Opinion
No. 754 C.D. 2014
02-20-2015
Dennis J. Direnna, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Dennis J. Direnna (Claimant), represented by counsel, petitions for review from an order of the Unemployment Compensation Board of Review (Board) that found him ineligible for unemployment compensation (UC) benefits under Section 402(e.1) of the Unemployment Compensation Law (Law) (relating to failure to pass a drug test). Claimant challenges the Board's finding on the drug test results, which he contends are not supported by substantial competent evidence. Specifically, he contests the Board's finding that he admitted to failing the drug test. Claimant also contends the Board capriciously disregarded his testimony, which was unrebutted. Because the Board's findings are supported by substantial evidence, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. 2897 (1937), as amended, added by Section 3 of the Act of December 9, 2002, P.L. 1330, 43 P.S. §802(e.1).
I. Background
Claimant worked as a full-time tooler for Matthews International Corporation, Bronze Division (Employer) until his resignation in lieu of discharge based on the positive result of a random drug test. After his separation from employment, Claimant applied for UC benefits, which the service center denied. Claimant appealed.
A referee held a hearing, where Claimant, represented by counsel, testified. Employer did not appear. The referee declined to deny benefits under both Section 402(b) (relating to voluntary quit) and Section 402(e.1) of the Law. Employer appealed to the Board, asserting good cause for not attending the hearing.
Based on the existing record, the Board issued a decision reversing the referee, and denying benefits under Section 402(e.1) of the law. The Board made the following pertinent findings:
2. Employer has a zero tolerance policy for drug use and utilizes random drug testing.Bd. Op., 4/18/14, Findings of Fact (F.F.) Nos. 2-6. The Board also found Claimant repeatedly acknowledged he made "a mistake" on his Internet Initial Claims form and in his appeal to the referee, F.F. Nos. 7, 10, as he "failed a random." F.F. No. 7.
3. A positive drug test results in discharge.
4. Claimant was aware of this policy.
5. On or about September 9, 2013, Claimant submitted to a random drug test.
6. The drug test came back positive for cocaine.
Based on these findings, the Board determined Claimant was ineligible for benefits under Section 402(e.1) of the Law. The Board reasoned that Claimant's collective admissions in his written submissions constituted sufficient evidence to support a determination that he failed his drug test in violation of Employer's zero tolerance drug policy.
Claimant now petitions for review.
Our review "is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated." Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).
II. Discussion
Claimant argues the Board erred in finding he tested positive for drugs when Employer submitted no evidence as to the test results. He contends he did not admit to failing the drug test; consequently, the Board lacked substantial evidence for its determination deeming him ineligible for benefits on that basis.
The Board counters that Claimant challenges only one finding, Finding of Fact No. 6, which is that Claimant had a positive drug test for cocaine. That finding is supported by hearsay statements to which Claimant never objected, as well as implicating admissions by Claimant in his submissions.
First, we address whether Claimant made an admission that falls within an exception to the hearsay rule. Then, we consider whether the record as a whole contains substantial evidence to support the Board's determination.
Notably, Claimant did not contest the Board's findings regarding his admissions. The Board relied on Claimant's statement regarding the reason for his separation as, "I failed a random [drug test,] made a mistake." F.F. No. 7. Further, the Board found that regarding his attempt to resolve the situation, Claimant admitted "I asked for rehab help they declined." F.F. No. 8. The Board also credited Claimant's statement on the initial claims form that "I went out on my time off and did something I shouldn't of [sic] and paid dearly for it. I made a mistake and lost my job...I asked my employer for help and they said no ...." F.F. No. 9.
Because Claimant did not challenge the Board's findings with the exception of Finding of Fact No. 6, those findings are conclusive on appeal. Bruce v. Unemployment Comp. Bd. of Review, 2 A.3d 667 (Pa. Cmwlth. 2010); Steinberg Vision Assocs. v. Unemployment Comp. Bd. of Review, 624 A.2d 237 (Pa. Cmwlth. 1993). Therefore, we limit our review to whether Finding of Fact No. 6 is supported by substantial evidence.
A. Substantial Evidence
"Substantial evidence must be both competent and sufficient." Gibson v. Workers' Comp. Appeal Bd. (Amrco Stainless & Alloy Prods.), 861 A.2d 938, 944 (Pa. 2004). Substantial evidence is most often defined as evidence that a reasonable mind would accept as adequate to support the conclusion reached. See Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558 (Pa. Cmwlth. 2012).
Claimant contends Finding of Fact No. 6 is not supported by substantial evidence because it is based purely on Claimant's submissions, which do not constitute an unequivocal admission to failing the drug test. Claimant argues only an unambiguous admission constitutes competent evidence to support a finding. He asserts his alleged admissions in the forms are not sufficient, particularly when any implication of drug use was contradicted by his live testimony.
The Board admits that Finding of Fact No. 6 is based on hearsay. However, the Board submits the finding is based on submissions to which Claimant never objected and is corroborated by Claimant's admissions. Thus, the evidence is admissible under the standard this Court articulated in Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976).
"A hearsay statement 'is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.'" Architectural Testing, Inc. v. Unemployment Comp. Bd. of Review, 940 A.2d 1277, 1282 (Pa. Cmwlth. 2008) (quoting Pa.R.E. 801(c)).
As to the use of hearsay in administrative proceedings, Walker states:
(1) Hearsay evidence, [p]roperly objected to, is not competent evidence to support a finding of the Board;Id. at 370 (citations omitted). This case involves admissions contained in Claimant's submissions, which were admitted without objection. Referee's Hr'g, Notes of Testimony (N.T.), 1/21/14, at 2 ("with no objections, the documents are admitted").
(2) Hearsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding of the Board, [i]f it is corroborated by any competent evidence in the record, but a finding of fact based [s]olely on hearsay will not stand.
In his brief, Claimant does not dispute the admissibility of his statements on the varied claim submissions. As such, these submissions are given their natural probative value. Walker. Rather, Claimant challenges the legal sufficiency of his admissions on the grounds that they are equivocal and are contradicted by his testimony.
Out-of-court statements by a claimant on his submissions, like the "claimant questionnaire," the "internet claim form," and the "initial interview form," constitute party admissions that are admissible as an exception to the hearsay rule. Stugart v. Unemployment Comp. Bd. of Review, 85 A.3d 606 (Pa. Cmwlth. 2014); Dillon v. Unemployment Comp. Bd. of Review, 68 A.3d 1054 (Pa. Cmwlth. 2013); see also Vivas v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1609 C.D. 2011, filed May 31, 2012) (unreported) (upholding Board decision crediting admissions in questionnaire over live testimony). The probative value of an admission "depends on its nature and the circumstance under which it was made." Gougher v. Hansler, 130 A.2d 150, 153 (Pa. 1957); Unemployment Comp. Bd. of Review v. Houp, 340 A.2d 588, 592 (Pa. Cmwlth. 1975).
"[W]ords of a party constitute an admission and therefore may always be used against him." Stugart, 85 A.3d at 608 (reasoning that an admission may support a finding of fact; employer did not appear or submit evidence); Evans v. Unemployment Comp. Bd. of Review, 484 A.2d 822, 827 (Pa. Cmwlth. 1984) (same). "[A]dmissions [also] constitute independent evidence of themselves and are therefore capable of independently providing competent evidence to support the findings of the Board." Houp, 340 A.2d at 591; see also Greer v. Unemployment Comp. Bd. of Review, 4 A.3d 733 (Pa. Cmwlth. 2010) (holding claimant's admissions to failing drug test and to illegal drug use were sufficient basis to deny benefits); Borough of Grove City v. Unemployment Comp. Bd. of Review, 928 A.2d 371, 374 (Pa. Cmwlth. 2007) ("the admission of a party ... is competent to sustain a finding of fact ....").
Because Claimant's admissions may constitute substantial evidence competent to support the Board's findings, we review each of the admissions in turn.
In his initial claims form, Claimant admitted that he failed the drug test. Specifically, as an explanation for his resignation in lieu of discharge, Claimant stated, "I failed a random[,] made a mistake." Certified Record (C.R.), Item No. 2 at 2. Further, regarding his attempts to resolve the situation with Employer, Claimant stated, "I asked for rehab help[,] they declined." Id. at 3. Significantly, Claimant offered the following details about the surrounding circumstances:
I went to work every day and was one of their best employees they thought so because I had the highest yearly review in the shop. I went out on my time off and did something I shouldn't of [sic] and paid dearly for it. I made a mistake and lost my job because of it[.] People make mistakes. I asked my employer for help and they said no. I feel that they could of [sic] or should of [sic] helped me instead they took my job from me.C.R., Item No. 2 at 3 (emphasis added).
In the claimant questionnaire, Claimant again admitted he failed the drug test. In response to the request for "the reason you were given for being discharged," Claimant checked the box for "Failed Drug/Alcohol Test." C.R., Item No. 3 at 1. Then, in response to the question, "if separated as a result of failing a Drug/Alcohol test, did you fail the test," he checked the box for "yes." Id. In full, Claimant provided the following explanation regarding his unemployment:
I failed a random test[,] the test results are supposed to be in a 2 or 4 days [sic] period[.] I stayed working and 7 days later they said I failed. I feel that the test results were wrong and they would not test me again they made me sign a letter of resignation. They did not offer me help I asked for help and they said no. So I signed the letter of resignation so it would not go on my record. I feel my sample should not have sat in the lab for that long of a period. I feel they did not follow their own policies. I feel that a company of [Employer's] size should offer an employee assistance program to ensure the welfare of their employees. I was a good employee. I never called off - I had the highest yearly review in the shop I went above and beyond what my job required. They should of [sic] offered me help or directed me to getting help. After 4 yrs [sic] hard work I should have not been forced to resign.C.R., Item No. 3 at 2 (emphasis added).
In his petition for appeal of the service center's determination, Claimant stated, "I disagree with the determination due to the fact I believe the testing was not random and that I was not offered any kind of help and forced to resign. I was a great employee and made one mistake." C.R., Item No. 5. He did not dispute the results of the test at that time, nor did he disclaim using illegal drugs.
We previously upheld a claimant's admissions as substantial evidence to support a Board determination of ineligibility for failing a drug test under Section 402(e.1) of the Law. Dillon; Greer. Following our precedent in Greer and Dillon, we hold Claimant's admissions here suffice to substantiate the Board's finding that he failed the drug test.
In Greer, the claimant argued the record lacked substantial evidence to support the Board's finding that he tested positive for cocaine in violation of the employer's substance abuse policy. As in this case, in Greer, the Board's finding that the claimant testified positive for cocaine was not based on the drug test results, but rather on the claimant's admissions. Also similar to these facts, in Greer the claimant requested assistance in the form of rehabilitation.
Moreover, the claimant's admissions in Greer are similar to Claimant's admissions here. In Greer, the claimant admitted on his claimant questionnaire to failing the drug test when he tested positive for cocaine. There, the claimant also offered to attend a treatment rehabilitation program for drug use. Although the claimant in Greer also admitted to using cocaine when confronted by his employer, the failure of Claimant to expressly admit to using cocaine here is not material to a determination of ineligibility under Section 402(e.1) of the Law. See Consol. Scrap Res., Inc. v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1002 C.D. 2010, filed December 30, 2010) (unreported) (reversing Board's determination in claimant's favor because admissions were competent evidence that claimant failed drug test; Section 402(e.1) of the Law only requires proof that the test was failed, not that the claimant actually took illegal drugs).
More recently, in Dillon, the claimant challenged the Board's determination that he was ineligible for UC benefits for violating his employer's drug policy. Specifically, like Claimant here, the claimant in Dillon argued the Board's finding that he failed his drug test was not based on substantial evidence. We reasoned the claimant's form admissions that he failed his drug test abrogated any hearsay objection. Ultimately, we held these admissions were sufficient to support a finding that the claimant failed the drug test. Id.; see Sargent v. Unemployment Comp. Bd. of Review, 630 A.2d 534 (Pa. Cmwlth. 1993) (claimant's statements in initial interview form are admissible and constitute party admissions).
Claimant asserts the Board acted capriciously by disregarding his live testimony that explained his alleged admissions. Namely, the Board did not credit Claimant's testimony regarding what he meant when he stated he made a "mistake" that led to his resignation. Claimant testified that "[m]y mistake was calling off work the day before, the Friday before the drug test. I feel if I didn't call off work, I don't think I would have been tested." N.T. at 5. Further, the Board did not credit Claimant's testimony that he only asked Employer for rehabilitation in order to save his job, not because he needed it.
As the ultimate finder of fact, the Board may accept or reject the statements of any witness, in whole or in part. Collier Stone Co. v. Unemployment Comp. Bd. of Review, 876 A.2d 481 (Pa. Cmwlth. 2005). The Board is so "empowered to make determinations as to witness credibility and conflicting evidence." Architectural Testing, Inc. v. Unemployment Comp. Bd. of Review, 940 A.2d 1277, 1280 n.2 (Pa. Cmwlth. 2008). We are bound by the Board's credibility determinations on appeal. Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383 (Pa. 1985).
As in Greer, the Board here declined to credit Claimant's testimony rationalizing the admissions in his written submissions. The Board had authority to reject Claimant's testimony that he was not using illegal drugs in favor of the statements contained in his submissions regarding his mistake. Id.
Moreover, in determining whether substantial evidence supports a finding, this Court "must view the record evidence as a whole in a light most favorable to the party which prevailed before the Board, giving that party the benefit of all logical and reasonable inferences deducible from the evidence." Stringent v. Unemployment Comp. Bd. of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997). As the prevailing party, we give Employer the benefit of all reasonable inferences.
Claimant reveals his misapprehension of this Court's review of the evidence and deference to the Board, arguing that he, and not Employer, is entitled to the benefit of the inferences in the record evidence. See Pet'r's Br. at 11-12. --------
In sum, considering the context and Claimant's collective admissions in his submissions before testifying, and reviewing the evidence in the light most favorable to Employer, we conclude the Board's finding that Claimant tested positive for drugs is supported by substantial, competent evidence.
B. Merits
Next, we evaluate whether the substantiated findings support the Board's determination that Claimant is ineligible for UC benefits under Section 402(e.1) of the Law. Section 402(e.1) provides that an employee shall be ineligible for compensation for any week:
[i]n which his unemployment is due to discharge or temporary suspension from work due to failure to submit and/or pass a drug test conducted pursuant to an employer's established substance abuse policy, provided that the drug test is not requested or implemented in violation of the law or of a collective bargaining agreement.43 P.S. §802(e.1) (emphasis added).
Pursuant to Section 402(e.1) of the Law, an employer bears the burden to prove: (1) it had an established substance abuse policy; and, (2) the claimant violated the policy. Greer; UGI Utils., Inc. v. Unemployment Comp. Bd. of Review, 851 A.2d 240 (Pa. Cmwlth. 2004). Once an employer satisfies its initial burden under Section 402(e.1), the burden shifts to the employee to show that the employer's substance abuse policy was in violation of the law or a collective bargaining agreement. UGI, 851 A.2d at 252 ("The terms of [the employer's substance abuse] policy may be trumped by statute or collective bargaining agreement, but it is the claimant's burden to develop the record appropriately to succeed in that defense.").
Significantly, Claimant here admitted Employer had a zero-tolerance drug policy. N.T. at 5. Specifically, Claimant was aware that the consequence of testing positive for drugs was either discharge from employment or resignation in lieu of discharge. Thus, there is no dispute that Employer satisfied the first element of its burden of proof by establishing the existence of a drug policy.
Claimant argues Employer failed to prove that he violated the drug policy, particularly as Employer did not appear or submit evidence of the test results. Indeed, Claimant asserts his admissions that he failed the drug test are not sufficient to prove he violated the drug policy. Rather, Claimant states he admitted only that he was told that he failed the drug test and his submissions do not amount to admitting he took illegal drugs. These arguments lack merit.
Introducing drug test results into evidence is not the sole means by which an employer can show a claimant violated a drug policy. An employer's burden may be carried by Claimant's testimony or corroborating evidence. Greer. Violation of an employer's drug policy also can be established by a claimant's own admissions. Greer; Szostek v. Unemployment Comp. Bd. of Review, 541 A.2d 48 (Pa. Cmwlth. 1988).
That Claimant did not unambiguously admit to illegal drug use is immaterial. Section 402(e.1) of the Law only requires proof that the test was failed, not that the claimant actually took illegal drugs. See Consol. Scrap Res., Inc. (clarifying burden of proof). Although Claimant did not admit in any of his submissions that he used cocaine or tested positive for that specific drug, his admissions establish he failed a random drug test, and he made a mistake while he was off duty. Claimant's admissions also establish he repeatedly requested assistance from Employer, which he referred to as rehabilitation. Reviewing the evidence in a light most favorable to Employer, we conclude the Board drew a reasonable inference as to Claimant's drug use.
Here, Claimant's collective admissions show he failed the drug test. In addition to admitting he failed the test on his submissions, Claimant testified he informed Employer that he failed the drug test. N.T. at 4. (Claimant "told [human resources] that I failed [the drug test] because I had cocaine in my system..."). Accordingly, the Board did not err in concluding the record established that Claimant failed the drug test.
Importantly, Claimant did not challenge Employer's drug policy as contrary to law or a collective bargaining agreement. Rather, he insists that he did not violate the policy. Claimant's version of events is not supported by any evidence credited by the Board. The Board did not credit Claimant's testimony that he did not take illegal drugs. The Board accepted his admissions in the forms, which acknowledge his mistake and express remorse for it. Greer. Claimant's request that we reweigh the evidence is beyond our scope of review. Peak.
In short, we agree with the Board's determination that Employer met its burden of proving Claimant's ineligibility for benefits for failing a drug test in violation of Employer's drug policy.
III. Conclusion
As the Board's conclusive findings establish Claimant was discharged for failing a drug test conducted pursuant to Employer's drug policy, we conclude the Board did not err in denying Claimant benefits under Section 402(e.1) of the Law. Accordingly, the order of the Board is affirmed.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 20th day of February, 2015, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge