                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-0017

                                      James Jones,
                                       Appellant,

                                           vs.

                               Green Bay Packaging, Inc.,
                                     Respondent.

                                 Filed August 10, 2015
                                       Affirmed
                                     Hooten, Judge

                            Hennepin County District Court
                               File No. 27-CV-14-8791

James Jones, Ham Lake, Minnesota (pro se appellant)

Jeffrey R. Underhill, Ryan R. Dreyer, Morrison Sund PLLC, Minnetonka, Minnesota (for
respondent)

       Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and

Reilly, Judge.

                        UNPUBLISHED OPINION

HOOTEN, Judge

       Appellant challenges the summary-judgment dismissal of his claim for wrongful

discharge, arguing that the district court erred by holding that an employer can discharge

an employee after his or her first positive drug test if the employee refuses to attend a
chemical dependency treatment program initially agreed to by the employer and the

employee. We affirm.

                                        FACTS

      Appellant James Jones began working for respondent Green Bay Packaging, Inc.

in 2006. On May 1, 2012, Jones was injured in a workplace accident that required him to

get stitches for his leg. Pursuant to the terms of a collective bargaining agreement that

governed his employment, Green Bay Packaging required Jones to submit a urine sample

for drug and alcohol testing as a result of his involvement in the accident. Initial and

confirmatory testing revealed that the urine sample submitted by Jones was positive for

marijuana use, and Green Bay Packaging placed Jones on unpaid suspension.

       On May 9, Green Bay Packaging presented Jones with a Conditional

Reinstatement Agreement (CRA), which provided that Jones could retain his

employment if he (1) immediately submitted to evaluation by a chemical dependency

treatment center approved by Green Bay Packaging, and (2) successfully participated in

treatment at that treatment center for the amount of time recommended by the center.

The CRA listed treatment centers that Green Bay Packaging had already approved and

provided that additional facilities could be approved by the company.

      Accordingly, Jones sought Green Bay Packaging’s approval for his evaluation and

treatment at two facilities which were not listed in the CRA, one of which was Riverplace

Counseling Centers. Green Bay Packaging approved both additional treatment centers.

Jones visited Riverplace for a chemical dependency assessment on May 17. Following




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the assessment, Riverplace recommended that Jones receive outpatient chemical

dependency treatment at its facility four times per week.

       Jones signed the CRA on May 22, but informed Green Bay Packaging on May 24

that he wished to receive his outpatient chemical dependency treatment at a heretofore

unapproved facility, Grace Counseling Services. He claimed that he could not afford the

gas money required to attend the program at Riverplace because it was a 30-minute

commute from his home and involved four sessions per week. He requested that Green

Bay Packaging approve treatment at Grace because the facility was near his home in Ham

Lake and its program met only twice per week. Green Bay Packaging denied approval of

this alternative treatment program and told Jones that he would be fired if he did not

participate in the recommended treatment program at Riverplace.            Jones did not

participate in the treatment program at Riverplace. Green Bay Packaging then terminated

Jones’ employment in June 2012.1

       On May 30, 2014, Jones sued Green Bay Packaging under the Minnesota Drug

and Alcohol Testing in the Workplace Act (DATWA), alleging that he was wrongfully

discharged because he did not refuse chemical dependency treatment within the language

of the statute and that Green Bay Packaging acted arbitrarily and capriciously in

restricting his choice of treatment centers. Green Bay Packaging moved for summary

judgment, arguing that, if Jones was discharged, it was in compliance with the statute


1
  Whether Jones quit employment or was discharged by Green Bay Packaging was
disputed by the parties before the district court. For purposes of this summary-judgment
appeal, in reviewing the facts in the light most favorable to Jones, we will assume, as the
district court did, that Jones was discharged by Green Bay Packaging.

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because Green Bay Packaging gave Jones an opportunity to participate in treatment and

he refused.   The district court granted summary judgment in favor of Green Bay

Packaging, and this appeal followed.

                                     DECISION

       The sole issue on appeal is whether the district court misconstrued the DATWA

and thus erred by entering summary judgment in favor of Green Bay Packaging. “On

appeal from summary judgment, we must review the record to determine whether there is

any genuine issue of material fact and whether the district court erred in its application of

the law.” Dahlin v. Kroening, 796 N.W.2d 503, 504 (Minn. 2011).               We view the

evidence in the light most favorable to the nonmoving party, RAM Mut. Ins. Co. v.

Rohde, 820 N.W.2d 1, 6 (Minn. 2012), and review de novo the district court’s

interpretation of statutes, Kidwell v. Sybaritic, Inc., 784 N.W.2d 220, 226 (Minn. 2010).

        Generally, “[t]he usual employer-employee relationship is terminable at the will

of either party,” unless there exists a valid employment contract between employer and

employee. Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 371 (Minn. 1995).

However, the DATWA renders employers liable for certain actions taken against

employees relating to drug and alcohol testing in the workplace.           See Minn. Stat.

§ 181.956, subd. 2 (2014) (“[A]n employer . . . that violates sections 181.950 to 181.954

is liable to an employee . . . injured by the violation in a civil action for any damages

allowable at law.”). Specifically, the DATWA restricts employers from discharging

employees as the result of a first positive drug or alcohol test unless two conditions are

satisfied:


                                             4
                      (1) the employer has first given the employee an
              opportunity to participate in, at the employee’s own expense
              or pursuant to coverage under an employee benefit plan,
              either a drug or alcohol counseling or rehabilitation program,
              whichever is more appropriate, as determined by the
              employer after consultation with a certified chemical use
              counselor or a physician trained in the diagnosis and
              treatment of chemical dependency; and
                     (2) the employee has either refused to participate in the
              counseling or rehabilitation program or has failed to
              successfully complete the program, as evidenced by
              withdrawal from the program before its completion or by a
              positive test result on a confirmatory test after completion of
              the program.

Minn. Stat. § 181.953, subd. 10(b) (2014). We have previously held that an employer’s

failure to provide an employee with an opportunity for any counseling or treatment

before discharging an employee after his or her first positive test is a violation of this

statute. City of Minneapolis v. Johnson, 450 N.W.2d 156, 160 (Minn. App. 1990).

       Unlike Johnson, resolving this case requires us to determine whether Jones’

discharge after his refusal to attend the Green Bay Packaging-approved treatment

program was unlawful under the DATWA. Our goal in statutory construction “is to

ascertain and effectuate the intention of the legislature.” Minn. Stat. § 645.16 (2014). In

order to do so, we “generally give words and phrases their plain and ordinary meaning,”

while “giv[ing] technical words and phrases their special meaning.”              Hous. &

Redevelopment Auth. of Duluth v. Lee, 852 N.W.2d 683, 690 (Minn. 2014); see Minn.

Stat. § 645.08(1) (2014).    If, after this construction, the language of the statute is

unambiguous, we apply its plain meaning and do not engage in further statutory

construction. Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 73 (Minn. 2012).



                                             5
       The parties both assert that the statute is unambiguous and that we can apply the

plain language of the statute, but give differing interpretations of its plain meaning. First,

the parties argue as to the discretion explicitly given to employers in the first condition in

the statute: “[T]he employer has first given the employee an opportunity to participate

in . . . either a drug or alcohol counseling or rehabilitation program, whichever is more

appropriate, as determined by the employer” after consulting with a treatment

professional.   Minn. Stat. § 181.953, subd. 10(b)(1) (emphasis added).           Green Bay

Packaging argues that the phrase “as determined by the employer” in the statute “refers to

all decisions regarding the employee’s opportunity to participate in counseling or

rehabilitation,” allowing employers to select “where and what type of treatment the

employee must complete to remain employed.” Jones argues that Green Bay Packaging

reads this provision too broadly and that under this section, “The only thing that [the]

DATWA requires of an employee to protect his job [is] that he participate in an

appropriate program determined by the employer—counseling or rehabilitation.”

       We agree with Jones on this point. Insofar as Green Bay Packaging relies on the

phrase “as determined by the employer,” it reads this language too broadly. The plain

language of this phrase provides that the employer must give the employee the

opportunity to attend “either a drug or alcohol counseling or rehabilitation program,

whichever is more appropriate,” indicating only that the employer is tasked with

deciding whether counseling or rehabilitation is more appropriate for the employee. See

id. (emphasis added).




                                              6
       But, under the facts of this case, it appears irrelevant whether the statute explicitly

allows the employer to decide the type of treatment or the specific program an employee

may attend. The statute provides that the employer need only “give[] the employee an

opportunity to participate in” a treatment program. Id. (emphasis added). In accordance

with the CRA, Jones asked if he could be assessed and then treated at Riverplace, and

Green Bay Packaging agreed to this arrangement. As acknowledged by Jones, “Green

Bay did give him the right to choose a treatment program.” In accordance with the

statute, and as memorialized in the CRA, Jones was granted the “opportunity” by Green

Bay Packaging to participate in a treatment program—the program at Riverplace.

Nothing in the plain language of section 181.953 required Green Bay Packaging to grant

Jones an additional opportunity to attend a different treatment program after the company

had already approved the treatment center initially requested by Jones.

       Jones further argues that he did not “refuse[] to participate in the counseling or

rehabilitation program,” the second condition required under Minn. Stat. § 181.953,

subd. 10(b), because he was “ready, willing[,] and able to attend treatment at Grace

Counseling Services” before Green Bay Packaging terminated him. Essentially, Jones

argues that because he was willing to seek treatment from a counseling or rehabilitation

program at Grace similar to the outpatient treatment recommended by Riverplace, Green

Bay Packaging could not terminate his employment under the DATWA.

       This argument contradicts the plain language of the statute. The second condition

of this section of the statute provides that discharge is appropriate if an employee refuses

to attend, or fails to complete, “the counseling or rehabilitation program.” Id., subd.


                                              7
10(b)(2) (emphasis added). This section requires the employee to complete the schedule

of treatment that the employer provided the employee an opportunity to attend, not

simply a treatment program of the type chosen by the employer, as argued by Jones.

Moreover, the CRA signed by Jones expressly provided that, “[i]f recommended by the

Treatment Center, [Jones would] actively participate as a patient of the Treatment Center

for whatever period of time and in whatever status, whether inpatient or outpatient, as the

Treatment Center recommends.” Jones asked for, and Green Bay Packaging approved,

his treatment at Riverplace, and Jones was then assessed at Riverplace and received a

recommendation for treatment there. Green Bay Packaging’s refusal to allow Jones to

attend a different treatment program was not “inexplicabl[e],” as Jones claims; rather, the

statute and the CRA both required that Jones complete the treatment program that Green

Bay Packaging gave him the opportunity to attend. He refused to do so.

       Finally, Jones argues that if we uphold the district court’s summary-judgment

ruling, we will contravene the legislature’s intent in passing the DATWA because

denying him relief would allow employers to “require an employee to attend a treatment

program that is not in line with the employee’s beliefs.” This argument is without merit,

as it is based solely on facts either outside the record or hypothetical in nature. A

justiciable controversy does not exist if a claim “present[s] hypothetical facts that would

form an advisory opinion.” Onvoy, Inc. v. ALLETE, Inc., 736 N.W.2d 611, 617−18

(Minn. 2007); see also Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 439 (Minn.

2002) (“We do not issue advisory opinions, nor do we decide cases merely to establish

precedent.”).   Moreover, it is not the role of the judiciary to consider or answer


                                            8
hypothetical policy questions; those arguments “should be advanced to the legislature, the

body that crafted the language that compels the result here.” Laase v. 2007 Chevrolet

Tahoe, 776 N.W.2d 431, 440 (Minn. 2009). To the extent Jones asks this court to decide

in his favor based on a hypothetical situation not present in the facts of his case, we reject

his argument.

       Therefore, we conclude that Green Bay Packaging did not wrongfully discharge

Jones under the DATWA and affirm the district court’s grant of summary judgment in

favor of Green Bay Packaging.

       Affirmed.




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