Opinion
4:19-cv-00154-HCA
2019-10-01
Michael DICKEY, Plaintiff, v. TURNER CONSTRUCTION COMPANY, Defendant.
David Ronald Albrecht, Madison Elizabeth Fiedler-Carlson, Fiedler Law Firm PLC, Johnston, IA, for Plaintiff. Leslie Christine Behaunek, Thomas M. Cunningham, Nyemaster Goode PC, Des Moines, IA, for Defendant.
David Ronald Albrecht, Madison Elizabeth Fiedler-Carlson, Fiedler Law Firm PLC, Johnston, IA, for Plaintiff.
Leslie Christine Behaunek, Thomas M. Cunningham, Nyemaster Goode PC, Des Moines, IA, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Helen C. Adams, Chief U.S. Magistrate Judge
I. INTRODUCTION
Before the Court is a Motion to Dismiss Count 2 filed by Defendant Turner Construction Company ("Turner") on May 28, 2019. [3]. Plaintiff Michael Dickey filed his resistance on June 10, 2019 [6]. Turner filed a reply on June 26, 2019. [11]. The case was referred to the undersigned by then-presiding Senior District Court Judge Robert Pratt, on consent of the parties, on July 8, 2019. [18], [19]. Oral argument was held on August 5, 2019. [21]. The Court decides the motion on the briefs and oral argument.
II. FACTUAL AND PROCEDURAL HISTORY
This case concerns Turner's decision to terminate Dickey from its employ on November 3, 2017. See generally (Def. Notice of Removal; Pl. Complaint [1-2] at 1-6). Dickey was originally hired by Turner on April 27, 2015 as a laborer. (Id. ¶ 5). One of his duties included cleaning break areas. (Id. ¶ 6). On October 30, 2017, a vending machine that Dickey was cleaning behind tipped over. (Id. ¶ 7). Dickey, a night-shift employee, left the spilled candy and money from the machine on employee Jason Godwin's desk with a note explaining what had happened. (Id. ¶¶ 6, 9).
Minutes after Dickey arrived to work on November 1, 2017, Godwin informed him that Labor Supervisor, Andy Buck, wanted Dickey to take a drug test. (Id. ¶ 11). Godwin implied that Buck had asked him to inform Dickey about the need to take a drug test, and that he was to administer the drug test. (Id. ¶ 14). Dickey asked Godwin where Buck was, and Godwin replied that Buck had left early. (Id. ¶ 16). Dickey was not informed why a drug test was necessary. (Id. ¶ 17). Turner's drug-testing policy required that a drug test be conducted within 32 hours of a workplace accident and more than 32 hours had passed since the vending machine had fallen. (Id. ¶ 18-19). Godwin did not have any paperwork for the drug test and had no drug testing training. (Id. ¶¶ 20-24). Dickey told Godwin he did not feel comfortable taking a drug test and refused to take the test. (Id. ¶ 24). Dickey was fired by a termination letter dated November 3, 2017. (Id. ¶ 25). The letter indicated Turner had "reason to believe" Dickey was under the influence of a controlled substance on November 1, 2017. (Id. ¶ 26).
Count 1 of Dickey's complaint alleges that Turner's conduct violated Iowa Code section 730.5, which regulates private sector drug testing. (Id. ¶¶ 35-48). Very broadly, section 730.5 regulates when and how private sector drug tests may be conducted. As a baseline, the statute requires that an employer carry out drug testing consistent with the terms of a written policy provided to all employees. Dickey's complaint alleges that Turner violated its written policy in seeking to test Dickey more than 32 hours after the vending machine incident, and otherwise lacked reasonable suspicion for the drug test. (Id. ¶¶ 40-46). Dickey also alleges that Turner's conduct violated the training mandates of the statute. (Id. ¶ 47). Dickey brings this claim directly under section 730.5's civil enforcement mechanism, which provides an aggrieved employee with a private cause of action when an employer violates the statutory requirements. Iowa Code § 730.5(15).
Dickey seeks relief on Count 1 authorized by section 730.5(15). That is, Dickey seeks inter alia compensatory damages, attorney's fees, court costs, and "appropriate equitable and injunctive relief, including but not limited to reinstatement, and for such other relief as may be just in the circumstances and consistent with the purposes of Iowa Code section 730.5." (Id. at 4-5).
Count 2 of Dickey's complaint alleges that Turner wrongfully discharged him in violation of public policy. (Id. ¶¶ 49-57). Specifically, Dickey alleges Turner fired him in retaliation for refusing to submit to a drug test that violated the requirements of section 730.5. (Id. ¶¶ 51-52). Dickey alleges this action violated Iowa public policy protecting employees from unreasonable, unreliable, and illegal drug testing and points to section 730.5 itself as the source of the public policy. (Id. ¶¶ 50, 53-54).
Dickey seeks relief on Count 2 in the form of compensatory and punitive damages. Dickey alleges that Turner's retaliatory discharge will have a chilling effect on employees' willingness to exercise their rights under section 730.5, (Id. ¶ 54), and accordingly seeks "punitive damages in an amount sufficient to punish Defendant and to deter it and others from engaging in similar conduct in the future ..." (Id. at 6).
III. STANDARD OF REVIEW
Turner argues that Count 2 of Dickey's Complaint fails to state a claim and must be dismissed under Federal Rule of Civil Procedure 12(b)(6). The standard for reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is "stringent." Gebhardt v. ConAgra Foods, Inc. , 335 F.3d 824, 829 (8th Cir. 2003) ; Parnes v. Gateway 2000, Inc. , 122 F.3d 539, 546 (8th Cir. 1997) (quoting Fusco v. Xerox Corp. , 676 F.2d 332, 334 (8th Cir. 1982) ).
For a pleading to state a claim for relief it must contain a short and plain statement of the claim showing that the pleader is entitled to relief. [ Horras v. Am. Capital Strategies, Ltd. , 729 F.3d 798, 801 (8th Cir. 2013) ] (citing Fed.R.Civ.P. 8(a)(2) ). The complaint must contain facts sufficient to state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
Ash v. Anderson Merchandisers, LLC , 799 F.3d 957, 960 (8th Cir. 2015). The Court must accept as true the factual allegations made in the complaint. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; Twombly , 550 U.S. at 555, 127 S.Ct. 1955. " ‘[D]etailed factual allegations’ " are not required but the pleading standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of ‘entitlement to relief.’ "
Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). "Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937 (citing Iqbal v. Hasty , 490 F.3d 143, 157-58 (2d Cir. 2007) ).
IV. LEGAL STANDARDS AND ANALYSIS
Count 2 of Dickey's complaint alleges that Turner terminated Dickey because he refused to submit to a drug test that did not comply with Iowa Code section 730.5, and Dickey brings a legal claim under the tort of wrongful discharge in violation of public policy. "Iowa follows the majority of states by carving out a public-policy exception to the general rule of at-will employment for wrongful-discharge claims." Dorshkind v. Oak Park Place of Dubuque II, L.L.C. , 835 N.W.2d 293, 300 (Iowa 2013). "The public policy exception is based on the theory that the law should not allow employees to be fired for reasons that violate public policy." Borschel v. City of Perry , 512 N.W.2d 565, 567 (Iowa 1994). A prima facie case for wrongful discharge in violation of public policy includes the following four elements:
(1) the existence of a clearly defined and well-recognized public policy that protects the employee's activity; (2) this public policy would be undermined by the employee's discharge from employment; (3) the employee engaged in the protected activity, and this conduct was the reason the employer discharged the employee; and (4) the employer had no overriding business justification for the discharge.
Dorshkind , 835 N.W.2d at 300. "The first two elements constitute questions of law to be determined by the court." Id.
Turner argues Dickey's claim for wrongful discharge must be dismissed for two reasons. Turner first asserts that terminating Dickey did not violate any public policy because "no public policy exists that protects drug users in the workplace." (Def. Reply [11] at 5). Turner next asserts that a claim for wrongful discharge is only viable where "the legislature has not provided [the employee] a statutory remedy for an alleged violation of that policy." (Def. Brief [3-1] at 6). Turner thus argues that section 730.5(15)'s civil enforcement provision is Dickey's exclusive remedy for challenging his discharge based on violations of the statute. Section 730.5(15) provides as follows:
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.
(2) When a person commits, is committing, or proposes to commit, an act in violation of this section, an injunction may be granted through an action in district court to prohibit the person from continuing such acts. The action for injunctive relief may be brought by an aggrieved employee or prospective employee, the county attorney, or the attorney general.
b. In an action brought under this subsection alleging that an employer has required or requested a drug or alcohol test in violation of this section, the employer has the burden of proving that the requirements of this section were met.
Iowa Code § 730.5(15). In other words, Turner argues that Dickey's wrongful discharge claim is duplicative of his claim in Count 1 alleging that Turner subjected Dickey to discipline after requesting a drug test that did not comply with section 730.5. As such, Turner argues that Dickey is limited to bringing a claim under section 730.5(15)'s private cause of action and its specifically authorized remedies.
Dickey resists both arguments. Dickey argues section 730.5 evinces a clear, applicable public policy that was violated by Turner. Dickey further responds that Turner is mistaken about the law regarding exclusive remedies, and that there is no indication that the legislature intended to supplant wrongful discharge claims by allowing civil enforcement of section 730.5 through the inclusion of section 730.5(15). The Court will more specifically address the parties' contentions below.
1. Public Policy
Turner argues that terminating an employee for refusing to take a drug test which allegedly contravened section 730.5 does not implicate any public policy. Turner argues that there is no public policy protecting drug users in the workplace, and further that the violation of section 730.5 "does not involve an issue of court-declared public-policy violations ... but rather involves compliance with detailed statutory requirements." (Def. Brief [3-1] at 5) (quoting McVey v. Nat'l Org. Serv., Inc. , 719 N.W.2d 801, 803 (Iowa 2006) ).
Dickey asserts that section 730.5 "serves the public interest by striking a balance between promoting drug-free work environments and protecting employees from having their privacy invaded by invasive and personally humiliating testing by corporations." (Pl. Brief [6-1] at 7). Indeed, "[t]he manifest purpose of section 730.5 is to regulate drug testing initiated by employers for the purpose of influencing employment decisions." (Id. ) (quoting Tow v. Truck Country of Iowa, Inc. , 695 N.W.2d 36, 39 (Iowa 2005) ).
Iowa recognizes "many situations where the public-policy exception applies." Dorshkind , 835 N.W.2d at 300. Among them, Iowa courts have "consistently held that an employee cannot be discharged in retaliation for enforcing a statutory right." Id. In determining whether an employer's reason for discharging an employee violates a clearly defined and well-recognized public policy, Iowa courts do "not look only to statutes expressly mandating protection for at-will employees." Id. Rather, Iowa courts additionally "look to other statutes which not only define clear public policy but imply a prohibition against termination from employment to avoid undermining that policy." Id. (quoting Fitzgerald v. Salsbury Chem., Inc. , 613 N.W.2d 275, 283 (Iowa 2000) ); see also Borschel , 512 N.W.2d at 568 ("[T]he violation of a statute prohibiting an employer from requiring an employee to take a polygraph examination was a violation of public policy, thus a private cause of action existed."). "Public policy to support the tort can be found if the statute clearly implies the activity in question is protected in the workplace." Jasper v. H. Nizam, Inc. , 764 N.W.2d 751, 765 (Iowa 2009), as amended on denial of reh'g (Mar. 5, 2009).
The Court holds Iowa Code section 730.5 embodies a clearly defined public policy that protects employees against invasive or otherwise inaccurate drug testing in the workplace. As Dickey points out, the Iowa Supreme Court itself has declared that "[t]he manifest purpose of section 730.5 is to regulate drug testing initiated by employers for the purpose of influencing employment decisions." Tow v. Truck Country of Iowa, Inc. , 695 N.W.2d 36, 39 (Iowa 2005). To that end, section 730.5 allows workplace drug testing but only "under severely circumscribed conditions designed to ensure accurate testing and to protect employees from unfair and unwarranted discipline." Harrison v. Employment Appeal Bd. , 659 N.W.2d 581, 588 (Iowa 2003). The following is but one pertinent discussion of the many "circumscribed conditions" in the statute:
Among the detailed requirements for employee drug testing that are contained in section 730.5, it is provided that drug testing shall be carried out within the terms of a written policy that has been provided to every employee and is available for review. Iowa Code § 730.5(9)(a)(1). It is further provided that this written policy shall provide "uniform requirements for what disciplinary or rehabilitative actions an employer shall take against an employee or prospective employee upon receipt of a confirmed positive drug or alcohol test." Iowa Code § 730.5(9)(b).
McVey , 719 N.W.2d at 803.
Iowa courts have repeatedly emphasized the important public policies underlying the statute in the unemployment compensation context. See Harrison , 659 N.W.2d at 588 (finding that an employer could not use a positive drug test that violated the statutory provisions as a reason to deny the employee unemployment benefits); Eaton v. Iowa Employment Appeal Bd. , 602 N.W.2d 553, 558 (Iowa 1999) ("It would be contrary to the spirit of chapter 730 to allow an employer to benefit from an unauthorized drug test by relying on it as a basis to disqualify an employee from unemployment compensation benefits.").
Although section 730.5 does not have an explicit anti-retaliation provision, the statute substantively contains anti-retaliation protection and consequently makes clear that the refusal to take a drug test that does not meet the statutory requirements "is protected in the workplace." Jasper , 764 N.W.2d at 765. Section 730.5(15) allows an aggrieved employee to sue the employer for violations of the statute, and in turn makes the employer "liable to [the] aggrieved employee ... for ... reinstatement," and other forms of relief. See Harrison , 659 N.W.2d at 588 ("The importance of these protections ... is highlighted by the statutory provision making an employer ‘who violates this section ... liable to an aggrieved employee ... for affirmative relief including reinstatement ... or any other equitable relief as the court deems appropriate.’ " (quoting Iowa Code § 730.5(15) ). The statute makes clear that an employee who was terminated for refusing to take a drug test that did not comply with the statute is entitled to bring an action under the statute. See Iowa Code § 730.5(15) ("In an action brought under this subsection alleging that an employer has required or requested a drug or alcohol test in violation of this section , the employer has the burden of proving that the requirements of this section were met." (emphasis added)).
In so holding, the Court also points to the fact that Iowa courts have long held Iowa Code § 730.4, the companion statute prohibiting polygraphs, articulates a public policy that is vitiated by discharging an employee for refusing to take a polygraph test violating the statute. Wilcox v. Hy-Vee Food Stores, Inc. , 458 N.W.2d 870, 872 (Iowa Ct. App. 1990). Notably, the Wilcox court's holding preceded the amendment of the statute providing the identical civil enforcement provision now also included in section 730.5(15).
Turner's arguments to the contrary are unpersuasive. First, while it may be true as a factual matter that there is no Iowa public policy favoring drug users in the workplace, this argument is misplaced. The argument ignores the underlying purposes of section 730.5. Section 730.5 aims to provide privacy protections and is designed to ensure accurate drug tests to prevent employees from being subject to discipline based on an illegal drug test. Additionally, there is no indication that Dickey was using drugs in the workplace. Second, Turner's quoted language from McVey is immaterial. The Court does not find the Iowa Supreme Court's comment that "the present dispute does not involve an issue of court-declared public-policy violations such as were found to exist in the Springer [v. Weeks and Leo Co., Inc. , 429 N.W.2d 558 (Iowa 1988) ] case, but rather involves compliance with detailed statutory requirements" is a general refutation of any public policy set forth in the statute. McVey , 719 N.W.2d at 803. Furthermore, the McVey court itself acknowledged a public policy inherent in the statute, noting that "[i]n the present case, we must apply that public policy that the legislature has set forth in section 730.5." Id. at 803 n.1.
2. Exclusive Remedy
Turner next argues Dickey cannot bring his wrongful discharge claim because section 730.5 provides the exclusive remedy for challenging violations of the statute. In other words, Turner claims that section 730.5(15) contains an aggrieved employee's sole avenue for challenging violations of the statute and limits the employee to those methods of relief specifically granted in the statute. Accordingly, Dickey's parallel claim for wrongful discharge based on a section 730.5 violation (and axiomatically the punitive damages and other relief not authorized under § 730.5 ) is foreclosed by section 730.5(15). Turner's argument is premised on the assertion that "[a] common law cause of action for wrongful termination in violation of public policy provides a remedy only if there is no statutory remedy provided." (Def. Reply [11] at 1). Turner concludes that because section 730.5(15) includes the possibility of reinstatement, the statute itself contemplates Dickey's claim that he was wrongfully terminated and creates an express, limited set of remedies to that effect.
Dickey responds by stating that his wrongful discharge claim is separate and distinct from his claim that Turner violated section 730.5, in that the former is premised on Turner's separate act of firing Dickey and there is no explicit anti-retaliatory provision in the statute. (Pl. Brief [6-1] at 11). Dickey asserts that because there is no anti-retaliatory provision in section 730.5, the statute's remedies cannot be exclusive such that they preempt claims for wrongful discharge. (Id. at 14-15). Dickey also adds "the Iowa Supreme Court has repeatedly recognized public policy claims even when statutes already included a private remedy." (Id. at 13).
The claim for wrongful discharge was first recognized in Iowa because "no remedy existed to protect at-will employees, even from discharge based on reasons that violated or frustrated a well-recognized and defined public policy of [the] state." Ackerman v. State , 913 N.W.2d 610, 614 (Iowa 2018). In other words, wrongful discharge is premised on the notion that "[n]o employee should face the dilemma of giving in to improper threats by employers or be subject to discharge without a remedy." Harvey v. Care Initiatives, Inc. , 634 N.W.2d 681, 683 (Iowa 2001). With that said, in narrow circumstances Iowa courts have permitted wrongful discharge claims to go forward despite the existence of some remedy for the discharge. See Ackerman , 913 N.W.2d 610 (allowing contract employees to bring wrongful discharge claims because it would be incongruous to afford less protections to contract employees than at-will employees); George v. D.W. Zinser Co. , 762 N.W.2d 865 (Iowa 2009) (allowing a wrongful discharge claim despite the fact that the employee could challenge his termination by filing a complaint with the administrative commissioner).
Where the employee seeks to bring a wrongful discharge claim premised on a statutory violation and the statute itself provides remedies for the discharge, whether the statutory remedies are exclusive is a question of statutory interpretation. Ackerman , 913 N.W.2d at 622. "[T]he absence of express exclusivity language does not give rise to a presumption of nonexclusivity." Bass v. J.C. Penney Co. , 880 N.W.2d 751, 760 (Iowa 2016). "Rather, the question becomes whether a statutory remedy is exclusive or merely cumulative, and that turns on legislative intent." Walthart v. Bd. of Directors of Edgewood-Colesburg Cmty. Sch. Dist. , 667 N.W.2d 873, 877 (Iowa 2003).
Among the most venerable of the canons of statutory construction is the one stating that a statute should be given a sensible, practical, workable, and logical construction. According to another rule, when a statute grants a new right and creates a corresponding liability unknown at common law, and at the same
time points to a specific method for enforcement of the new right, this method must be pursued exclusively.
We note and approve the following variation of the rule: "Where the legislature has provided a comprehensive scheme for dealing with a specified kind of dispute, the statutory remedy provided is generally exclusive."
Id. (quoting Van Baale v. City of Des Moines , 550 N.W.2d 153, 155 (Iowa 1996), abrogated on other grounds by Godfrey v. State , 898 N.W.2d 844 (Iowa 2017) ).
Iowa courts have analyzed whether statutory remedies exclude a parallel claim for wrongful discharge in violation of the statute in a few specific scenarios. As alluded to above, the Iowa Supreme Court allowed a wrongful discharge claim to proceed in Zinser , where the employee challenged that he was discharged because he reported Iowa Occupational Health and Safety Act ("IOSHA") violations. Zinser , 762 N.W.2d at 871-72. The employee argued that his discharge violated a specific anti-retaliation provision in IOSHA. Id. The statutory remedy provided that an employee "may" file a complaint with the commissioner, who would then decide to bring the action in a district court, and the district court could award relief including reinstatement. Id. The court first noted that the administrative remedy did not prevent a parallel claim for wrongful discharge, stating "[t]he fact that the statute creates an administrative remedy does not indicate such a remedy is exclusive." Id. at 872. The court allowed the wrongful discharge claim, stating "[t]he policy of encouraging employees to improve workplace safety and the fact that the statute contains permissive and not mandatory language point in favor of allowing a common law action." Id.
In contrast, Iowa courts have found statutory remedies to be exclusive in several different scenarios. For one, Iowa courts have consistently held that the Iowa Civil Rights Act ("ICRA") provides the exclusive remedy for employees alleging discriminatory discharge. See Channon v. United Parcel Serv., Inc. , 629 N.W.2d 835, 858 (Iowa 2001) (listing cases). Iowa courts have so found because ICRA sets forth a mandatory administrative scheme that allows civil actions to be brought only in specific circumstances. See Northrup v. Farmland Indus., Inc. , 372 N.W.2d 193 (Iowa 1985).
Second, Iowa courts have prevented wrongful discharge claims in the context of two civil service statutes. In Van Baale , the employee argued his termination violated Iowa Code § 400.18, which provides that a civil service employee cannot be removed arbitrarily. Van Baale , 550 N.W.2d at 155. The statutory remedy allows an aggrieved employee to challenge their discharge to the civil service commission. Id. The court held that the employee could not bring a wrongful discharge action on the basis of the statutory violation, because the statute created a comprehensive scheme for dealing with whether a termination was arbitrary. Id. at 156.
Similarly, in Walsh v. Wahlert , 913 N.W.2d 517 (Iowa 2018), an employee argued that his termination violated Iowa Code § 70A.28's prohibition on terminating an employee for whistleblowing. Walsh , 913 N.W.2d at 517. The statute provides that an aggrieved employee "may" enforce the statute through a civil action and provides for various forms of relief including reinstatement and backpay. Iowa Code § 70A.28(5). The court held that the employee could not bring a wrongful discharge claim in addition to the statutory claim, stating "[w]e think Van Baale controls here ... we held in Van Baale that a civil service statute that provides a comprehensive framework for the resolution of such claims provides the exclusive remedy." Walsh v. Wahlert , 913 N.W.2d 517, 526 (Iowa 2018).
The Court holds that section 730.5(15) provides the exclusive remedies for an employee who alleges he has been terminated because of a refusal to comply with an unlawful drug test. Although section 730.5 is not a civil service statute, it undeniably sets forth a comprehensive scheme that allows drug testing only "under severely circumscribed conditions designed to ensure accurate testing and to protect employees from unfair and unwarranted discipline." Harrison , 659 N.W.2d at 588. The statute outlines in immense detail when, how, and under what circumstances a workplace drug test may be administered and goes on to detail the types of disciplinary procedures that an employer may impose after the employee tests positive or refuses to take a drug test. A number of these "severely circumscribed conditions" have been discussed at length by state and federal courts in Iowa. See, e.g. , id. at 587 (discussing that an employer violates the statute if it fails to properly inform the employee in writing of a positive test and the options regarding a second confirmatory test); Munn v. Kraft Foods Glob., Inc. , 455 F. Supp. 2d 925, 933-35 (S.D. Iowa 2006) (same, and discussing specific notice provisions throughout the statute); McVey , 719 N.W.2d at 803 (discussing that an employer can violate the statute by failing to abide by the specific requirements that an employer must meet in crafting a drug-testing policy and providing notice of it to employees); Tow v. Truck Country of Iowa, Inc. , 695 N.W.2d 36, 38 (Iowa 2005) (discussing that an employer violates the statute by declining to advance the cost of a second confirmatory test).
Not only does section 730.5 set forth a comprehensive framework for disputes about workplace drug testing, but it contemplates and provides a private cause of action for the precise conduct that Dickey alleges as the basis for his wrongful discharge claim. See Muller v. Hotsy Corp. , 917 F. Supp. 1389, 1421 (N.D. Iowa 1996) (finding that a wrongful discharge claim was not available under Iowa law for employer's alleged termination of employee for the purpose of frustrating his claims for disability under ERISA, because ERISA specifically provides a civil enforcement mechanism and limited relief). As discussed above, section 730.5 substantively provides anti-retaliation protections. The statute provides that an employer who adheres to the many requirements of section 730.5 may discipline an employee who produces a positive test result or refuses to submit to a test. Iowa Code § 730.5(10)(a) ("[A]n employer may use that test result or test refusal as a valid basis for disciplinary or rehabilitative actions ..."). In other words, the statute specifically treats a positive test and a refusal to test as equivalent actions warranting discipline. If the employer did not meet the requirements of section 730.5 and terminated an employee (or imposed any other discipline) for a positive test or a refusal to test, the statute explicitly provides that the employer "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 ..." Iowa Code § 730.5(15)(a)(1) (emphasis added). Section 730.5 thus contemplates that an employee may have been discharged for a refusal to take a test that violated the statute, allows the employee to bring an action on the grounds that the employer "requested a drug or alcohol test in violation of this section" and remedies the termination with, among other things, reinstatement. Iowa Code § 730.5 (15)(b) (emphasis added).
As explained in Jasper , 764 N.W.2d at 763, "the public-policy exception to the employment-at-will doctrine is a product of the balancing by [the Iowa] legislature of the competing interests of the employer, employee, and society." Id. at 763. Here, the Iowa legislature has already conducted the requisite balancing of competing interests and provided a private cause of action and a limited set of remedies when, among other violations, an employer terminates an employee based on a refusal to take a drug test that did not comply with the statute.
Dickey's arguments to the contrary are unpersuasive. First, Dickey argues the statutory remedies cannot be exclusive because the statute contains no express anti-retaliation provision. Dickey's argument is a matter of elevating form over substance. Dickey ignores the fact that the statute treats a positive test and a refusal to test the same way and provides reinstatement as a remedy in either instance. Dickey's section 730.5 claim and wrongful discharge claim thus seek relief for the exact same factual conduct, i.e. , that Dickey was terminated because of his refusal to take a drug test that did not meet the statutory requirements. See Lucht v. Encompass Corp. , 491 F. Supp. 2d 856, 867 (S.D. Iowa 2007) ("The Court ... holds that the identical factual basis and the comprehensive remedies available under the [statute] militate on both legal bases against permitting the wrongful discharge claim to proceed."). Both claims rest upon the exact same legal issue of whether Turner violated the statute. See Godfrey v. State , 898 N.W.2d 844, 874 (Iowa 2017) (discussing that a wrongful discharge action is not separate and independent of the statutory action when it relies on proof of the same impermissible conduct).
Second, Dickey argues that the statutory remedies cannot be exclusive because the Iowa Supreme Court has "repeatedly recognized public policy claims even when statutes already included a private remedy." (Pl. Brief [6-1] at 13). Dickey is incorrect to use the word "repeatedly," as the Iowa Supreme Court has allowed a parallel wrongful discharge claim despite statutory remedies in the single instance of Zinser , 762 N.W.2d 865. Dickey's reliance on Zinser is misplaced, as it ignores a material distinction between the remedies in section 730.5 and the IOSHA statute in Zinser . As already discussed above, section 730.5 provides a private cause of action as a remedy to an aggrieved employee, whereas Zinser allowed the aggrieved employee only to file an administrative complaint. See RESTATEMENT OF EMPLOYMENT LAW § 5.01 (discussing that a statute's grant of a private cause of action is "[p]erhaps most important" in determining whether to allow a wrongful discharge claim to proceed). The Zinser court itself provided insights into why this distinction is material during its discussion of claim preclusion:
To support the assertion that the Iowa Supreme Court has "repeatedly" allowed this, Dickey relies on two cases: Zinser and Tullis v. Merrill , 584 N.W.2d 236 (Iowa 1998). The Court notes that the Iowa Supreme Court never reached the operative question in Tullis , and thus cannot stand for the principal Dickey asserts. See Id. at 239 n.3 ("A third ground—that the prohibitory language of section 91A.10 furnishes no private cause of action for its violation—was not raised before the district court and, accordingly, has not been preserved for appeal.").
In our case, George did not have a full and fair opportunity to present evidence or respond to D.W. Zinser's position. He had little to no control over the agency's investigation. The Division did not hold a hearing on the issue. It only conducted an informal nine day investigation. The parties were not afforded a full and fair opportunity to litigate the matter in dispute. The only participation by George in the process was the filing of a complaint. As George, "the victim of a statutory wrong," was not given "initiative or
control of [the] enforcement proceeding," it seems inherently unfair to apply the doctrine of res judicata to his claim.
Zinser , 762 N.W.2d at 870 ; accord RESTATEMENT OF EMPLOYMENT LAW § 5.01 cmt. e, illus. 4 ("E has no private right of action under OSHA. The Secretary of Labor has sole discretion whether to file an action or agency proceeding to redress an OSHA violation, and E cannot appeal the Secretary's decision not to sue. E may pursue a common-law tort claim for wrongful discharge ..."); Flenker v. Willamette Indus., Inc. , 266 Kan. 198, 967 P.2d 295, 302 (1998) (explaining in similar fashion that OSHA remedies were inadequate without a private cause of action). Zinser accordingly held that "[i]f the legislature had intended [the statutory remedy described above] to be the exclusive remedy and preclude a private cause of action, it could have done so expressly." Zinser , 762 N.W.2d at 872. This holding has little bearing on whether the private cause of action and associated remedies specifically granted to the aggrieved employee by section 730.5(15) are exclusive. It is not difficult to see why the Zinser court found that the "policy of encouraging employees to improve workplace safety" pointed in favor of allowing a wrongful discharge action given the type of administrative remedy afforded by the IOSHA statute. Zinser , 762 N.W.2d at 872. No such concerns are present with section 730.5 because it grants a private cause of action that allows an employee to directly challenge a termination based on a refusal to take a drug test that did not comply with the statute.
In summary, the Court holds Dickey's wrongful discharge claim is not cognizable because the wrongful discharge allegedly stems from a violation of Iowa Code § 730.5. The Court finds that section 730.5 embodies a comprehensive statute for resolving disputes about the validity of workplace drug testing and related disciplinary actions, and accordingly yields to the general rule that the remedies provided by the statute are exclusive. Furthermore, "[ section 730.5 ] clearly create[s] a statutory cause of action and provide[s] for a remedy therein ... [Dickey] has alleged a cause of action under this statute ... his claim that he was wrongfully discharged in violation of public policy is not allowed under Iowa law." Muller , 917 F. Supp. at 1421.
V. CERTIFICATION TO IOWA SUPREME COURT NOT WARRANTED
The Court takes judicial notice of the fact that the operative question in this Order is one that is currently raised in a case pending before the Iowa Supreme Court (Ferguson v. Exide Technologies, Inc. , No. 18-1600). "Both Iowa law and this Court's Local Rules permit a federal district court, on the motion of a party or sua sponte, to certify a question of state law to the Iowa Supreme Court." Zimmer v. Travelers Ins. Co. , 454 F. Supp. 2d 839, 861 (S.D. Iowa 2006). "The ultimate determination on whether to certify a question to the state's highest court is, however, a matter ‘committed to the discretion of the district court.’ " Id. (quoting Allstate Ins. Co. v. Steele , 74 F.3d 878, 881–82 (8th Cir. 1996) ). The factors that federal district courts in Iowa apply when deciding when to certify a question of state law to the Iowa Supreme Court are as follows:
(1) the extent to which the legal issue under consideration has been left unsettled by the state courts; (2) the availability of legal resources which would aid the court in coming to a conclusion on the legal issue; (3) the court's familiarity with the pertinent state law; (4) the time demands on the court's docket and the docket of the state supreme court; (5) the frequency that the legal issue in question is likely to recur; and (6) the age of the current litigation and the
possible prejudice to the litigants which may result from certification.
Baldwin v. Estherville, Iowa , 333 F. Supp. 3d 817, 849 (N.D. Iowa 2018).
Neither party has requested that this Court certify the issue which is the subject matter of this motion to the Iowa Supreme Court. Furthermore, after considering the relevant factors, the Court finds that sua sponte certification is not warranted in these circumstances.
VI. CONCLUSION
Turner's Motion to Dismiss Count 2 [3] is granted and Count 2 of Dickey's complaint is dismissed for the foregoing reasons.