IN THE COURT OF APPEALS OF IOWA
No. 1-1012 / 00-2018
Filed April 24, 2002
ARTISTIC SOLID WASTE SYSTEMS, INC.,
            Plaintiff-Appellant,
vs.
EMPLOYMENT APPEAL BOARD,
            Defendant-Appellee,
and
KELVIN HOWELL,
            Intervenor-Appellee.
                        Appeal from the Iowa District 
Court for Polk County, Linda R. Reade, Judge.
                        The employer appeals the district 
court’s ruling on judicial review of agency action
 affirming the award of unemployment benefits.  AF
FIRMED.
            Timothy McCarthy of McEnroe, McCarthy 
& Gotsdiner, P.C., West Des Moines, for appellant.

            Joseph Walsh of Hedberg, Owen & HedberDes 
g, P.C., Moines, for intervenor Kelvin Howell.
                        Anita Garrison, Des Moines
, for appellee Employment Appeal Board.
                        Considered by Vogel, P.J.,
 and Miller and Eisenhauer, JJ.
EISENHAUER, J.
            The petitioner, Artistic Sold Waste Systems 
of Iowa (Artistic), appeals the district court ruling 
affirming on judicial review the Employment Appeal
 Board’s decision affirming the award of unemployment 
benefits to Kelvin Howell.  Artistic contends:  (1
) the district court erred in concluding there was
 substantial evidence to support the agency’s findings 
that it failed to prove misconduct on the part of it 
Howell; (2) was not responsible for the laboratory
’s error in failing to preserve Howell’s drug test
 specimen; and (3) Howell’s request for a second drug 
retest was untimely.  We affirm.
            I.  Background Facts and Proceedings. 
 Howell was employed by Artistic from August 10, 1999 
until November 23, 1999.  On November 9, 1999, Howell 
injured his foot in a work-related incident.  As part 
of his treatment at the emergency room, Howell was
 prescribed Tylenol 3 for pain.  Artistic requested 
Howell submit to a drug test.  Howell complied with 
the request, and a urine sample was sent to LabOne
 for analysis.  Howell requested the sample be split 
to provide for a second analysis if necessary.  The 
test results indicated a trace amount of THC, a marijuana 
metabolite.  LabOne informed Howell of the test reand 
sults, Howell immediately requested a retest.  When 
informed of Howell’s test results, Artistic fired him 
for misconduct, pursuant to an informal company policy 
that any probationary employee who tests positive for 
a controlled substance will be discharged.
            Howell filed the paperwork for the retest 
and submitted the fee, but LabOne returned the paperwork 
stating it was improperly completed.  Howell’s attorney 
called LabOne and requested new paperwork be resenLabOne 
t.  received the resubmitted paperwork on January LabOne 
19, 2000.  However, had already destroyed Howell’s
 urine sample because more than forty-five days had 
elapsed since the date of the initial test, as provided 
in Iowa Code section 730.5(6)(b) (1999).
            Howell filed a claim for unemployment On 
benefits.  February 10, 2000, Iowa Workforce Development 
issued a claims decision stating that Howell was not 
eligible.  Howell appealed and an administrative law 
judge reversed, finding Artistic had failed to prove 
misconduct.  Artistic appealed to the Employment Appeal 
Board.  The Board affirmed the ALJ, concluding that 
although Artistic was not at fault for the sample being 
destroyed, it had to bear the burden of that error
.  On judicial review, the district court affirmed
 the Board’s ruling.  Artistic has appealed.
            II.  Scope of Review.  This court’s review 
of an agency decision is on error.  Eaton v. Employment 
Appeal Bd., 602 N.W.2d 553, 554 (Iowa 1999).  The s 
agency’decision is binding if substantial evidence
 supports the decision and it is not based upon an
 incorrect conclusion of law.  Id.  “Evidence is substantial 
when a reasonable mind would accept it as adequate
 to reach the same findings.”  Id.  The question is 
therefore not whether the evidence might support a
 different conclusion, but whether the evidence supports 
the findings actually made.  St. Luke’s Hospital v
. Gray, 604 N.W.2d 646, 649 (Iowa 2000).
            III.  Misconduct.  Artistic contends the 
district court erred in concluding there was substantial 
evidence to support the Board’s finding Artistic had 
failed to prove misconduct by Howell.  Artistic maintains 
it had a written policy which provided the option of 
termination for any employee that tested positive for 
drug use, and Howell’s failure to pass the initial
 test was sufficient to justify his termination.  

            Iowa Code section 96.5(2) provides that 
an employee discharged for misconduct is disqualified 
for unemployment benefits.  Iowa Administrative Code 
rule 871-24.32(1)(a) defines misconduct:
Misconduct is defined as a deliberate act or omission 
by a worker which constitutes a material breach of
 the duties and obligations arising our of such wos 
rker’contract of employment.  Misconduct as the term 
is used in the disqualification provision as being
 limited to conduct evincing such willful or wanton 
disregard of an employer’s interest as is found in
 deliberate violation or disregard of standards of
 behavior which the employer has the right to expect 
of employees, or in carelessness or negligence of such 
degree of recurrence as to manifest equal culpabilwrongful 
ity, intent or evil design, or to show an intentional 
and substantial disregard of the employer’s interests 
or of the employee’s duties and obligations to the
 employer.  On the other hand, mere inefficiency, unsatisfactory 
conduct, failure in good performance as the result
 of inability or incapacity, inadvertencies or ordinary 
negligence in isolated instances, or good faith errors 
in judgment or discretion are not to be deemed misconduct 
within the meaning of the statute.
Section 730.5 sets forth the rules by which a private 
company may screen its employees for use of illegal 
drugs.  Pursuant to section 730.5(1)(h), a company
 may test for drugs or alcohol “based upon evidence 
that an employee is using or has used alcohol or other 
drugs in violation of the employer’s written policy 
drawn from specific objective and articulable facts 
and reasonable inferences drawn from those facts in 
light of experience.”  The rules for such testing,
 however, must be in writing and apply uniformly to 
employees.  Iowa Code § 730.5(9)(b).  
Pursuant to section 730.5(7)(b), the company may obtain 
urine samples by splitting the sample into two components 
at the time of collection, the second specimen to afford 
the employee an opportunity to request a retest.  Both 
specimens are to be sent to the laboratory chosen by 
the employer, and the laboratory is required to store 
those samples for a period of at least forty-five calendar 
days following the completion of the initial confirmatory 
testing, if the first test revealed a positive test 
result.  Iowa Code § 730.5(7)(b).  The employee has 
the burden of seeking a retest if the initial test
 is positive.  Iowa Code § 730.5(7)(i)(1).  When a
 positive result is received, the employer must notify 
the employee of the test results by certified mail
.  Id.  Once the employee receives this notificatihe 
on, is entitled, upon notice and payment of fees, to 
request a second test.  Id.
           Did Artistic meet its burden of proof to 
show Howell’s actions constituted misconduct?  Howupon 
ell, being orally notified by Artistic management of 
the test results, denied using any illegal drugs and 
immediately contested the positive test results, claiming 
that the prescription drugs he was given at the hospital 
to treat his injured foot caused the results to falsely 
test positive for THC. He promptly requested a retest 
and sent in his fee and paperwork, despite Artistis 
c’failure to notify him by certified mail of the positive 
test results as required by section 730.5(7)(i)(1)
.  When LabOne informed Howell that his application 
was incomplete, his attorney immediately called LabOne 
and requested new paperwork.  LabOne received the new 
paperwork on January 19, 2000.  However, LabOne had 
disposed of Howell’s sample, and in a letter to Howell 
dated January 27, 2000, expressed its regret in inadvertently 
disposing of the contested sample.  All parties had 
actual notice that Howell contested the results of
 the first test and had requested a retest.  Howell 
consistently and clearly disputed the positive test 
results from the moment the first results were relayed 
to him.
           We also conclude that outside of the testimony 
that Howell was riding on the garbage truck on an incorrect 
manner, contributing to his foot injury, there is no 
evidence in the record suggesting that Howell’s job 
performance was somehow impaired as a result of consuming 
illegal drugs.  In Eaton, 602 N.W.2d at 557,the cls 
aimant’employer had warned him that his repeated absences 
and tardiness were affecting his job performance. 
 Eaton later tested positive for a controlled substance 
pursuant to a random drug test requested by the emand 
ployer, his employment was terminated.  Eaton, 602
 N.W.2d at 554.  On appeal, the supreme court reversed 
the denial of benefits, concluding the agency’s decision 
was not supported by substantial evidence because the 
employer did not have probable cause to believe Eaton 
was impaired on the job based on the drug test results 
alone.  Id. Thus, pursuant to Eaton, a party must show 
that the employee’s job performance had specifically 
been affected or that the employee manifested symptoms 
of illegal drug use.       
Like the employer in Eaton, Artistic has failed to
 show any “articulable facts and reasonable inferences 
drawn from those facts” supporting their claim Howell 
was impaired on the job at the time it requested he 
submit to drug testing.  See Iowa Code § 730.5(1)(Howell 
h).  did not refuse to take the drug test.  He complied 
with Artistic’s request and consistently disputed the 
test results.  Howell was unable to obtain a second 
test because of LabOne’s inadvertent error and was
 thus not afforded an opportunity to effectively challenge 
his termination.             Based on these particular 
facts, we therefore conclude there was substantial
 evidence to support the district court’s ruling affirming 
the agency’s decision on this issue.  We therefore
 affirm.
AFFIRMED.