Opinion
No. 639 C.D. 2011
03-07-2012
George T. Stekovich, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, 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.
George T. Stekovich (Claimant) petitions for review of the March 14, 2011, order of the Unemployment Compensation Board of Review (Board), affirming a referee's decision to deny unemployment compensation benefits to Claimant pursuant to section 402(e.1) of the Unemployment Compensation Law (Law). For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e.1). This section was added by the Act of December 9, 2002, P.L. 1330. Pursuant to 402(e.1) of the Law, an employee is ineligible for benefits for any week in which his/her loss of work is "due to failure to submit and/or pass a drug test conducted pursuant to an employer's established substance abuse policy. . . ."
Claimant was employed by AAA Central Pennsylvania (Employer) as a payroll processor. (Board's Findings of Fact, No. 1.) On April 19, 2010, Employer informed employees that it would start using hair samples to test employees for drugs. (Board's Findings of Fact, No. 5.) Specifically, Employer's president and CEO, Mitch Hillman, sent an email to all employees, which, in pertinent part, stated:
Hello everyone,
As you all know, AAA Central Penn is a drug-free workplace. This is important for the safety and security of our employees, our members and all of those with whom we interact. We have had a Drug and Alcohol Testing Policy in place for several years; however, with the exception of those who drive company vehicles, it has been rarely used.
I want you to know that in approximately ninety days, we will begin random drug and alcohol testing of the general employee population. We will be using a new more accurate system that tests a hair sample for the presence of illegal substances. Not coincidentally, we are told that evidence of drug usage remains in a hair sample for about ninety days—consider this to be a word to the wise.
I am not interested in catching people doing something wrong so we can terminate their employment, I am interested in preventing behavior that can cause problems for our employees and for those we serve. If you have not consulted your Employee Handbook recently, I have attached the relevant section below this message. . . .
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DRUG AND ALCOHOL TESTING POLICY
AAA Central Penn wants to provide a drug-free, healthful and safe workplace. To meet this goal, we expect you to report to work in a mental and physical condition that enables you to perform your job in a satisfactory manner.(C.R., E-mail from Rich Hillman.)
While on AAA Central Penn premises or while conducting business-related activities off AAA Central Penn premises, you may not use, possess, distribute, sell, or be under the influence of alcohol or illegal drugs.
* * *
AAA Central Penn is a drug-free workplace. As such, we prohibit the use of illegal drugs or alcohol during work hours. If the employee comes to work under the influence of illegal drugs or alcohol or uses illegal drugs of alcohol during work time, the employee will be disciplined in accordance to the policy up to and including termination.
* * *
All employees shall be required to submit to a drug and alcohol test when the employer has reasonable cause to believe the employee is using or has used an alcohol or controlled substance in violation of this policy. AAA Central Penn has the right to ask any of its current employees to submit to a random drug or alcohol test.
On September 3, 2010, Claimant submitted a hair sample for a drug test. (Board's Findings of Fact, No. 7.) The hair sample tested positive for marijuana and Claimant was discharged on September 20, 2010. (Board's Findings of Fact, Nos. 9, 10.)
Subsequent to his termination, Claimant applied for unemployment compensation benefits. The local service center denied benefits on the basis that Claimant had failed a drug test. Claimant appealed, and a hearing was conducted before a referee.
At the hearing, Employer presented the telephone testimony of Barbara Roth, vice president of human resources. Roth testified that Claimant was chosen for drug testing because Employer had received a report that Claimant might have used drugs. (N.T. at 9.) She further testified that the test results were positive for marijuana use and that Claimant was terminated as a result of the positive drug test. (N.T. at 9-10.)
Employer also presented the testimony of Thomas Cairns, senior scientific advisor for the Psychemedics Corporation, a company that specializes in drug testing with hair samples. Cairns testified that evidence of marijuana use remains in an individual's hair for ninety days, (N.T. at 15), and that Claimant's hair sample tested positive for marijuana, indicating Claimant had used marijuana within the ninety days prior to the test. (N.T. at 20.)
Claimant testified that he was aware of Employer's drug and alcohol policies. (N.T. at 21.) Claimant admitted that he had smoked marijuana within ninety days of his drug test. (N.T. at 22.) However, Claimant denied that he had ever used marijuana while at work. (N.T. at 21.)
The referee concluded that Claimant was ineligible for benefits pursuant to section 402(e.1) of the Law. The Board affirmed.
On appeal to this Court,, Claimant argues that the Board erred in denying him benefits under section 402(e.1) of the Law because Employer presented no evidence that Claimant ever used or was under the influence of marijuana while working. Claimant asserts that Employer's policy only prohibits drug use while on duty and that a failed drug test alone does not establish a violation of Employer's policy. We disagree.
This Court's 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.
The Board has not filed a brief in this matter. However, Employer has filed an intervenor's brief. --------
Section 402(e.1) of the Law provides that employees are ineligible for benefits for any week in which their loss of work is "due to failure to submit and/or pass a drug test conducted pursuant to an employer's established substance abuse policy. . . ." To render an employee ineligible for unemployment compensation benefits under section 402(e.1) of the Law, the employer has the burden of proving that: (1) it adopted a substance abuse policy; and (2) the employee failed a test pursuant to that policy. Turner v. Unemployment Compensation Board of Review, 899 A.2d 381 (Pa. Cmwlth. 2006).
Here, Employer had a written substance abuse policy which stated that employees may not use or be under the influence of alcohol or drugs while working or at work. Employer's substance abuse policy is silent on the use of alcohol or drugs while not working or on work premises; however, the policy did provide for random drug testing. Mr. Hillman's email clearly explained that evidence of illegal drug use remains in the hair for up to ninety days; that hair testing would begin in ninety days; and that the ninety-day advance warning was not a coincidence and should be considered "a word to the wise."
The claimant in Turner made essentially the same argument Claimant now makes; he argued that his positive test for marijuana use, without proof that he used marijuana while at work, did not violate the employer's substance abuse policy. This Court rejected that argument, noting that "while a literal reading of one portion of employer's policy supports claimant's argument that drug use outside of work hours was not prohibited, viewing the entire policy in context belies this claim" because the employer also had a policy of conducting random drug testing. Id. at 384. We noted that:
the random testing provision in employer's substance abuse policy enforces the requirement that employees not only refrain from on-duty drug use but also be free from drugs remaining in employees' systems while on duty. Otherwise the test would serve no purpose because a positive test would be meaningless, or at least could result in no consequences absent independent direct proof of on-duty use.Id. at 385. Here, as in Turner, Employer had not only a policy which explicitly forbade employees from working while under the influence of drugs but also a policy of conducting random drug testing. Employer even warned its employees that illegal substances remained in the hair for up to ninety days and gave its employees ninety days to "clean up" before the hair sample testing was to begin. Pursuant to Turner, Claimant's positive test for marijuana use constituted a violation of Employer's drug policy.
Claimant also argues that because the April 19, 2010, email stated that Mr. Hillman was "not interested in catching people doing something wrong so we can terminate their employment," but rather wished to prevent "behavior that can cause problems for our employees and for those we serve," Claimant reasonably believed that "mere use of a substance such as marijuana while not at work, would not place his job in jeopardy." (Claimant's brief at 7.) However, we rejected this argument in Architectural Testing, Inc. v. Unemployment Compensation Board of Review, 940 A.2d 1277, 1280 (Pa. Cmwlth. 2008), explaining that a drug testing policy need not spell out the consequence of failing a drug test in order for such failure to be disqualifying under section 402(e.1) of the Law.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 7th day of March, 2012, the March 14, 2011, order of the Unemployment Compensation Board of Review is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge