IN THE SUPREME COURT OF IOWA
No. 07–1468
Filed January 9, 2009
JERRIE LAVERNE SIMS,
Appellant,
vs.
NCI HOLDING CORPORATION, et al.,
Appellee.
Appeal from the Iowa District Court for Mahaska County, Dan F.
Morrison, Judge.
Employee appeals from decision denying a claim against his
employer for violation of a statute authorizing random drug tests.
AFFIRMED.
Steven Gardner of Kiple, Denefe, Beaver, Gardner & Zingg, L.L.P.,
Ottumwa, for appellant.
Sean M. Becker of Vinson & Elkins, L.L.P., Houston, Texas, and
Gene R. La Suer of Davis, Brown, Koehn, Shors & Roberts, P.C., Des
Moines, for appellee.
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HECHT, Justice.
An employee was discharged from employment after his urine
sample tested positive for an illegal drug. The employer provided the
employee with oral notice of his right to a confirmatory retest of the
sample. The employee subsequently filed this action alleging the
employer violated Iowa’s “drug-free workplaces” statute by failing to give
written notice of his right to request a confirmatory test. The district
court found the employer substantially complied with the statute by
providing written notice six months after the termination, but entered
judgment in the employee’s favor for attorney fees and costs. Although
we reject the district court’s finding of substantial compliance with the
statutory written notice requirement, we nonetheless agree with and
therefore affirm that court’s denial of legal and equitable relief for
wrongful discharge under the circumstances of this case. As the
employer failed to substantially comply with the notice requirement,
however, we affirm the judgment against the employer for attorney fees
and costs.
I. Factual and Procedural Background.
Jerrie Sims worked as an Operator at the American Building
Components manufacturing facility in Oskaloosa between July 2005 and
March of 2006. American Building Components is a division of the NCI
Holding Corporation. Sims’s position required him to oversee the
operation of steel decoiling machines, program the computers controlling
them, and operate a forklift in transporting bundles of steel weighing
approximately 10,000 pounds. The district court found Sims was
employed in a “safety sensitive position.” See Iowa Code § 730.5(1)(j)
(2005) (defining a “safety sensitive position” as “a job wherein an accident
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could cause loss of human life, serious bodily injury, or significant
property or environmental damage . . .”).
When Sims was hired by American Building Components, he was
provided with and acknowledged receipt of the company’s employee
manual. The manual contained NCI’s “Drugs, Narcotics, and Alcohol”
policy prohibiting employees from being present on company property
while under the influence of alcohol or illegal drugs. The policy informed
employees that the company would randomly administer drug tests, and
that a positive test result would subject an employee to an array of
potential sanctions including immediate termination.
Sims was randomly selected for a drug test administered for NCI
by Houston Medical Testing Services, a professional third-party
administrator. He was taken to a medical center where a sample of his
urine was collected for drug screening on February 22, 2006. The
sample was sent by courier to Medtox Laboratories for screening. The
collection and testing of the specimen were entirely consistent with the
requirements prescribed in Iowa Code section 730.5.
Sims’s sample tested positive for amphetamines and
methamphetamine, a result which was confirmed by gas chromatography
with mass spectrometry. Medtox Laboratories sent the test results to
Houston Medical Testing Services where they were reviewed by
Dr. Jeffrey Britton. Dr. Britton, a certified medical review officer,
concluded Sims was likely under the influence of illegal
methamphetamine at the time of the test. Dr. Britton then contacted
Sims and allowed him an opportunity to explain the positive test result.
Sims reported he had visited a dentist on the day before the test, but
Dr. Britton opined this history was unlikely to have produced a positive
test result.
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Dr. Britton reported the positive test result to Nancy Pitcock, a
representative in NCI’s human resources department. Pitcock informed
Sims’s supervisor of the positive test results on March 16, 2006, and
instructed the supervisor to inform Sims. When Sims contacted Pitcock
later that day, she again informed Sims of the positive test results and
orally informed him of his right to undertake a confirmatory test at his
own expense.1 Sims rejected the prospect of a confirmatory test,
claiming he did not have adequate financial resources to pay for such a
test. NCI terminated Sims’s employment on March 16, 2006.
Sims filed suit against NCI on April 13, 2006, claiming the
company violated Iowa Code section 730.5 by failing to notify him in
writing by certified mail, return receipt requested, of (1) the results of the
test, (2) his right to request and obtain a confirmatory test at an
approved laboratory of his choice, and (3) the fee payable by him for a
confirmatory test. Sims also claimed NCI’s “Drug, Alcohol, and
Narcotics” policy failed to make disclosures required by Iowa Code
section 730.5(9)(a)(1). Sims sought a declaration that NCI violated
section 730.5, injunctive relief, compensatory damages including back
pay, punitive damages, and an award of attorney fees.
NCI sent Sims’s attorney a letter by certified mail, return receipt
requested, on August 18, 2006 informing Sims of his right to a
confirmatory test. The letter also advised Sims of NCI’s unconditional
offer to pay for such a test. Sims accepted NCI’s offer and requested the
test be conducted by Laboratory Corporation of America. This test
confirmed the previous positive test results.
1Consistent with Iowa Code section 730.5(7), the original sample collected from
Sims on February 22, 2006 had been divided into two components so as to preserve a
“sufficient quantity to permit a second, independent confirmatory test . . . .” See Iowa
Code § 730.5(7)(b).
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The parties submitted the case to the district court on stipulated
facts. In its ruling on the merits, the court observed “it is unclear from
the statute whether a six-month delay in providing notice is compliance.”
Noting “common sense would tell one that notice should be sent to the
employee within a few days of the employer obtaining the results of the
test,” the court nonetheless found the delay caused Sims no direct
damage. The court concluded NCI’s written drug policy was
noncompliant with Iowa Code section 730.5(9) because it failed to
disclose Sims’s right to request and obtain a confirmatory test. However,
because NCI ultimately provided Sims the opportunity for a retest which
confirmed the previous positive result, the district court found “NCI
substantially complied with the statute by what they did, not by what
their policy said or did not say.” Despite NCI’s delay in giving written
notice of Sims’s right to retest, the court found Sims was orally advised
of this right on March 16, 2006 and later advised in writing as well.
The district court did not award Sims back pay or reinstatement as
he was found to have suffered no direct harm as a result of his
termination. The court did, however, order NCI to pay Sims’s attorney
fees and the costs of the action because Sims brought the action “as a
direct result of NCI’s failure to comply with the plain language of [section
730.5].” See Iowa Code § 730.5(15)(a) (authorizing the court to impose
“any other equitable relief as the court deems appropriate including
attorney fees and court costs”).
Sims appeals, contending the district court erred in (1) finding NCI
substantially complied with Iowa Code section 730.5, and (2) failing to
grant the requested legal and equitable relief for wrongful termination.
NCI cross-appeals, challenging the court’s ruling ordering NCI to pay
Sims’s attorney fees and the court costs.
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II. Scope of Review.
We review the district court’s legal conclusions for correction of
errors at law and affirm its findings of fact if they are supported by
substantial evidence. Iowa Rs. App. P. 6.4, 6.14(6)(a); Tow v. Truck
Country of Iowa, 695 N.W.2d 36, 38 (Iowa 2005). Evidence is substantial
if a reasonable mind would accept the evidence as adequate to reach the
same findings. Frontier Props. Corp. v. Swanberg, 488 N.W.2d 146, 147
(Iowa 1992).
III. Discussion.
A. Substantial Compliance. We have not previously determined
whether strict compliance with the notice provisions of section 730.5, the
“drug-free workplaces” statute, is required or whether substantial
compliance will suffice. See Harrison v. Employment Appeal Bd., 659
N.W.2d 581, 586 (Iowa 2003); see also Munn v. Kraft Foods Global, Inc.,
455 F. Supp. 2d 925, 933 (S.D. Iowa 2006) (noting the decision in
Harrison did not resolve the question of whether strict or substantial
compliance was required).
“Substantial compliance is said to be compliance in respect to
essential matters necessary to assure the reasonable objectives of the
statute.” Superior/Ideal, Inc. v. Bd. of Review, 419 N.W.2d 405, 407
(Iowa 1988). In the broadest sense, section 730.5 is intended to protect
an employer’s right to ensure a drug-free workplace. Anderson v. Warren
Distrib. Co., 469 N.W.2d 687, 689 (Iowa 1991) (noting employers should
be allowed to take steps to ensure a drug-free workplace). Viewed more
narrowly, the legislature’s intent was to “ensure the accuracy of any drug
test serving as the basis for adverse employment action.” Harrison, 659
N.W.2d at 586–87. Accurate drug testing inures, of course, to the benefit
of both employers and their employees. Id. at 587.
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The notice requirement within the statute focuses more directly,
however, on the protection of employees who are required to submit to
drug testing. Id. Section 730.5(7)(i)(1) accomplishes this protective
purpose by mandating written notice by certified mail of (1) any positive
drug test, (2) the employee’s right to obtain a confirmatory test, and (3)
the fee payable by the employee to the employer for reimbursement of the
expense of the test. Iowa Code § 730.5(7)(i)(1). Such a formal notice
conveys to the addressee “a message that the contents of the document
are important” and worthy of the employee’s deliberate reflection.
Harrison, 659 N.W.2d at 587. We now decide that if the employer’s
actions fall short of strict compliance, but nonetheless accomplish the
important objective of providing notice to the employee of the positive test
result and a meaningful opportunity to consider whether to undertake a
confirmatory test, the employer’s conduct will substantially comply with
the statute.
B. Did NCI Substantially Comply? Having concluded
substantial compliance with the notice provisions of Iowa Code section
730.5 may suffice, we next consider whether NCI’s actions constitute
substantial compliance. The statute creates guidelines permitting an
employer to conduct random drug tests pursuant to a written policy. See
Iowa Code § 730.5. In conducting drug tests, “[a]n employer shall adhere
to the requirements of [section 730.5] concerning the conduct of such
testing and the use and disposition of the results of such testing.” Id.
§ 730.5(4). While the statute permits an employer to conduct drug tests,
it also mandates protections must be afforded to employees. See id.
§ 730.5(7). “Although an employer is entitled to have a drug free
workplace, it would be contrary to the spirit of Iowa’s drug testing law if
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we were to allow employers to ignore the protections afforded by this
statute . . . .” Harrison, 659 N.W.2d at 588.
In assessing whether NCI’s actions substantially complied with the
notice requirements, we address two parts of section 730.5: (1) section
730.5(9)(a)(1), the written policy provision, and (2) section 730.5(7)(i)(1),
the written notice provision. We conclude NCI substantially complied
with the written policy provision, but failed to substantially comply with
the written notice provision.
1. Written drug policy. Section 730.5(9)(a)(1) mandates:
Drug or alcohol testing or retesting by an employer shall be
carried out within the terms of a written policy which has
been provided to every employee subject to testing, and is
available for review by employees and prospective employees.
Iowa Code § 730.5(9)(a)(1) (emphasis added). It is undisputed NCI had a
“Drug, Narcotics, and Alcohol” policy that was published in a manual
and provided to all employees. The manual provided in relevant part:
If an employee tests positive on the initial test, the specimen
will be sent for confirmation testing. The confirmation test
(GC/MS) shall use a portion of the same test sample
withdrawn from the employee or applicant for use in the first
test. A Medical Review Officer (MRO) will review all
confirmed positive test results, and will also review “chain of
custody” handling for all specimens.
Sims received the manual and acknowledged in writing that he read the
provisions detailing the company’s internal policies pertaining to random
drug testing and the consequences of a positive test result. The policy
did not, however, notify employees of their right to request and obtain a
confirmatory test.
Sims contends the written policy failed to comply with Iowa Code
section 730.5(9)(a)(1) because it failed to notify him of his right to insist
upon a confirmatory test. The district court agreed and found NCI’s
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written policy did not comply with section 730.5(9), but nonetheless
found NCI’s delayed offer of a confirmatory retest amounted to
substantial compliance. Upon our review of the applicable statute and
the record in this case, we conclude NCI’s written policy did comply with
section 730.5(9)(a)(1).
Sims correctly asserts NCI’s written policy makes no disclosure of
his statutory right to undertake a confirmatory test. However, we find
nothing in section 730.5(9)(a)(1) requiring the written policy to make
such a disclosure. The express language of the statute mandates the
policy disclose “drug or alcohol testing or retesting by an employer.”
Iowa Code § 730.5(9)(a)(1) (emphasis added). It does not require the
policy to address testing or retesting requested by an employee.
Although the legislature could have mandated disclosure of the
employee’s right to a retest in the employer’s written policy, it chose not
to do so. It chose instead to require such a disclosure after a positive
drug test in the written notice sent to the employee as required by
section 730.5(7)(i)(1) when that information is most urgently needed by,
and useful to, the employee. We will not read into the statute a mandate
which is not present in the plain language. See Eaton v. Iowa
Employment Appeal Bd., 602 N.W.2d 553, 556 (Iowa 1999) (noting we
focus on what the legislature said in the statute); Anderson, 469 N.W.2d
at 688 (stating we will not mandate a requirement which is not present
in the statute).
Sims does not deny he was provided a copy of NCI’s written drug
policy. Indeed, he signed a form acknowledging he had received and was
aware of the policy. NCI’s written drug testing policy provided ample
information regarding the company’s random testing policy and the
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procedures of its implementation. We conclude NCI’s written policy
complied with the mandates of section 730.5(9)(a)(1).
2. Written notice of positive test result. Section 730.5(7)(i)(1) states:
If a confirmed positive test result for drugs . . . for a current
employee is reported to the employer . . . , the employer shall
notify the employee in writing by certified mail, return
receipt requested, of the results of the test, the employee’s
right to request and obtain a confirmatory test of the second
sample . . . and the fee payable by the employee to the
employer for reimbursement of expenses concerning the test.
Iowa Code § 730.5(7)(i)(1). Although the district court aptly noted
“common sense would tell one that notice should be sent to the employee
within a few days of the employer obtaining the results of the test,” the
statute provides no specific timeline within which notice must be
provided to the employee. See id. In this case, NCI provided Sims with
prompt oral notice of his right to a confirmatory test, but delayed giving
written notice of this right until five months after Sims’s employment was
terminated.
We conclude the oral notice provided by NCI at the time of Sims’s
termination was insufficient to convey to Sims all of the employee
protections afforded by section 730.5(7). Standing alone it did not
constitute substantial compliance. Although it informed Sims of his
right to undertake a confirmatory test, the oral notice was incomplete and
failed to adequately convey the message that the notice was important.
See Harrison, 659 N.W.2d at 587 (noting a written notice sent by certified
mail conveys the importance of the message and the need for deliberate
reflection). Moreover, the oral notice did not serve to adequately protect
Sims from the consequences of a potentially erroneous test result.
We further conclude NCI did not come into substantial compliance
with its statutory obligation under section 730.5(7) when it sent written
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notice to Sims several months after he was discharged. This long-
delayed notice was not given until after Sims filed suit alleging
noncompliance with the statute. Under these circumstances, we cannot
conclude NCI’s compliance was substantial.
C. Legal and Equitable Relief. Upon receipt of the positive test
result evidencing Sims’s violation of the written drug policy, NCI was
authorized to terminate Sims’s employment. Iowa Code § 730.5(10)(a)(3).
As the confirmatory retest eventually requested by Sims confirmed the
initial positive result, Sims’s employment was not adversely affected by
an erroneous test result. Accordingly, we affirm the district court’s
determination that Sims is not entitled to back pay, punitive damages, or
reinstatement of his employment.
D. NCI’s Cross-Appeal. NCI’s cross-appeal challenges the
judgment against it for attorney fees and court costs. Claiming it
complied with the statutory notice requirements, and emphasizing the
confirmatory test conclusively established Sims’s termination was
justified, NCI asserts it can have no liability whatsoever under section
730.5. As we have already rejected NCI’s claim of substantial compliance
with the notice requirement, we next consider whether the employer may
be held liable for a discharged employee’s attorney fees and the court
costs under the circumstances presented here.
The district court is authorized to grant “affirmative relief including
reinstatement or hiring, with or without back pay, or any other equitable
relief as the court deems appropriate including attorney fees and court
costs” against an employer who fails to comply with section 730.5. Id.
§ 730.5(15). Although NCI did, eventually, provide written notice, it had
not yet done so when Sims filed this action. Because NCI’s delay in
compliance with the notice requirements of section 730.5(7)(i)(1)
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provoked Sims’s suit to enforce compliance, we conclude the district
court properly invoked its authority under section 730.5(15) to award
attorney fees and court costs. We therefore affirm the award of attorney
fees and court costs against NCI.
IV. Conclusion.
NCI’s written drug policy complied with the requirements of section
730.5(9)(a)(1). The district court erred in finding NCI substantially
complied with Iowa Code section 730.5(7)(i)(1) by providing Sims with
written notice of his statutory right to request a confirmatory test several
months after he was discharged, and after he filed suit to enforce his
rights under the statute. The district court correctly concluded, however,
that Sims is not entitled to damages or reinstatement for wrongful
termination of his employment. NCI was authorized to discharge Sims
under the statute upon receipt of the positive drug test, and the test later
requested by Sims only confirmed his violation of NCI’s anti-drug policy.
The district court nonetheless properly exercised its authority under the
circumstances of this case to order NCI to reimburse Sims for attorney
fees and costs incurred in litigation commenced as a consequence of
NCI’s failure to substantially comply with the notice requirement. Thus,
although our rationale differs from that of the district court, we reach the
same result, and therefore affirm.
AFFIRMED.