                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1320
                            Filed September 25, 2019


TODD WHITMAN,
     Plaintiff-Appellant,

vs.

CASEY'S GENERAL STORES, INC. and CASEY'S MARKETING COMPANY,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.



      Plaintiff appeals the district court’s denial of his motion for judgment

notwithstanding the verdict and for a new trial following the jury verdict for

defendants on his claims of improper drug testing. AFFIRMED.



      Matthew M. Sahag of Dickey & Campbell Law Firm, PLC, Des Moines, and

Michael J. Carroll of Coppola, McConville, Coppola, Carroll, Hockenberg &

Scalise, West Des Moines, for appellant.

      Andrew Tice and Lindsay Vaught of Ahlers & Cooney, P.C., Des Moines,

for appellees.



      Heard by Potterfield, P.J., Greer, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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SCOTT, Senior Judge.

       Todd Whitman appeals the district court’s denial of his motion for judgment

notwithstanding the verdict and for a new trial following the jury verdict for Casey’s

General Stores, Inc. and Casey’s Marketing Company (Casey’s). We find (1) the

district court did not err in denying Whitman’s motion for judgment notwithstanding

the verdict on his claim Casey’s improperly required him to take a drug test;

(2) Whitman was not entitled to a new trial based on inconsistent verdicts;

(3) Whitman is not entitled to a new trial based on improper jury instructions; and

(4) the court did not abuse its discretion in awarding attorney fees. We affirm the

decision of the district court.

       I.      Background Facts & Proceedings

       From the evidence presenting during the trial, the jury could find the

following facts. In 2006, Whitman applied for a job at the Casey’s warehouse in

Ankeny. On the application question, “Have you ever been convicted of a crime

other than a routine traffic violation,” Whitman wrote down he had a 1998

conviction for conspiracy. He signed the application, which stated, “Any material

misrepresentation or deliberate omission on my application may subject me to

immediate dismissal.” After an interview with the warehouse manager, William

Brauer, Whitman was hired as a heavy-duty warehouse employee. Casey’s felt it

was essential to maintain safety in the warehouse due to the busy work

environment and the use of heavy machinery, such as forklifts.

       On November 5, 2014, Whitman used methamphetamine in his off-duty

hours, then reported to work on November 6. He again used methamphetamine

after work on November 6, then worked on November 7. In the evening on Friday,
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November 7, Whitman was arrested for possession of illegal drugs. He was

impaired at the time of his arrest. Over the weekend, Whitman smoked marijuana.

He worked his next regular shift at Casey’s on Tuesday, November 11. By the end

of the day, Brauer and Marcella Burkheimer, the director of human resources,

learned of Whitman’s arrest on November 7.

       On the morning of November 12, Whitman was asked to meet with Brauer

and Rick Buckroyd, a shift supervisor. Whitman admitted to his recent arrest and

stated he had smoked marijuana over the weekend. Brauer stated Whitman “got

very loud, and he just started talking erratically, and it was just kind of a chaotic

situation.” He told Whitman he needed to take a drug test. Whitman asked to go

to treatment and mentioned he had post-traumatic stress disorder (PTSD).

Buckroyd drove Whitman to the drug test. He noticed Whitman drank a large

quantity of water before taking the test. Whitman was suspended from work but

was paid for November 12 to 15.

       On November 14, the human resources department received the results of

the drug test, which were negative. Brauer stated he was not yet aware of the

results of the drug test when he decided to terminate Whitman. Burkheimer looked

at Whitman’s criminal history and found he had many more convictions than he put

on his application.    Brauer and Burkheimer determined Whitman should be

discharged because of his admitted drug use and his failure to fully disclose his

criminal convictions on his application. On November 19, Brauer called Whitman,

who was then in a substance-abuse treatment facility, to tell him he was terminated

from employment at Casey’s.
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       On November 4, 2016, Whitman filed an action alleging Casey’s had

engaged in disability discrimination, improperly required him to take a drug test

based on the provisions in Iowa Code section 730.5 (2016), and violated chapter

91A by failing to pay him all of his wages. The jury found Whitman was “currently

engaged in the illegal use of drugs at the time of his termination”; he did not prove

his disability discrimination claim based on PTSD; Casey’s complied with section

730.5, and even if there had been a violation of section 730.5, Whitman would

have been terminated anyway; and Whitman was entitled to $336 in back pay.

       Whitman filed a combined motion for new trial and for judgment

notwithstanding the verdict.     The district court found the jury did not give

inconsistent answers on Whitman’s wage claim, as the award of back pay was

“ostensibly for shifts available to [Whitman] between November 16-19, 2014,” and

was not inconsistent with a finding there was no violation of section 730.5. The

court also determined there was substantial evidence in the record to support the

jury’s verdict Casey’s terminated Whitman’s employment for “valid reasons

independent and separate from the drug test results.” The court denied Whitman’s

complaints about certain jury instructions. The court also found the jury’s verdict

was not contrary to the weight of the evidence. The court awarded Whitman

attorney fees of $3360 based on his successful wage claim for $336. Whitman

now appeals.

       II.     Section 730.5

       Whitman claims the district court should have granted his motion for

judgment notwithstanding the verdict because Casey’s did not follow the provisions

in section 730.5 when it required him to take a drug test. He states Casey’s failed
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to (1) adequately train supervisory personnel, (2) have reasonable suspicion to

test him, (3) reinstate him after his negative drug test, and (4) follow its written

policies concerning drug testing.

       We review a district court’s ruling on a motion for judgment notwithstanding

the verdict for the correction of errors at law. Thornton v. Am. Interstate Ins. Co.,

897 N.W.2d 445, 460 (Iowa 2017). “On review, we ‘determine whether sufficient

evidence existed to justify submitting the case to the jury at the conclusion of the

trial.’” Garr v. City of Ottumwa, 846 N.W.2d 865, 869 (Iowa 2014) (quoting Lee v.

State, 815 N.W.2d 731, 736 (Iowa 2012)). “To justify submitting the case to the

jury, substantial evidence must support each element of the plaintiff’s claim.”

Smith v. Iowa State Univ. of Sci. & Tech., 851 N.W.2d 1, 18 (Iowa 2014).

“Evidence is substantial if a jury could reasonably infer a fact from the evidence.”

Winger v. CM Holdings, L.L.C., 881 N.W.2d 433, 445 (Iowa 2016). We review the

evidence in the light most favorable to the nonmoving party. Dinsdale Constr., LLC

v. Lumber Specialties, Ltd., 888 N.W.2d 644, 649 (Iowa 2016).

       “[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 v. Nat’l Org. Serv., Inc., 719 N.W.2d 801, 803 (Iowa 2006).

This rule applies to a termination from employment “based on an employee drug-

testing program.” See id. (emphasis added). In Sims v. NCI Holding Corporation,

759 N.W.2d 333, 340 (Iowa 2009), the Iowa Supreme Court determined an

employee’s employment “was not adversely affected” by the employer’s failure to

timely inform him of his right to have a confirmatory drug test as required by section

730.5(7), as his initial drug test was not erroneous, and the employee was not
                                          6


therefore entitled to reinstatement of his employment.        Thus, an employee is

entitled to relief only if the employee’s employment was “adversely affected” by an

improper drug test.     See Sims, 759 N.W.2d at 340; see also Iowa Code

§ 730.5(15)(a)(1).

       The jury found Whitman was “currently engaged in the illegal use of drugs

at the time of his termination,” and his “employment [would] have been terminated

even if there had been no violation of Iowa Code section 730.5.” In denying the

motion for judgment notwithstanding the verdict, the district court stated:

       [T]he court finds the jury’s verdict is supported by substantial credible
       evidence presented at trial. Casey’s would not have been compelled
       or obligated to reinstate [Whitman’s] employment because the jury
       heard credible evidence that would permit them to find [Whitman]
       would ultimately have been terminated—and was terminated—by
       Casey’s for valid reasons independent and separate from the drug
       test results.

       A motion for judgment notwithstanding the verdict should be denied if the

jury’s verdict is supported by substantial evidence. Winger, 881 N.W.2d at 435.

Brauer testified he made the decision to terminate Whitman before he knew the

results of the drug test and the results of the test did not change his mind.

Burkheimer testified Whitman should have been terminated on November 12 when

he admitted using illegal drugs and the drug test did not have “any adverse effect”

on Whitman’s employment. We find no error in the district court’s decision denying

the motion for judgment notwithstanding the verdict.

       III.   Inconsistent Verdicts

       Whitman claims the district court should have granted his motion for new

trial on the ground the jury gave inconsistent verdicts. He states the jury’s verdict

finding Casey’s had violated chapter 91A was inconsistent with its finding Casey’s
                                          7


complied with section 730.5. He asserts the award of $336 in back pay was in

recognition of a violation of section 730.5 by Casey’s.

       “A motion for a new trial based on the question of inconsistent verdicts is a

question of law, so our review is for correction of errors at law.” Westco Agronomy

Co., LLC v. Wollesen, 909 N.W.2d 212, 219 (Iowa 2017). “When deciding if a

verdict is inconsistent, we liberally construe the jury’s verdict to give effect to the

jury’s intention and harmonize the jury’s answers if possible.” Pavone v. Kirke,

801 N.W.2d 477, 498 (Iowa 2011). “We also must determine whether the verdicts

can be reconciled in a manner reasonably consistent with the evidence and the

jury instructions.” Id.

       Burkheimer testified Casey’s records showed Whitman had not been paid

for November 17 to 19, and he was discharged from his employment on November

19. The district court found, “The two days of wages awarded by the jury under

the chapter 91A wage claim were ostensibly for shifts available to [Whitman]

between November 16-19, 2014, which were not ‘prior to receipt of the final [drug

test] results.’” The court concluded, “[T]the jury award of wages for these two days

was not inconsistent with section 730.5(10)(b).” We find no error in the district

court’s conclusion, which logically reconciled the jury’s verdicts in this case.

       IV.    Jury Instructions

       Whitman contends the district court should have granted his motion for new

trial on the ground the court improperly gave two jury instructions, which he states

were misstatements of the law. We review a challenge to the jury instructions for

the corrections of errors at law. Haskenhoff v. Homeland Energy Sols., LLC, 897

N.W.2d 553, 570 (Iowa 2017). A jury’s verdict should be reversed if there has
                                          8

been a material misstatement of the law in the instructions. Rivera v. Woodward

Res. Ctr., 865 N.W.2d 887, 902 (Iowa 2015). A verdict should also be reversed if

the “instructions are misleading and confusing.” Id.

       A.     Instruction number 11 provided:

               Defendants have the burden to prove whether an employee is
       currently engaged in the illegal use of drugs and that Defendants had
       actual knowledge of such use.
               The law does not protect an employee who is currently
       engaged in the illegal use of drugs when the employer acts on the
       basis of such use. An employee is considered to be “currently
       engaging in the illegal use of drugs” at the time of his termination if
       drug use was sufficiently recent to justify the employer’s reasonable
       belief that illegal drug use was an ongoing problem rather than a
       problem that was in the past. Currently engaging in the illegal use of
       drugs is not limited to situations where the employee is presently
       under the influence of drugs at the time of his termination. If Plaintiff
       used illegal drugs in the weeks and months preceding his
       termination, then he was currently engaging in the illegal use of drugs
       at the time of his termination.

       In particular, Whitman objects to the last sentence, “If Plaintiff used illegal

drugs in the weeks and months preceding his termination, then he was currently

engaging in the illegal use of drugs at the time of his termination.” Whitman claims

this instruction misstates the law because it should have required proof the

employer had knowledge of the employee’s current drug use. Also, he states the

instruction should have required evidence he used drugs while at work or was

intoxicated at work.

       The district court stated the instruction was “a correct synthesized statement

of the missing definition in other jurisdictions.” See Greer v. Cleveland Clinic

Health Sys., 503 F. App’x 422, 431 (6th Cir. 2012); Johnson v. City of Columbus,

No. C2-99-531, 2001 WL 605040, at *6 (S.D. Ohio May 29, 2001); Vedernikov v.

W. Va. Univ., 55 F. Supp. 2d 518, 523 (N.D.W.V. 1999); Baustian v. Louisiana,
                                           9

910 F. Supp. 274, 277 (E.D. La. 1996); Wormley v. Arkla, Inc., 871 F. Supp. 1079,

1084 (E.D. Ark. 1994). The court also found Whitman did not show he was

prejudiced by the instruction, as the evidence showed he used methamphetamine

and marijuana shortly before he was discharged by Casey’s. Burkheimer testified

it violated Casey’s drug and alcohol policy for an employee to use illegal drugs

outside of work in order to protect the safety of the other employees.

       We find instruction number 11 is not a material misstatement of the law.

Furthermore, even if the instruction was a material misstatement of the law,

Whitman has not shown he was prejudiced by the instruction. See Mumm v.

Jennie Edmundson Mem’l Hosp., 924 N.W.2d 512, 518 (Iowa 2019) (“However, it

is well-settled that an instructional error must be prejudicial to warrant reversal.”).

During the trial, Whitman testified he used methamphetamine and marijuana

shortly before his termination. We conclude the district court did not err by denying

Whitman’s motion for new trial based on the instruction.

       B.     Whitman asserts instruction number 20 is a material misstatement of

the law. Instruction number 20 provides:

                Your verdict must be for Plaintiff and against Defendant on
       Plaintiff’s Iowa Code section 730.5 claim if all of the following
       elements have been proven:
                First, that Defendant violated Iowa Code section 730.5 by:
                        1. Failing to reinstate Plaintiff and pay him back pay,
       plus interest at the rate of 18% per annum compounded annually, for
       a period of suspension following a drug test but prior to receipt of the
       final results of the drug test;
                        2. Failing to give Plaintiff an opportunity to provide any
       information which may be considered relevant to the test, including
       identification of prescription or nonprescription drugs currently or
       recently used, or other relevant medical information;
                        3. Failing to administer a drug test within the terms of
       its written policy; or
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                       4. Ensuring that Plaintiff’s supervisor attended the
       required periodic training regarding alcohol and drug abuse.
               And,
               Second, Plaintiff’s employment with Defendants was
       adversely affected by Defendants’ violation of Iowa Code section
       730.5.
               For the purposes of this claim, it is Defendants’ burden to
       prove compliance with Iowa Code section 730.5. It is Plaintiff’s
       burden to prove his employment with Defendants was adversely
       affected by a violation of Iowa Code section 730.5.
               If you find both of the above elements have been met, your
       verdict on Plaintiff’s Iowa Code section 730.5 claim must be for
       Plaintiff. If you find any of the above elements have not been met,
       then your verdict on Plaintiff’s Iowa Code section 730.5 claim must
       be for Defendants.

       Whitman claims the instruction improperly provides Casey’s was required

to comply with only some of the requirements in section 730.5. He states Casey’s

had the burden to show it met all of the requirements in the statute. He additionally

states the instruction improperly provides he had the burden to show he was

“adversely affected by a violation of Iowa Code section 730.5.”

       The district court rejected Whitman’s arguments concerning instruction

number 20, finding it was “an accurate statement of law because only ‘an

aggrieved employee’ has a cause of action under the statute,” citing section

730.5(15)(a)(1).     The court also found, “[T]he jury heard substantial credible

evidence permitting them to find that Casey’s had valid independent grounds

unrelated to section 730.5 under their company workplace policies that would

permit them to terminate [Whitman].” We find no error in the court’s conclusion

Whitman was entitled to relief only if his employment was “adversely affected” by

an improper drug test.      See Sims, 759 N.W.2d at 340; see also Iowa Code

§ 730.5(15)(a)(1).
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       We reject Whitman’s claim Casey’s waived some of its rights in the parties’

employer-employee relationship by requesting a drug test. As noted, Whitman

was not “adversely affected” by an improper drug test and, therefore, he does not

come within the category of persons protected by the provisions of section 730.5.

Even if the request for a drug test was improper, it did not mean Casey’s was

unable to discharge Whitman for entirely different reasons.

       V.     Attorney Fees

       Whitman asserts the district court should have awarded him attorney fees

based on his claims under section 730.5. He states even if he was determined not

to be adversely affected by an improper drug test, he is entitled to attorney fees

under the statute. The district court has authority under section 730.5(15) to award

attorney fees in a case involving a violation of the requirements of section 730.5.

See Sims, 759 N.W.2d at 340.

       Section 730.5(15)(1)(a) provides an employee who is aggrieved due to a

violation of the drug-testing statute is entitled to attorney fees. The jury found

Whitman was not aggrieved by an improper drug test because Casey’s had

independent grounds to terminate him. We conclude the district court did not err

by denying Whitman’s request for attorney fees under section 730.5.

       VI.    Conclusion

       We affirm the district court’s decision denying Whitman’s motion for

judgment notwithstanding the verdict and for a new trial and its attorney-fee award.

       AFFIRMED.
