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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.

2 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. 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 McVey did not return to work after this

3 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 drugtesting 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-ofprivacy 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

4 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

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