whitman testified he used methamphetamine and marijuana
shortly before his termination. We conclude the district court did not err by denying
Whitman’s motion for new trial based on the instruction.
B. Whitman asserts instruction number 20 is a material misstatement of
the law. Instruction number 20 provides:
Your verdict must be for Plaintiff and against Defendant on
Plaintiff’s Iowa Code section 730.5 claim if all of the following
elements have been proven:
First, that Defendant violated Iowa Code section 730.5 by:
1. Failing to reinstate Plaintiff and pay him back pay,
plus interest at the rate of 18% per annum compounded annually, for
a period of suspension following a drug test but prior to receipt of the
final results of the drug test;
2. Failing to give Plaintiff an opportunity to provide any
information which may be considered relevant to the test, including
identification of prescription or nonprescription drugs currently or
recently used, or other relevant medical information;
3. Failing to administer a drug test within the terms of
its written policy; or
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4. Ensuring that Plaintiff’s supervisor attended the
required periodic training regarding alcohol and drug abuse.
And,
Second, Plaintiff’s employment with Defendants was
adversely affected by Defendants’ violation of Iowa Code section
730.5.
For the purposes of this claim, it is Defendants’ burden to
prove compliance with Iowa Code section 730.5. It is Plaintiff’s
burden to prove his employment with Defendants was adversely
affected by a violation of Iowa Code section 730.5.
If you find both of the above elements have been met, your
verdict on Plaintiff’s Iowa Code section 730.5 claim must be for
Plaintiff. If you find any of the above elements have not been met,
then your verdict on Plaintiff’s Iowa Code section 730.5 claim must
be for Defendants.
Whitman claims the instruction improperly provides Casey’s was required
to comply with only some of the requirements in section 730.5. He states Casey’s
had the burden to show it met all of the requirements in the statute. He additionally
states the instruction improperly provides he had the burden to show he was
“adversely affected by a violation of Iowa Code section 730.5.”
The district court rejected Whitman’s arguments concerning instruction
number 20, finding it was “an accurate statement of law because only ‘an
aggrieved employee’ has a cause of action under the statute,” citing section
730.5(15)(a)(1). The court also found, “[T]he jury heard substantial credible
evidence permitting them to find that Casey’s had valid independent grounds
unrelated to section 730.5 under their company workplace policies that would
permit them to terminate [Whitman].” We find no error in the court’s conclusion
Whitman was entitled to relief only if his employment was “adversely affected” by
an improper drug test. See Sims, 759 N.W.2d at 340; see also Iowa Code
§ 730.5(15)(a)(1).
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We reject Whitman’s claim Casey’s waived some of its rights in the parties’
employer-employee relationship by requesting a drug test. As noted, Whitman
was not “adversely affected” by an improper drug test and, therefore, he does not
come within the category of persons protected by the provisions of section 730.5.
Even if the request for a drug test was improper, it did not mean Casey’s was
unable to discharge Whitman for entirely different reasons.
V. Attorney Fees
Whitman asserts the district court should have awarded him attorney fees
based on his claims under section 730.5. He states even if he was determined not
to be adversely affected by an improper drug test, he is entitled to attorney fees
under the statute. The district court has authority under section 730.5(15) to award
attorney fees in a case involving a violation of the requirements of section 730.5.
See Sims, 759 N.W.2d at 340.
Section 730.5(15)(1)(a) provides an employee who is aggrieved due to a
violation of the drug-testing statute is entitled to attorney fees. The jury found
Whitman was not aggrieved by an improper drug test because Casey’s had
independent grounds to terminate him. We conclude the district court did not err
by denying Whitman’s request for attorney fees under section 730.5.
VI. Conclusion
We affirm the district court’s decision denying Whitman’s motion for
judgment notwithstanding the verdict and for a new trial and its attorney-fee award.
AFFIRMED.