TYLER DIX, JASON CATTELL, JIMMY McCANN, and JULIE ELLER, Plaintiffs-Appellees/Cross-Appellants,
CASEY'S GENERAL STORES, INC. and CASEY'S MARKETING COMPANY, Defendants-Appellants/Cross-Appellees.
from the Iowa District Court for Polk County, Michael D.
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.
Kendell of Brown, Winick, Graves, Gross, Baskerville &
Schoenebaum, P.L.C., Des Moines, for appellants.
Albrecht of Fielder Law Firm, PLC, Johnston, and Matthew M.
Sahag of Dickey & Campbell Law Firm, PLC, Des Moines, for
by Doyle, P.J., and Tabor and Schumacher, JJ.
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
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
Statutory Requirements and Background Facts
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 own written policy with proper notice
to employees. The employer may test on an unannounced and
periodic basis. Iowa Code § 730.5(1)(i).
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 fulltime
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. §
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 initiated a testing program" in
accordance with the safeguards in the statute. Id.
§ 730.5(11), (11)(a).
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.
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).
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 returns area. That area was cordoned off within the
warehouse by a chain-link fence, earning the structure its
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. To select employees to be tested, ARCpoint
used an internet-based random number generator, called
Research Randomizer. 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.
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
moved employees into "holding areas" so they could
not leave or falsify tests. From there, Casey's escorted
the employees in pairs to the 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.
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
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.
District Court Decision
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 adequate
opportunity to provide relevant information; and (6) failing
to give employees a specific list of the drugs being tested.
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.
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.
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.
Scope of Review/Compliance Standard
parties differ on the scope of review. To settle their
dispute, we look first to the language of the statute.
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.
Code § 730.5(15). The statute also provides for
injunctive relief. See id. § 730.5(15)(a)(2).
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. Following
Sims, we will review for correction of errors at
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
adequate to reach the same findings. Frontier Props.
Corp. v. Swanberg, 488 N.W.2d 146, 147 (Iowa 1992).
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