This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Cheryl Malkowski,





City of Mahtomedi,



Filed April 19, 2005


Toussaint, Chief Judge


City Council of City of Mahtomedi

File No. 239-04


Marshall H. Tanick, Ryan M. Pacyga, Mansfield, Tanick & Cohen, P.A., 1700 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402 (for relator)


Patricia Ytzen Beety, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103 (for respondent)


            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge


            Relator appeals from respondent’s resolution discharging her from employment because of her failure to complete the treatment program required after she tested positive for drug abuse.  Because we conclude that respondent’s action was reasonably supported by the record, we affirm.



            Relator Cheryl Malkowski challenges the action of respondent City of Mahtomedi in discharging her from her employment.  There is a strong presumption favoring action taken by a city, although the presumption is rebuttable.  Arcadia Dev. Corp. v. City of Bloomington, 267 Minn. 221, 226, 125 N.W. 2d 846, 850 (1964).  If the reasonableness of the city’s action is “doubtful [] or fairly debatable, a court will not interject its own conclusions as to more preferable actions.”  Id.  Here, the reasonableness of respondent’s action in discharging relator is at least doubtful or fairly debatable.

Relator worked for respondent as a maintenance operator, a job requiring a commercial driver’s license (CLD).  In July 2003, respondent adopted the Federal Omnibus Transportation Employee Testing Act and Related Regulations Implementation Policy that mandated random drug testing of employees in jobs requiring a CLD.  In October 2003, relator was randomly tested and tested positive for amphetamine and methamphetamine.  She requested a confirmatory test, which was also positive.         

Relator was placed on medical leave to enable her to obtain treatment and told to select one from a list of three substance abuse professionals for an evaluation, at respondent’s expense.  The professional she selected recommended a treatment program.  After twelve weeks of medical leave, relator was placed on suspension without pay because respondent “had not received word that [relator had] successfully completed the program . . . .”  After ten weeks of suspension without pay, respondent told relator that it had “received a notice of non-compliance indicating that [she] failed to successfully complete the program” and that respondent’s administrator was recommending termination of relator’s employment.  Respondent’s personnel committee and city council held successive meetings to discuss the recommendation; relator and her attorney were present at both meetings.

            Relator argued that her positive drug tests were the result of over the counter (OTC) medications she took for a chronic sinus condition.  This argument was supported with letters from a substance abuse professional whom she had chosen independently and from a polygraph expert.  Respondent rejected the argument and discharged relator.

Relator claims first that her discharge was not consistent with respondent’s policy, second that it violated due process, and third that it was arbitrary and unreasonable.[1]


The Policy

Relator argues that her discharge was inconsistent with respondent’s policy because the policy “states that an employee who tests positive for drugs, as did [relator], is entitled to be reinstated to employment if she successfully completes a chemical
dependency rehabilitation program.”  But relator did not successfully complete a program: because of her refusal to admit that she had used drugs, she failed to complete the program recommended for her after 22 weeks and she withdrew from the program she chose herself after one week.  Relator argues that she was not given the “reasonable time” mandated by respondent’s policy in which to successfully complete a program, but she had more than five months, from November 3, 2003, until April 9, 2004.  In that period she began but failed to complete two programs, including one of her own choosing. 

While relator says in her brief that “she could well have successfully completed [the second] program had [respondent] not abruptly terminated her,” she ignores the program’s evaluation counselor’s statement that relator and her counselors “mutually decided . . . that she be discharged” because she would not admit to using illegal drugs.  Moreover, relator left the program on March 30, more than a week before being notified on April 9 that her termination would be recommended and over a month before she actually was terminated on May 3. 

            Relator did not successfully complete a treatment program and she had reasonable time in which to do so.  Her discharge was not inconsistent with respondent’s policy.


Due Process

            Relator relies on Cleveland Bd. of Educ. v. Loudermill, 470 US 532, 105 S. Ct. 1487 (1985) to argue that, as a public employee, she had a property right in her job, and that her discharge was a denial of due process.  But “[t]he essential requirements of due process . . . are notice and an opportunity to respond.  The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.”  Id. at 546, 105 S. Ct. 1495.  Relator had sufficient notification and opportunity to respond.  She and her attorney were notified of the personnel board meeting and the city council meeting; they presented written argument in the form of a letter, and they appeared in person.  Relator also argues that due process means she was entitled to complete a second program of her own choosing, but she cites no authority for this argument.  Moreover, she did not complete the second program: she left it after a week.  She was not denied due process.


Arbitrary and Unreasonable

            Relator’s major argument on this point is that respondent should have admitted and found dispositive the polygraph evidence and articles indicating that OTC medication may influence a drug test.  But relator acknowledges that polygraph evidence is not admissible in litigation proceedings and does not provide any medical literature stating that OTC medication influences tests for methamphetamines.[2]  Moreover, the record reflects that one member of respondent’s city council “called four different places regarding the false positive test results [and] was told that over the counter medications do not create false positive test results.”  Relator has failed to show that her discharge was arbitrary or unreasonable.

            If the reasonableness of a city’s actions is “doubtful [] or fairly debatable, a court will not interject its own conclusions as to more preferable actions.”  Arcadia Dev. Corp, 267 Minn. at 226, 125 N.W. 2d at 850.  The reasonableness of respondent’s action in discharging relator more than meets this standard.


[1]Relator also argues on appeal that respondent’s policy violates the American Disability Act (ADA), 42 U.S.C. §  12102(2)(C)(2002) and the Minnesota Human Rights Act (MHRA) Minn. Stat. §  363A.08, subd. 2 (2002) because it permits discipline, including discharge, of employees who are perceived as drug-addicted after they test positive and fail to complete a treatment program.  This issue is not properly before us both because it is raised for the first time on appeal and because it is inappropriate for certiorari review.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (party may not obtain review by raising the same issue under a different theory; party may not change position on appeal); Willis v. County of Sherburne, 555 N.W. 2d 277, 283 (Minn. 1996)(review of claim of statutory violation by writ of certiorari is not appropriate).  Therefore, we do not address it.

[2]The only literature provided is an article entitled “Clandestine Drug Labs in Minnesota;” it does not mention tests.