Opinion
No. 681 C.D. 2014
01-16-2015
Brian J. Butz, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Brian J. Butz (Claimant) petitions for review of the March 27, 2014, order of the Unemployment Compensation Board of Review (UCBR) reversing the decision of a referee to grant Claimant unemployment compensation (UC) benefits. The UCBR determined that Claimant was ineligible for UC benefits under section 402(e.1) of the Unemployment Compensation Law (Law) due to his discharge from work for failing a drug test in violation of Employer's substance abuse policy. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e.1). Section 402(e.1) of the Law was added by the Act of December 9, 2002, P.L. 1330.
Claimant was employed as a control room operator by Buzzi Unicem USA (Employer) from February 15, 2005, through April 3, 2013. Employer has a substance abuse policy that prohibits the use of illegal drugs and permits random drug testing. Employer's substance abuse policy states that an employee who tests positive for drugs can report to work after participation in and release from a rehabilitation program. Once the employee returns to work he is retested. If the employee fails the subsequent test, he is discharged. Claimant was aware or should have been aware of Employer's substance abuse policy. (UCBR's Findings of Fact, Nos. 1-4.)
On January 29, 2013, Claimant failed a drug test because his results were returned as "specimen substituted." On February 6, 2013, Employer advised Claimant that he would be drug-tested. Claimant "punched out" of work and did not take a drug test that day. On February 9, 2013, Claimant failed a second drug test because the results were returned as diluted. On February 15, 2013, Employer advised Claimant that he would be drug-tested a third time; rather than take the test, Claimant left Employer's facility without authorization. Also on February 15, 2013, Employer suspended Claimant and informed him that he needed to attend the employee assistance program. Claimant attended the program on February 21 and February 25, 2013, and was then released from the assistance program. On February 27, 2013, Claimant was drug-tested for a third time; he tested positive for an illegal form of amphetamine. A retest of Claimant's specimen confirmed the test results. On April 3, 2013, Employer discharged Claimant for failing a drug test. (Id., Nos. 5-16.)
Claimant applied for UC benefits, which the local service center denied. Claimant appealed to the referee, who held a hearing on July 7, 2013. At this hearing, the referee told Employer's witness that he could submit the chain-of-custody form for the test samples into evidence, but that he must first show the form to Claimant's counsel. (N.T., 7/12/13, at 6.) Claimant's counsel reviewed the form and then asked Employer's witness several questions, which he answered. (Id.) Employer's witness did not enter the chain-of-custody form into evidence. On July 15, 2013, the referee reversed the service center's decision, concluding that Claimant was not ineligible for UC benefits under section 402(e.1) of the Law because Employer did not establish that Claimant failed a drug test. (Referee's Decision at 2.)
Employer appealed to the UCBR. On December 3, 2013, the UCBR entered an order scheduling a remand hearing for the sole purpose of allowing Employer "an opportunity to submit into the record the chain-of-custody form that was discussed at the previous hearing." (UCBR's Hearing Order at 1.) At the remand hearing, Employer presented testimony from a nurse and a compliance coordinator at St. Luke's Hospital (St. Luke's), where Claimant submitted his specimens for the drug tests. Claimant submitted the results from an independent lab. On March 27, 2014, the UCBR issued a decision reversing the referee and denying UC benefits. Claimant now appeals to this court.
The UCBR also instructed the referee to consider the following question: "Does either party have any evidence on whether Wellbutrin shows up on drug tests?" (Remand Memo at 1.) The UCBR's hearing order does not contain this language.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Contrary to Claimant's assertion, the UCBR, not the referee, is the ultimate factfinder and may make credibility determinations. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383, 1388 (Pa. 1985). The UCBR may make different credibility determinations than the referee "so long as the [UCBR] is subject to judicial review on the substantial evidence test and is required to explain its decision in sufficient detail to permit meaningful appellate review." Id. at 1389. '"The appellate court's duty is to examine the testimony in the light most favorable to the party in whose favor the [UCBR] has found, giving that party the benefit of all inferences that can logically and reasonably be drawn from the testimony, to see if substantial evidence for the [UCBR]'s conclusion exists."' Tronzo v. Unemployment Compensation Board of Review, 522 A.2d 544, 545 (Pa. 1987) (citations omitted).
Claimant argues that the UCBR erred in concluding that Employer met its burden of proving that Claimant failed a drug test in violation of Employer's substance abuse policy. We disagree.
Section 402(e.1) of the Law provides that an employee shall be ineligible for UC benefits for any week "[i]n which his unemployment is due to his discharge . . . 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). To meet its initial burden, "it is sufficient for the employer to establish the substance abuse policy and its violation." Dillon v. Unemployment Compensation Board of Review, 68 A.3d 1054, 1057 (Pa. Cmwlth. 2013). If the employer satisfies this initial burden, then the burden shifts to the employee to show that the substance abuse policy was in violation of the law or a collective bargaining agreement. Id. at 1056 n.4.
Here, Claimant knew that Employer had a substance abuse policy prohibiting illegal substances and permitting random drug testing. (N.T., 7/12/13, at 9.) Employer testified that its substance abuse policy is contained in Claimant's union contract, which Claimant did not dispute. (Id., at 4, 9.) In proving that Claimant violated the substance abuse policy, Employer, at the remand hearing, entered its chain-of-custody form and lab reports into evidence and discussed how Claimant's specimens were collected and tested. '"As long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness of the business records of a company, a sufficient basis is provided to offset the hearsay character of the evidence."' O'Brien v. Unemployment Compensation Board of Review, 49 A.3d 916, 919 (Pa. Cmwlth. 2012) (citations omitted). Claimant had signed the chain-of-custody form, acknowledging that the specimen he gave to the nurse at St. Luke's was sealed into two different tamper-proof containers in his presence and that the information affixed to each container was correct. (N.T., 12/23/13, at 14 & Ex. B11.) Each container was labeled with the chain of custody specimen ID 2016986490. (Id.) The nurse who administered the test testified that she would only accept the subsequent lab results for those samples if the specimen IDs for the lab results matched the chain of custody specimen IDs. (Id., at 6.) The chain-of-custody form states that the specimens' seals were intact when they arrived for testing at the lab. (Id., at 14 & Ex. B11.) St. Luke's compliance coordinator testified that she requested the lab results. (Id., at 16.) The results of the test and retest of the specimens marked 2016986490 indicated a positive result for methamphetamine-D, an illegal amphetamine. (Id., at 16 & Ex. B12, B13, R. Item No. 4.)
Claimant argues that the positive test results could not have come from his specimens because the specimens did not test positive for bupropion. At the remand hearing, Claimant testified that bupropion is the active drug in Wellbutrin, a prescription drug he was prescribed and claimed to be taking at the time of the drug tests. (Id., at 30.) Employer acknowledged that its drug test is only designed to detect certain illegal substances, not Wellbutrin or its component drug bupropion. (Id., at 21, 23.) Claimant introduced the results of a different lab's retest of the specimen, which specifically tested for bupropion. (Id., at 32.) That lab's results showed the specimen was negative for bupropion. (Id., at 32 & Ex. B14.) However, Claimant did not offer expert testimony or other evidence suggesting that bupropion is the active drug in Wellbutrin.
The test results were also positive for methamphetamine-D. (N.T., 12/23/13, at 32 & Ex. B14.)
The UCBR discredited Claimant's testimony that the specimens, which tested positive for an illegal amphetamine, were not his. (UCBR's Decision at 2.) Moreover, Claimant admitted that he could not point to any flaw in the chain of custody or the testing process other than the fact that the specimens did not test positive for bupropion. (N.T., 12/23/13, at 39, 41.) Thus, the record supports the UCBR's determination that Claimant failed a drug test by testing positive for an illegal amphetamine, a violation of Employer's substance abuse policy. Claimant failed to show that Employer's drug tests violated the law or any collective bargaining agreements. Therefore, the UCBR properly denied Claimant UC benefits under section 402(e.1) of the Law.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 16th day of January, 2015, we hereby affirm the March 27, 2014, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge