Jeri Rae Mcvey Vs. National Organization Service, Inc.

IN THE SUPREME COURT OF IOWA
No. 24 / 04-1769
Filed August 11, 2006
JERI RAE McVEY,
Appellant,
vs.
NATIONAL ORGANIZATION SERVICE, INC.,
Appellee.
Appeal from the Iowa District Court for Polk County, Artis I. Reis,
Judge.
Discharged employee who alleged noncompliance with statutory
requirements for employee drug testing appeals from adverse summary
judgment in wrongful-discharge action. REVERSED AND REMANDED.
Mark T. Hedberg, Des Moines, for appellant.
Jacqueline K. Samuelson and Gretchen Witte Kraemer of Whitfield &
Eddy, P.L.C., Des Moines, for appellee.
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CARTER, Justice.
Plaintiff, Jeri Rae McVey, who was discharged by her employer
defendant, National Organization Service, Inc. (NOS), after testing positive
for marijuana ingestion, brought the present action alleging her employer’s
noncompliance with the statutes governing employee drug testing and
requesting damages for wrongful termination of her employment. The
district court granted summary judgment for the employer, and plaintiff
appeals. After reviewing the record and considering the arguments
presented, we conclude that, at the time of the district court’s judgment,
there were genuine issues of material fact remaining that precluded the
grant of summary judgment. Consequently, we reverse the judgment of the
district court and remand the case to that court for further proceedings
consistent with our opinion.
When McVey reported for work at NOS on July 9, 2003, she was
subjected to a random drug test. The laboratory results returned to her
employer were positive as to the presence of marijuana. Prior to the time
that McVey was to report for work on the date that the test results were
obtained by NOS, she telephoned her employer and questioned whether the
result of her random drug test was positive. The substance of this
telephone conversation is disputed; however, it is agreed that McVey was
advised that the test results were positive for marijuana and that her
employment was terminated. McVey did not return to work after this
conversation.
On November 13, 2003, McVey filed this action alleging that the
random drug test imposed on her was carried out in violation of the
statutory requirements for employee drug testing contained in Iowa Code
section 730.5 (2003). As a result of that alleged violation, she sought to
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recover damages from NOS, including reinstatement of her employment
pursuant to the provisions of Iowa Code section 730.5(15)(a).
During the discovery process, NOS filed several requests for
admission. Based on McVey’s answers to those requests and an affidavit of
its Des Moines manager, NOS moved for summary judgment. Included in
the statement of undisputed facts filed by NOS in support of that motion
was a contention that McVey had been informed of the company’s drug-
testing policy that prohibited the use of illegal drugs by NOS employees.
Attached to that statement were two exhibits, exhibit D, which was alleged
to include the written drug-testing policy that NOS adopted pursuant to
section 730.5(9), and exhibit E that was denominated as “DRUG-FREE
WORKPLACE POLICY” and pertained to federal law requirements that,
because NOS was a federal contractor, its employees must report controlled
substance convictions to the employer and ultimately to the federal
government. Exhibit E also required the employee to waive any breach-of-
privacy claim against the employer for conveying an employee’s controlled
substance history to a federal agency.
To obtain a grant of summary judgment on some issue in an action,
the moving party must affirmatively establish the existence of undisputed
facts entitling that party to a particular result under controlling law.
Goodwin v. City of Bloomfield, 203 N.W.2d 582, 588 (Iowa 1973). To
affirmatively establish uncontroverted facts that are legally controlling as to
the outcome of the case, the moving party may rely on admissions in the
pleadings, see Fisher Controls Int’l v. Marrone, 524 N.W.2d 148, 149 (Iowa
1994), affidavits, depositions, answers to interrogatories by the nonmoving
party, and admissions on file. Iowa R. Civ. P. 1.981(3). Except as it may
carry with it express stipulations concerning the anticipated summary
judgment ruling, a statement of uncontroverted facts by the moving party
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made in compliance with rule 1.981(8) does not constitute a part of the
record from which the absence of genuine issues of material fact may be
determined. Glen Haven Homes, Inc. v. Mills County Bd. of Review, 507
N.W.2d 179, 182 (Iowa 1993). The statement required by rule 1.981(8) is
intended to be a mere summary of the moving party’s factual allegations
that must rise or fall on the actual contents of the pleadings, depositions,
answers to interrogatories, and admissions on file together with any
affidavits. Griglione v. Martin, 525 N.W.2d 810, 813 (Iowa 1994). If those
matters do not reveal the absence of genuine factual issues, the motion for
summary judgment must be denied. Mead v. Lane, 203 N.W.2d 305, 307
(Iowa 1972).
Among the detailed requirements for employee drug testing that are
contained in section 730.5, it is provided that drug testing shall be carried
out within the terms of a written policy that has been provided to every
employee and is available for review. Iowa Code § 730.5(9)(a)(1). It is
further provided that this written policy shall provide “uniform
requirements for what disciplinary or rehabilitative actions an employer
shall take against an employee or prospective employee upon receipt of a
confirmed positive drug or alcohol test.” Iowa Code § 730.5(9)(b).
In seeking to uphold the district court’s grant of summary judgment,
NOS relies on the principle that under Iowa law, if an expressly stated term
of employment is not provided by contract, employment is at will. It urges
that exceptions to that rule relating to discharges found to be in violation of
public policy as applied in Springer v. Weeks & Leo Co., 429 N.W.2d 558,
561 (Iowa 1988), are not applicable because public policy does not favor the
presence of drug users in the workplace. McVey urges, and we agree, that
the present dispute does not involve an issue of court-declared public-policy
violations such as were found to exist in the Springer case, but rather
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involves compliance with detailed statutory requirements, which create a
cause of action in favor of one who has been injured by a failure to abide
those requirements. 1 We recognized in Tow v. Truck Country of Iowa, Inc.,
695 N.W.2d 36, 39 (Iowa 2005), that 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 acknowledges receipt of exhibit E but, in both her answers to
request for admissions and the affidavit that she filed, denies receiving or
otherwise being made aware of the company drug-testing policy set forth in
exhibit D. McVey urges that the requirement that the employer adopt an
employee drug-testing policy and deliver it to each employee is a necessary
step in invoking the statutory authorization for such testing. We agree. We
further agree that it is essential the employee drug-testing policy, as
formulated by the employer, contain uniform requirements for what
disciplinary or rehabilitation actions an employer shall take against an
employee or prospective employee upon receipt of a confirmed positive drug
test. Clearly, exhibit E, which is the only statement of policy that McVey
admits to having received, fails to satisfy these requirements.
Consequently, there remains a genuine issue of material fact as to whether
exhibit D was received by McVey. In addition, on the latter matter, McVey
asserts that, in any event, exhibit D does not contain the required
statement of a uniform requirement for discipline on receipt of a confirmed
positive drug test and fails to comply with the statute in other respects. We
1That the public policy exception to at-will employment recognized in Springer is
based on a court-declared public policy is borne out in Fitzgerald v. Salsbury Chemical, Inc.,
613 N.W.2d 275 (Iowa 2000), in which we observed “we must proceed cautiously when
asked to declare public policy to support an exception to the at-will doctrine, and only
utilize those policies that are well recognized and clearly defined.” Fitzgerald, 613 N.W.2d
at 283. In the present case, we must apply that public policy that the legislature has set
forth in section 730.5.
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express no opinion on those matters and leave them as issues to be resolved
on remand in the event that the district court finds that McVey was
furnished with a copy of exhibit D. For the reasons advanced in this
opinion, the court erred in granting summary judgment in favor of NOS.
We have considered all issues presented and conclude that the
judgment of the district court must be reversed. The case is remanded to
that court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.