This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed May 2, 2006
Affirmed; motion granted
Randolph E. Stefanson, Kent B. Gravelle, Stefanson, Plambeck, Foss & Fisher, 403 Center Avenue, Suite 302, P.O. Box 1287, Moorhead, MN 56561-1287 (for relator)
Considered and decided by Stoneburner, Presiding Judge; Wright, Judge; and Crippen, Judge.
U N P U B L I S H E D O P I N I O N
Relator contends, inter alia, that the termination of his employment was premised on an alcohol test taken in violation of the standards set out in the Minnesota Drug and Alcohol Testing in the Workplace Act. Because the record demonstrates a basis for termination independent of the drug test and because we find no merit in relator’s additional arguments, we affirm. In addition, we grant respondent’s motion to strike parts of relator’s appendix.
In May 2005, relator was involved in a minor car accident while he was on call. In conformance with department policy, he requested a portable breath test. The test indicated that relator had a blood-alcohol content of .024. Relator subsequently justified the reading by explaining that shortly before he went on duty, but a few hours after he was on-call, he consumed cough medicine.
The Hawley mayor filed a complaint for city action against relator, alleging employee misconduct in violation of city and department policies. After reviewing the results of an independent investigation, the recommendation of the city’s personnel committee, and relator’s argument, the city council voted to terminate relator. Relator requested and received an appeal hearing on the matter. At the appeal hearing, relator’s attorney read a statement on his behalf and asked that he be reinstated. Noting that it did not regard relator as having an alcohol problem, the council stated that relator nonetheless violated the no-tolerance policy. By unanimous vote, the council sustained its decision to terminate relator. This certiorari appeal followed.
D E C I S I O N
On certiorari review, this court
will inspect the record and determine questions of jurisdiction of the
tribunal, the regularity of the proceedings, and whether an order in a
particular case is arbitrary, oppressive, unreasonable, fraudulent, made under
an erroneous theory of law, or without evidentiary support. Dietz
claims that the city’s decision to terminate his employment violated the
Minnesota Drug and Alcohol Testing in the Workplace Act. This law governs drug and alcohol testing in
argues that his portable test results must be disregarded because the city
violated the alcohol test law by failing to verify the test with a confirmatory
test or to offer him counseling or rehabilitation. In support of his argument, relator cites City of Minneapolis v. Johnson, 450 N.W.2d
156, 160 (Minn. App. 1990). In
The city’s argument is compelling. Upon investigation of his accident, relator acknowledged that he knowingly consumed alcohol while he was on call and in the course of performing his duties as chief of police. Although he found it important to distinguish that he consumed cough medicine as opposed to other forms of alcohol, the issue was whether he consumed alcohol in violation of the zero-tolerance policy, and relator admitted doing so.
Relator argues that the zero-tolerance policy was unfair because it applied to officers on call. But he did not suggest that it was unfair in the context of penalizing employees who consume alcohol on the job. Because the policy provided a basis for discharging relator independent of the test, we affirm the city’s decision to terminate relator.
city contends that the statute has no application to at-will employees,
notwithstanding the fact that the statute defines an employer to include
governmental bodies. See Minn. Stat. § 181.950, subd. 7. The city’s argument implies that because of the
at-will-employment doctrine, the city always has the option to terminate an
employee for reasons other than the test result even if the test result was
used as a basis for the decision.
Equally as important, even if an at-will employee were reinstated
because he was terminated in violation of the alcohol testing statutes, he
would then be subject to discharge for any reason or for no reason at all.
The city also argues that
this application of the alcohol-testing statute is not properly before us on
certiorari review because relator may seek a statutory remedy for the alleged
violation of the drug-testing statutes in district court. The Minnesota Supreme Court discussed the
appropriate parameters of certiorari review in Willis v. County of Sherburne, 555 N.W.2d 277 (
The Minnesota Drug and Alcohol Testing in the Workplace Act is generally used to obtain damages, while other remedies are used to challenge the termination itself. See Minn. Stat. § 181.956, subd. 2; see, e.g., Follmer v. Duluth, Missabe & Iron Range Ry. Co., 585 N.W.2d 87, 89 (Minn. App. 1998) (affirming district court’s award of damages when employee challenged in mediation her termination based on a positive drug test, was reinstated, then successfully sued for damages in district court). But because this challenge goes to the termination decision itself, we hold that this claim is properly before us upon certiorari appeal.
Relator’s Other Statutory Claims
Relator also contends that the city violated the Americans with Disabilities Act, the Minnesota Human Rights Act, and the Minnesota Government Data Practices Act. In each instance, the city correctly asserts that these claims are beyond the scope of our certiorari review.
Relator argues that the city
violated the disabilities act and the human rights laws by failing to provide
accommodation when he requested it. But relator
could bring a claim for disability discrimination under the human rights act in
district court. Minn. Stat. § 363A.33, subd.
1 (2004). And he could initiate
litigation of a disability discrimination claim under the Americans with
Disabilities Act by filing a charge with the EEOC or local agency. 42 U.S.C. §§ 2000e-5(a), (c), 12117(a) (2004)
(incorporating Title VII remedies into the
Relator next contends that respondent violated the data privacy laws by releasing to an area newspaper a letter regarding relator’s alcohol use before the final disposition of his case. But a person who suffers damage as a result of a violation of the Minnesota Government Data Practices Act may bring a civil action against the responsible entity. Minn. Stat. § 13.08, subd. 1 (2004). Because relator’s data-law claim does not involve any aspect of respondent’s decision to discharge relator and because relator could pursue that claim in district court, we decline to review his claim on certiorari review.
City’s Personnel Policy
Relator also claims that he was protected by the city’s personnel policy, which entitles city employees to a three-day suspension upon their first positive test for alcohol after an accident. But the city proceeded based not just on the test result, but also based on relator’s acknowledged violation of the zero-tolerance policy. And relator has not established that the terms of the city’s personnel policy were enforceable as an employment contract. See Pine River State Bank v. Mettille, 333 N.W.2d 622, 626-27 (Minn. 1983) (stating that a personnel policy may become enforceable as an employment contract only if, among other requirements, the offer is sufficiently definite in form and more than an employer’s general statement of policy).
Relator argues that the city
violated his right to due process because he received inadequate notice of the
city council’s hearings and he was not given an opportunity to investigate,
confront, and examine witnesses.
Generally, an at-will employee is not entitled to due process.
Reierson v. City of Hibbing, 628 N.W.2d 201, 204-05 (Minn. App.
2001) (citing Bd. of Regents of State
Colls. v. Roth, 408
Motion to Strike
Respondent asks this court
to strike two affidavits in relator’s appendix.
The record on certiorari appeal is composed of the papers, exhibits, and
transcripts of any testimony considered by the decision-making body being
reviewed. See Minn. R. Civ. App. P. 110.01, 115.04, subd. 1 (providing that
rule 110 should apply to certiorari proceedings to the extent possible); Stephens v. Bd. of Regents of Univ. of Minn.,
614 N.W.2d 764, 769 (Minn. App. 2000), review
Respondent objects to the admission of affidavits of relator and of a forensic toxicologist. The affidavits are dated September 23, 2005, and September 26, 2005. Thus, they are outside the record on appeal because they were not considered by the city council when it decided to terminate relator on August 12, 2005, or when it affirmed that decision on August 19, 2005. Accordingly, we grant the motion to strike the affidavits because they are not part of the appellate record.
Affirmed; motion granted.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.