Opinion
No. 1484 C.D. 2011
03-20-2012
Gary T. Fisher Sr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER
This case was assigned to the opinion writer on or before January 6, 2012, when the opinion writer completed her term as President Judge.
Claimant, Gary T. Fisher Sr., petitions pro se for review of the order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of the referee denying him benefits pursuant to Section 402(e.1) of the Unemployment Compensation Law (Law), which provides that a claimant is ineligible for benefits if he fails to submit to and/or pass a drug test administered pursuant to an employer's established substance abuse policy. After review, 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).
According to the referee's pertinent findings of fact, which the Board adopted as its own on appeal, Fisher, who worked as a driver for DCI Logistics, Inc. (employer), was involved in a minor work-related traffic accident while driving one of employer's vehicles. At the time, employer had an established substance abuse policy, which required that "any Driver must submit to an alcohol and drug test immediately in the event of an accident under penalty of termination." Referee's Finding of Fact No. 3. This policy was conspicuously posted on the employee bulletin board in a public place. When Fisher reported the accident, he was told two times to report to the testing center for a drug test. Fisher did not report for testing as instructed; he also failed to report to work the following day without "calling-off." Id. at 6. Fisher admitted that at the time of the accident, he was taking prescription vicodin and was aware that he would not pass a drug/alcohol screening. Due to Fisher's demonstrated knowledge of drug testing regulations, his admission that he would not pass a drug test and his failure to report to work the following day, the referee resolved all conflicts in testimony in favor of employer in rendering the above findings. Based thereon, the referee concluded that Fisher failed to report for a drug test that was requested pursuant to an established substance abuse policy and, therefore, was disqualified from receiving benefits pursuant to Section 402(e.1). The Board affirmed and the present appeal followed.
In making this finding, the referee noted and rejected Fisher's testimony that he was not aware of the referenced policy and that he was never told to report for testing. --------
We begin by noting that a claimant will be ineligible under Section 402(e.1) if the employer demonstrates "that it had an established substance abuse policy and . . . that the claimant violated the policy." Greer v. Unemployment Comp. Bd. of Review, 4 A.3d 733, 736 (Pa. Cmwlth. 2010). Once the employer meets its burden, the claimant will be ineligible for benefits unless he demonstrates that the policy is illegal or in violation of an applicable collective bargaining agreement. Id.
On appeal, Fisher essentially contends that certain factual findings lack evidentiary support. Specifically, he takes issue with the findings that employer had a substance abuse policy in effect, that he knew of the policy, that he was told to report for a drug screening and that he failed to report to work the following day without calling-off. In support, Fisher recites his own version of events, notably averring that: (1) he was not aware of any substance abuse policy; (2) he was not told to report for a drug screening; (3) following the accident, his supervisor told him to load his truck and make a delivery; and (4) his supervisor told him to take the next day off after which he was laid off. This challenge lacks merit.
Our review of the record reveals that the challenged findings are supported by substantial evidence. Fisher's supervisor, Mike Crosby, described employer's substance abuse policy, noting that it is posted in a visible location. He also testified that he told Fisher twice to report for testing and when Fisher did not report for work the next day without calling-off, he contacted the testing center to determine if Fisher had appeared for a test. According to Crosby, he was informed that Fisher did not report for a test, a fact not disputed by Fisher. It is well-settled that the Board is the fact-finder, empowered to determine witness credibility and resolve conflicts in evidence. Architectural Testing, Inc. v. Unemployment Comp. Bd. of Review, 940 A.2d 1277 (Pa. Cmwlth. 2008). Accordingly, as the Board's findings are adequately supported, the challenged findings are conclusive on appeal. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518 (Pa. Cmwlth. 1999).
Here, the credited evidence demonstrates that employer had an established policy requiring an employee to submit to a drug test following an accident and Fisher failed to submit to a test. Thus, benefits were properly denied pursuant to Section 402(e.1). The order of the Board is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge ORDER
AND NOW, this 20th day of March, 2012, the order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge