Opinion
No. 1910 C.D. 2012
06-03-2013
Katrina Santiago, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Katrina Santiago (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) finding her ineligible for benefits under Section 402(e.1) of the Unemployment Compensation Law (Law) because her termination from employment with the Temple University Hospital (Employer) was due to her failure to submit to a drug test pursuant to Employer's substance abuse policy. Finding no error in the Board's decision, 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. 1329, 43 P.S. §802(e.1). That section provides in pertinent part:
An employe shall be ineligible for compensation for any week-
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(e.1) In 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.
Beginning in 1974, Claimant was employed as a full-time unit clerk with Employer. On May 5, 2012, Claimant was discharged for refusing take a drug test. Claimant filed a claim for unemployment compensation benefits, which the Unemployment Compensation Service Center denied, finding that she was discharged for failure to submit to a drug test administered pursuant to Employer's policy. Claimant appealed.
Before the Referee, Lorna Braunsar (Braunsar), the nurse manager of the unit in which Claimant worked, testified that Employer has an established substance abuse policy which provides that an employee's failure to comply with testing procedures is a terminable offense. She further testified that on the day that Claimant was terminated, Eileen Barone (Barone), the nursing supervisor on duty at the time, reported to Braunsar that Claimant was behaving erratically and was very loud, and she was asked to take a drug test, which she refused to do. Braunsar said that when she spoke with Claimant, Claimant explained that her behavior was because "there were a lot of people on the floor and [she] wanted to know what was going on." (Hearing Transcript dated July 10, 2012, at 9.)
Barone testified that she was in Claimant's unit on May 5, 2012, to assist with the patient situation, and Claimant was behaving disruptively, was cursing and yelling, and "was demanding to know what was going on." (Id., at 17.) Barone said she repeatedly asked Claimant to stop her behavior. After a patient had been secured, Barone asked to have a conversation with Claimant, and Claimant requested that a union representative be present. After the representative arrived, Barone and Kim Moulton (Moulton), Employer's risk manager, requested that Claimant go for drug testing several times, and she refused each time, despite the representative telling her that the refusal would result in immediate termination.
Moulton testified that on the day in question, she and Employer's police were on the floor where Claimant worked for an incident relating to a patient and that Claimant "was loud, cursing, fidgeting, pacing, not redirectable," (Hearing Transcript dated July 10, 2012, at 9), and was asked several times to sit down. She also testified that she observed that Claimant's back and seat were wet. She said that based upon this behavior, Claimant was asked to go to the emergency department for testing five to seven times, and at one point, Claimant left to speak with her union representative, but refused to go for the test. Moulton said she informed Claimant that refusal to submit to the test was a terminable offense, and the union representative verified this with Claimant; nonetheless, Claimant again refused to submit to the testing. At that point, Moulton and Barone escorted Claimant to clean out her locker and arranged for a cab to come get her because they "had suspicions we couldn't let her drive her own car." (Id., at 11.) Moulton further testified that she could not remember Claimant giving her any reason for refusing to submit to the test.
Claimant testified that on the day in question, several police officers let themselves into the unit where Claimant was working; the officers lined up against the wall with their hands behind their backs, and Claimant said nothing like this had ever happened before, so she became afraid and nervous. Another employee told Claimant that a patient needed to be secured because there was concern that the individual might harm others or himself. She said once the patient was secured, her anxiety subsided, but that was the point at which risk management employees asked to speak with her and took her to empty out her locker, asked for her employee identification badge, and terminated her. She said either Moulton or Braunsar told her to go to the emergency department for drug testing when she was already cleaning out her locker. Claimant further testified that she asked the union representative whether she needed to "go downstairs" for testing, but the representative told her she could refuse, (id., at 15), and she did not want to or did not feel like going. She said no one told her she could be terminated for refusing to submit to a drug test, but she knew she was terminated because she had cleaned out her locker. She further testified that she has been treating for stress and anxiety since her termination.
Based on the testimony at the hearing, the Referee found that Employer maintains a drug and alcohol policy which provides that all employees must comply with testing procedures and refusal to comply with testing procedures is a terminable offense, and that Claimant was or should have been aware of this policy. (Referee's Decision and Order dated July 10, 2012, at 1.) He further found that on the date of her termination, Claimant was behaving erratically and was loud, cursing, and pacing, and Employer therefore asked Claimant to go to the emergency department for drug testing five to seven times, which she refused to do, even after speaking to her union representative. Employer then discharged Claimant for refusing to submit to a fit-for-duty test. Based on these findings, the Referee determined that Employer's witnesses' testimony was credible, particularly with regard to the fact that Claimant was repeatedly asked to submit to a drug test, and Claimant failed to justify her refusal to submit to the test, in violation of Section 402(e.1) of the Law, 43 P.S. §802(e.1). The Referee therefore affirmed the denial of benefits.
Claimant appealed to the Board, which found that Employer has a drug and alcohol policy which provides that, upon a reasonable suspicion of drug or alcohol use at work, Employer can order that an employee submit to a drug test, and failure to submit to a test was a terminable offense. It further found that Claimant worked in a lockdown unit and was responsible for monitoring visitors, and "[o]n May 5, 2012, four or five policemen and a number of security guards bussed themselves into the locked unit where [C]laimant worked and lined up against a wall with their hands behind their backs." (Board's Opinion and Order dated September 7, 2012, at 1.) This made Claimant "nervous for herself, the visitors, and patients," (id.), and caused her to behave erratically. The Board further found that Claimant was repeatedly told to sit down, and Claimant failed to comply, which resulted in the unsuccessful requests that she submit to drug testing. Finally, it found that Employer discharged Claimant for failing to submit to drug testing in contravention of its policy. Based on these additional findings, the Board affirmed the Referee's decision. It reasoned that Claimant failed to establish good cause for her refusal to submit to the drug test, in violation of Employer's reasonable drug testing policy. This appeal followed.
Our scope of review is limited to determining whether the Board's findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated. Greer v. Unemployment Compensation Board of Review, 4 A.3d 733, 736 n.4 (Pa. Cmwlth.), appeal denied, 609 Pa. 693, 14 A.3d 830 (2010). --------
On appeal, Claimant challenges the Board's findings as to whether she was asked to submit to a drug test before or after her locker was cleaned out and whether she was aware that refusal to submit to the test would result in her termination. Specifically, Claimant argues that the union representative told her she did not have to take a drug test if she did not want to do so.
In reviewing the Board's decision, those findings are conclusive on review so long as the record, taken as a whole, contains substantial evidence to support those findings. Popoleo v. Unemployment Compensation Board of Review, 777 A.2d 1252, 1255 (Pa. Cmwlth. 2001). "Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion." Id. This Court will review the record in a light most favorable to the party prevailing before the Board, giving that party the benefit of all reasonable and logical inferences in determining whether the findings are supported by substantial evidence. Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth 1997). As the ultimate fact finder, the Board is entitled to make its own determinations with regard to witness credibility and evidentiary weight. Popoleo, 777 A.2d at 1255.
As to whether Claimant was asked to submit to a drug test before or after her locker was cleaned out, both Barone and Moulton testified that they asked her five to seven times before she was escorted to her locker and then out of the building, and Claimant repeatedly refused, even after she met with a union representative. Additionally, Claimant argues that the union representative told her she did not have to submit to the drug test. However, Moulton testified that she informed Claimant herself that refusal to submit to the test was a terminable offense, and she also testified that the union representative verified this information. While Claimant attempts to advance a different version of the order of events, she is essentially asking us to reweigh the credibility of the evidence. The Referee and Board determined that Barone's and Moulton's testimony was credible, and because the Board is the ultimate arbiter of credibility, we will not disturb this finding on appeal.
Accordingly, we affirm the order of the Board.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 3rd day of June, 2013, the order of the Unemployment Compensation Board of Review, dated September 7, 2012, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge