Opinion
C.A. No. 06A-01-003.
Submitted: January 25, 2007.
April 13, 2007.
Mr. Samuel L. Pitts, Bridgeville, Delaware.
Steven T. Margolin, Esquire, Joseph C. Handlon, Esquire, Ashby Geddes, Wilmington, Delaware.
Dana B. Gruen, Esquire, Foley Lardner, LLP, Milwaukee, Wisconsin.
Dear Mr. Pitts and Counsel:
Samuel Pitts ("Mr. Pitts" or "Appellant") appeals the decision of the Unemployment Insurance Appeals Board ("the Board") that denied Mr. Pitts' request for unemployment insurance benefits. The Board denied Mr. Pitts' request for benefits after concluding Mr. Pitts had been dismissed from his position of employment with Ralph Paul Adams, Inc. ("Employer" or "Appellee") for good cause. For the reasons set forth herein, the Board's decision is remanded for further proceedings consistent with this opinion.
Procedural History
By way of letter dated July 18, 2005, a Claims Deputy for the Department of Labor determined that Employer had met the burden for establishing that it had good cause to fire Mr. Pitts after Mr. Pitts tested positive for cocaine use. That decision was later reversed by an Appeals Referee after a hearing held on October 24, 2005. The Appeals Referee concluded that pivotal testimony upon which Employer relied concerning the chain of custody for the sample tested was hearsay and could not be con sidered by the Appeals Referee. The Board subsequently heard additional testimony on the matter at a hearing on December 7, 2005. By way of written decision mailed January 20, 2006, the Board reversed the Appeals Referee's decision, concluded that Employer had established chain of custody and denied Mr. Pitts' request for unemployment benefits. Mr. Pitts appeals that decision.Facts
In June 2005, Mr. Pitts was employed by Appellant as a laborer, a position he had held with the company for eight years. On June 27, 2005, Mr. Pitts' employment with Appellant was terminated when he tested positive for cocaine use. A positive drug screen is a violation of company policy and an employee who violates the union's drug policy may be immediately discharged pursuant to the policy.
The facts leading up to Mr. Pitts' drug screen are as follows. On June 8, 2005, Mr. Pitts left a note for his supervisor, Kelly O'Neal, stating that he would be out of work due to a bout of sinusitis. By way of a separate note that same day, Mr. Pitts also requested a copy of a "first report of injury" workman's compensation report from Ms. O'Neal. Ms. O'Neal testified that she tried to reach Mr. Pitts by telephone to address the details of his request but was unable to do so. Mr. Pitts returned to work on June 13, 2005, and, at that time, Ms. O'Neal filed the first report of injury. At the hearings below, scant attention was paid to the date on which any injury occurred, but it appears that the Appellee's position is that Mr. Pitts was injured somewhere around June 8th. Mr. Pitts testified the basis of the injury report was back strain he had been experiencing on and off since 2001 or 2002. In any event, Mr. Pitts was ordered to undergo a drug screen pursuant to union policy, which requires "any employee who has an injury on the job to submit to a drug screen within 48 hours of the injury." The drug test was ordered on June 13th but not administered to Mr. Pitts until the following day, June 14, 2005. The result of the drug screen was positive and Mr. Pitts was discharged from his employment with Appellee as a consequence.
Discussion
A. Standard of Review
When reviewing the decisions of the Board, this Court must determine whether the Board's findings and conclusions of law are free from legal error and are supported by substantial evidence in the record. Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265 (Del. 1981); Pochvatilla v. United States Postal Serv., 1997 WL 524062 (Del.Super. Jun. 9, 1997); 19 Del. C. § 3323(a) ("In any judicial proceeding under this section, the findings of the [Board] as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the Court shall be confined to questions of law."). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". Gorrell v. Division of Vocational Rehab., 1996 WL 453356, at *2 (Del.Super. July 31, 1996). The Court's review is limited. "It is not the appellate court's role to weigh the evidence, determine credibility questions or make its own factual findings, but merely to decide if the evidence is legally adequate to support the agency's factual findings." McManus v. Christiana Serv. Co., 1197 WL 127953, at *1 (Del.Super. Jan. 31, 1997).
B. Mr. Pitts' Right to Unemployment Benefits
Title 19 of the Delaware Code provides an individual shall be disqualified for unemployment benefits if the individual was discharged for just cause in connection with the individual's work. 19 Del. C. § 3314 (2). "Generally, the term `just cause' refers to a wilful or wanton act in violation of either the employer's interest, or of the employee's duties, or of the employee's expected standard of conduct." Abex Corp. v. Todd, 235 A.2d 271, 272 (Del.Super. 1967).
Appellant presents several arguments for the Court's consideration: first, Appellant argues that the administering doctor did not attempt to reach him to discuss the results of the drug screen with Mr. Pitts as is prescribed procedure; second, Appellant posits that the drug test results were inconclusive given the fact that Appellant was taking various medication at the time the test was administered; and finally, Appellant contends that he was out of the office due to sinusitis, as opposed to back pain, and thus, the drug screen was improperly ordered. In essence, Appellant argues that the Board's decision is not supported by substantial evidence.
Employer counters Appellant's allegations with citations to the record and also argues that Mr. Pitts' appeal was untimely filed and, accordingly, must be dismissed for lack of subject matter jurisdiction.
At the outset, the Court concludes it has jurisdiction to hear the matter. Employer correctly notes that the Board's decision became final on January 30, 2006, and Mr. Pitts was required to file his notice of appeal within ten days of that date pursuant to 19 Del. C. § 3323. Employer asserts Mr. Pitts did not file his notice of appeal until well after that deadline had passed, on July 11, 2006. In fact, Court records show that Mr. Pitts filed his initial notice on January 30, 2006. Unfortunately, the caption was filled out incorrectly and that error was not corrected until July 11, 2006. The original notice was captioned as the case was captioned before the Board: that is, "Ralph and Paul Adams, inc. v. Samuel L. Pitts, Sr.".
This Court "generally adheres to a policy of judicial leniency towards pro se [litigants]". Limehouse v. Steak Ale Restaurant Corp., 2004 WL 304339, at *2 (Del.Super. Feb. 5, 2004). In this instance, Mr. Pitts made a good faith effort to comply with the notice requirement. Both parties were correctly identified in the notice and Employer has not alleged any prejudice as a result of the original incorrectly captioned filing. Mr. Pitts' mistake in using the caption from the proceedings below was not unreasonable given the fact that he was proceeding pro se. The Court will not dismiss the appeal due to a failure to timely file notice under these circumstances.
With regard to Mr. Pitts' substantive challenges, his first argument is without merit. The Court will defer to the Board's credibility determinations regarding whether a phone call was placed to Mr. Pitts by the administering physician. Dr. Jack Dilts testified before the Board that he tried to contact Mr. Pitts on seven occasions. Dr. Dilts further testified that, after being unable to reach Mr. Pitts, he waited the requisite ten days before contacting Employer with the results of the test. The Board clearly found Dr. Dilts' testimony credible and this Court will not disturb that finding. Accordingly, Mr. Pitts' challenge to the Board's decision on the grounds that Dr. Dilts did not attempt to contact him prior to notifying Employer of the results from the drug screen must fail.
Mr. Pitts also argues that the results of the drug screen were tainted by the fact that he was taking several prescribed medications at the time it was administered. However, Mr. Pitts did not present any evidence to the Board, or to the Appeals Referee, that this was the case. Before this Court, Mr. Pitts asserts that coworkers who have known him for many years would testify that he has never failed a drug test. The Court's review is limited to the record before it. If Mr. Pitts had additional testimony he wished the Board to consider, be it either medical expert opinion or character evidence, he had ample opportunity to present such testimony below. As it stands, this Court will not reverse the Board's rejection of Mr. Pitts' hypothetical arguments.
Finally, Mr. Pitts argues he was not properly subjected to a drug test given that the injury, which provided the basis for the test, had occurred years before. The Board's decision reads, in relevant part:
[T]he Claimant reported a work injury which would have subjected him to the required drug testing. The Union Agreement clearly states that employees who are injured are required to be tested within 48 hours. Further, if the test is positive, immediate dismissal will occur. In this case, the Employer has demonstrated that the Claimant reported a work injury, was tested within 48 hours of the report and was terminated for the positive result in violation of the work agreement and work rules. Such violation is a demonstration of willful or wanton misconduct.
Board Decision at p. 3 (emphasis added).
In fact, the Union Agreement states any employee who has an injury on the job must submit to a drug screen "within 48 hours of the injury." (emphasis added). If the drug screen is positive, the employer may immediately dismiss the employee "in accordance with company work rule #7."
A violation of work rule #7 entails "reporting to work or working while under the influence of intoxicating beverages and/or narcotics or other drugs or having possession of the same on company property."
The Court concludes that there was no evidence presented below to support a finding that Mr. Pitts submitted to the drug screen within 48 hours of any injury. Ms. O'Neal testified that Mr. Pitts' back injury occurred on or about June 8th. Mr. Pitts testified, and argues to this Court, that his back injury actually occurred in 2001. The Board did not make a factual determination as to when any injury occurred. Union policy dictates that an employee undergo a drug screen within 48 hours of an injury. Because the Board found Mr. Pitts was required to undergo drug testing pursuant to this policy, the absence of a finding considering when the injury occurred may not be overlooked. The Board is directed to hold another hearing on this matter and determine when the injury occurred that resulted in the order for the drug screen and/or, if applicable, whether Mr. Pitts was ordered to undergo a drug screen pursuant to any other company policy.
Conclusion
For the reasons set forth herein, the Board's decision denying unemployment insurance benefits to Mr. Pitts is remanded and the Board is directed to conduct another evidentiary hearing in this matter consistent with this opinion.