interpreting section 670.4(11) and collecting cases
How later courts described this case
- interpreting section 670.4(11) and collecting cases
- stating “front pay is an equitable remedy and may be awarded at the court’s discretion”
- “The clean hands doctrine stands for the principle that a party may be denied relief in equity based on his inequitable, unfair, dishonest, fraudulent, or deceitful conduct.”
- “The court cannot read into a statute something that the legislature did not make apparent by the language.”
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF IOWA
No. 18-1464
Filed January 9, 2020
TYLER DIX, JASON CATTELL, JIMMY McCANN, and JULIE ELLER,
Plaintiffs-Appellees/Cross-Appellants,
vs.
CASEY'S GENERAL STORES, INC. and CASEY'S MARKETING COMPANY,
Defendants-Appellants/Cross-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
Judge.
An employer appeals the district court’s grant of relief to former employees
who challenged its drug-testing program under Iowa Code section 730.5. Former
employees cross appeal other aspects of the ruling. AFFIRMED ON APPEAL;
AFFIRMED ON CROSS-APPEAL.
Ann H. Kendell of Brown, Winick, Graves, Gross, Baskerville &
Schoenebaum, P.L.C., Des Moines, for appellants.
David Albrecht of Fielder Law Firm, PLC, Johnston, and Matthew M. Sahag
of Dickey & Campbell Law Firm, PLC, Des Moines, for appellees.
Heard by Doyle, P.J., and Tabor and Schumacher, JJ.
2
TABOR, Judge.
This case involves employee drug testing conducted by Casey’s General
Stores, Inc. and Casey’s Marketing Company (Casey’s) under Iowa Code
section 730.5 (2016). Former employees Jason Cattell, Tyler Dix, Julie Eller, and
Jimmy McCann challenged the termination of their employment after three of them
tested positive and one was unable to give a urine sample.
Following a trial to the bench, the district court found Casey’s improperly
included Eller and McCann in the pool of safety-sensitive workers from which it
selected employees to test. The court awarded Eller back and front pay and
awarded McCann back pay. Casey’s appeals those awards to Eller and McCann
as inequitable and asserts statutory immunity. McCann cross appeals seeking
front pay. By contrast, the court found Casey’s properly included Cattell and Dix
in the testing pool. But the court held Casey’s violated the statute by failing to
provide those employees with a specific list of drugs to be tested and failing to
allow them to provide information relevant to testing. Still, the court did not grant
Cattell and Dix relief, finding they did not prove those statutory violations resulted
in adverse employment actions. Cattell and Dix cross appeal that decision.
Finding no reversible error, we affirm on both the appeal and cross-appeal issues.
I. Statutory Requirements and Background Facts
In January 2016, Casey’s notified employees at its Ankeny warehouse
about a new drug-testing policy authorized under Iowa Code section 730.5. That
statute allows private employers to conduct drug and alcohol testing in compliance
with detailed safeguards set out in the code and consistent with the employer’s
3
own written policy with proper notice to employees. The employer may test on an
unannounced and periodic basis. Iowa Code § 730.5(1)(i).1
The employer may elect to test employees selected from certain pools:
(1)“[t]he entire employee population at a particular work site,” (2) “[t]he entire full-
time active employee population at a particular work site,” or (3) “[a]ll employees
at a particular work site who are in a pool of employees in a safety-sensitive
position and who are scheduled to be at work at the time testing is conducted.” Id.
§ 730.5(8)(a). For unannounced drug testing, employees must be selected “based
on a neutral and objective selection process” and “by an entity independent from
the employer” using a “computer-based random number generator.” Id.
§ 730.5(1)(l). The procedure should ensure “each member of the employee
population subject to testing has an equal chance of selection for initial testing.”
Id. The testing “shall be carried out within the terms of a written policy,” and such
policy must be “provided to every employee subject to testing” and “available for
review by employees.” Id. § 730.5(9)(a)(1).
The statute allows employers to take disciplinary action against employees
who test positive or refuse to test including termination of their employment. Id.
§ 730.5(10)(a)(3). And the statute gives “an aggrieved employee” a civil cause of
action against “[a] person who violates this section.” Id. § 730.5(15)(a). But the
statute affords an employer immunity from a cause of action if the employer acts
in good faith following a positive test if the employer “has established a policy and
1 Another provision of the statute permits testing when there is “reasonable
suspicion” that the employee “is using or has used alcohol or other drugs” including
when the employee “has caused an accident while at work.” Iowa Code
§ 730.5(1)(i), (8)(c). That provision is not at issue in this case.
4
initiated a testing program” in accordance with the safeguards in the statute. Id.
§ 730.5(11), (11)(a).
Against that statutory backdrop, Casey’s unveiled its new testing policy.
Cattell, Dix, Eller, and McCann all received the policy. Casey’s planned to perform
drug tests on a periodic basis without advanced notice to employees. The policy
stated Casey’s would select employees for testing at “random” from “a pool of
employees in a safety-sensitive position who are scheduled to be at work at the
time testing is conducted.” The policy also stated, “All employees have an equal
chance of being selected.” Casey’s advised it would terminate any employee who
gave a confirmed positive test, refused to take a test, or failed to provide an
adequate sample.
Casey’s contracted with an outside laboratory, ARCpoint, to select the
employees and administer the tests. Casey’s also contracted with an outside lab
to conduct the medical review mandated under section 730.5(7)(h) (requiring a
medical review officer to interpret any confirmed positive test results to ensure any
information provided by the individual is considered before reporting the results to
the employer).
In April 2016, Dix, Cattell, McCann, and Eller all worked at Casey’s Ankeny
warehouse. Casey’s designated all warehouse employees as holding safety-
sensitive positions. When those employees received notice of the new policy, they
signed an acknowledgment of their understanding. In the warehouse, Dix and
Cattell worked on heavy-duty tasks such as building pallets and operating forklifts
to load trucks. McCann and Eller performed light-duty assignments in the tobacco
5
returns area. That area was cordoned off within the warehouse by a chain-link
fence, earning the structure its nickname—“the cage.”
Casey’s administered its first unannounced test on April 6, 2016. The day
before, Casey’s gave ARCpoint a roster of the 184 employees scheduled to work
at the warehouse. Casey’s asked ARCpoint to select 90% of the names for
testing.2 To select employees to be tested, ARCpoint used an internet-based
random number generator, called Research Randomizer.3 As it turned out, due to
absences and other circumstances, Casey’s ended up testing all employees at
work on April 6. The four plaintiffs were on the original list of selected employees.
On testing day, Casey’s Vice President Jay Blair gathered all employees in
the warehouse, announced the testing, and informed them, “If any of you are taking
a prescription, do not discuss it with us. You should proceed to the test and, if
applicable, the Medical Review Officer will contact you at a later date to
substantiate the prescription.” He also said, “If any of you wish to refuse to test,
you are free to leave at any time and it is regarded as a resignation.”
Casey’s moved employees into “holding areas” so they could not leave or
falsify tests. From there, Casey’s escorted the employees in pairs to the
2 Internal emails showed management would have preferred to test all the
employees but felt they could not justify 100% selection as “random.” Testimony
from human resources supervisor shows Casey’s intended to follow its policy to
test only employees in safety-sensitive positions.
3 Research Randomizer acknowledges,
[a]s with most computer-based “random number generators,” this
program is best described as a “pseudo-random number generator”
because the numbers are generated by use of a complex algorithm
(seeded by the computer’s clock) that gives the appearance of
randomness.
About, Research Randomizer, http://www.randomizer.org/about/ (last visited Jan.
5, 2019).
6
warehouse restrooms where they entered individual stalls and provided urine
specimens. Casey’s and ARCpoint employees were present in the restrooms
outside the stalls and collected the specimens for testing. ARCpoint employees
conducted initial tests at the warehouse. Employees tested either “negative” or
“nonnegative.” Casey’s informed employees who had “nonnegative” tests that
they were suspended. Later, employees with “nonnegative” initial tests received
by certified letters the results of confirmatory tests specifying the drugs detected.
Cattell, Dix, and McCann gave their samples as directed. Cattell and
McCann both tested positive for marijuana and amphetamine; Dix tested positive
for marijuana. Casey’s ultimately fired all three. Eller did not provide a specimen
sufficient for testing on the first try. Casey’s provided her water to drink, but she
was still unable to provide a sufficient sample on the second try. At that point, Eller
chose to leave, and Casey’s deemed her action to be a voluntary resignation.
Cattell, Dix, Eller, and McCann filed civil claims against Casey’s under
section 730.5(15). The district court consolidated their actions. After extensive
pretrial litigation, the parties tried the claims to the bench.
II. District Court Decision
At trial, the employees alleged Casey’s violated the statute in numerous
ways. Their threshold allegation dealt with the selection of the employees to be
tested. The employees then claimed even if Casey’s properly selected them, the
employer violated the statute in carrying out the drug test in six ways: (1) failing to
pursue periodic testing; (2) failing to identify the warehouse as a collection site;
(3) failing to properly train its employees in administering the testing; (4) failing to
provide adequate privacy at the testing site; (5) failing to give employees an
7
adequate opportunity to provide relevant information; and (6) failing to give
employees a specific list of the drugs being tested.
Resolving the threshold issue, the district court concluded Casey’s method
for selecting employees for testing substantially complied with the statute with one
exception—the court found Casey’s improperly designated McCann and Eller, as
being in “safety-sensitive positions.” Because Casey’s should not have tested Eller
and McCann in the first instance, the district court granted them relief.
On the other claims related to selection of employees for testing, the district
court found Casey’s substantially complied with the statute. On the remaining six
claims regarding testing procedures, the district court agreed with Cattell and Dix
on two points: (1) Casey’s did not give employees adequate opportunity to provide
additional information relevant to the testing and (2) Casey’s did not give the
employees a list of the drugs being tested. The court found both defects violated
the statute. But the court also found Cattell and Dix did not prove they suffered an
adverse employment action as a result of these defects and were not, therefore,
“aggrieved” under the statute. For that reason, the court found they could not
obtain relief.
Casey’s appeals the district court’s grant of relief to Eller and McCann. Eller
and McCann defend the court’s ruling on their claims and, joining Cattell and Dix,
cross-appeal the denial of their remaining claims.
III. Scope of Review/Compliance Standard
The parties differ on the scope of review. To settle their dispute, we look
first to the language of the statute.
8
The civil remedies subsection states:
a. This section may be enforced through a civil action.
(1) A person who violates this section or who aids in the
violation of this section is liable to an aggrieved employee or
prospective employee for 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.
Iowa Code § 730.5(15). The statute also provides for injunctive relief. See id.
§ 730.5(15)(a)(2).
Casey’s seizes on the availability of equitable relief to argue the district court
sat in equity and thus our review would be de novo. See Iowa R. App. P. 6.907.
On the other side, the employees note we review questions of statutory
construction for correction of errors at law. See Ryan v. Heritage Trails Assocs.,
Inc., 745 N.W.2d 724, 728 (Iowa 2008). Our supreme court reviewed for correction
of legal error in its most recent cases under section 730.5. See Ferguson v. Exide
Tech., Inc., ___ N.W.2d ___, ___, 2019 WL 6794312, at *2 (Iowa 2019); Sims v.
NCI Holding Corp., 759 N.W.2d 333, 337 (Iowa 2009); but see Skipton v. S & J
Tube, Inc., No. 11-1902, 2012 WL 3860446, at *4–5 (Iowa Ct. App. Sept. 6, 2012)
(reviewing de novo because case was tried in equity with no evidentiary
objections). In Sims, the parties submitted the case by stipulated facts. 759
N.W.2d at 337.4 Following Sims, we will review for correction of errors at law.
We will affirm the district court’s findings of fact if they are supported by
substantial evidence. 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
4This court has also reviewed for legal error in a recent case. Whitman v. Casey’s
Gen. Stores, Inc., No. 18-1320, 2019 WL 4678172, at *2 (Iowa Ct. App. Sept. 25,
2019) (further review pending).
9
adequate to reach the same findings. Frontier Props. Corp. v. Swanberg, 488
N.W.2d 146, 147 (Iowa 1992).
The parties also spar over the level of compliance necessary to satisfy
section 730.5. The employees argue Casey’s must meet the statutory
requirements with strict compliance. They acknowledge Sims held substantial
compliance with the notice requirements was adequate. See 759 N.W.2d at 338.
But they view Sims as a narrow exception. We disagree. Substantial compliance
means satisfying the reasonable objectives of a statute as to essential matters. Id.
Our courts have adopted that level of compliance for other important matters. See,
e.g., State v. Myers, 653 N.W.2d 574, 578 (Iowa 2002) (guilty plea colloquy);
Nedved v. Welch, 585 N.W.2d 238, 240 (Iowa 1998) (disclosure of expert
witnesses); Iowa Dep’t of Human Servs. ex rel. Greenhaw v. Stewart, 579 N.W.2d
321, 323 (Iowa 1998) (notices of appeal); Brutsche v. Coon Rapids Cmty. Sch.
Dist., 255 N.W.2d 337, 342 (Iowa 1977) (notice of an election). We believe
substantial compliance applies to all mandates in section 730.5.
IV. Analysis
Casey’s challenges the finding Eller and McCann were not safety-sensitive
employees subject to drug testing and their awards. In doing so, Casey’s invokes
the employer immunity clause. See Iowa Code § 730.5(11)(a).
In response, the employees argue because Casey’s failed to comply with
the provisions of 730.5, the employer both lost immunity and is liable for the
adverse employment decisions it made regarding all the plaintiffs. McCann also
argues he should have been awarded front pay like Eller.
10
A. Employer Immunity Clause
We start by interpreting the immunity clause. It provides:
Employer immunity. A cause of action shall not arise
against an employer who has established a policy and initiated a
testing program in accordance with the testing and policy safeguards
provided for under this section, for any of the following:
a. Testing or taking action based on the results of a positive
drug or alcohol test result, indicating the presence of drugs or
alcohol, in good faith,[5] or on the refusal of an employee or
prospective employee to submit to a drug or alcohol test.
Iowa Code § 730.5(11). Casey’s gleans three requirements from this provision:
(1) establish a policy in accordance with the statutory safeguards; (2) initiate a
testing program, also in compliance with the statute; and (3) take action based on
a positive drug test in good faith. Casey’s believes it satisfied all three conditions.
And therefore, it claims immunity from liability for testing Dix, Cattell, McCann and
Eller and from taking actions based on positive test results for Dix, Cattell, and
McCann and on the test refusal by Eller.
The district court reasoned an employer who violates section 730.5 “is no
longer immune from liability.” Thus the court rejected Casey’s immunity claim
because the employer violated the statute by placing Eller and McCann in the
safety-sensitive employees’ pool and by not providing a list of drugs to be tested
or giving employees the opportunity to provide relevant information. That
reasoning leads us on a somewhat circular path. An employer who violates the
statute cannot benefit from the immunity, but an employer who does not violate the
5The statute defines “good faith” as “reasonable reliance on facts, or that which is
held out to be factual, without the intent to be deceived, and without reckless,
malicious, or negligent disregard for the truth.” Iowa Code § 730.5(1)(f).
11
statute has no need for immunity because an employee would have no viable
claim. We strive to construe the statute to avoid that circularity.
We begin that quest with the text of the statute. See Gardin v. Long Beach
Mortg. Co., 661 N.W.2d 193, 197 (Iowa 2003). “We do not search beyond the
express terms of a statute when that statute is plain and its meaning is clear.” Id.
We also read a statute as a whole to reach a sensible and logical construction. Id.
When the debate is over a word or phrase, we examine the context in which it is
used. Exceptional Persons, Inc. v. Iowa Dep’t of Human Servs., 878 N.W.2d 247,
251 (Iowa 2016). When the legislature has not defined a term, we look to its
ordinary meaning, sometimes by reference to a dictionary. See Gardin, 661
N.W.2d at 197. “A statute is ambiguous if reasonable minds could differ or be
uncertain as to the meaning of a statute.” State v. Lopez, 907 N.W.2d 112, 116
(Iowa 2018).
Although the legislature enacted the byzantine provisions of section 730.5
decades ago, only a handful of appellate cases interpret these drug-testing
measures and only one case interprets the immunity provision. In an unpublished
disposition, a panel of this court determined the immunity provision did not apply
to an employer who violated the statute in the “administration” of the test. See
Skipton, 2012 WL 3860446, at *6. The employer tested Skipton in the absence of
a workplace accident, contrary to its own written policy. Id. We wrote, “We leave
aside the question of whether [the employer’s] written policy was in accordance
with section 730.5 because the evidence clearly shows its testing program was not
administered in accordance with the testing and policy safeguards in that code
12
section.” Id. (emphasis added). Accordingly, we found the employer was not
immune from liability. Id.
Casey’s takes issue with Skipton, pointing out the immunity provision does
not require drug tests be “administered” in accordance with the statute. We agree
Skipton unnecessarily focused on how the employer “administered” the test rather
than on whether the employer “established” a policy and “initiated” a testing
program that complied with the statutory safeguards.6
Unbound by that analysis in Skipton, we consider the scope of the employer
immunity clause. We find the employer-immunity provision at section 730.5(11) is
ambiguous when viewed in the context of the entire drug-testing statute. When
statutory language is ambiguous, we seek the “manifest intent of the legislature.”
Stanley v. Fitzgerald, 580 N.W.2d 742, 747 (Iowa 1998). To ascertain that intent,
“we look to the spirit of the statute as well as the words and give it a sensible,
workable, practical, and logical construction.” Id.
At trial, counsel for Casey’s argued section 730.5(11) showed the intent of
the legislature “to protect employers from liability for the activities of third parties.”
Counsel explained:
So the legislature puts the burden on the employer to have an
independent entity do randomization, to have . . . a qualified lab,
perform the results or the testing of the results as well as medical
review officer to interpret those results. Those are all things outside
of the employer’s control, and it is clear that the legislature therefore
6 “Administer” carries a meaning distinct from the statutory terms “establish” and
“initiate.” “Administer” means “to have charge of; manage.” Administer, American
Heritage Dictionary (2nd College Edition 1982). But to “establish” a policy, an
employer would “introduce [it] and put [it] into force.” Establish, American Heritage
Dictionary. And to “initiate” a testing program, an employer would “cause [it] to
begin.” Initiate, American Heritage Dictionary. Thus, the statutory words have a
foundational aspect, while the verb used in Skipton does not.
13
intended to protect the employer from any issues with regard to that
by allowing for immunity under this section.
Casey’s returns to this position as its fallback on appeal. The employer contends:
“It is, at a minimum, a reasonable interpretation of the statute that the legislature
wanted to immunize employers acting in good faith from liability arising from third
parties’ statutory violations.”
We agree it is reasonable to construe section 730.5(11)(a) as inoculating
employers only from suits arising from third-party conduct. Such a construction
resolves the apparent circularity of the immunity clause and is consistent with the
civil remedy at section 730.5(15) being applicable against “[a] person” rather than
exclusively the employer. And even then, the employer would enjoy immunity only
if it established a policy and initiated a testing program in line with statutory
safeguards, and drug tested or took action based on a positive test, in good faith.
We realize our supreme court has characterized statutory immunities—in
other contexts—as having a broad scope. See Cubit v. Mahaska Cty., 677 N.W.2d
777, 784 (Iowa 2004) (interpreting section 670.4(11) and collecting cases). But
the court has also recognized section 730.5 offers “protections for employees who
are required to submit to drug testing.” Sims, 759 N.W.2d at 338; see Harrison v.
Emp’t Appeal Bd., 659 N.W.2d 581, 588 (Iowa 2003) (“Although the legislature
now allows random workplace drug testing, it does so under severely
circumscribed conditions designed to ensure accurate testing and to protect
employees from unfair and unwarranted discipline.”). Limiting an aggrieved
employee’s ability to enforce those protections through a broad application of
14
employer immunity would defeat the legislature’s detailed list of safeguards in the
testing and notification process. See Iowa Code § 730.5(6)–(8), (15).
Under that construction, the employer immunity clause would not insulate
Casey’s from its own actions allegedly in violation of section 730.5. Instead, for
those actions, Casey’s would avoid liability only if it can show substantial
compliance with the statutory requirements for drug-testing in the workplace.
Having addressed Casey’s employer-immunity claim, we turn to the
violations alleged by the employees, starting with the misclassification of Eller and
McCann as holding safety-sensitive positions.
B. Safety-Sensitive Position Employees
The district court found Casey’s violated the statute by including Eller and
McCann in the pool of employees eligible for random testing though they did not
hold safety-sensitive jobs. As discussed above, the statute authorizes employers
to conduct unannounced drug tests of all employees at a particular work site or all
employees who hold a safety-sensitive positions at a particular work site. Iowa
Code § 730.5(8)(a). The statute defines a “safety-sensitive position” to mean “a
job wherein an accident could cause loss of human life, serious bodily injury, or
significant property or environmental damage, including a job with duties that
include immediate supervision of a person in a job that meets the requirement of
this paragraph.” Id. § 730.5(1)(j). Casey’s policy statement uses virtually identical
language to define a safety-sensitive position. And Casey’s notice to employees
about the policy stated it would only test those in safety-sensitive positions.
Casey’s now asserts every employee working in the warehouse had a
safety-sensitive position. Casey’s argues, with forklifts “zipping” around and boxes
15
stacked to the ceiling, an accident could result in anyone at the warehouse getting
hurt. That argument did not convince the district court, which emphasized it is not
the warehouse environment but the duties the particular employee discharges that
determine whether the job is safety-sensitive:
[T]he fact that a light-duty warehouse employee (or a human
resources employee) is injured in the warehouse when struck by an
errant forklift driver does not make the former a safety-sensitive
position. It is the operation of the forklift that makes its driver a
safety-sensitive position, not the environment in which it is operated.
Casey’s contends that ruling improperly usurped its business judgment.7
Because the employer would be liable for a warehouse accident, Casey’s reasons
it should determine whether a job is classified as safety-sensitive. Further, Casey’s
urges it was the legislature’s intent that the employer identify safety-sensitive
employees. See Iowa Code § 730.5(9)(f) (“An employee . . . who is designated by
the employer as being in a safety-sensitive position shall be placed in only one
pool of safety-sensitive employees subject to drug or alcohol testing . . .).”
We see no authority for the view that the employer’s designation trumps the
statutory definition, particularly when Casey’s handbook definition tracks the
statute. And section 730.5(9)(f) only admonishes the employer not to multiply a
7 The Iowa Association of Business and Industry, as amicus curiae, also supports
this position and argues the employer’s designations should be given deference
as a “business judgment.” We hear amicus’s warning that courts should not “sit
as super-personnel departments” and review the decisions of a business that is in
a better position to decide what positions are safety-sensitive. Elam v. Regions
Fin. Corp, 601 F.2d 873, 880 (8th Cir. 2010). But the case before us is not a close
one where the employer’s knowledge of the conditions puts it in a better position
to understand the dangers and risks involved. The duties performed by Eller and
McCann clearly did not meet the definition of “safety-sensitive.”
16
particular employee’s chance of being selected for testing by placing that
employee in more than one pool of safety-sensitive employees.
No Iowa cases interpret “safety-sensitive position” as used in this statute.
But the district court’s logic is bolstered by other authority. For instance, in Skinner
v. Ry Labor Executives’ Ass’n, 489 U.S. 602, 629 (1989), the Supreme Court
justified drug testing without an individualized suspicion as a compelling
government interest noting, “Employees subject to the tests discharge duties
fraught with such risks of injury to others that even a momentary lapse of attention
can have disastrous consequences.” Significantly, the employee who “discharges
duties” involving those risks is subject to testing.
Other jurisdictions agree job duties determine the employee’s status. See
Bryant v. City of Monroe, 593 Fed. Appx. 291, 297 (5th Cir. 2014) (finding city’s
interest in drug testing safety-sensitive jobs applied to truck driver because duties
included “driving City vehicles and transporting co-workers, operating heavy
groundskeeping equipment, handling pesticides, and working in high-risk areas
such as highway medians”); Kreig v. Seybold, 427 F. Supp. 2d 842, 854–55 (N.D.
Ind. 2006) (approving drug testing of employee whose job duties included
operating a riding mower on a median or embankment, traveling at high rates of
speed, and using other equipment that “might become ‘lethal’ when ‘operated
negligently’”); Am. Fed’n of Teachers-W. Va., AFL-CIO v. Kanawha Cty. Bd. of
Educ., 592 F. Supp. 2d 883, 902 (S.D. W. Va. 2009) (“For an employee to occupy
a truly safety sensitive position, it is not enough to show that the employee has
some interest or role in safety. Rather, the government must demonstrate that the
17
employee’s position is one that in the ordinary course of its job performance carries
a concrete risk of massive property damage, personal injury or death.”).
With that legal foundation in mind, we look to the plaintiffs’ job duties.
Without question, Cattell and Dix did heavy-duty work—building inventory pallets
and operating forklifts. So they were properly included in the pool of safety-
sensitive employees. Not so with Eller and McCann, who did light-duty work. They
processed returns of tobacco products in “the cage”—a protected area they
entered and exited through one door. Their duties did not involve any tasks where
an accident could risk loss of life, injury, or significant damage to property or the
environment. Even if the general warehouse environment was dangerous, as
Casey’s maintains, Eller and McCann were protected during the normal course of
their work. Substantial evidence supports the district court’s finding Eller and
McCann were not in safety-sensitive positions and thus not subject to drug testing
under the employer’s policy.
Casey’s counters it does not matter if it violated its own policy in placing
Eller and McCann in the safety-sensitive pool because the statute authorizes
employers to designate a pool consisting of all the employees at a particular
worksite. See Iowa Code §§ 730.5(8)(a)(1), (2). That option does not help Casey’s
here. Employers can only test “within the terms of a written policy.” Id.
§ 730.5(9)(a)(1). Casey’s policy limited testing to “employees in a safety-sensitive
positions.” Casey’s breached its policy, and in turn the statute, by testing Eller and
McCann. The testing resulted in their termination. The district court correctly
found Casey’s is liable to Eller and McCann under section 730.5(11).
18
Because Eller and McCann properly obtained relief on this basis, we need
not reach their remaining claims. We next turn to the claims by Cattell and Dix that
Casey’s violated numerous other provisions in section 730.5.
C. Other Alleged Violations
Employees Cattell and Dix claim Casey’s violated the statute in a dozen
different ways. For ease of analysis, we group the alleged violations as
deficiencies in the selection process and deficiencies in the testing procedure.
1. Selection Process
The employees allege Casey’s included a handful of people in the testing
pool who were not working that day, excluded a handful of people without
explanation, used only a “pseudo-random” number generator to select which
employees to test, and ended up testing 100% of the employees present. After
considering these allegations, the district court found Casey’s substantially
complied with the statutory requirements surrounding selection. We agree.
The day before the test, Casey’s provided ARCPoint, an independent and
impartial entity, with a roster of employees scheduled to work in the warehouse.8
ARCPoint made the random selections and provided a list of alternates. It was
reasonable for Casey’s to list employees expected on the job, even if it did not
account for various absences the next day. ARCPoint used a “pseudo-random”
number generator to select employees to test. The purpose of the statutory
requirements at the selection phase is to ensure employees are selected “based
8 We recognize Casey’s may assert immunity under section 730.5(11) for the
actions of ARCPoint or other third-party actors, but we need not decide on that
ground because we find substantial compliance with the selection and testing
requirements in the statute.
19
on a neutral and objective” process and each has “an equal chance of selection
for initial testing.” Id. § 730.5(1)(l).
This procedure, while not mathematically perfect in distributing the chance
of being selected, assured the reasonable objectives of the statute. See Sims,
759 N.W.2d at 338. In addition, even though Casey’s wanted to test 90% of its
warehouse employees and ended up testing them all, the statute does not
prescribe any particular percentage the employer may select from a properly
drawn pool. Plus, the plaintiffs were all selected in the first draw, so enlarging the
selection percentage did not affect them. Casey’s ensured the selection criteria
were neutral and objective and allowed an independent, neutral entity to make the
random selections using a computer-modeled random-number generator.
Employees had a roughly equal chance of being picked, though some upper
management were excluded and two other workers inadvertently left off the roster.
We find no error in the district court’s conclusion Casey’s substantially complied
with the selection procedure outlined by statute.
2. Testing Procedure
We now examine the alleged deficiencies of the testing procedure. First,
the employees complain Casey’s used the warehouse as a collection site contrary
to the policy requiring referral to “[a] certified collection site such as an occupational
health center, a hospital or otherwise identified clinic or facility to which a
prospective or current employee may be sent for a drug test or alcohol test.” But
the policy makes clear any “confirmatory” testing would occur at a certified site.
The statute does not specify where initial collection or testing must occur. Casey’s
substantially complied with the statute in this respect.
20
Second, the employees allege Casey’s violated section 730.5(7)(a) (“The
collection of samples shall be performed under sanitary conditions and with regard
for the privacy of the individual . . . ”). The employer took employees to either the
men’s or women’s restrooms where they produced a urine sample inside a stall
with the doors closed. These steps constituted substantial compliance with the
statutory requirement.
Third, the employees argue Casey’s failed to give supervisory personnel
training required under section 730.5(9)(h). The record shows human resources
supervisor, Marcella Burkheimer, and human resources specialist, Melinda Karl,
both had the requisite hours of training. Burkheimer and Karl supervised the
testing but delegated certain duties to staff. The staff monitored warehouse
workers waiting to be tested, assisted them in filling out a chain-of-custody form,
and escorted them from the holding area to the restrooms. The district court
concluded “training is not required for employees engaged in the sort of ministerial
tasks delegated” to them on testing day. We agree. Casey’s substantially
complied with the training requirement.
Fourth, the employees argue Casey’s failed to show it tests on a periodic
basis under section 730.5(1)(l). The record here discloses only what happened on
Casey’s first administration of its new testing program. As the district court found,
the employees cannot establish a violation on this limited record.
The employees’ fifth and sixth claims focus on their right to offer medical
information relevant to the testing, under the following provision.
An employee or prospective employee shall be provided an
opportunity to provide any information which may be considered
relevant to the test, including identification of prescription or
21
nonprescription drugs currently or recently used, or other relevant
medical information. To assist an employee or prospective
employee in providing the information described in this
subparagraph, the employer shall provide an employee or
prospective employee with a list of the drugs to be tested.
Id. § 730.5(7)(c)(2).
The employees believed Casey’s should have assured their opportunity to
provide relevant information when the employer collected the urine samples, not
later when the employees interacted with the medical review officer. They also
argue Casey’s was not precise enough in disclosing a list of drugs to be tested.
The district court agreed with the employees on these points.9
We view the record differently. Substantial evidence does not support the
conclusion Casey’s notice was too vague or over-inclusive as to what drugs were
to be tested. The policy warned employees that testing may detect “[a]ny drug or
substance defined as a controlled substance . . . under the Federal Controlled
Substances Act.” We agree that alone might be inadequate to identify the
particular drugs to be tested. But the policy went on to state, “Said substances
include, but are not necessarily limited to cocaine, phencyclidine (PCP), opiates,
amphetamines, marijuana, MDMA (ecstasy), and 6-acetylmorphines (6-AM).” This
list is sufficiently specific—and includes amphetamine and marijuana, the two
drugs found in the plaintiffs’ samples.
9 Although the district court concluded Casey’s violated the statute in these two
ways, the court declined to grant relief, finding the employees did not establish the
violations “adversely affected their employment” and therefore, they were not
“aggrieved” as that term is used in section 730.5(15). Because we conclude
Casey’s substantially complied with section 730.5(7)(c)(2), we do not reach the
question whether the district court’s reading of “aggrieved” was correct.
22
We also disagree that Casey’s violated the statute by giving notice of the
drugs to be tested too far in advance. The purpose of the notice is to enable
employees to share information about their medications that could be relevant to
the test results. Id. § 730.5(7)(c)(2). The district court interpreted the statute to
require Casey’s to provide the notice at the time of testing because the legislature
placed the requirement immediately before the provision discussing review by a
medical control officer. We agree it makes sense for the employee to provide their
“additional information” close to the time of testing. But the statute’s text does not
prescribe the timing of the employer’s notice of drugs to be tested. See State v.
Rivera, 614 N.W.2d 581, 584 (Iowa Ct. App. 2000) (“The court cannot read into a
statute something that the legislature did not make apparent by the language.”).
Casey’s substantially complied with the statute by distributing the list of drugs a
few months before the testing.
Similarly, the statute does not require the employer to afford employees the
opportunity to give their “relevant information” when they submit their sample. In
fact, requiring those disclosures then could force employees to reveal private
information before they tested positive. Relatedly, Iowa Code section 730.5(7)(h)
provides
A medical review officer shall, prior to the results being reported to
an employer, review and interpret any confirmed positive test results,
including both quantitative and qualitative test results, to ensure that
the chain of custody is complete and sufficient on its face and that
any information provided by the individual pursuant to paragraph “c”,
subparagraph (2), is considered.
Until the medical review officer is called to “review and interpret any confirmed
positive test result,” an employee’s additional information is not necessary.
23
After the plaintiffs gave their samples and the initial testing showed
“nonnegative” results, ARCPoint sent the samples to the Quest laboratory to
perform the confirmatory tests. Quest forwarded the confirmatory tests to Global
Lab Solutions and their medical review officer. She contacted the plaintiffs with
confirmed positive tests. Cattell and Dix both testified they spoke with the medical
review officer and gave her relevant information. On this record, we conclude
Casey’s substantially complied with section 730.5(7)(c)(2).
Because Casey’s substantially complied with all statutory provisions
challenged by Cattell and Dix, we affirm the district court’s denial of relief to those
employees.10
D. Awards to Eller and McCann
An employer who violates section 730.5 is liable for “affirmative relief
including reinstatement or hiring, with or without back pay, or any other equitable
relief as the court deems appropriate.” Iowa Code § 730.5(15)(a). The district
court awarded McCann $94,889.05 in back pay but denied his claim for front pay.
The court awarded Eller $85,630.75 in back pay and $96,871.72 in front pay. 11
Awards for both back pay and front pay are subject to the employee’s duty to
mitigate damages. Skipton, 2012 WL 3860446, at *8.
10 Cattell and Dix contend the court should have awarded them attorney fees.
Under section 730.5(15) the court may award affirmative relief “as the court deems
appropriate including attorney fees and court costs.” See Sims, 759 N.W.2d at
340. But because Cattell and Dix did not prevail at trial or on appeal, they are not
entitled to attorney fees.
11 The court calculated these figures from stipulated wage rates. The amounts are
not in dispute.
24
We review an award for back pay to determine if it was “supported by
substantial evidence or was induced by an improper application of law.” Tow, 695
N.W.2d at 38. Front pay is available when reinstatement is inappropriate.12 Ogden
v. Wax Works, Inc., 29 F. Supp. 2d 1003, 1011 (N.D. Iowa 1998). Factors to
considered when calculating front pay include plaintiff’s age, length of employment,
likelihood employment would have continued, plaintiff’s work and life expectancy,
plaintiff’s ability to work, plaintiff’s ability to work for defendant, and plaintiff’s status
as an at-will employee. Id. at 1015. The question whether to award front pay
presents a challenging issue for the district court because it is based on many
factors, and the court must consider all the appropriate circumstances involved for
determining equitable relief. Standley, 5 F.3d at 322.
Casey’s argues Eller and McCann are not entitled to back pay because they
did not sufficiently mitigate their damages, or in Eller’s case, make any attempt to
mitigate damages. Eller and McCann point out the burden is on the employer to
prove (1) other substantially equivalent positions were available to the employees
and (2) the employees failed to use reasonable diligence in attempting to secure
such a position. See Children’s Home of Cedar Rapids v. Cedar Rapids Civil
Rights Comm’n, 464 N.W.2d 478, 482 (Iowa Ct. App. 1990).
The plaintiffs also argue the employer must offer substantial evidence they
could have mitigated their losses. See Greenwood v. Mitchell, 621 N.W.2d 200,
12Front pay is “money awarded for lost compensation during the period between
judgment and reinstatement or in lieu of reinstatement.” Pollard v. E.I. du Pont de
Nemours & Co., 532 U.S. 843, 846 (2001); see also Standley v. Chilhowee R-IV
Sch. Dist., 5 F.3d 319, 322 (8th Cir. 1993) (stating “front pay is an equitable remedy
and may be awarded at the court’s discretion”).
25
205 (Iowa 2001). The duty to mitigate requires only reasonable action by the
employee. Children’s Home, 464 N.W.2d at 482 (“We disagree with the
employer’s interpretation of reasonable care and diligence as meaning that the
discharged employee is required to make every effort to find employment. A
claimant is only required to make every reasonable effort to mitigate damages and
is not held to the highest standard of diligence.” (cleaned up for readability)).
Casey’s argues McCann is not entitled to back pay because he turned down
a job at a plumbing supply warehouse to start his own business. McCann texted
with the plumbing supply manager about a job but ultimately decided to cash out
his retirement account to start a food truck business. From the inception of the
business until trial, he had not yet turned a profit. McCann testified the plumbing
supply job was in Des Moines, but he lives in Pleasantville and his daughter goes
to school in Pella; he did not want to miss her activities due to the distance. But in
texts with the manager, McCann also mentioned he “enjoyed a ‘left handed
cigarette’ at the end of the day so the prescreening test would be an issue” if he
began employment there.13 Although it was skeptical of his rationale for declining
the plumbing job, the district court could not conclude McCann acted
unreasonably.
We agree Casey’s did not show McCann acted unreasonably in pursuing
the food truck business. He testified about his earnest efforts to set up the
business and the risks he was taking. The limited financial record shows that while
the business had a gross profit of $14,485 in 2017, McCann had a negative net
13 McCann explained by “left-handed cigarette” he meant marijuana.
26
income of $19,321 after considering his expenses. McCann’s testimony and the
financials support the finding he acted with reasonable care and diligence in
starting his business. See Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061,
1065 (8th Cir. 1988) (finding discharged employee’s efforts to mitigate damages
were reasonable though he turned down a job offer to pursue his own business
venture). The district court appropriately awarded McCann back pay.14
McCann argues he should have gotten front pay as well. The district court
rejected that request finding McCann, then age of thirty-eight, was “in the prime of
his work life and able-bodied.” The court noted, “[T]here appears to have been no
adverse effects from his termination that would have prevented him from making
a timely return to the job market.” McCann took the risk of starting the business
rather than pursuing the plumbing supply job or a similar position with more certain
wages. Under these circumstances, although we conclude McCann did not act
unreasonably in pursuing a business that did not immediately make a profit, we do
not find front pay is warranted.
As for Eller, Casey’s argues she did not make any effort to mitigate her
damages because she did not search for new work after her termination. Casey’s
cites Quint v. A.E. Staley Manufacturing Co., where the court reduced the award
14 Casey’s also argues McCann was not entitled to relief because he did not have
“clean hands” given his drug use. See Ellwood v. Mid States Commodities, Inc.,
404 N.W.2d 174, 184 (Iowa 1987) (“The clean hands doctrine stands for the
principle that a party may be denied relief in equity based on his inequitable, unfair,
dishonest, fraudulent, or deceitful conduct.”). We decline to apply that equitable
principle here, particularly because we affirm the finding Casey’s was not
authorized to test McCann.
27
for back pay for the “utter failure” to seek similar employment. 172 F.3d 1, 16 (1st
Cir. 1999).
Rejecting the employer’s argument, the district court noted Eller’s
considerable physical restrictions, her age of fifty-one, and credited expert
testimony that she is likely unable to find work. Eller presented evidence from a
vocational specialist that seeking employment would have been futile based on
her restrictions that “drastically reduced if not totally eliminated” her access to the
job market. Casey’s did not offer any countering evidence. We find substantial
evidence supports the conclusion that other jobs are unavailable to Eller and her
failure to seek other employment was reasonable under these circumstances.
Casey’s also contends Eller was not entitled to front pay if she was disabled
and could no longer work. See Children’s Home, 464 N.W.2d at 482. This
argument is unpersuasive because Eller testified she could have continued in her
light-duty job at Casey’s as she had been performing it, if she had not been fired.
The district court properly awarded Eller back and front pay.
Because we find no reversible errors in the district court’s ruling, we affirm
on both the appeal and cross appeal claims.15
AFFIRMED ON APPEAL; AFFIRMED ON CROSS-APPEAL.
15
Our court files another case challenging employer actions under section 730.5 today,
Woods v. Charles Gabus Ford, Inc., No. 19-0002, 2020 WL ________, at *___ (Iowa Ct.
App. Jan 9, 2020).