               IN THE SUPREME COURT OF IOWA
                            No. 24 / 04-1769

                         Filed August 11, 2006


JERI RAE McVEY,

      Appellant,

vs.

NATIONAL ORGANIZATION SERVICE, INC.,

      Appellee.


      Appeal from the Iowa District Court for Polk County, Artis I. Reis,

Judge.



      Discharged employee who alleged noncompliance with statutory

requirements for employee drug testing appeals from adverse summary

judgment in wrongful-discharge action. REVERSED AND REMANDED.



      Mark T. Hedberg, Des Moines, for appellant.



      Jacqueline K. Samuelson and Gretchen Witte Kraemer of Whitfield &

Eddy, P.L.C., Des Moines, for appellee.
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CARTER, Justice.

      Plaintiff, Jeri Rae McVey, who was discharged by her employer

defendant, National Organization Service, Inc. (NOS), after testing positive

for marijuana ingestion, brought the present action alleging her employer’s

noncompliance with the statutes governing employee drug testing and

requesting damages for wrongful termination of her employment.          The

district court granted summary judgment for the employer, and plaintiff

appeals.   After reviewing the record and considering the arguments

presented, we conclude that, at the time of the district court’s judgment,

there were genuine issues of material fact remaining that precluded the

grant of summary judgment. Consequently, we reverse the judgment of the

district court and remand the case to that court for further proceedings

consistent with our opinion.

      When McVey reported for work at NOS on July 9, 2003, she was

subjected to a random drug test. The laboratory results returned to her

employer were positive as to the presence of marijuana. Prior to the time

that McVey was to report for work on the date that the test results were

obtained by NOS, she telephoned her employer and questioned whether the

result of her random drug test was positive.        The substance of this
telephone conversation is disputed; however, it is agreed that McVey was

advised that the test results were positive for marijuana and that her

employment was terminated.      McVey did not return to work after this

conversation.

      On November 13, 2003, McVey filed this action alleging that the

random drug test imposed on her was carried out in violation of the

statutory requirements for employee drug testing contained in Iowa Code

section 730.5 (2003). As a result of that alleged violation, she sought to
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recover damages from NOS, including reinstatement of her employment

pursuant to the provisions of Iowa Code section 730.5(15)(a).

      During the discovery process, NOS filed several requests for

admission. Based on McVey’s answers to those requests and an affidavit of

its Des Moines manager, NOS moved for summary judgment. Included in

the statement of undisputed facts filed by NOS in support of that motion

was a contention that McVey had been informed of the company’s drug-

testing policy that prohibited the use of illegal drugs by NOS employees.

Attached to that statement were two exhibits, exhibit D, which was alleged

to include the written drug-testing policy that NOS adopted pursuant to

section 730.5(9), and exhibit E that was denominated as “DRUG-FREE

WORKPLACE POLICY” and pertained to federal law requirements that,

because NOS was a federal contractor, its employees must report controlled

substance convictions to the employer and ultimately to the federal

government. Exhibit E also required the employee to waive any breach-of-

privacy claim against the employer for conveying an employee’s controlled

substance history to a federal agency.

      To obtain a grant of summary judgment on some issue in an action,

the moving party must affirmatively establish the existence of undisputed
facts entitling that party to a particular result under controlling law.

Goodwin v. City of Bloomfield, 203 N.W.2d 582, 588 (Iowa 1973).             To

affirmatively establish uncontroverted facts that are legally controlling as to

the outcome of the case, the moving party may rely on admissions in the

pleadings, see Fisher Controls Int’l v. Marrone, 524 N.W.2d 148, 149 (Iowa

1994), affidavits, depositions, answers to interrogatories by the nonmoving

party, and admissions on file. Iowa R. Civ. P. 1.981(3). Except as it may

carry with it express stipulations concerning the anticipated summary

judgment ruling, a statement of uncontroverted facts by the moving party
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made in compliance with rule 1.981(8) does not constitute a part of the

record from which the absence of genuine issues of material fact may be

determined. Glen Haven Homes, Inc. v. Mills County Bd. of Review, 507

N.W.2d 179, 182 (Iowa 1993). The statement required by rule 1.981(8) is

intended to be a mere summary of the moving party’s factual allegations

that must rise or fall on the actual contents of the pleadings, depositions,

answers to interrogatories, and admissions on file together with any

affidavits. Griglione v. Martin, 525 N.W.2d 810, 813 (Iowa 1994). If those

matters do not reveal the absence of genuine factual issues, the motion for

summary judgment must be denied. Mead v. Lane, 203 N.W.2d 305, 307

(Iowa 1972).

      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).
      In seeking to uphold the district court’s grant of summary judgment,

NOS relies on the principle that under Iowa law, if an expressly stated term

of employment is not provided by contract, employment is at will. It urges

that exceptions to that rule relating to discharges found to be in violation of

public policy as applied in Springer v. Weeks & Leo Co., 429 N.W.2d 558,

561 (Iowa 1988), are not applicable because public policy does not favor the

presence of drug users in the workplace. McVey urges, and we agree, that

the present dispute does not involve an issue of court-declared public-policy

violations such as were found to exist in the Springer case, but rather
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involves compliance with detailed statutory requirements, which create a

cause of action in favor of one who has been injured by a failure to abide

those requirements. 1 We recognized in Tow v. Truck Country of Iowa, Inc.,
695 N.W.2d 36, 39 (Iowa 2005), that a discharge from employment may be

based on an employee drug-testing program only if that program is being

carried out in compliance with the governing statutory law.

       McVey acknowledges receipt of exhibit E but, in both her answers to

request for admissions and the affidavit that she filed, denies receiving or

otherwise being made aware of the company drug-testing policy set forth in

exhibit D. McVey urges that the requirement that the employer adopt an

employee drug-testing policy and deliver it to each employee is a necessary

step in invoking the statutory authorization for such testing. We agree. We

further agree that it is essential the employee drug-testing policy, as

formulated by the employer, contain uniform requirements for what

disciplinary or rehabilitation actions an employer shall take against an

employee or prospective employee upon receipt of a confirmed positive drug

test. Clearly, exhibit E, which is the only statement of policy that McVey

admits     to   having      received,     fails   to   satisfy    these     requirements.

Consequently, there remains a genuine issue of material fact as to whether

exhibit D was received by McVey. In addition, on the latter matter, McVey

asserts that, in any event, exhibit D does not contain the required

statement of a uniform requirement for discipline on receipt of a confirmed

positive drug test and fails to comply with the statute in other respects. We


       1That   the public policy exception to at-will employment recognized in Springer is
based on a court-declared public policy is borne out in Fitzgerald v. Salsbury Chemical, Inc.,
613 N.W.2d 275 (Iowa 2000), in which we observed “we must proceed cautiously when
asked to declare public policy to support an exception to the at-will doctrine, and only
utilize those policies that are well recognized and clearly defined.” Fitzgerald, 613 N.W.2d
at 283. In the present case, we must apply that public policy that the legislature has set
forth in section 730.5.
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express no opinion on those matters and leave them as issues to be resolved

on remand in the event that the district court finds that McVey was

furnished with a copy of exhibit D.     For the reasons advanced in this

opinion, the court erred in granting summary judgment in favor of NOS.

      We have considered all issues presented and conclude that the

judgment of the district court must be reversed. The case is remanded to

that court for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.
