                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-3831
                                  ___________

Richard S. Belde,                    *
                                     *
      Plaintiff - Appellant,         *
                                     *
      v.                             *
                                     * Appeal from the United States
Ferguson Enterprises, Inc.,          * District Court for the
                                     * District of Minnesota.
      Defendant - Appellee.          *
                                     *
Minnesota Transport Services         *
Association,                         *
                                     *
      Amicus on Behalf of Appellee. *
                                ___________

                            Submitted: April 19, 2006
                               Filed: August 18, 2006
                                ___________

Before LOKEN, Chief Judge, BOWMAN and BYE, Circuit Judges.
                             ___________

LOKEN, Chief Judge.

      The Federal Omnibus Transportation Employee Testing Act of 1991
(“FOTETA”), Pub. L. No. 102-143, tit. V, 105 Stat. 917, directed the Secretary of
Transportation to promulgate regulations requiring random drug and alcohol testing
of commercial vehicle drivers. See 49 U.S.C. § 31306(b)(1)(A); 49 C.F.R.
§ 382.305(a). Ferguson Enterprises, Inc., terminated Richard Belde in April 2004
when he refused to submit to a federally mandated random drug test for commercial
vehicle drivers. Belde filed this suit in state court. Ferguson removed the case to
federal court. Belde now appeals the district court’s1 grant of summary judgment in
favor of Ferguson. Belde argues that FOTETA mandated his removal from the
safety-sensitive driver position, but not his termination, and therefore termination
violated his rights under the Minnesota Drug and Alcohol Testing in the Workplace
Act (“DATWA”), Minn. Stat. §§ 181.950 et seq. Reviewing the grant of summary
judgment de novo, we affirm. See Mercer v. City of Cedar Rapids, 308 F.3d 840, 843
(8th Cir. 2002) (standard of review).

      Ferguson’s predecessor hired Belde in 1990 as a full-time commercial driver.
In June 2001, Ferguson transferred Belde to the night shift at a Minnesota warehouse
where his primary responsibilities were operating forklifts and cranes to load and
unload delivery trucks. Belde continued to be a “back-up” driver, and he maintained
his commercial driver’s license and his driver eligibility under federal law. See 49
C.F.R. Parts 383, 391. His back-up driver assignments diminished in late 2003, but
he drove for three days during the Christmas 2003 season.

       In April 2004, Ferguson’s headquarters notified the Minnesota warehouse that
Belde and a full-time driver were randomly selected for mandatory federal testing.
Belde refused to be tested because “I had a day of vacation, and I was out partying.”
After consulting counsel, Ferguson’s manager informed Belde that his refusal would
be treated as a positive test result mandating his suspension under federal law. See
49 C.F.R. §§ 382.211, 382.501. Belde nonetheless refused to be tested. Ferguson
suspended and then terminated him. This lawsuit followed.




      1
       The Honorable ANN D. MONTGOMERY, United States District Judge for
the District of Minnesota.

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      In the district court, Belde argued that he was a full-time warehouse clerk in
April 2004 and therefore not subject to mandatory random testing under FOTETA.
He further argued that Ferguson’s testing procedures, though consistent with federal
law, violated DATWA provisions that are not preempted by FOTETA’s express
preemption provisions. See 49 U.S.C. § 31306(g); 49 C.F.R. § 382.109(a).
Therefore, Belde concluded, he is entitled to damages for Ferguson’s violations of
DATWA. The district court rejected these contentions, concluding that Belde was
a “casual, intermittent or occasional” driver subject to mandatory testing as a matter
of federal law under 49 C.F.R. § 382.107, and that the inconsistent DATWA testing
requirements are expressly preempted because they would otherwise be an “obstacle”
to accomplishing the federal safety-testing regime. 49 C.F.R. § 382.109(a)(2).

       Belde’s limited contention on appeal does not require us to revisit the issues
decided by the district court. He now concedes that he was an occasional driver
subject to mandatory random testing under FOTETA and that Ferguson complied
with federal law in treating his refusal to be tested as a positive test result requiring
his immediate suspension from all safety-sensitive positions. Belde now argues that
he is entitled to relief under DATWA because (1) FOTETA required Ferguson to
remove him from the safety-sensitive driver position but not from his full-time
warehouse clerk position; (2) DATWA prohibited Ferguson from terminating Belde
“on the basis of a positive test result from an initial screening test,” Minn. Stat.
§ 181.953, subd. 10(a); and (3) this prohibition is not an obstacle to the federal testing
regime and therefore is not preempted.

       We are inclined to agree that FOTETA did not require that Ferguson fire Belde
rather than reassign him to a non-safety-sensitive position. But in any event, Belde’s
wrongful termination claim was properly dismissed because two provisions of the
Minnesota statutes regulating interstate, intrastate, and private motor carriers provide
that an employer who is required to comply with the mandatory federal testing
requirements of 49 C.F.R. Part 382, and who does comply, “is exempt” from

                                           -3-
DATWA. Minn. Stat. §§ 221.031, subd. 10; 221.605, subd. 1(b). As it is undisputed
that Ferguson terminated Belde for refusing to take a test mandated by these federal
regulations, Minnesota law expressly exempts that action from a DATWA claim.

       In the alternative, even assuming that DATWA applied to the termination, the
statute prohibits termination on the basis of an initial “positive test result,” which
DATWA defines as a finding of the presence of an excessive level of drugs or alcohol
“in the sample tested.” Minn. Stat. § 181.950, subd. 10. The Minnesota Court of
Appeals has twice held that DATWA “does not bar the discharge of an employee for
reasons independent of the test result.” Matter of Copeland, 455 N.W.2d 503, 506
(Minn. App. 1990); accord City of Minneapolis v. Johnson, 450 N.W.2d 156, 160
(Minn. App. 1990). Ferguson terminated Belde for refusing to submit to a test
mandated by federal law. Termination on this ground is not prohibited by DATWA.

       For these reasons, we need not decide whether FOTETA would preempt a
Minnesota statute requiring that an employer transfer an employee who violates the
mandatory federal drug and alcohol testing regulations to a non-safety-sensitive
position, rather than terminating the employee. The Minnesota Legislature has not
made that policy decision.

      The judgment of the district court is affirmed.
                     ______________________________




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