Opinion
No. 1-1012 / 00-2018.
Filed April 24, 2002.
Appeal from the Iowa District Court for Polk County, LINDA R. READE, Judge.
The employer appeals the district court's ruling on judicial review of agency action affirming the award of unemployment benefits. AFFIRMED.
Timothy McCarthy of McEnroe, McCarthy Gotsdiner, P.C., West Des Moines, for appellant.
Joseph Walsh of Hedberg, Owen Hedberg, P.C., Des Moines, for intervenor Kelvin Howell.
Anita Garrison, Des Moines, for appellee Employment Appeal Board.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
The petitioner, Artistic Sold Waste Systems of Iowa (Artistic), appeals the district court ruling affirming on judicial review the Employment Appeal Board's decision affirming the award of unemployment benefits to Kelvin Howell. Artistic contends: (1) the district court erred in concluding there was substantial evidence to support the agency's findings that it failed to prove misconduct on the part of Howell; (2) it was not responsible for the laboratory's error in failing to preserve Howell's drug test specimen; and (3) Howell's request for a second drug retest was untimely. We affirm.
I. Background Facts and Proceedings . Howell was employed by Artistic from August 10, 1999 until November 23, 1999. On November 9, 1999, Howell injured his foot in a work-related incident. As part of his treatment at the emergency room, Howell was prescribed Tylenol 3 for pain. Artistic requested Howell submit to a drug test. Howell complied with the request, and a urine sample was sent to LabOne for analysis. Howell requested the sample be split to provide for a second analysis if necessary. The test results indicated a trace amount of THC, a marijuana metabolite. LabOne informed Howell of the test results, and Howell immediately requested a retest. When informed of Howell's test results, Artistic fired him for misconduct, pursuant to an informal company policy that any probationary employee who tests positive for a controlled substance will be discharged.
Howell filed the paperwork for the retest and submitted the fee, but LabOne returned the paperwork stating it was improperly completed. Howell's attorney called LabOne and requested new paperwork be resent. LabOne received the resubmitted paperwork on January 19, 2000. However, LabOne had already destroyed Howell's urine sample because more than forty-five days had elapsed since the date of the initial test, as provided in Iowa Code section 730.5(6)(b) (1999).
Howell filed a claim for unemployment benefits. On February 10, 2000, Iowa Workforce Development issued a claims decision stating that Howell was not eligible. Howell appealed and an administrative law judge reversed, finding Artistic had failed to prove misconduct. Artistic appealed to the Employment Appeal Board. The Board affirmed the ALJ, concluding that although Artistic was not at fault for the sample being destroyed, it had to bear the burden of that error. On judicial review, the district court affirmed the Board's ruling. Artistic has appealed.
II. Scope of Review . This court's review of an agency decision is on error. Eaton v. Employment Appeal Bd., 602 N.W.2d 553, 554 (Iowa 1999). The agency's decision is binding if substantial evidence supports the decision and it is not based upon an incorrect conclusion of law. Id. "Evidence is substantial when a reasonable mind would accept it as adequate to reach the same findings." Id. The question is therefore not whether the evidence might support a different conclusion, but whether the evidence supports the findings actually made. St. Luke's Hospital v. Gray, 604 N.W.2d 646, 649 (Iowa 2000).
III. Misconduct . Artistic contends the district court erred in concluding there was substantial evidence to support the Board's finding Artistic had failed to prove misconduct by Howell. Artistic maintains it had a written policy which provided the option of termination for any employee that tested positive for drug use, and Howell's failure to pass the initial test was sufficient to justify his termination.
Iowa Code section 96.5(2) provides that an employee discharged for misconduct is disqualified for unemployment benefits. Iowa Administrative Code rule 871-24.32(1)(a) defines misconduct:
Misconduct is defined as a deliberate act or omission by a worker which constitutes a material breach of the duties and obligations arising our of such worker's contract of employment. Misconduct as the term is used in the disqualification provision as being limited to conduct evincing such willful or wanton disregard of an employer's interest as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of employees, or in carelessness or negligence of such degree of recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employer. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed misconduct within the meaning of the statute.
Section 730.5 sets forth the rules by which a private company may screen its employees for use of illegal drugs. Pursuant to section 730.5(1)(h), a company may test for drugs or alcohol "based upon evidence that an employee is using or has used alcohol or other drugs in violation of the employer's written policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience." The rules for such testing, however, must be in writing and apply uniformly to employees. Iowa Code § 730.5(9)(b).
Pursuant to section 730.5(7)(b), the company may obtain urine samples by splitting the sample into two components at the time of collection, the second specimen to afford the employee an opportunity to request a retest. Both specimens are to be sent to the laboratory chosen by the employer, and the laboratory is required to store those samples for a period of at least forty-five calendar days following the completion of the initial confirmatory testing, if the first test revealed a positive test result. Iowa Code § 730.5(7)(b). The employee has the burden of seeking a retest if the initial test is positive. Iowa Code § 730.5(7)(i)(1). When a positive result is received, the employer must notify the employee of the test results by certified mail. Id. Once the employee receives this notification, he is entitled, upon notice and payment of fees, to request a second test. Id.
Did Artistic meet its burden of proof to show Howell's actions constituted misconduct? Howell, upon being orally notified by Artistic management of the test results, denied using any illegal drugs and immediately contested the positive test results, claiming that the prescription drugs he was given at the hospital to treat his injured foot caused the results to falsely test positive for THC. He promptly requested a retest and sent in his fee and paperwork, despite Artistic's failure to notify him by certified mail of the positive test results as required by section 730.5(7)(i)(1). When LabOne informed Howell that his application was incomplete, his attorney immediately called LabOne and requested new paperwork. LabOne received the new paperwork on January 19, 2000. However, LabOne had disposed of Howell's sample, and in a letter to Howell dated January 27, 2000, expressed its regret in inadvertently disposing of the contested sample. All parties had actual notice that Howell contested the results of the first test and had requested a retest. Howell consistently and clearly disputed the positive test results from the moment the first results were relayed to him.
We also conclude that outside of the testimony that Howell was riding on the garbage truck on an incorrect manner, contributing to his foot injury, there is no evidence in the record suggesting that Howell's job performance was somehow impaired as a result of consuming illegal drugs. In Eaton, 602 N.W.2d at 557, the claimant's employer had warned him that his repeated absences and tardiness were affecting his job performance. Eaton later tested positive for a controlled substance pursuant to a random drug test requested by the employer, and his employment was terminated. Eaton, 602 N.W.2d at 554. On appeal, the supreme court reversed the denial of benefits, concluding the agency's decision was not supported by substantial evidence because the employer did not have probable cause to believe Eaton was impaired on the job based on the drug test results alone. Id. Thus, pursuant to Eaton, a party must show that the employee's job performance had specifically been affected or that the employee manifested symptoms of illegal drug use.
Like the employer in Eaton, Artistic has failed to show any "articulable facts and reasonable inferences drawn from those facts" supporting their claim Howell was impaired on the job at the time it requested he submit to drug testing. See Iowa Code § 730.5(1)(h). Howell did not refuse to take the drug test. He complied with Artistic's request and consistently disputed the test results. Howell was unable to obtain a second test because of LabOne's inadvertent error and was thus not afforded an opportunity to effectively challenge his termination. Based on these particular facts, we therefore conclude there was substantial evidence to support the district court's ruling affirming the agency's decision on this issue. We therefore affirm.
AFFIRMED.