Opinion
No. 1395 C.D. 2011
02-24-2012
Nathaniel Reis, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
Nathaniel Reis (Claimant) petitions for review, pro se, of the June 1, 2011, order of the Unemployment Compensation Board of Review (Board) which determined that Claimant is ineligible for unemployment compensation benefits under section 402(e.1) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, added by section 3 of the Act of December 9, 2002, P.L. 1330, 43 P.S. §802(e.1). Section 402(e.1) of the Law provides that an employee shall be ineligible for benefits for any week in which his unemployment is due to his discharge or temporary suspension from work for his failure to submit to and/or pass a drug test conducted pursuant to an employer's established substance abuse policy so long as the test is not requested or implemented in violation of the law or a collective bargaining agreement.
Claimant was employed as a service attendant by Temple University Hospital (Employer) from August of 1996 through January 14, 2011. (Finding of Fact No. 1.) Employer has a policy which allows for drug testing based upon reasonable suspicion, and Claimant was aware of the policy. (Findings of Fact Nos. 2, 3.) In 2004, Claimant failed a drug/alcohol screen; he completed rehabilitation and returned to his employment. (Finding of Fact No. 4.) On January 5, 2011, Claimant's speech was slurred and he acted in a belligerent manner while at work. (Finding of Fact No. 5.) Claimant was required to go to the medical department for alcohol testing and to a certified drug testing facility for a drug screen because the exhibited behavior was not his normal behavior. (Finding of Fact No. 6.) Employer was notified that Claimant tested positive for the presence of marijuana and alcohol. (Finding of Fact No. 7.) As a result, on January 14, 2011, Claimant was discharged for violating Employer's drug policy. (Board Order; Finding of Fact No. 8.)
In Finding of Fact No. 8, the referee incorrectly stated that Claimant was discharged on January 14, 2010. The Board modified the referee's finding of Fact No. 8 by changing the date to January 14, 2011.
On January 26, 2011, Claimant filed a claim for benefits. The local service center determined that Claimant failed a drug/alcohol test conducted under an established substance abuse policy, and that the test was not in violation of a known law or a collective bargaining agreement. (Certified Record (C.R.) Item No. 2 at 1.) Accordingly, the service center determined that Claimant was ineligible for benefits under section 402(e.1) of the Law. (Id.)
Claimant appealed, and a hearing was conducted before a referee on March 9, 2011. During his testimony, Claimant admitted that he had used marijuana and consumed alcohol earlier in the day on January 5, 2011, and that he had previously failed a drug test in 2004. (N.T. 3/9/11 at 12-13.) Carol Pettis, Employer's night manager, testified that she observed Claimant on January 5, 2011, and that his speech was slurred and that he acted belligerently. (Id. at 7-8.) Richard Weber, Employer's director of environmental services, testified that Employer has an established substance abuse policy that requires an employee to submit to a drug/alcohol test based upon a reasonable suspicion of substance use. (Id. at 4-5.) Weber stated that Claimant was aware of the policy and Claimant's acknowledgement of his receipt of the written policy was admitted without objection as Employer Exhibit 1. (Id. at 5.) Weber also stated that the policy provides that an employee will be terminated upon a second failed drug/alcohol test and that Claimant had previously failed a drug/alcohol test in 2004. (Id.) Finally, Nancy Balogun, Employer's medical director of occupational health, testified that Claimant gave both a urine and blood sample. (Id. at 10.) Balogun testified as to the chain of custody of the test results as reflected in Employer's Exhibit 2 and as to the test results in Exhibits 3 and 4, which showed the presence of marijuana in Claimant's urine sample and an appreciable amount of alcohol in Claimant's blood sample and which were admitted into evidence without objection. (Id. at 9-12.) Balogun stated that Claimant had no issue with the test results and admitted smoking marijuana. (Id. at 12.)
"N.T. 3/9/11" refers to the transcript of the referee's hearing.
On March 14, 2011, the referee issued a decision affirming the service center's determination disallowing benefits under section 402(e.1). (C.R. Item No. 8.) Claimant appealed to the Board, which affirmed and adopted as modified the referee's decision. (C.R. Item No. 10.) Claimant then filed this petition for review.
Our scope of review in an unemployment compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799 n. 3 (Pa. Cmwlth.), appeal denied, 548 Pa. 663, 698 A.2d 69 (1997).
In this appeal, Claimant asserts that the Board's decision is not supported by substantial evidence and, as a result, the Board erred in determining that he is not entitled to benefits., We do not agree.
Claimant contends that the Board erred in determining that he is ineligible for benefits mistakenly citing section 402(b) of the Law, 43 P.S. §802(b). However, section 402(b) relates to whether a claimant is entitled to benefits for voluntarily terminating his or her employment due to necessitous and compelling cause. We will only consider the application of section 402(e.1) of the Law in this appeal because Claimant was discharged by Employer and the service center, the referee, and the Board considered this case under section 402(e.1) as well.
Claimant also argues that section 402 of the Law was repealed on May 22, 1933, and therefore, the Board erred in referring to section 402 in denying him benefits because that section no longer exists. However, this claim has been waived for purposes of appeal because Claimant did not raise it in the petition for review that he filed in this Court. Pa.R.A.P. 1513(d); Werner v. Zazyczny, 545 Pa. 570, 575 n. 1, 681 A.2d 1331, 1333 n. 1 (1996) (holding that this Court was correct in refusing to consider issues not fairly comprised in objections raised in petition for review.); Jimoh v. Unemployment Compensation Board of Review, 902 A.2d 608, 611 (Pa. Cmwlth. 2006) (holding that an issue not raised in the stated objections in the petition for review nor "fairly comprised therein" is waived and will not be addressed by this Court.) Moreover, Claimant's assertion is not correct. It is true that a former section 402 of Title 43 was repealed; however, the repealed section 402 to which Claimant is referring related to sanitary regulations for bakeries and not unemployment compensation. The Law, which establishes a system of unemployment compensation, was initially enacted on May 6, 1936, and section 402(e.1) of the Law is still in effect.
In UGI Utilities, Inc. v. Unemployment Compensation Board of Review, 851 A.2d 240, 245 (Pa. Cmwlth. 2004), this Court held that discharges related to drug/alcohol tests are governed by section 402(e.1) of the Law rather than the general willful misconduct provisions of section 402(e) of the Law. See also Architectural Testing, Inc. v. Unemployment Compensation Board of Review, 940 A.2d 1277, 1281 (Pa. Cmwlth. 2008) (noting that both the failure of a drug/alcohol test and the refusal to take the test are now analyzed under section 402(e.1)). Section 402(e.1) requires an employer to demonstrate that: (1) it adopted a substance abuse policy; and (2) the employee violated that policy. UGI Utilities, Inc., 851 A.2d at 252. The policy permitting drug/alcohol testing need not be detailed, and reasonable suspicion can be inferred from reports of a claimant's behavior prior to the test. Architectural Testing, Inc., 940 A.2d at 1282-83.
Claimant can then defend by demonstrating that the policy has been trumped by a statute or a collective bargaining agreement. UGI Utilities, Inc., 851 A.2d at 252.
The Board is the ultimate finder of fact in unemployment compensation proceedings. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 270, 501 A.2d 1383, 1385 (1985). Thus, issues of credibility are for the Board, which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207, 208 (Pa. Cmwlth. 1988). Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). This Court must examine the evidence in the light most favorable to the party who prevailed before the Board and give that party the benefit of all inferences that can be logically and reasonably drawn therefrom. Id.
Claimant's admissions that he had used marijuana and consumed alcohol earlier in the day on January 5, 2011, and that he had previously failed a drug test in 2004, constitutes substantial evidence supporting the Board's findings. Greer v. Unemployment Compensation Board of Review, 4 A.3d 733, 737 (Pa. Cmwlth.), appeal denied, ___ Pa. ___, 14 A.3d 830 (2010); Criswell v. Unemployment Compensation Board of Review, 393 A.2d 1071, 1073 (Pa. Cmwlth. 1978). In addition, as outlined above, Employer's evidence clearly supports the Board's findings concerning the existence of Employer's policy, Claimant's awareness of the policy, the fact of its violation, and the reasonable suspicion to request that Claimant submit to drug/alcohol testing. (N.T. 3/9/11 at 4-5, 7-8, 10-12, 12-13.) As a result, the Board's findings are amply supported by substantial evidence and the Board did not err in determining that Claimant is ineligible for benefits under section 402(e.1) of the Law. Greer, 4 A.3d 736-37; Architectural Testing, Inc., 940 A.2d at 1283-84.
Here, Claimant has not argued or showed that Employer's policy was trumped by either a statute or a collective bargaining agreement. --------
Accordingly, the Board's order is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 24th day of February, 2012, the June 1, 2011, order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge