Opinion
No. 911 C.D. 2013
01-15-2014
Stanley Buck III, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Stanley Buck III (Claimant) petitions for review of the Order of the Unemployment Compensation (UC) Board of Review (Board) that, after a remand hearing at which Claimant and YRC, Inc. (Employer) presented additional evidence, found Claimant ineligible for UC benefits pursuant to Section 402(e.1) of the UC Law (Law). On appeal, Claimant argues that: (1) the Board violated his due process rights by granting a remand hearing at which Employer was given another "bite at the apple" to prove that Claimant was ineligible for UC benefits; (2) numerous findings of fact are not supported by substantial, competent evidence; and (3) the Board's finding that Claimant violated Section 402(e.1) is contrary to the Law because, inter alia, Employer did not meet its burden of proof. Because we conclude that Employer did not present substantial, competent evidence to meet its burden of proof, we reverse.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e.1), subsection added by Section 3 of the Act of December 9, 2002, P.L. 1330. Section 402(e.1) provides that a claimant will be ineligible for UC benefits for any period:
[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.
Claimant worked as a truck driver for Employer from July 28, 2005 until May 21, 2012, when Employer discharged Claimant for having a drug test that was positive for cocaine on May 17, 2012. (Board Op., Findings of Fact (FOF) ¶¶ 1, 4, 26.) Employer rehired Claimant on July 8, 2012 pursuant to the contract between Employer and Claimant's union, which provides for a one-time reinstatement. Claimant filed a claim for UC benefits for the time between his discharge and reinstatement, which the local UC Service Center denied based on Section 402(e.1). (Notice of Determination, R. Item 4.) Claimant appealed.
I. First Hearing
A hearing was held before a UC Referee (Referee), at which Claimant, represented by counsel, testified by telephone and Employer's representatives attended in person (First Hearing). (Hr'g Tr. at 1-2, July 23, 2012, R. Item 8.) At the beginning of the hearing, Employer noted that several documents it believed should be in Claimant's file, including the drug test results, were not in the file. (Hr'g Tr. at 4-5.) Claimant objected to the submission of these documents because he did not have the chance to review them. (Hr'g Tr. at 5.) Upon inquiry, it was determined that Employer did not send the documents to the Referee's office, as directed by the Notice of Hearing, (Notice of Hearing at 1, R. Item 7), but to a local UC Service Center, (Hr'g Tr. at 5). The hearing continued and Employer's witness, Relay Manager, and Claimant testified.
In pertinent part, Relay Manager testified, over Claimant's hearsay objection, that he discharged Claimant because he had been advised that Claimant failed a drug test. (Hr'g Tr. at 7-8, 11-12.) According to Relay Manager, Claimant stated that the test results were false, asked for a retest, and stated that he had undergone surgery recently and believed that may have impacted the test results. (Hr'g Tr. at 9, 11.) Relay Manager also testified that Employer utilizes an outside vendor to conduct its random drug testing. (Hr'g Tr. at 10.)
Claimant testified regarding how the drug test was performed, explaining, inter alia, that the technician did not wear gloves, had him sign and initial all the forms and stickers prior to his taking the drug test, including a statement that the test had been performed properly, and that he did not witness the technician seal his specimen sample. (Hr'g Tr. at 14-15, 22-24.) Claimant stated that after the first test was deemed an insufficient sample he submitted a second sample but was not required to sign any additional forms. (Hr'g Tr. at 14-15, 24.) Claimant testified that he subsequently learned that these procedures were not proper. (Hr'g Tr. at 15.) Claimant denied using cocaine and indicated that he underwent surgery on May 9, 2012, during which he was under anesthesia, and was taking Vicodin for his pain. (Hr'g Tr. at 15-16.) Claimant testified that when Relay Manager told him that he had tested positive on the drug test, he objected to the results and offered to take another test immediately at his own expense. (Hr'g Tr. at 16-17.)
The Referee found, in relevant part, that although Claimant had been informed that he tested positive for cocaine, Claimant had not ingested cocaine. (Referee Decision, Findings of Fact ¶¶ 5-6.) The Referee concluded that Employer did not meet its burden of proving Claimant's ineligibility for UC benefits under Section 402(e.1) because: Claimant "denied the use of drugs and contested the results of the drug test based on the handling of the specimen"; the drug test results were omitted from the record; and Employer offered no evidence at the hearing to establish that the testing was properly administered. (Referee Decision at 2.)
II. Employer's Appeal and Request for Remand
Employer filed a Petition for Appeal, disagreeing with the Referee's Decision and asking the Board to consider the documents that Employer asserted the Referee would not allow to be submitted during the First Hearing, despite their being previously submitted, to show that Claimant had tested positive for cocaine. (Employer's Petition for Appeal, R. Item 10.) Claimant objected to Employer's attempt to submit any documents that were not admitted by the Referee. (Claimant's Response to Employer's Petition for Appeal, R. Item 11.) The Board issued a "Remand Memo," directing another hearing "to receive additional testimony and evidence from the parties" and that, "in addition to the above information," "[a]nswers to the following questions . . . would be helpful:"
1) Claimant alleges that his drug test paperwork stated insufficient sample. Claimant shall submit a copy of said drug test paperwork. Claimant will also submit the paperwork regarding the second test that was given on the same day.(Remand Memo, R. Item 12 (emphasis in original).) A Notice of Hearing, which incorporated the Remand Memo, was sent to the parties, and the Referee held a second hearing (Remand Hearing). (Notice of Hearing - Remand, R. Item 15.)
2) Claimant asserts that his positive test result was caused by his outpatient surgery on May 9, 2012. Claimant shall submit documentation from a medical professional establishing that the drugs used in this surgery would result in a positive test result for cocaine.
III. Remand Hearing
At the Remand Hearing Claimant testified via telephone, and was represented by counsel. Claimant objected to the Remand Hearing as providing Employer a second opportunity to meet its burden and for improperly placing the burden on Claimant. (Hr'g Tr., January 3, 2013, at 15, R. Item 16.) Employer presented the testimony of Relay Manager and its Service Coordinator and offered a number of exhibits, including Claimant's discharge letter and the drug test results, for admission. Claimant objected to the admission of the exhibits on the bases that the exhibits lacked foundation, were hearsay, irrelevant, not submitted at the First Hearing, and outside the scope of the Board's Remand Memo. (Hr'g Tr. at 4-9, 13-14.) In particular, Employer presented two "eScreen, Specimen Result Certificates" (eScreen certificates), (Exs. B-10, B-11), which reflect Claimant's drug test results. (Hr'g Tr. at 4-5.) Claimant objected to their admission, noting that "[c]ase [l]aw is very clear on how those results come in. They have to come in through a medical review officer [(MRO)], someone who performed the test." (Hr'g Tr. at 9.) Claimant's counsel noted that Employer had the opportunity at the First Hearing to bring in its MRO and did not. (Hr'g Tr. at 14.) Employer's Service Coordinator and Relay Manager explained their understanding of how the random drug tests are performed by the outside vendor. (Hr'g Tr. at 10-12.) Claimant objected to these explanations, asserting that it constituted double hearsay. (Hr'g Tr. at 11.)
The Referee overruled the objections, indicating that she would consider the documents for the purpose of showing "the reason provided to the Claimant for why he was terminated." (Hr'g Tr. at 8, 13.) Employer also offered a letter by Heather Girdharry, D.O., which Claimant gave to Employer during his grievance, indicating that cocaine and the anesthesia Claimant received during his May 9, 2012 surgery were from different classes of drugs. (Hr'g Tr. at 32; Ex. E-2.) Dr. Girdharry acknowledged that she could not "comment on what components of medications are detected during drug testing in the workplace." (Ex. E-2.) Claimant objected to the introduction of this letter on hearsay grounds. (Hr'g Tr. at 33.)
In response to the Board's first question on remand, Claimant testified about the testing, the deficiency in the procedures, and presented his copy of the testing form that indicated that his first test was insufficient, (Ex. C-1), but did not contain the information regarding the second sample that was on Employer's form, (Ex. C-2). (Hr'g Tr. at 16-20.) With regard to the Board's second question, Claimant did not obtain a medical report. (Hr'g Tr. at 23.) Relay Manager testified that, under the collective bargaining agreement, in order for a driver to take advantage of the one-time reinstatement benefit, the driver has to "accept the fact that [the driver] tested positive" and that Claimant withdrew his grievance. (Hr'g Tr. at 30-31.) Relay Manager agreed that he did not perform the drug test and was not authorized or qualified to do so. (Hr'g Tr. at 34.) Service Coordinator acknowledged that, when Claimant was told about the positive test result, Claimant asked for another test, stated that he did not think he was high, and claimed that his surgery could have caused his positive test result. (Hr'g Tr. at 36-37.) Service Coordinator testified that he was not Employer's MRO, did not perform any of the testing, was not there for any of the testing, did not deal with any of the samples, and was not involved in the chain of custody of the samples. (Hr'g Tr. at 39.)
Claimant testified that he withdrew his grievance on the advice of a union official so that he could return to work sooner because his union representative did not timely file his grievance. (Hr'g Tr. at 40-42.)
IV. Board's Opinion
Based on the testimony and evidence presented at both Referee hearings, the Board rendered its own findings of fact.
1. The claimant was last employed as a truck driver by the employer from July 28, 2005 and his last day of work was May 21, 2012.
2. The employer rehired claimant on July 8, 2012, based on the union contract which allows for a one[-]time lifetime opportunity for reinstatement.
3. Claimant's rehiring was based on the claimant going through rehabilitation treatment[,] being certified clean[,] and passing a return to work drug test.
4. The employer understood that claimant failed a May 17, 2012 drug test and tested positive for cocaine.
5. Claimant admitted that he took the drug test and understood he did not pass and that he was informed the positive result was for cocaine.
6. Claimant's test was positive for 150 ng/ml of cocaine.
7. The Federal Motor Carrier Regulations [(Federal Regulations)] govern how drug and alcohol test procedures are handled for the employer.
8. Claimant initially took the test and it was considered to be insufficient.
9. Claimant admitted that when he actually took the test he observed the technician performing the test.
10. Claimant alleged the technician was not wearing gloves.
11. Claimant alleged that the sample was not handled properly.
12. Claimant admitted that he initialed the stickers on the bottles but alleged it was not done properly.
13. Claimant also admitted to signing the sheet stating things were handled correctly and he witnessed the stickers placed on the bottles.
14. Claimant gave a second sample after the first was declared to be insufficient.
15. Claimant alleged he did not see any stickers applied to the second sample.
16. Claimant alleged he did not sign the stickers on the second sample.
17. Claimant alleged he could not properly read the custody form because he did not have his reading glasses.(FOF ¶¶ 1-26.) The Board overruled Claimant's objections to the Remand Hearing, stating that it remanded the matter to address the issues stated in the Remand Memo and to "secure [E]mployer documentation which should have been present at the [F]irst [H]earing" but for an administrative error. (Board Op. at 3.) The Board also overruled Claimant's hearsay, relevance, and lack of foundation objections to exhibits B-10 and B-11; the eScreen certificates of Claimant's positive test results; as well as exhibit E-2, Dr. Girdharry's letter, because "[s]uch medical documentation is not considered to be hearsay for purposes of unemployment." (Board Op. at 3.)
18. Claimant signed the acknowledgment on the chain of custody form acknowledging the insufficient sample at 11:14 a.m. and the sufficient sample at 12:23 p.m.
19. The employer informed the claimant of the test results[,] which it received through [eS]creen[,] and offered the claimant the opportunity to do a split sample which is retested at the claimant's cost.
20. Claimant did elect to have a split sample retested.
21. Claimant again tested positive on the split sample.
22. Claimant alleged that his positive test result was caused by his surgery on May 9, 2012, and other narcotic medication [V]icodin and anesthesia he received [sic].
23. Claimant's medical doctor noted [that] he received local anesthetics in a different class than cocaine in addition to [M]idazolam and Fentanyl.
24. Claimant alleged that he did not use cocaine.
25. The employer uses an outside vendor U.S. Health[W]orks to perform the testing.
26. The employer discharged claimant for failing a random drug and alcohol test.
The Board concluded that Employer established that Claimant underwent a random drug test under its policy, which is dictated by the Federal Regulations, followed the requirements of that policy, and received the eScreen certificates indicating that Claimant had tested positive for cocaine. (Board Op. at 3.) The Board held that "Claimant did not dispute the positive test result," and Employer met its burden of proof under Section 402(e.1) of the Law. (Board Op. at 3.) The Board stated that Employer credibly testified that the documents related to Claimant's test results "were properly submitted to the Employer's laboratory that performed the initial test"; therefore, "the medical facts contained in the lab report are admissible and not hearsay," and it could rely upon those reports. (Board Op. at 4.) The Board rejected as not credible Claimant's testimony that the tests were not properly performed, noting that Claimant had signed the form acknowledging that the test was properly performed. (Board Op. at 4.) The Board also held that Claimant did not credibly establish a valid cause for his positive test result through competent medical evidence. (Board Op. at 4.) Accordingly, the Board found Claimant ineligible for UC benefits under Section 402(e.1) of the Law. (Board Op. at 4.) Claimant now petitions this Court for review.
The Board took official notice of the Federal Regulations at 49 C.F.R. §§ 40.23 (providing "[w]hat actions do employers take after receiving verified test results"), 40.87 (setting the cutoff concentrations for drug test results), and 40.285 (establishing when a Substance Abuse Professional evaluation is required).
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
V. Claimant's Petition for Review to this Court
On appeal, Claimant argues that the Board erred and/or abused its discretion by: (1) remanding for a second hearing which gave Employer a "second bite at the apple"; (2) rendering numerous findings of fact that are not supported by substantial, competent evidence; and (3) concluding that Claimant's conduct violated Section 402(e.1) of the Law because, inter alia, Employer did not satisfy its burden of proof by presenting evidence from an individual qualified to establish a foundation for Claimant's test results, rendering those results inadmissible.
A. Did the Board abuse its discretion in remanding for a second hearing?
Claimant first argues the Board violated his due process rights by giving Employer a second opportunity to meet its burden of proof under Section 402(e.1), where there is no indication that the evidence Employer presented at the Remand Hearing was unavailable at the first hearing. In addition, Claimant contends that the Referee exceeded the scope of the Board's Remand Memo by permitting Employer to present evidence on the drug test results, which was not mentioned in the Remand Memo.
Section 504 of the Law provides the Board with discretion to grant the request for a remand for an additional hearing and, absent an abuse of that discretion, this Court will not overturn the Board's decision. Fisher v. Unemployment Compensation Board of Review, 696 A.2d 895, 897 (Pa. Cmwlth. 1997). Pursuant to Section 101.104 of the Board's regulations, "the Board may direct the taking of additional evidence, if in the opinion of the Board, the previously established record is not sufficiently complete and adequate to enable the Board to render an appropriate decision." 34 Pa. Code § 101.104(c). The Board also "has broad discretion to decide what issues will be addressed at the remand hearing." Primecare Medical, Inc. v. Unemployment Compensation Board of Review, 760 A.2d 483, 487 (Pa. Cmwlth. 2000). This Court has recognized, however, that remand hearings should not give the parties "the proverbial second bite at the apple" by presenting evidence that was available, or could have been available, at the time of the first hearing. Id. at 488 (holding that there was no abuse of discretion for excluding testimony where the employer did not consider a witness's testimony important enough to seek a continuance of the first hearing to ensure his presence); Fisher, 696 A.2d at 897 (holding that the Board abused its discretion in denying a remand hearing to allow the claimant to submit evidence that was not available at the time of the hearing and was material to the issue at hand); Emery Worldwide v. Unemployment Compensation Board of Review, 540 A.2d 988, 990 (Pa. Cmwlth. 1988) (denying a remand request where the employer could have obtained the witness's testimony at the first hearing by subpoena).
43 P.S. § 824. Section 504 provides, in pertinent part:
The board shall have power, on its own motion, or on appeal, to remove, transfer, or review any claim pending before, or decided by, a referee, and in any such case and in cases where a further appeal is allowed by the board from the decision of a referee, may affirm, modify, or reverse the determination or revised determination, as the case may be, of the department or referee on the basis of the evidence previously submitted in the case, or direct the taking of additional evidence.
The Board directed the Referee, on remand, "to receive additional testimony and evidence from the parties," as well as evidence that answered certain questions the Board had about Claimant's testimony. (Remand Memo.) As permitted by the Remand Memo, Employer presented "additional testimony and evidence" which, in overruling Claimant's objection, the Board concluded "should have been present at the [F]irst [H]earing" but for an administrative error. (Board Op. at 3.) Employer had sent the evidence in advance of the First Hearing to a local service center, which did not forward that evidence to the Referee's office in time for it to be sent to Claimant. Employer believed this evidence would be available for consideration at the First Hearing. (Hr'g Tr. at 5, July 23, 2012.) The Board considered the failure to forward the documents an administrative error and concluded that Employer should be allowed to present its evidence for consideration. Because the Board has broad powers to remand for additional evidence if the Board considers the record "[in]adequate to enable [it] to render an appropriate decision," 34 Pa. Code § 101.104(c), and Employer believed it had properly submitted the documents prior to the First Hearing, we cannot say that the Board abused its discretion by ordering the Remand Hearing.
We acknowledge that the Notice of Hearing indicated that any documents for the hearing were to be mailed to the Referee's office at least five days before the telephone hearing; however, the Notice of Hearing does not provide the address where such documents should be mailed. (Notice of Hearing, R. Item 7.)
B. Are the findings of fact supported by the record?
Claimant next asserts that FOF 4, 5, 6, and 21, related to Claimant's positive drug test and split sample test results; FOF 12 and 13, related to Claimant's admissions that he initialed the stickers on the bottles and signed a sheet indicating that the testing was done properly; and FOF 23, that "Claimant's medical doctor noted [that] he received local anesthetics in a different class than cocaine in addition to [M]idazolam and Fentanyl," (FOF ¶ 23), are not supported by substantial, competent evidence. The Board responds that Claimant did not specifically challenge any of these findings of fact in his Petition for Review and, therefore, the issue of whether these findings are supported by substantial, competent evidence is waived.
A review of Claimant's Petition for Review reveals that, although he may not have specifically mentioned any of the Board's findings of fact by number, he does challenge the Board's conclusions and findings that Claimant's conduct amounted to willful misconduct under Section 402(e.1) and that he failed the drug test as not being supported by substantial, competent evidence. (Petition for Review ¶ 5(a), (d).) Rule 1513(d) of the Pennsylvania Rule of Appellate Practice provides that "[t]he statement of objections will be deemed to include every subsidiary question fairly comprised therein." Pa. R.A.P. 1513(d). We conclude that these objections fairly include Claimant's challenges to these specific findings of fact. Therefore, we decline to conclude that Claimant waived these issues, and we will address them.
"Substantial evidence is defined as such relevant evidence which a reasonable mind might accept as adequate to support a conclusion." Philadelphia Gas Works v. Unemployment Compensation Board of Review, 654 A.2d 153, 157 (Pa. Cmwlth. 1995).
Findings of Fact 4 through 6 and 21 state: (1) "[E]mployer understood that [C]laimant failed a May 17, 2012 drug test and tested positive for cocaine," (FOF ¶ 4); (2) "Claimant admitted that he took the drug test and understood he did not pass and that he was informed the positive result was for cocaine," (FOF ¶ 5); (3) "Claimant's test was positive for 150ng/ml of cocaine," (FOF ¶ 6); and (4) "Claimant again tested positive on the split sample," (FOF ¶ 21). Claimant asserts that this Court set forth specific requirements for the admission of drug test results in UGI Utilities, Inc. v. Unemployment Compensation Board of Review, 851 A.2d 240, 248 (Pa. Cmwlth. 2004), and Employer's evidence falls short of satisfying these requirements. Additionally, Claimant asserts that the fact that he "understood" that he did not pass the drug test is not substantial, competent evidence that he actually failed the drug test because it is based on a hearsay statement of an unidentified third party and does not meet the standard this Court has expressly set forth for an employer to establish a failed drug test in a UC proceeding.
A review of the record reveals that there is substantial, competent evidence to support findings of fact 4 and 5. Relay Manager stated that this is why Employer discharged Claimant, and Claimant admitted to taking the drug test and being informed that he had tested positive on that drug test. (Hr'g Tr. at 7-9, 16-17, July 23, 2012; Hr'g Tr. at 25-26, January 3, 2013.) However, we agree with Claimant that the fact that he and Employer "understood" that he did not pass the drug test is not substantial evidence to prove that Claimant did, in fact, fail the drug test.
The Board asserts that Claimant admitted that he tested positive and, therefore, no further evidence was necessary. Our reading of the hearing transcripts reveals that Claimant did not admit to testing positive or taking drugs and, to the extent Claimant acknowledged positive test results, he denied using cocaine and continued to challenge the accuracy of the results. (Hr'g Tr. at 16-18, 20-25, July 23, 2012.) Moreover, the Board did not find that Claimant "admitted" that he had tested positive; rather, it found that he "understood" that he did not pass the test. "Admitted" and "understood" are not the same.
"Admit" is defined in part as "to accept as true or valid" and "understood" is defined in part as "to consider as a possible fact: infer or come to regard as plausible or probable without certain knowledge or proof - know through rumor or hearsay." Webster's Third New International Dictionary 28, 2490 (2002). Here, Relay Manager testified the he had been told by Employer's MRO that Claimant had tested positive on his drug test and that he told Claimant about the positive test results. (Hr'g Tr. at 7-8, July 23, 2012.) Claimant objected to Relay Manager's testimony as being hearsay, and the Referee permitted the testimony only to show that the failed drug test was the reason Employer gave Claimant for his termination. (Hr'g Tr. at 7.)
The Board further asserts that Employer's and Claimant's understanding that the test results were positive are sufficient to deny Claimant benefits because "the Board used this finding to explain the start of Employer's course of conduct," not for the truth of the matter asserted. (Board's Br. at 13-14.) However, Employer had to establish that Claimant actually tested positive for drugs in violation of Section 402(e.1) of the Law and the fact that it understood that Claimant tested positive, which began its course of conduct to terminate Claimant's employment, does not, absent more, establish that Claimant tested positive.
Claimant's challenge to findings of fact 6 and 21 is based on his assertion that Employer did not properly introduce the drug test results and, therefore, they are inadmissible and cannot support any findings of fact. According to Claimant, Employer did not present the testimony of anyone with knowledge regarding the testing procedures or chain of custody process, let alone Employer's MRO, before the eScreen certificates were admitted into the record. Claimant argues that, despite not having this testimony, the Board improperly found that the documents were admissible and based its conclusion on those documents. The Board asserts that Claimant's challenge to the eScreen certificates and the "gaps in the chain of custody," (Board Br. at 12), go to the weight of the test results rather than their admissibility and are an impermissible attack on the Board's credibility determinations.
Employers have "a strong interest in maintaining a workplace that is free from the influence of drugs." Rebel v. Unemployment Compensation Board of Review, 555 Pa. 114, 120, 723 A.2d 156, 159 (1998). However, in UGI Utilities, this Court addressed the evidentiary burdens under Section 402(e.1) and held that "Section 402(e.1) does not relieve an employer of laying a foundation for a drug test report" and "[l]aboratory reports showing the outcome of tests on urine samples are irrelevant unless the factfinder has some assurance that the reports relate to the right sample." UGI Utilities, 851 A.2d at 249, 252. "A lab report requires a foundation" and "[t]he proponent of a lab report must present evidence sufficient to support a finding that the report is what its proponent claims." Id. at 251. Thus, in order to have evidence of a failed drug test admitted, an employer must establish the following:
The employee in UGI Utilities, like Claimant, was a truck driver and the employer's testing procedures were governed by the same Federal Regulations as those here, which require, inter alia, that an MRO review the accuracy and integrity of the testing process for all samples, contact the employee directly, and determine whether there is any legitimate medical explanation for the positive test. UGI Utilities, 851 A.2d at 246-47 nn.14-15 (citing 49 C.F.R. §§ 40.3, 40.123(a)-(c), 40.131(a).)
[f]irst, [the] lab reports and chain of custody control files should be admitted through the testimony of an MRO. Second, the foundation inquiry, including chain of custody, should be conducted before, not after, documents relating to test results are admitted into the record. Third, the medical fact of a positive drug test contained in a lab report is not inadmissible hearsay.Id. at 248. We also noted that test results "could [be] admitted by stipulation of the parties or the admission by [the c]laimant that the sample tested was [his] and the lab report on that sample authentic." Id. at 249 n.20.
The test results in UGI Utilities were not submitted through the testimony of an MRO, but as business records by the employer's custodian of the reports, and the claimant did not object; thus, we held that there could be no challenge to the probative value of those reports. UGI Utilities, 851 A.2d at 249, 251 n.29.
In Ellis v. Unemployment Compensation Board of Review, 749 A.2d 1028, 1031 (Pa. Cmwlth. 2000), we held that "where . . . a sample is not taken by the laboratory that prepared the test report, the employer, independently, must prove the chain of custody before the report may be admitted." Accordingly, in Ellis, we reversed the denial of UC benefits where the "[e]mployer offered absolutely no evidence in this regard" about how the sample was collected. Id. at 1031. In contrast, in O'Brien v. Unemployment Compensation Board of Review, 49 A.3d 916, 919 (Pa. Cmwlth. 2012), this Court upheld the Board's finding of ineligibility where the employer presented the testimony of the individual "in charge of [the employer's] drug screening unit," who "had extensive knowledge of [the e]mployer's policy and drug testing procedures." In doing so, we stated that UGI Utilities did not require that drug reports always be admitted through an MRO, but must be testified to by "someone with knowledge of the testing procedure." Id. Finally, in Greer v. Unemployment Compensation Board of Review, 4 A.3d 733, 737 (Pa. Cmwlth. 2010), we noted that the introduction of drug test results is not the only way to establish that an employee has violated a substance abuse policy. In Greer, we held that the Board's finding that the claimant tested positive for drugs was supported by substantial evidence because the claimant did not deny the positive drug test results, admitted to the employer that he had a drug and alcohol problem, was seeking treatment, and testified during the Referee's hearing that he had ingested cocaine about a week before the drug test. Id.
Although Employer, like the employer in UGI Utilities, has an MRO, (Hr'g Tr. at 7-8, July 23, 2012), it did not present the MRO's testimony to meet its burden, but offered the testimony of its Relay Manager and Service Coordinator. With regard to Claimant's drug test and drug test results, Relay Manager indicated that Employer uses an outside vendor, U.S. HealthWorks, for its drug testing and the MRO informed him of Claimant's drug test results. (Hr'g Tr. at 7-8, 10.) With regard to the drug test itself, Relay Manager questioned at the First Hearing whether Claimant had any evidence, other than his testimony, that the drug test was done improperly and the following exchange occurred.
EW1 (Relay Manager): Well the only evidence he's providing there's no one here to back up except for [Claimant] because it's him and a medical examiner there together. And of course he can create anything he wants at that time.(Hr'g Tr. at 21.)
CL: Well [Employer] had the choice to bring the medical examiner here and [it] chose not to. It's [Employer's] burden of proof, not [Claimant's].
EW1: You're right, but we also can't stand there and watch [Claimant] take the test. The company does not have that right.
CL: But the company does have a right to bring the representative from U.S. HealthWorks that did the test and [it] chose not to.
EW1: Fair enough.
At the Remand Hearing, Relay Manager explained that the Federal Regulations mandate the drug testing procedures and Employer receives the drug test results from "eScreen," a vendor that provides Employer with the results from the testing performed by U.S. HealthWorks. (Hr'g Tr., January 3, 2013, at 5, 9, 12.) Relay Manager agreed that he did not personally perform any of the testing, and was "not authorized and qualified to do so." (Hr'g Tr. at 34.) Service Coordinator, who Relay Manager indicated "handles most of this for me," generally explained that an employee is randomly chosen for a drug test, given the pre-printed paperwork associated with the test, sent to a location on Employer's property to take the drug test, the outside vendor gives the test to the employee, and the vendor sends the sample out for testing. (Hr'g Tr. at 10-11.) As for the testing procedures themselves, Service Coordinator testified that "[t]hey have their procedures, which is part of the government testing thing" and "[t]hey have . . . their procedures they follow." (Hr'g Tr. at 12.) When asked how he knows the vendor follows their procedures, Service Coordinator stated that "[t]hey're trained in it and we pay them for it." (Hr'g Tr. at 12.) Service Coordinator acknowledged that he did not perform any of Claimant's testing, was not there for any of the testing, had no dealings with the samples or chain of custody, and was not Employer's MRO. (Hr'g Tr. at 39.) Service Coordinator noted, and Claimant acknowledged, that Claimant signed the chain of custody form indicating that the test was performed properly, (Hr'g Tr. at 10-11); however, Claimant indicated that he did so prior to taking the test which, he later learned, was improper, (Hr'g Tr. at 23-24).
We question the legal effect of having an employee, who may or may not know what the proper procedures are for a random drug test, sign a statement that the employee's test was performed "properly."
Applying the standards set forth in UGI Utilities, Ellis, O'Brien, and Greer, we conclude that Employer's evidence does not provide the proper foundation for the admission of the drug test results. Neither of Employer's witnesses had any particular "knowledge of the testing procedure," O'Brien, 49 A.3d at 919, both simply stated that Employer's vendor had its procedures, which are set forth in the Federal Regulations, and Employer paid the vendor to follow its procedures. Although Employer recognized at the First Hearing its burden to prove the drug test results and that it had the right to present the testimony of its MRO or a representative from the testing company to explain and authenticate the testing procedures, chain of custody, and test results, Employer chose not to do so. This evidence, or lack thereof, is akin to that in Ellis, where the employer provided no evidence of how the testing was actually performed, Ellis, 749 A.2d at 1031, and unlike that in O'Brien, where the employer presented the employee who was in charge of the testing and who "had extensive knowledge of [the e]mployer's policy and drug testing procedures," O'Brien, 49 A.3d at 919. Because Employer's evidence did not provide the necessary foundation for the drug test results, those documents are inadmissible and cannot support the Board's findings that "Claimant's test was positive for 150ng/ml of cocaine," (FOF ¶ 6), and "Claimant again tested positive on the split sample," (FOF ¶ 21).
We note that, notwithstanding this recognition at the First Hearing, Employer still did not bring either of these witnesses to the Remand Hearing.
Although Employer's witnesses testified, and the Board found that U.S. HealthWorks performed Claimant's test, the eScreen certificates suggest that Northeast Testing, Inc. collected the sample while other laboratories performed the actual testing. (Exs. B-10, B-11.)
Moreover, Employer did not present evidence that would establish a positive drug test through the alternative means suggested by UGI Utilities, 851 A.2d at 249 n.20, and Greer, 4 A.3d at 737. There is no stipulation that the drug test was positive and Claimant did not admit, like the claimant in Greer, that the test was positive or that he ingested any drugs, Greer, 4 A.3d at 737, or concede that "the sample tested was [his] and the lab report on that sample [was] authentic," UGI Utilities, 851 A.2d at 249 n.20. Absent this evidence, Employer did not meet its burden of proving that Claimant tested positive for drugs in violation of Section 402(e.1) and the Board's findings and legal conclusion that Claimant did test positive are not supported by the record.
The Board asserts, based on its reading of UGI Utilities, that Claimant's challenge goes only to the weight of the test results, not their admissibility, and that "medical tests conducted to determine the presence of cocaine are trustworthy and such medical facts are not opinion evidence and are not considered to be hearsay." (Board's Br. at 14-15 (citing UGI Utilities, 851 A.2d at 248-49).) However, UGI Utilities requires that the chain of custody and foundation evidence be presented, by someone knowledgeable of the actual testing procedures, before the test results are admitted and the medical fact of a positive test result becomes a part of the record. Questions related to the chain of custody of a sample, such as an incomplete chain of custody form or gaps in time, do go to the weight of the evidence, but we have recognized that there may be circumstances where the evidence related to the chain of custody is so lacking that it renders the test results inadmissible. Id. at 249-50 & n.23. The Board's position, essentially, would remove the requirement that an employer provide the proper foundation before the admission of the test results. This is inconsistent with our holding in UGI Utilities, and we decline to deviate from that case.
Slagle v. Unemployment Compensation Board of Review (Pa. Cmwlth. No. 1860 C.D. 2007, filed March 19, 2008), slip op. at 6-8, which the Board cites as persuasive authority, is distinguishable because, in that case, the claimant did not object to the employer's testimony that he tested positive as being hearsay, the claimant did not deny that he tested positive, and the claimant did not offer any explanation for the positive test result.
Finally, the Board argues that Claimant's challenge to these findings is an attack on the Board's credibility determination, which is beyond this Court's scope of review. Duquesne Light Co. v. Unemployment Compensation Board of Review, 648 A.2d 1318, 1320 (Pa. Cmwlth. 1994). This is not the case. Claimant is not arguing that the Board erred in finding Relay Manager and Service Coordinator credible, but that these witnesses' testimony is insufficient to lay the proper foundation for the admission of the actual drug test results and that, absent those results, there is no competent evidence that Claimant, in fact, failed the drug test. The Board's rejection of Claimant's explanation for the alleged positive test result as not being credible does not, in itself, establish that the test results were, in fact, valid. "Factfinders err when they try to make a finding of positive fact on the basis of a negative credibility determination" because "[a]n adverse credibility determination is not itself substantial evidence." Aversa v. Unemployment Compensation Board of Review, 52 A.3d 565, 571 (Pa. Cmwlth. 2012).
Because we conclude that Employer did not satisfy its burden of proving that Claimant had a positive drug test in violation of Section 402(e.1) and the Board's findings and legal conclusion that Claimant did test positive are not supported by competent evidence in the record, we reverse the Board's Order.
Because of our conclusion on this issue, it is not necessary to address Claimant's remaining arguments. --------
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, January 15, 2014, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby REVERSED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
Id.
Id. (emphasis added).