Polinski v. Sky Harbor Air Service, Inc.

• Decision Date: 15 March 2002
• Docket Number: No. S-99-1358.,S-99-1358.
• Citation: 263 Neb. 406,640 N.W.2d 391
• Parties: Jeffrey J. POLINSKI, Appellant, v. SKY HARBOR AIR SERVICE, INC., a Nebraska corporation, Appellee.
• Court: Nebraska Supreme Court

640 N.W.2d 391

263 Neb. 406

Jeffrey J. POLINSKI, Appellant, v. SKY HARBOR AIR SERVICE, INC., a Nebraska corporation, Appellee.

No. S-99-1358.

Supreme Court of Nebraska.

March 15, 2002.

Thomas J. Young, Omaha, for appellant.

Patrick J. Barrett, of McGrath, North, Mullin & Kratz, P.C., Omaha, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

Jeffrey J. Polinski filed a petition in the district court for Douglas County seeking various damages against Sky Harbor Air Service, Inc. (Sky Harbor). His petition generally alleged a violation of his statutory right to privacy, wrongful termination of employment, and improper disclosure of an employment-related drug test. Following an evidentiary hearing, the district court sustained Sky Harbor's motion for summary judgment on each of Polinski's three enumerated causes of action and ordered the petition dismissed. Polinski appealed to the Nebraska Court of Appeals, which affirmed in part, and in part reversed, and remanded for further proceedings. Polinski v. Sky Harbor Air Serv., No. A-99-1358, 2001 WL 118595 (Neb. App. Feb.13, 2001) (not designated for permanent publication). Polinski petitioned for further review, which we granted. For reasons different from those articulated by the Court of Appeals, we affirm.

STATEMENT OF FACTS

Polinski began working for Sky Harbor in 1988 as a lineman refueling aircraft at Eppley Airfield in Omaha. With respect to this employment, there is neither an indication in the record suggesting the existence of contractual restrictions upon Sky Harbor's right as an employer to discharge Polinski nor any allegation of a constitutional or statutory prohibition on employment termination. We, therefore, treat Polinski as an at-will employee of Sky Harbor. See Dossett v. First State Bank, 261 Neb. 959, 627 N.W.2d 131 (2001).

Polinski worked as a lineman for Sky Harbor from 1988 until his employment was terminated in 1996. During the course of his employment with Sky Harbor, Polinski was also employed by United Air Lines, Inc. (United), as a ramp serviceman in United's area at Eppley Airfield. Both of these positions required that Polinski have an Omaha Airport Authority (OAA) "Eppley Airfield Identification and Access Control" badge authorizing Polinski to enter certain nonpublic areas at Eppley Airfield.

During his employment with Sky Harbor, Polinski was aware that the company had a drug-free workplace policy. On August 2, 1994, Polinski signed a copy of Sky Harbor's "Drug Free Workplace Policy," which stated that "[it] is unlawful to illegally manufacture, distribute, dispense, possess or use a controlled substance in the workplace." On November 1, 1995, he signed a copy of Sky Harbor's "Drug/Alcohol Free Workplace Policy Letter," indicating that he had read the letter and understood its contents. The letter stated that Sky Harbor employees could be terminated for being under the influence of drugs and that Sky Harbor reserved the right to randomly test employees for drugs when reasonable cause was present or as part of a postaccident investigation. The letter further stated that employees who refused to participate in the drug test could be disciplined up to and including being discharged.

In late February 1996, Sky Harbor was informed by its attorneys that OAA security was apparently preparing to bring members of the federal Drug Enforcement Agency to Sky Harbor to test Sky Harbor employees suspected of illegal drug use. As a result of this information and in an effort to avoid the disruption of work that would occur if the agency did conduct such an investigation, Sky Harbor decided to test essentially all of its employees for drugs. Sky Harbor informed OAA's chief of security of this decision. The primary employees not tested were pilots and mechanics who had been tested earlier.

On February 29, 1996, while at work, Polinski was advised by personnel at Sky Harbor that he and other Sky Harbor employees would be tested for the use of drugs. Polinski was tested for the use of drugs on February 29 at St. Joseph Hospital in Omaha. Prior to the test, Polinski executed a form labeled "Employee Consent and Waiver for Laboratory Testing" given to him by Sky Harbor (the Sky Harbor consent). In the Sky Harbor consent, Polinski "authorize[d] and [gave] full permission" to St. Joseph Hospital to conduct the drug test and to send the test results to Sky Harbor. While he was at St. Joseph Hospital, Polinski executed a "Drug Testing & Control Form" given to him by St. Joseph Hospital (the St. Joseph consent), which stated, in part, the following:

I hereby consent to have a specimen of my urine and/or blood taken, and I understand that it will be used for drug analysis by Saint Joseph Hospital Toxicology laboratory. The results of the tests on my specimen will then be made available to the above named company/employer [Sky Harbor] for employment evaluation only.

The results of the drug test indicated that Polinski had tested positive for marijuana. After receipt of these results, Sky Harbor terminated his employment on or about March 7, 1996. In a March 7 letter, Sky Harbor advised Polinski that his employment with the company had been terminated due to his violation of Sky Harbor's drug-free workplace policy and "extenuating circumstances."

As a result of its termination of Polinski's employment, Sky Harbor returned Polinski's identification badge to OAA. Because Polinski no longer possessed his OAA identification badge, he was not authorized to access those areas of Eppley Airfield where he had worked as a United employee, and United suspended Polinski from employment with pay. Ultimately, United terminated Polinski's employment when he was unable to regain his OAA identification badge.

On August 28, 1996, Polinski filed a petition against Sky Harbor alleging three numbered causes of action and seeking various damages. Polinski alleged (1) that the employment-related drug test resulting in his termination from his employment with Sky Harbor contravened his statutory right to privacy, Neb.Rev.Stat. § 20-203 (Reissue 1997); (2) that he had been wrongfully terminated from his employment with Sky Harbor in contravention of Nebraska drug and alcohol testing statutes, Neb.Rev.Stat. § 48-1901 et seq. (Reissue 1993 & Cum.Supp.1994); and (3) that Sky Harbor impermissibly disclosed the February 1996 employment-related drug test results to the "public," specifically to OAA, in contravention of § 48-1906.

On February 5, 1999, Sky Harbor filed a motion for summary judgment. The motion came on for hearing on July 28. During the hearing, the district court received 12 exhibits into evidence. The evidence included depositions from various Sky Harbor and OAA employees, Polinski's deposition, and an affidavit from a St. Joseph Hospital medical technologist concerning Polinski's drug test. The evidence included copies of documents which Polinski had signed, including the August 2, 1994, drug-free workplace policy, the November 1, 1995, drug/alcohol free workplace policy letter, the Sky Harbor consent, and the St. Joseph consent.

On November 2, 1999, the district court entered an order granting Sky Harbor's motion for summary judgment as to all of Polinski's enumerated causes of action. The district court found that the Sky Harbor consent Polinski signed prior to his drug test barred his right to privacy claim under § 20-203 as alleged in his first cause of action. The district court did not specifically discuss Polinski's second or third causes of action. Nevertheless, the court found there were no genuine issues of material fact "as to any of the causes of action," concluded that Sky Harbor was entitled to judgment as a matter of law, and ordered the petition dismissed.

Polinski appealed the district court's order to the Court of Appeals. In an unpublished opinion dated February 13, 2001, the Court of Appeals reversed the grant of summary judgment on the second cause of action pertaining to wrongful termination under the drug and alcohol testing statutes. The Court of Appeals, however, affirmed the district court's grant of summary judgment in favor of Sky Harbor with respect to the privacy-related first and disclosure-related third causes of action based mainly on its determination that Sky Harbor had offered uncontroverted evidence (1) that Polinski had consented to the drug testing, a defense to the first cause of action, and (2) that Polinski had consented to the release of the test results to OAA, a defense to the third cause of action.

Polinski sought further review of those portions of the Court of Appeals' decision which affirmed the district court's grant of summary judgment in favor of Sky Harbor as to his first and third causes of action. Sky Harbor did not petition for further review of the Court of Appeals' decision reversing the district court's grant of summary judgment in favor of Sky Harbor as to Polinski's second cause of action. Therefore, the Court of Appeals' decision reversing the entry of summary judgment in favor of Sky Harbor on Polinski's second cause of action is not before us and remains in effect. We granted Polinski's petition for further review.

ASSIGNMENTS OF ERROR

In his petition for further review, Polinski claims, restated, that the Court of Appeals erred in its determinations (1) that Polinski had consented to the drug testing, a defense to the privacy-related first cause of action, and (2) that Polinski had consented to the release of the test results to OAA, a defense to the disclosure-related third cause of action.

STANDARD OF REVIEW

In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Skinner v. Ogallala Pub. Sch. Dist. No. 1, 262 Neb....