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Polinski v. Sky Harbor Air Service2/13/2001
(not designated for permanent publication)
(not designated for permanent publication)
Appeal from the District Court for Douglas County: Michael McGill, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.
I. INTRODUCTION
Jeffrey J. Polinski appeals from an order of the district court granting a motion for summary judgment filed by Sky Harbor Air Service, Inc. (Sky Harbor), in this action brought by Polinski. Polinski asserts that his employment with Sky Harbor was wrongfully terminated after he tested positive for marijuana in a drug test ordered by Sky Harbor. Because we find Sky Harbor succeeded in establishing a prima facie case for summary judgment on Polinski's causes of action for violation of his right to privacy and for impermissible disclosure of the drug test results, we affirm the summary judgment concerning those two causes of action. Because we find Sky Harbor failed to establish a prima facie case for summary judgment concerning Polinski's cause of action based on a failure to properly validate the initial drug test results, we reverse, and we remand the case for further proceedings concerning that cause of action.
II. BACKGROUND
Polinski was employed by Sky Harbor as a lineman and was also employed by United Airlines as a ramp serviceman. In late February 1996, Sky Harbor conducted drug tests on its employees, and Polinski's employment was terminated for his allegedly failing one of the tests. As a result of the termination, a security badge of Polinski's was revoked, resulting in Polinski's also losing his employment with United Airlines.
On August 28, 1996, Polinski filed a petition in the district court. In the petition, Polinski asserted three causes of action against Sky Harbor. First, Polinski asserted that his employment with Sky Harbor was wrongfully terminated in contravention of his statutory right to privacy, as set forth in Neb. Rev. Stat. § 20-203 (Reissue 1997). Second, Polinski asserted that his employment with Sky Harbor was wrongfully terminated in contravention of the Nebraska drug and alcohol testing statutes, Neb. Rev. Stat. § 48-1901 et seq. (Reissue 1993 & Cum. Supp. 1994). Third, Polinski asserted Sky Harbor impermissibly released or disclosed the drug test results to the public, specifically to the Omaha Airport Authority, in contravention of § 48-1906.
On February 5, 1999, Sky Harbor filed a motion for summary judgment. At the hearing on Sky Harbor's motion for summary judgment, Sky Harbor offered, and the court received, depositions of various Sky Harbor and Omaha Airport Authority employees, a deposition of Polinski, and an affidavit from a medical technologist from the laboratory that conducted the drug test in question. Polinski specifically objected to the medical technologist's affidavit, asserting that the affidavit failed to establish that the affiant possessed personal knowledge of the information asserted in the affidavit. The court overruled Polinski's objection and received the affidavit. In opposition to the summary judgment motion, Polinski offered various depositions.
On November 2, 1999, the district court entered an order granting Sky Harbor's motion for summary judgment. The court found that the evidence presented at the summary judgment hearing established that Polinski had signed various documents evidencing his consent to the drug test and that accordingly, his wrongful termination claim premised upon invasion of privacy was barred. The court found there were no genuine issues of material fact "as to any of the causes of action" and granted the motion for summary judgment. Polinski filed this timely
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