Estes v. Conocophillips Co.

• Decision Date: 04 March 2008
• Docket Number: No. 104,031.,104,031.
• Citation: 2008 OK 21,184 P.3d 518
• Parties: Dennis E. ESTES, Plaintiff, v. CONOCOPHILLIPS COMPANY, Defendant.
• Court: Oklahoma Supreme Court

184 P.3d 518

2008 OK 21

Dennis E. ESTES, Plaintiff, v. CONOCOPHILLIPS COMPANY, Defendant.

No. 104,031.

Supreme Court of Oklahoma.

March 4, 2008.

CERTIFIED QUESTIONS OF LAW FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA; Honorable Claire V. Eagan, District Judge

¶ 0 The United States District Court for the Northern District of Oklahoma certified two first impression questions of Oklahoma law under the Revised Uniform Certification of Questions of Law Act, 20 O.S.2001 §§ 1601-1611:¹

1. Under the 2005 version of the Oklahoma Standards for Workplace Drug and Alcohol Testing Act, are evidential breath tests to determine an employee's blood alcohol content,

laboratory services which must be confirmed by a licensed testing facility?

2. What is the standard to determine whether an employer has committed a willful violation of the Testing Act as the term in used in 40 O.S.2001 § 563(A)?

Evidential breath tests under the Testing Act are laboratory services which must be confirmed by a licensed testing facility before an employer may take disciplinary action in reliance on the test results. The term willful violation means conscious, purposeful violations or deliberate disregard of the Testing Act by those who know or should have known of its provisions.

QUESTIONS ANSWERED.

J. Vince Hightower, Broken Arrow, OK, for Plaintiff.

Steven A. Broussard, Robert P. Fitz-Patrick, Stephanie T. Gentry, Tulsa, OK, for Defendant.

KAUGER, J.

¶ 1 The United States District Court for the Northern District of Oklahoma certified two first impression questions of Oklahoma law:

1. Under the 2005 version of the Oklahoma Standards for Workplace Drug and Alcohol Testing Act, are evidential breath tests to determine an employee's blood alcohol content, laboratory services which must be confirmed by a licensed testing facility?

2. What is the standard to determine whether an employer has committed a willful violation of the Testing Act as the term in used in 40 O.S.2001 § 563(A)?

¶ 2 The plaintiff, Dennis E. Estes (Estes), a mechanical engineer, was employed by the defendant, ConocoPhillips Company (Conoco) for over thirty years. On the evening of May 23, 2005, his son came home from college, and Estes and his family celebrated with a family cookout, at which he drank beer and wine. On May 24, 2005, Estes arrived at work around 1:00 pm, and his supervisor asked him to submit to a drug and alcohol test, which, unbeknownst to Estes, had been scheduled several days prior, pursuant to Conoco's testing policy. There is no allegation that Estes appeared intoxicated, that he had ever been intoxicated at work, or that he had been anything but a model employee.

¶ 3 Estes was sent to Conoco's Ponca City Medical Clinic (the clinic), where a registered nurse utilized an "evidential breath testing device"² (EBT) to test Estes' blood alcohol content (BAC) at 1:30 pm. At the time of his test, it had been at least ten hours since Estes' last drink. The initial test results showed that Estes had a BAC of 0.076 gm/dl. At least fifteen minutes later, a second EBT indicated that Estes had a BAC of 0.064 gm/dl.³ The maximum allowable BAC under Conoco's testing policy was 0.04 gm/dl, a level 50% lower than Oklahoma's legal limit for operating a motor vehicle under the influence of alcohol: 0.08 gm/dl.⁴

¶ 4 When a police officer subjects an operator of a motor vehicle to an EBT, Oklahoma law mandates that a sufficient quantity of breath must be obtained and retained for 60 days so that the person may have an independent laboratory conduct a test on the sample preserved.⁵ However, the Testing Act does not require employers to use an EBT that retains a breath sample for retesting.⁶ The clinic used the Intoximeter Alcosensor IV, the least expensive EBT included in the BOH Rules' table of approved EBTs.⁷ The Intoximeter Alcosensor IV is a handheld device powered by a nine volt battery that is of the "blow through" variety, therefore, no sample of Estes' breath was collected which could be independently tested at a later date, and no sample of any bodily fluid was taken or preserved. Based solely on the EBT results and no other evidence, Conoco terminated Estes within an hour of the administration of the second EBT, and informed him that there was no procedure to appeal his dismissal. It is undisputed that, at the time, the clinic did not have a license to perform laboratory services under the Testing Act.⁸

¶ 5 On August 4, 2005, Estes filed a wrongful termination suit in the United States District Court for the Northern District of Oklahoma alleging that his employment was terminated in willful violation of the Testing Act. He sought injunctive relief to prevent Conoco from engaging in future testing and declaratory relief to reinstate him to his previous position. He also sought monetary damages including lost wages, compensatory damages for emotional distress and damage to his reputation, as well as attorney's fees, costs, and expenses. On August 25, 2005, Conoco moved to dismiss Estes' complaint for failure to state a cause of action under the Testing Act. On November 7, 2006, the federal court certified the questions to this Court.

I.

¶ 6 EVIDENTIAL BREATH TESTS ARE LABORATORY SERVICES WHICH MUST BE CONFIRMED BY A LICENSED TESTING FACILITY BEFORE AN EMPLOYER MAY TAKE DISCIPLINARY ACTION IN RELIANCE ON THOSE TEST RESULTS.

¶ 7 The Oklahoma Standards for Workplace Drug and Alcohol Testing Act (the Testing Act/the Act), 40 O.S. §§ 551-565, was enacted in 1993 to govern employers who test job applicants or employees for drugs or alcohol.⁹ The Testing Act enabled the Oklahoma State Board of Health (Board of Health) to promulgate rules for the licensure and regulation of testing facilities, and for the establishment of minimum testing standards and procedures.¹⁰ In 1994, the Board of Health enacted the Drug and Alcohol Testing Rules (BOH Rules), OAC 310:638.

¶ 8 The Testing Act sets out the requirements for licensure at 40 O.S.2001 § 558. It provides that no testing facility may provide laboratory services to an employer to test for the presence or absence of drugs or alcohol unless it meets the qualifications for testing facilities set by the Testing Act and the BOH Rules.¹¹ The Act defines the term "testing facility" as any clinic or facility which provides laboratory services to test for the presence of drugs or alcohol.¹² The term laboratory services is not defined either in the Testing Act or the BOH Rules. It is undisputed that the clinic was not licensed under the Testing Act at the time it administered the EBT, and Estes contends that because of this, Conoco was not entitled to terminate him based on the results of the EBT confirmation test performed at the clinic. Conoco counters that EBT are not laboratory services as contemplated by the Testing Act, and therefore do not require licensure.

¶ 9 The Testing Act requires that two tests be performed when an employer uses an EBT to test employees for alcohol, the first is called a screening test and the second is called a confirmation test.¹³ The BOH Rules repeatedly address confirmation tests for alcohol conducted using an EBT. BOH Rule 310:638-1-4(b)(2) provides, "Confirmation tests. Breath or blood shall be used for the confirmation test for alcohol." Rule 310:638-7-5 provides in pertinent part: "All positive initial alcohol screening tests shall be confirmed using breath analyzed by an EBT or blood analyzed by gas chromatography."¹⁴ Furthermore, alcohol confirmation tests conducted using an EBT are heavily regulated by BOH rules. BOH Rule 310:638-7-6 is entitled "Breath Alcohol Confirmation Tests," and contains two and a half pages of detailed regulations for conducting alcohol confirmation tests using an EBT.¹⁵ Throughout this rule, the acronym "EBT" is used forty-four times. In depositions, both Board of Health General Counsel Gary Gardenhire and Board of Health Director of Facility Services Dean Bay testified that the Board of Health has historically considered EBT to be a laboratory service requiring licensure.¹⁶

¶ 10 Pursuant to the Administrative Procedures Act, 75 O.S.2001 §§ 250-323, the Legislature may delegate rulemaking authority to agencies, boards, and commissions to facilitate the administration of legislative policy.¹⁷ Administrative rules are valid expressions of lawmaking powers having the force and effect of law.¹⁸ Administrative rules like statutes, are to be given a sensible construction.¹⁹

¶ 11 Statutory construction by agencies charged with the law's enforcement is given persuasive effect especially when it is made shortly after the statute's enactment.²⁰ Nevertheless, if the Legislature disagrees with an agency interpretation, it may: 1) delay, suspend, veto, or amend any rule or proposed rule by joint resolution; 2) disapprove a permanent or emergency rule at any time if it determines the rule to be inconsistent with legislative intent; or 3) make emergency rules ineffective through its disapproval.²¹ None of these actions have been taken by the Legislature in regard to the BOH rules. The Legislature's silence is evidence of the lawmakers' consent and adoption of the administrative construction.²²

¶ 12 This Court will show great deference to an agency's interpretation of its own rules.²³ When the terms of a regulation are amenable to more than one meaning, we ordinarily defer to the interpretation adopted by those charged with the duty of administration.²⁴ When choosing between two or more possible meanings of a regulation, controlling weight may be given to long-continued administrative usage unless it is plainly erroneous or inconsistent with the language.²⁵ Deference to an agency's interpretation is even more clearly in order when the construction is that of an administrative regulation rather than a statute.²⁶

¶ 13 It is clear that the Board of Health has interpreted alcohol confirmation tests utilizing EBT as laboratory...