Wednesday, November 30, 2005

UC - willful misconduct - drugs - substantial evidence

Ruiz v. UCBR - Commonwealth Court - November 30, 2005

The referee held that employer (ER) failed to prove that the claimant (CL) had and used drugs on the ER's property. The Board reversed and the court affirmed, holding that the employer (ER) adequately proved claimant's (CL) violation of rule (use of drugs at work) by circumstantial evidence, which was held to be substantial evidence, given the following facts.

The ER witnesses testified that on September 29th, they saw the CL move his car during a break and saw smoke coming out of the car, "as well as the pungent smell of burning marijuana," then "saw something 'flicked out of the passenger's side window.'" One ER witness "retrieved a smoldering butt of a marijuana cigarette from the ground outside the car window." The butt was "entrusted" to the ER's CEO, Abby Hoffman, but was never tested. The ER did not ask the CL to submit to a drug test because they thought it was not necessary, having seen CL smoking and having the butt in their possession. The CL had his own doctor do a drug test on December 11th; the result was negative for drugs. CL did not deny smoking marijuana. The union rep "signed off" on the CL's termination notice. The ER did not bring the marijuana cigarette to the hearing because the notice of hearing "contained a warning not to bring drugs or alcohol onto the premises. The notice did not provide an exception for evidence to be presented." CL's drug test was admitted, but only to show his state of mind and establish that he tried to take a drug test to show he wasn’t smoking marijuana.

The court held that "[c]ircumstantial evidence, if substantial, is sufficient to support and finding of willful misconduct" and that in this case, the "direct and circumstantial evidence was sufficient to support the Board's finding that" CL had and used illegal drugs on company property, in violation of ER rules. "Claimant's arguments, which essentially highlight conflicts between his version of the events and what was recounted by his supervisors, are nothing more than challenges to the Board's determination of credibility and weight of the evidence. We decline Claimant's invitation to reweigh the evidence and accept his version of the facts."

The court also rejected a Harkness challenge, based on the fact that the ER was represented at the hearing by a non-attorney advocate. The CL did not object to this at the hearing and didn't raise the issue until he filed his petition for review in court.

Donald Marritz
MidPenn Legal Services