Thursday, September 16, 2010

UC - willful misconduct - drug testing - memo

In Turner v. UCBR (May 16, 2006) , the Commonwealth Court held (4-3) that the employer could establish written drug test results as business records under 42 Pa. C.S. 6108(b), by the "testimony of the supervisor of those persons who are actually performing the drug testing of a urine specimen. . . ". The court said that the testimony of the employer vice-president and director of toxicology of the lab that did the drug test "provided very detailed and sufficient information relating to the preparation of claimant's drug test result and justified not only a presumption about the trustworthiness of this record but its admission."

This holding is questionable in light of the Superior Court decision in Commonwealth v. Barton-Martin (
September 8, 2010), a criminal case in which the court struck down a DUI conviction based on lab reports, where the lab analyst who did the testing and wrote the report did not appear at trial and was not shown to be unavailable, citing Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), which was authored by Justice Scalia, with Thomas concurring.

Like Barton-Martin, Melendez-Diaz is a criminal case. Both rely on the confrontation clause of the 6th Amendment. A similar provision in the state constitution, Article I, sec. 9, says that in "all criminal prosecutions the accused hath a right. . . to be confronted with the witnesses against him. . . ."

However, there may be a correlative right to confront witnesses in civil cases as a matter of state due process, the state administrative agency law, 2 Pa. C.S., and other sources. Well-established rules about the use of hearsay in administrative hearings support this position. Hearsay evidence, properly objected to, is not competent evi­dence to support a finding. Hearsay evidence admitted without objection will be given its natural probative effect and may support a finding if it is corroborated by any competent evidence in the record, but a finding of fact based solely on hearsay will not stand. Walker v. UCBR, 367 A.2d 377, 370 (Pa. Cmwlth 1976). This long-standing rule is "not a mere technical rule of evidence, but a funda­men­tal rule of law which ought to be followed by agencies when facts crucial to the issue are sought to be placed on the record and an objection is made thereto.” A.Y. v. DPW, 641 A.2d 1148, 1151 (Pa. 1994).

In addition to these basic principles, which Turner undercuts , there is extensive language in Melendez-Diaz (which in turn relied on Crawford v. Washington, 541 U.S. 36 (2004) that can be used to argue that Turner was wrongly decided. In Melendez-Diaz, the court struck down a conviction based in part on written "certificates of analysis" that were used to establish that a substance taken from the defendant was cocaine.

The most useful language in Melendez-Diaz for UC cases involving drug cases involves statements that reject lab reports as "neutral scientific testing" or as business records.

Excerpts from the case about testing --

- Forensic evidence is not uniquely immune from the risk of manipulation.
- Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.
- “The forensic science system, encompassing both research and practice, has serious problems
- There is "little reason to believe that confrontation will be useless in testing analysts' honesty, proficiency, and methodology-the features that are commonly the focus in the cross-examination of experts."

Excerpt about drug tests as business records
- The federal evidence rule about records kept in the regular course of business does not apply "if the regularly conducted business activity is the production of evidence for use at trial. " It doesn't cover records "calculated for use essentially in the court, not in the business.

UC - willful misconduct - disparate treatment - burden of proof/persuasion

Geisinger Health Plan v. UCBR - Cmwlth. Court - en banc 4-3 decision - February 5, 2009 - 964 A.2d 970 Pa. Cmwlth. 2009)

Claimant was fired for sending pornographic emails at work. He claimed improper disparate treatment, because others who had done the same were not terminated.

The Court (4-3) held that "[d]isparate treatment is an affirmative defense by which a claimant who has engaged in willful misconduct may still receive benefits if he can make an initial showing that: (1) the employer discharged claimant, but did not discharge other employees who engaged in similar conduct; (2 ) the claimant was similarly situated to the other employees who were not discharged; and (3) the employer discharged the claimant based upon an improper criterion. See Department of Transportation v. UCBR, 755 A.2d 744, 748 (Pa. Cmwlth. 2000) (“[T]he essence of disparate treatment is not only whether unlawful discrimination has occurred but also whether similarly situated people are treated differently, based upon improper criteria.”). Once the claimant has made this showing, the burden then shifts to the employer to show that it had a proper purpose for discharging the claimant.

The court noted, several times, that there are "opinions of this Court that have been less than clear in applying the burden of proving disparate treatment," contrasting cases like Remcon Plastics, Inc. v. UCBR, 651 A.2d 671 (Pa. Cmwlth. 1994), with others such as Walsh v. UCBR, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). The court noted that "it is important to remember that the disparate treatment defense to a finding of willful misconduct is not found in the Law, but has its genesis in the Pennsylvania Supreme Court’s decision in Woodson v. UCBR, 461 Pa. 439, 336 A.2d 867 (1975)."

There were strong dissents from Judges Pelligrini and Friedman (joined by Smith-Ribner).

So far as I know, there was no appeal in the case.