McClure v. Conocophillips Co., 103,199.

• Decision Date: 20 June 2006
• Docket Number: No. 103,199.,103,199.
• Citation: 2006 OK 42,142 P.3d 390
• Parties: Daniel J. McCLURE, Plaintiff, v. CONOCOPHILLIPS COMPANY, Defendant.
• Court: Oklahoma Supreme Court

Page 390

142 P.3d 390

2006 OK 42

Daniel J. McCLURE, Plaintiff, v. CONOCOPHILLIPS COMPANY, Defendant.

No. 103,199.

Supreme Court of Oklahoma.

June 20, 2006.

Certified Question of Law from the United States District Court for the Northern District of Oklahoma.

¶ 0 The United States District Court for the Northern District of Oklahoma certified a single first impression question of Oklahoma law under the Revised Uniform Certification of Questions of Law Act, 20 O.S.2001 §§ 1601, et seq. The reformulated question asks:

Whether the Oklahoma Standards for Workplace Drug and Alcohol Testing Act

(Testing Act), 40 O.S.2001 § 551 et seq. and the administrative rules promulgated pursuant thereto, allow an employer, using an approved evidential breath testing (EBT) device, to confirm an initial positive alcohol test by a second test performed using the same EBT on a different breath sample?

We answer the question, "yes."

CERTIFIED QUESTION ANSWERED.

David R. Blades, Armstrong & Lowe, P.C., Tulsa, OK, for plaintiff.

Steven A. Broussard, Robert A. Fitz-Patrick, Stephanie T. Gentry, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, OK, for defendant.

WATT, C.J.

¶ 1 The United States District Court for the Northern District of Oklahoma certified a single first impression question of Oklahoma law to this Court under the Revised Uniform Certification of Questions of Law Act, 20 O.S.2001 §§ 1601, et seq. As reformulated,¹ the question is:

Whether the Oklahoma Standards for Workplace Drug and Alcohol Testing Act (Testing Act), 40 O.S.2001 § 551 et seq. and the administrative rules promulgated pursuant thereto, allow an employer, using an approved evidential breath testing (EBT)² device, to confirm an initial positive alcohol test by a second test performed using the same EBT on a different breath sample?

We answer the question "yes." Our determination is supported by: the regulatory scheme as applied to ambiguous statutory language; rules of statutory construction; and extant jurisprudence.

CERTIFIED FACTS³ AND PROCEDURAL BACKGROUND

¶ 2 The plaintiff, Daniel J. McClure (McClure/employee), began working for the defendant, ConocoPhillips Company (ConocoPhillips/employer), in May of 1978. On February 7, 2005, after being contacted by Ruth Betts, the employer's breath alcohol technician (BAT)⁴ responsible for random alcohol and drug testing⁵ for the employer, McClure submitted to an alcohol breath test.

¶ 3 The employee's initial alcohol test was conducted at approximately 10:00 a.m. using an EBT—a device which analyzes breath samples and calculates the blood alcohol concentration level. The first test indicated that the employee had a blood alcohol level of 0.055 gm/dl. Between fifteen and twenty minutes later — after the EBT tested an "air blank" demonstrating a reading of 0.00 gm/dl, McClure submitted to a second test on the same EBT device as utilized for the initial test. The second test showed the employee with a blood alcohol level of 0.053 gm/dl. At approximately 1:00 p.m. on the same day, McClure had a blood specimen collected for an independent alcohol analysis. The test indicated a serum alcohol concentration of .0286 g/dl. It is undisputed that the two tests conducted by ConocoPhillips exceeded the employer's policy level of 0.04 gm/dl and the Oklahoma Health Department's level of 0.02 gm/dl.⁶

¶ 4 The question certified arises from ConcocoPhillips' termination of McClure on February 8, 2005. The employee filed a complaint in the federal district court on April 14, 2005, alleging violation of the Testing Act and wrongful discharge. McClure sought: declaratory relief to determine the rights, status and other legal relationships between the parties; compensatory and punitive damages along with lost wages or, in the alternative, reinstatement with full benefits and salary; and costs and attorney fees. On November 10, 2005, McClure moved for summary judgment asserting that ConocoPhillips violated the Testing Act by failing to perform a confirmation test on the same breath sample using a different chemical means of equal or greater scientific reliability than the initial screening. Also on the 10th, the employer filed its motion for summary judgment arguing that the tests resulting in the employee's termination were conducted in full compliance with the Testing Act and the administrative rules promulgated pursuant thereto.⁷

¶ 5 Recognizing that the lawsuit involved an issue of first impression Oklahoma law, the parties joined in a certification motion. On March 10, 2006, the federal court certified the question to this Court pursuant to the Revised Uniform Certification of Questions of Law Act, 20 O.S.2001 §§ 1601, et seq. We set a briefing cycle which was concluded on May 9, 2006, with the simultaneous filing of McClure's reply brief and ConocoPhillips' response brief.

DISCUSSION

¶ 6 a. Neither the Oklahoma Standards for Drug and Alcohol Testing Act, 40 O.S. 2001 § 551 et seq., nor the administrative rules promulgated pursuant thereto, require an employer to confirm an initial positive breath alcohol test by a second test performed using a different evidential breath testing (EBT) device on the same breath sample initially collected.

¶ 7 McClure does not attack the BAT's qualifications or the procedures she utilized. Neither does the employee contest the results of either the initial or the second EBT test, nor does he allege that the device utilized was not an approved testing machine or that it malfunctioned. Rather, he argues that his termination violated the Testing Act for the reason that his initial blood alcohol test was not confirmed as contemplated by the Act.⁸ Because the second test was conducted utilizing the same EBT on a different breath sample than the initial test, he asserts that the second test did not meet the definition of a "confirmation test"⁹ within the meaning of the Testing Act. ConocoPhillips contends that neither the Testing Act nor the administrative rules promulgated in its support require an employer to confirm an initial positive breath alcohol test result by a second test performed using a different EBT on the same breath sample. We agree with this contention.

¶ 8 1) The Legislature's utilization of the phrase requiring that a test result be "confirmed" before an employee is subject to dismissal pursuant to 40 O.S.2001 § 562 rather than referring to the statutorily defined term, "confirmation test," contained in 40 O.S. Supp.2005 § 552 creates an ambiguity subject to statutory construction.

¶ 9 In 1993, the Oklahoma Legislature enacted the Oklahoma Standards for Workplace Drug and Alcohol Testing Act, 40 O.S.2001 § 551 et seq. The Legislature designated the State Board of Health (Board of Health) as the entity to implement and enforce the Act, granting it the "power and duty to promulgate, prescribe, amend and repeal rules for . . . the establishment and regulation of minimum testing standards and procedures . . .".¹⁰ Furthermore, the Legislature specifically provided that employers choosing to conduct drug or alcohol testing of job applicants or employees should be governed by the Testing Act's provisions and the rules promulgated pursuant thereto.¹¹ In 1994, the Board of Health responded to the legislative directive by enacting a comprehensive set of rules for drug and alcohol testing.

¶ 10 The employee contends that two statutory provisions control the cause. First, he directs us to 40 O.S.2001 § 562 providing in pertinent part:

"A. No disciplinary action, except for a temporary suspension or a temporary transfer to another position, may be taken by an employer against an employee based on a positive test result unless the test result has been confirmed by a second test using gas chromatography, gas chromatography-mass spectroscopy, or an equivalent scientifically accepted method of equal or greater accuracy as approved by rule of the State Board of Health, at the cutoff levels determined by Board rule. . . ." [Emphasis added.]

Second, he finds support in 40 O.S. Supp. 2005 § 552 providing in pertinent part:

". . . 4. `Confirmation test' means a drug or alcohol test on a sample to substantiate results of a prior drug or alcohol test on the same sample and which uses different chemical principles and is of equal or greater accuracy than the prior drug or alcohol test . . ." [Emphasis provided.]

¶ 11 McClure stresses that the highlighted language is clear and unambiguous and not subject to judicial interpretation.¹² He argues that the statutory definition of a "confirmation test" as being on the same sample utilizing different chemical principles clearly negates the employer's utilization of the same EBT on a different breath sample as a basis for his termination. ConocoPhillips emphasizes that the statutorily defined term is not utilized in 40 O.S.2001 § 562 which refers instead to a "test result [which] has been confirmed." The employers' position is that there is an ambiguity in the statutes requiring this Court's interpretation.

¶ 12 In determining whether a statute applies to a given set of facts, we focus on legislative intent¹³ which controls statutory interpretation.¹⁴ Intent is ascertained from the whole act in light of its general purpose and objective¹⁵ considering relevant provisions together to give full force and effect to each.¹⁶ The Court presumes that the Legislature expressed its intent and that it intended what it expressed.¹⁷ Statutes are interpreted to attain that purpose and end¹⁸ championing the broad public policy purposes underlying them.¹⁹ Only where the legislative intent cannot be ascertained from the statutory language, i.e. in cases of ambiguity or conflict, are rules of statutory construction employed.²⁰ If a statute is ambiguous, we may defer to an administrative agency's interpretation.²¹

¶ 13 The language of the two statutes is not so clear as to be beyond interpretation. We recognize that the Legislature may always...