Tunde Oni, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1219

Tunde Oni,
Appellant,

vs.

Target Corporation,
Respondent.

Filed May 3, 2021
Affirmed
Cochran, Judge

Hennepin County District Court
File No. 27-CV-19-11468

Daniel Gray Leland, Leland Conners PLC, Minneapolis, Minnesota (for appellant)

Katie M. Connolly, Nilan Johnson Lewis PA, Minneapolis, Minnesota (for respondent)

Considered and decide d by Cochran, Presiding Judge; Gaïtas, Judge; and
Peterson, Judge.

NONPRECEDENTIAL OPINION
COCHRAN, Judge
Respondent-employer terminated appellant ’s employment after appellant tested
positive for alcohol during work hours. Appellant brought an action in the district court,
alleging breach of contract and violations of the Minnesota Drug and Alcohol Testing in

 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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the Workplace Act (DATWA), Minn. Stat. §§ 1 81.950-.957 (2020). The district court
granted respondent-employer’s motion for su mmary judgment and denied appellant’s
motion for partial summary judgment. Appellant asks this court to reverse the district
court’s summary-judgment order, arguing that th e district court erred by (1) concluding
that respondent-employer did not violat e DATWA by disciplining appellant, and
(2) rejecting appellant’s argument that respondent-employer’s policy does not comply with
DATWA on its face. Because we conclude that appellant ’s first argument fails to
demonstrate a violation of DATWA and that appellant forfeited his second argument, we
affirm.
FACTS
In August 2017, respondent -employer Target Corporation (Target) hired appellant
Tunde Oni as a seasonal, at -will employee at its Fridley distribution center. Oni’s
employment was limited to 175 days, but Oni wa s eligible for consideration as a regular
employee following the end of his seasonal employment. As part of his employment offer,
Oni signed Target’s “Minnesota Distribu tion Center Drug Free Workplace Policy”
(Target’s DFW Policy).
On October 30, 2017, Oni arrived at th e distribution center at approximately
6:00 p.m. for a 12-hour overnight shift. About two hours later, a manager called Oni into
a conference room and informed Oni that his breath smelled like alcohol. Oni was then
asked to take a drug and alcohol test, and he agreed. The testing involved both a urine
sample and a blood sample. Before taking the test, Oni again signed Target’s DFW Policy
and also signed a “Drug Test Consent” form, in which he acknowledged that he received a

3
copy of Target’s DFW Policy. Following th e test, Oni was placed on unpaid leave while
he awaited the results.
Through Target’s third-part y testing provider First Adva ntage, Target sent Oni’s
blood sample to Labcorp/MedTox Laboratories in St. Paul. Oni’s sample tested positive
for alcohol and showed an alcohol concentration of 0.014. The testing laboratory informed
Target of Oni’s positive test result on November 15, 2017.
Also on November 15, 2017, a Target human resources (HR) representative called
Oni and requested an in-person conference at the distribution center. The parties met the
following day, and the HR representative presen ted Oni with: a copy of the test result
report, a document titled “Confidential Corrective Action,” and a letter explaining that both
an initial test and a confirmatory test had returned a positive result for alcohol. The letter
further explained that because of Oni’s positiv e result, he “may be subject to corrective
action, up to and including termination.” The HR representative th en informed Oni of
options he could take to avoi d termination. As also e xplained in the letter and the
“Confidential Corrective Action” document, Oni could avoid termination by opting to
participate in drug and/or alcohol counse ling or a rehabilitation program. And the HR
representative explained to Oni that if he chose not to participate in rehabilitation services,
he could voluntarily resign, which would make him eligible for rehire at Target in the
future. Oni refused both options, and Target terminated his employment that day.
Oni filed a complaint alleging that Target violated DATWA and requesting
“backpay, front pay, and emotional distress damages.” He argued that Target failed to test
in accordance with DATWA (Cou nt I), failed to comply wi th post-testing obligations

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(Count II), and failed to use a properly accred ited testing facility (Count III). Oni also
alleged breach of contract (Count IV). Relevant to this appeal, Count I of Oni’s complaint
alleged that Target violated one of DATWA’s sections, Minn. Stat. § 181.951, subd. 1(b)
(2020). Oni argued that based on the language of the policy, Target’s DFW Policy subjects
employees to discipline only if an alcohol test results in an alcohol concentration of 0.04
or higher. And, because Target disciplined Oni based on an alcohol concentration of 0.014,
Oni argued that Target violated section 1 81.951, subdivision 1(b), by not testing in
accordance with its written policy.
Target moved for summary judgment on all claims, and Oni moved for partial
summary judgment on his claim in Count I that Target failed to test in accordance with
DATWA. Oni’s motion for partial summary judgment contained an additional theory,
which Oni had not set forth in his complaint. There, Oni ar gued that Target violated
DATWA because its written policy inaccurately stated that employees can be terminated
for a first violation of Target ’s DFW Policy and that Target has the discretion to refer
employees to rehabilitation services if they test positive for drugs or alcohol.
On July 22, 2020, the district court issu ed an order denying Oni’s motion on Count I
and granting Target’s motion on a ll counts. Relevant to this appeal, the district court
determined that Count I of Oni’s complaint failed as a matter of law. The court concluded
that the plain language of Target’s DFW po licy permitted Target to discipline Oni for
“testing positive” for alcohol and did not limit discipline to positive results of 0.04 or more.
The district court further concluded that the additional theory Oni raised with his
summary-judgment motion was not properly be fore the court because Oni had failed to

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plead that theory in hi s complaint. Accordingly, the di strict court denied Oni’s partial
motion for summary judgment on Count I and granted Target’s motion for summary
judgment on all counts.
Oni appeals.
DECISION
On appeal, Oni challenges only the dist rict court’s summary-judgment decision as
to Count I of his complaint. He makes two separate legal arguments as to why he believes
that the district court erre d by denying his motion and gr anting Target’s motion for
summary judgment as to that count.
Summary judgment “is appropriate when th ere is no genuine issue of material fact
and a party is entitled to judgme nt as a matter of law.” Henson v. Uptown Drink, LLC ,
922 N.W.2d 185, 189- 90 (Minn. 2019) (quota tion omitted). Appellate courts review a
grant of summary judgment de novo. Montemayor v. Sebright Prods., Inc. ,
898 N.W.2d 623, 628 (Minn. 2017). In conducting this review, appellate courts view the
evidence in the light most favorable to the nonmoving party. Henson, 922 N.W.2d at 190.
This court “may affirm a grant of summary judgment if it can be sustained on any grounds.”
Doe v. Archdiocese of St. Paul , 817 N.W.2d 150, 163 (Minn. 2012). We address each of
Oni’s arguments in turn.
I. Oni’s claim that Target violated sect ion 181.951, subdivision 1(b), of DATWA
fails as a matter of law.

Oni argues that Target violated secti on 181.951, subdivision 1(b), of DATWA by
disciplining him in contravention of its written policy. He contends that the district court

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erred by concluding, to the contrary, that Ta rget complied with its policy and therefore
complied with DATWA. Because we concl ude that Oni has failed to demonstrate a
violation of section 181.951, su bdivision 1(b), we discern no e rror in the district court’s
summary-judgment dismissal of Oni’s claim.
DATWA regulates the administration of drug and alcohol testing in the workplace.
Williams v. Nat’l Football League , 794 N.W.2d 391, 395 (Minn. App. 2011). Under the
statute, employers are prohibited from “request[ing] or requir[ing]” employees to undergo
drug and alcohol testing except as authorized by section 181.951. Employers are required
to have a testing policy that sets forth the minimum information listed in section 181.952,
subdivision 1, and employers must provide employees with notice of their testing policies
that complies with section 181.952, subdivision 2. Employers are also subject to a number
of “[r]eliability and fairness safeguards” under section 181.953, which include limitations
on an employer’s ability to terminate an employee. DATWA allows for damages when an
employee is injured by a violation of sections 181.950-.954 and “any other equitable relief”
that the district court determines is “appr opriate” to remedy such violations. Minn.
Stat. § 181.956, subds. 2, 4.
Oni argues that Target violated section 181.951, subdivision 1(b), of DATWA. That
subdivision provides:
An employer may not request or require an employee or
job applicant to undergo drug or alcohol testing unless the
testing is done pursuant to a wr itten drug and alcohol testing
policy that contains the minimum information required in
section 181.952; and, is conducted by a testing laboratory

7
which participates in one of the programs listed in section
181.953, subdivision 1.

Minn. Stat. § 181.951, subd. 1(b). Oni does not allege that Target violated this section by
failing to include in its policy the information listed in section 181.952. Nor does he argue
that Target’s testing was not conducted by a testing laboratory that complies with
section 181.952, subdivision 1. Rather, Oni argues that Target violated subdivision 1(b)
by failing to comply with Target’s DFW Policy after he was tested when it disciplined him
for a 0.014 test result. In Oni’s view, the language of Target’s DFW Policy prohibited
Target from disciplining him for an alcohol c oncentration below 0.04. He asserts that
because his termination violated Target’s own discipline policy, Target failed to administer
his test “pursuant to” its written policy as re quired by section 181.95 1, subdivision 1(b).
Target, in contrast, argues that even if On i’s interpretation of Target’s DFW Policy is
correct and Target violated the policy when it terminated Oni, Target did not violate
section 181.951, subdivision 1(b), becau se that section pertains only to “ pre-testing
requirements,” and not to post-testing disc ipline. We agree with Target that
section 181.951, subdivision 1(b), does not apply to post-testing discipline.
When the intent of the legislature is clear from a statute’s plain and unambiguous
language, we interpret the statute according to its plain meaning. Binkley v. Allina Health
Sys., 877 N.W.2d 547, 550 (M inn. 2016). Here, the language of section 181.951,
subdivision 1(b), is plain and unambiguous. It sets forth two requirements with which
employers must comply in order to “request or require” employees to undergo drug or
alcohol testing: (1) “ the testing [must be] done pursuant to a written drug and alcohol

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testing policy that contains the minimum in formation required in section 181.952” and
(2) “the testing . . . [must be] conducted by a testi ng laboratory” that complies with the
requirements of section 181.953, subdivisi on 1. Minn. Stat. § 181.951, subd. 1(b)
(emphasis added). Based on this plain langua ge, subdivision 1(b) pertains only to an
employer’s drug and alcohol testing of employees and has no bearing on an employer’s
post-testing disciplinary actions.
Oni has a different interpretation of s ubdivision 1(b). Based on the language in
subdivision 1(b) requiring employers to test employees “pursuant to” a written policy, Oni
appears to argue that a violation of any provision of the em ployer’s written policy—
including provisions relating to discip linary actions—would render unlawful the
employer’s testing of that employee under su bdivision 1(b). But On i’s interpretation of
the statute is unreasonable in light of the plain and unambiguous language of subdivision
1(b).1
Because we conclude that section 181.951, subdivisio n 1(b), does not provide a
basis for Oni’s claim, we need not address whether Target violated Target’s DFW Policy
when it disciplined Oni for an alcohol concentration of 0. 014. The district court did not
err by denying Oni’s motion for partial summary judgment on Count I of his complaint or
by granting summary judgment in favor of Target on that count.

1 We note that no provisi on of DATWA requires that an employee’s positive drug or
alcohol test result be above a certain level for that employee to be disciplined.

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II. Oni forfeited his argument that Targe t’s policy violates DATWA on its face.

Oni further argues that Target violated DATWA because Target’s DFW Policy
contravenes the statute on its face. Target contends that Oni forfeited this theory because
he did not plead it in his complaint. We agree with Target.
“It is fundamental that a party must ha ve notice of a claim against him and an
opportunity to oppose it before a bindi ng adverse judgment may be rendered.”
Folk v. Home Mut. Ins. Co. , 336 N.W.2d 265, 267 (Minn. 1983). “A [district] court,
therefore, is required to base relief on issues either raised by the pleadings or litigated by
consent.” Id. In reviewing a district court’s decision, the court of appeals “must generally
consider only those issues that the record shows were presented and considered by the trial
court in deciding the matter before it.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
This principle applies where a party “rais[es ] the same general is sue litigated below but
under a different theory.” Id.
Oni’s motion for partial su mmary judgment contained an additional legal theory,
which was not set forth in Oni’s complaint. As part of his written argument in support of
his motion on Count I, Oni asserted that Target violated DATWA because its written policy
inaccurately stated that employees can be terminated for a first violation of Target’s DFW
Policy and that Target has the discretion to refer employees to rehabilitation services if
they test positive for drugs or alcohol. Oni based this argument on both section 181.951,
subdivision 1, and section 181.953, subdivision 10, of DATWA. In his memorandum, he
appeared to argue that section 181.951, su bdivision 1, requires em ployers to accurately

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disclose the restrictions on employee di scipline contained in section 181.953,
subdivision 10.
In denying Oni’s motion for partial summary judgment on Count I of his complaint
and granting Target’s motion, the district c ourt concluded that Oni’s additional alleged
violation of DATWA was not properly before the court because Oni had failed to plead the
violation in his complaint. The court determined that “the only violation alleged in Count 1
is that [Target] violated S ection 181.951, subd. 1(b) when it disciplined [Oni] without
regard to the 0.04 [alcohol concentration] limit provided in the DFW Policy.” Because Oni
failed to raise the additional violation in his complaint, the district court concluded that it
“cannot grant judgment in favor of [Oni] on Count 1 based on violations not alleged.”
On appeal, Oni does not challenge, or even acknowledge, the district court’s
decision that he forfeited the claim, but rath er argues the claim on its merits. And, on
appeal, Oni appears to change the statutory basis for his claim—where his argument to the
district court focused solely on sectio ns 181.951, subdivisi on 1, and 181.953,
subdivision 10, his argument on appeal incorporates an argu ment that Target failed to
comply with the re quirements of section 181.952, su bdivision 1(4). He now argues that
section 181.952, subdivision 1(4)—which requires an employer’s written policy to contain
“any disciplinary or other adverse personnel action that may be taken” based on a positive
test—when read together with section 181.951, subdivision 1(b), “prohibit[s] an employer
from requesting or requiring an employee to undergo a drug/alcohol test if the employer’s
testing policy does not state the employee’ s rights under DATWA as set forth in
section 181.953, subdivision 10, in the event of a first-positive test.”

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Because Oni failed to raise this claim in his complaint and the parties did not agree
to litigate the issue by consent, the district court properly concluded that Oni had forfeited
the issue. See Folk, 336 N.W.2d at 267. And Oni now improperly attempts to argue the
issue under a slightly different theory without addressing why he believes the district court
erroneously concluded that he had failed to raise the claim in his complaint. See Thiele,
425 N.W.2d at 582 (explaining that an appellate court typically will not review “the same
general issue litigated below but under a different theory”). The district court did not err
by declining to consider the unpleaded theory in granting summary ju dgment in favor of
Target.
Affirmed.