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Wehlage v. ING Bank, FSB: US District Court : EMPLOYMENT - firing violated Drug Alcohol Testing in Workplace Act; summary judgment

Case No. 07-CV-1852 (PJS/RLE)
Daniel E. Warner, WARNER LAW OFFICE, for plaintiff.
V. John Ella and David J. Duddleston, JACKSON LEWIS LLP, for defendant.
Plaintiff David Wehlage was fired in March 2006 from his job in the informationtechnology
(IT) department of defendant ING Bank, FSB (ING). At the time, Wehlage was
in treatment for drug addiction, after having tested positive for methamphetamine use in
November 2005. Wehlage sued ING, alleging that his dismissal violated Minnesotas Drug and
Alcohol Testing in the Workplace Act (DATWA). Wehlage now moves for summary
judgment on liability and also moves to amend his complaint to add a claim for punitive
damages. ING cross-moves for summary judgment. For the reasons that follow, the Court grants
Wehlages motions and denies INGs motion.
The essential facts are undisputed. ING is an internet-based bank that is, it does
business with its customers over the internet rather than through brick-and-mortar locations.
Wehlage began working in INGs IT department in early 2002. Some time in late 2003 or early
2004, Wehlage began using methamphetamine. Ella Aff. Supp. Def. Mot. S.J. Ex. 1 (Wehlage
Dep.) at 14 [Docket No. 27].
Wehlages pastor recommended in late July 2005 that Wehlage seek treatment for his
drug use. Id. at 17. Wehlage told his immediate supervisor, Ken Przywara, on July 21 that he
planned to get drug treatment. The next day, Wehlage went to the emergency room at St. Cloud
Hospital, and staff there referred him to an affiliated intensive outpatient treatment program. Id.
at 18, 39.
Wehlage entered that treatment program on August 9, 2005, and was discharged about a
month later with instructions to participate in ongoing counseling. Ella Aff. Opp. Pl. Mot. S.J.
Ex. 2 (Pl. Suppl. Interrog. Ans.) at 2 [Docket No. 33]; Wehlage Dep. at 38-39. Wehlage did
not work at his job between the time he spoke to Przywara in July and the time he finished
intensive outpatient treatment in September; instead, Wehlage took some combination of
vacation and short-term-disability leave. Wehlage Dep. at 30. The costs of the treatment
program were covered by Wehlages ING-sponsored health insurance. Id. at 31; Pl. Suppl.
Interrog. Ans. at 2.
Wehlage returned to work on September 12, 2005, after roughly five weeks of intensive
treatment and about eight weeks of time off. Wehlage Dep. at 31. Although he took some
additional time off the following week, he worked steadily from the end of September through
early November. Wehlage Dep. at 56-61. Some time in October, though, Wehlage began using
methamphetamine again. Id. at 21.
Corey Donat, an employee in INGs human-resources department, asked Wehlage to
submit to a drug test on November 9. Id. at 61-62; Ella Aff. Supp. Def. Mot. S.J. Ex. 2 [Donat
Dep.) at 46-47. Wehlage admitted that he would test positive, but he submitted to the test
anyway. Wehlage Dep. at 63. Wehlage followed Donat to a drug-testing center, left a urine
sample, and did not come back to work. Id. at 64. Two days later, Donat called to say that the
test was positive and to offer Wehlage two choices: take a severance package and quit his job, or
go into treatment and use unpaid leave under the Family and Medical Leave Act (FMLA). Id.
at 72-73; Donat Dep. at 55-56. After thinking it over, Wehlage turned down the severance
package and decided to enter treatment. Wehlage Dep. at 73-74; Donat Dep. at 61.
In mid-November, Wehlage again entered a treatment program associated with St. Cloud
Hospital, and program costs were again covered by his ING-sponsored health insurance. Pl.
Suppl. Interrog. Ans. at 2. Wehlages doctor told ING in late November that the treatment
program would last until the end of February 2006. Warner Aff. Supp. Pl. Mot. S.J. Ex. Y at
WL 010162 [Docket No. 22].
At the end of January 2006, Wehlage completed the first phase of the treatment program
and entered its second phase, which required intensive ongoing outpatient treatment. Warner
Aff. Supp. Pl. Mot. S.J. Ex. B. In mid-February, Wehlages doctor revised his estimate of
Wehlages treatment needs and said that he would need time off work for treatment through
May 2006. Warner Aff. Supp. Pl. Mot. S.J. Ex. Y at WL 010163. In mid-May, Wehlages
doctor again revised his estimate, this time saying that Wehlage would need time off work for
treatment through October 2006. Id. at WL 010164.
Meanwhile, in mid-February, at the suggestion of employees of INGs human-resources
department, Wehlage applied for long-term-disability benefits under his ING-sponsored
insurance policy. Wehlage Dep. at 139-40; Ella Aff. Supp. Def. Mot. S.J. Ex. 4 (Rizzo Dep.)
at 53-58. His application was approved on March 8, and he received benefits retroactively to
mid-February. Warner Aff. Supp. Pl. Mot. S.J. Ex. X at ING 0185.
Miriam Rizzo, an employee in INGs human-resources department who was responsible
for administering benefits, then informed Wehlage, by a letter dated March 27, that he was fired
as of March 1. Id. at WL 260037. Rizzo said that Wehlages FMLA leave had been exhausted on
January 10, 2006. She implied that by applying for, and receiving, long-term-disability benefits,
Wehlage had caused himself to be fired. She wrote: As of February 16, 2006, you were
approved for long term disability . . . and therefore your employment with [ING] has been
terminated effective March 1, 2006. Id. ING has never contended that Wehlage was fired
because of poor performance.
Wehlage finished the second phase of his treatment program at the end of March and
moved on to the third phase, which involved less-intensive outpatient treatment. Pl. Suppl.
Interrog. Ans. at 2. He completed that portion of the program in early October 2006. Id. His
long-term-disability benefits ran out in early July 2006, and in December 2006, Wehlage took a
new full-time job at Medtronic Corporation. Wehlage Dep. at 103.
In late March 2007, Wehlage sued ING in state court, and ING removed the case to this
Court in early April. Wehlages amended complaint raises a single claim: He contends that by
firing him, ING violated Minnesotas DATWA, Minn. Stat. 181.950-.957.
A. Summary Judgment
1. Standard of Review
Summary judgment is appropriate if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A dispute over
a fact is material only if its resolution might affect the outcome of the suit under the governing
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a
fact is genuine only if the evidence is such that a reasonable jury could return a verdict for
either party. Ohio Cas. Ins. Co. v. Union Pac. R.R., 469 F.3d 1158, 1162 (8th Cir. 2006). In
considering a motion for summary judgment, a court must view the evidence and the inferences
that may be reasonably drawn from the evidence in the light most favorable to the non-moving
party. Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir. 2004).
2. Liability Under Minnesotas DATWA
Minnesotas DATWA both limits the ability of employers to subject their employees to
drug tests and restricts how employers may use the results of such tests. The parties do not
dispute that ING acted lawfully when Donat asked Wehlage to submit to a drug test in November
2005. But Wehlage contends that because he entered a treatment program after that test,
DATWA prohibited ING from firing him while he was in that program, and ING therefore
violated DATWA when it fired him in March 2006. Pl. Mem. Supp. Mot. Partial S.J. & Mot.
Amend (Pl. SJ Mem.) at 2, 16-18[Docket No. 21]. The Court agrees.
A confirmatory test is simply a second te 1 st done on the same specimen after a first
initial screening test has come back positive. From a practical perspective, the confirmatory
test result is the only result that matters, since every positive initial screening test is followed by a
confirmatory test. See Minn. Stat. 181.953 subd. 10(a) (An employer may not discharge,
discipline, discriminate against, or request or require rehabilitation of an employee on the basis
of a positive test result from an initial screening test that has not been verified by a confirmatory
Under Minnesota law, most employment is at-will, and thus employees can be fired for
any reason or no reason with rare exceptions. See, e.g., Martens v. Minn. Mining & Mfg. Co.,
616 N.W.2d 732, 741 (Minn. 2000). One of those rare exceptions is found in subdivision 10 of
181.953 of the Minnesota Statutes, which limits the right of employers to fire or otherwise
discipline employees based on the results of a drug test. Minn. Stat. 181.953 subd. 10.
Specifically, subdivision 10(b) of 181.953 provides:
[A]n employer may not discharge an employee for whom a positive
test result on a confirmatory test was the first such result for the
employee on a drug or alcohol test requested by the employer
unless the following conditions have been met:
(1) the employer has first given the employee an
opportunity to participate in, at the employees 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).1
The parties do not dispute that when Wehlages November 2005 drug test came back
positive, that result was Wehlages first such [positive] result . . . on a drug or alcohol test
requested by [ING]. The only question, then, is whether, before firing Wehlage, ING met the
two conditions specified in subsections (1) and (2) of subdivision 10(b).
Subsection (1) forbids an employer to fire an employee based on a first positive drug test
unless the employer has first given the employee an opportunity to participate in a treatment
program. According to ING, nothing in subdivision 10(b) requires that the employer offer this
opportunity after the positive drug test. And in this case, ING contends that the treatment
program that Wehlage attended voluntarily in August 2005 counts as the opportunity for
treatment mandated under subsection (1). Def. Mem. Supp. Mot. S.J. (Def. SJ Mem.) at 11
[Docket No. 25]. ING further contends that Wehlage failed to successfully complete the
program under subsection (2) because his November 2005 drug test was a positive test result
on a confirmatory test after completion of the program. See Minn. Stat. 181.953 subd.
10(b)(2). Thus, says ING, it was not forbidden to fire Wehlage under subdivision 10(b). Def. SJ
Mem. at 10-11.
Although subdivision 10(b) is awkwardly worded, the Court finds, for two reasons, that
the opportunity for treatment referred to in subsection (1) must be offered after an employees
first positive drug test. First, subsection (1) itself specifies that the treatment opportunity must be
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[.] Minn. Stat.
181.953 subd. 10(b)(1) (emphasis added). This language anticipates that the employer will
have a say in what type of treatment the employee will receive. But if the employee enters
treatment voluntarily, before he is subjected to a drug test, the employer will generally not have a
say in the employees treatment program. In this case, for example, ING had no input with
respect to the treatment program Wehlage attended in August 2005.
Second, and more important, INGs proposed interpretation of subdivision 10(b)
implausibly collapses the distinction between the two drug tests referred to in the statute. By its
terms, subdivision 10(b) limits an employers right to fire an employee based on the employees
first positive result on a drug test requested by the employer. And under subdivision 10(b)(2), if
an employee has a positive drug test after completion of the program, this test result establishes
that the employee failed to successfully complete the program and can therefore be fired.
Under INGs interpretation of the statute, Wehlages positive drug test in November 2005 was
both the test that showed that his treatment in August was unsuccessful, and his first positive test
result on an ING-requested drug test.
The statute plainly implies, however, that the two tests referred to in subdivision 10(b)
the first employer-requested test that comes back positive, and the post-treatment test that shows
that treatment failed are distinct. One test is referred to in subdivision 10(b) itself, while the
other is referred to in subdivision 10(b)(1). But if a single test could satisfy both
subdivision 10(b) and subdivision 10(b)(1), then the statute would mean:
An employer may discharge an employee after a first positive
result on a confirmatory test requested by the employer if that first
positive result occurs after completion by the employee of a drug-
or alcohol-treatment program that the employer gave the employee
an opportunity to attend, even if the treatment program was not
offered in response to a positive confirmatory test.
Such an interpretation would be contrary to the structure of subdivision 10(b) of 181.953,
which mentions, in order, (1) a first positive test result, (2) a treatment program implicitly offered
after that result, and (3) the employees refusal or failure to complete that program.
Moreover, such an interpretation would put an employee who voluntarily seeks treatment
before being tested that is, an employee who recognizes and seeks help for his problem on his
own initiative in a worse position than an employee who seeks treatment only after he tests
positive on a drug test that his employer forces him to take. Under INGs interpretation of
subdivision 10(b), a single positive result on a drug test can authorize an employer to fire an
employee, provided the employee went through treatment at some point possibly years earlier
before he tested positive. But under this same interpretation, an employee who did not go
through treatment and whose drug use is revealed by a positive drug test cannot be fired based on
a single positive result on a drug test. Instead, that employee must be offered an opportunity for
treatment, and (assuming he completes the treatment program) can only be fired after a second
positive drug test shows that the treatment failed. As ING would have it, the more-responsible
employee would get one strike, while the less-responsible employee would get two.
Such a perverse result does not follow from the most natural reading of subdivision 10(b),
and the Court does not believe that the Minnesota legislature intended that the statute be
interpreted as ING proposes. Rather, the Court holds that subdivision 10(b) contemplates that
employees who test positive on an employer-mandated drug test must then be given the
opportunity to go to drug treatment.
This is not to say that an employer such as ING must allow an employee to remain in
treatment indefinitely. But subdivision 10(b)(1) already gives employers some control over how
long a treatment program will last: Before firing an employee after a first positive drug test, the
employer must allow the employee to attend 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[.] Minn. Stat. 181.953 subd. 10(b)(1) (emphasis added). Moreover, it is well
established that DATWA does not limit the ability of employers to fire employees for reasons
unrelated to testing positive for drugs. See, e.g., City of Minneapolis v. Johnson, 450 N.W.2d
156, 160 (Minn. Ct. App. 1990) (holding that Minn. Stat. 181.953 subd. 10 prohibits
discharge based on an initial drug test, but does not prohibit a discharge based only upon other
reliable evidence).
In this case, Wehlages doctor first estimated that because of his treatment program, he
would be unable to work from November 2005 through February 2006, or for roughly four
months. Warner Aff. Supp. Pl. Mot. S.J. Ex. Y at WL 010162. In mid-February, the doctor
revised his estimate, saying that Wehlage needed time off for treatment through May 2006. Id. at
WL 010163. And in mid-May, the doctor revised his estimate again, saying that Wehlage would
need time off for treatment through October 2006. Id. at WL 010164.
Even if Wehlage was unable to work for eleven months (i.e., from November 2005
through October 2006), he was not deprived of the protections of DATWA. If the Minnesota
legislature had desired, it could have easily allowed employers to fire not only employees who
failed to complete their treatment programs (as permitted under subdivision 10(b)(2)), but also
employees who remained in a treatment program longer than a certain period of time. But
DATWA contains no such time limit; instead, it controls the length of treatment only indirectly,
by allowing the employer to determine, in consultation with health-care professionals, what type
of treatment program is appropriate. Accordingly, the Court will not read a time limit into the
statute in this case.
Because DATWA required ING to allow Wehlage to participate in a treatment program
after his first positive drug test in November 2005, DATWA implicitly prohibited ING from
firing Wehlage for absenteeism while he was participating in that program. The Court therefore
rejects INGs contention that it justifiably fired Wehlage for absenteeism. See Def. SJ Mem. at 8.
Absenteeism that results from an employees attendance at a treatment program in accordance
with subdivision 10(b) is not an independent basis for termination apart from the positive drugtest
result that led to the treatment.
Wehlage is therefore entitled to summary judgment that ING violated DATWA by firing
him in March 2006. The extent of his damages remains an issue for trial.
B. Punitive Damages
Punitive damages are generally available under Minnesota law only upon clear and
convincing evidence that the acts of the defendant show deliberate disregard for the rights or
safety of others. Minn. Stat. 549.20 subd. 1(a). Further, as a procedural matter, plaintiffs may
seek punitive damages under Minnesota law only with the courts permission. Minn. Stat.
549.191. A court must grant such permission if the plaintiff provides prima facie evidence in
support of the motion . . . . Id.
2Donat also plainly misunderstood what type of drug testing DATWA authorized: He
characterized the November 2005 drug test that he asked Wehlage to take as a random test, when
it was in fact a treatment program test. Donat Dep. at 40-47; Minn. Stat. 181.951 subd. 4
(authorizing random testing), subd. 6 (authorizing treatment program testing). Because the test
was in fact authorized by DATWA, this misunderstanding, by itself, is unimportant. But it
reinforces the fact that Donat had, at best, a shaky grasp of DATWA.
In light of the substantive standard for the award of punitive damages, prima facie
evidence sufficient to allow a plaintiff to seek punitive damages is evidence that, if believed,
would allow a jury to find by clear and convincing evidence that the defendant acted with
deliberate disregard. See McKenzie v. N. States Power Co., 440 N.W.2d 183, 184 (Minn. Ct.
App. 1989); see also Bjerke v. Johnson, 727 N.W.2d 183, 196 (Minn. Ct. App. 2007) (citing
McKenzie). In determining whether prima facie evidence supports a punitive-damages claim, the
court must accept the plaintiffs evidence as true. See Swanlund v. Shimano Indus. Corp., 459
N.W.2d 151, 154 (Minn. Ct. App. 1990); see also Olson v. Snap Prods., Inc., 29 F. Supp. 2d
1027, 1034 (D. Minn. 1998).
Wehlages evidence demonstrates that although INGs employee handbook included a
drug-testing policy based on DATWA, the employees involved in the decision to fire Wehlage
gave no thought to that policy before firing him. Donat, the human-resources employee who
asked Wehlage to submit to a drug test, could not recall whether he reviewed INGs DATWAbased
policy when ING decided to fire Wehlage. Donat Dep. at 27. Indeed, Donat seems to have
had no idea whether DATWA limited INGs ability to fire an employee who was in a drugtreatment
program. Id. at 24-27.2
Miriam Rizzo, a benefits manager at INGs Delaware office, was the person who decided
to fire Wehlage in March 2006. Rizzo Dep. at 62. She based her decision on the fact that
Wehlages FMLA leave had expired and she did not know when he intended to come back to
work. Id. at 66-67.
Although Rizzo was aware that Wehlage was off work because he was in drug treatment,
she did not consider DATWA in deciding to fire him. Id. at 48, 52, 67. Indeed, Rizzo was
unaware that DATWA existed. Id. at 48. Notwithstanding the fact that she was responsible for
INGs employees in Minnesota, Rizzo ignored the section of INGs employee manual discussing
Minnesotas DATWA because she personally was a Delaware employee. Id. at 50-51.
Further, Wehlages superiors in the IT department did not consider whether DATWA
limited INGs ability to fire him. Ken Przywara, Wehlages immediate supervisor, knew nothing
about DATWA and had only a vague understanding of INGs corporate drug-testing policy. Ella
Aff. Supp. Def. Mot. S.J. Ex. 3 (Przywara Dep.) at 20, 27, 42-44, 74. Likewise, Przywaras
boss, Cynthia Allen, knew nothing about DATWA. Aff. Supp. Def. Mot. S.J. Ex. 5 (Allen
Dep.) at 29. And both Przywara and Allen left the decision to fire Wehlage entirely to Rizzo.
Przywara Dep. at 71-72 (I was not aware, as his supervisor, that his that he was
terminated.), 82; Allen Dep. at 39 (I didnt think he was terminated.), 55.
In short, there is no evidence in the record that any of those who were actually or
potentially involved in deciding to fire Wehlage gave a moments thought to DATWA, despite
the fact that INGs employee manual contains a section on DATWA. Perhaps Rizzo discussed
DATWAs implications with respect to Wehlage with INGs in-house counsel, but ING asserted
the attorney-client privilege as to such discussions, so there is no evidence regarding what Rizzo
may or may not have asked, or what an attorney may or may not have told her. Rizzo Dep. at 63-
66. The Court therefore finds, based on the evidence in the record, that Wehlage has made a
prima facie showing that ING acted with deliberate disregard for his rights under DATWA.
Wehlage is entitled to add a claim for punitive damages to his complaint.
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
1. The motion of defendant ING Bank, FSB, for summary judgment [Docket No. 23]
2. The motion of plaintiff David Wehlage for partial summary judgment as to the
liability of defendant ING Bank, FSB, for violating DATWA [Docket No. 19] is
3. The motion of plaintiff David Wehlage for leave to amend his complaint to add a
claim for punitive damages [Docket No. 19] is GRANTED. Wehlage is directed
to file and serve a copy of his amended complaint within ten days.
Dated: November 5, 2008 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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