C. Hubbard v. UCBR ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Courtney Hubbard, :
Petitioner :
:
v. : No. 592 C.D. 2020
: Submitted: February 9, 2021
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge (P.)
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: March 3, 2021
Courtney Hubbard (Claimant) petitions for review of the Order of the
Unemployment Compensation (UC) Board of Review (Board) affirming the
Decision of the Referee, finding Claimant to be ineligible for benefits pursuant to
Section 402(e.1) of the UC Law (Law), 43 P.S. § 802(e.1),1 which provides that the
“failure to submit and/or pass a drug test conducted pursuant to an established
substance abuse policy” precludes a claimant from eligibility for UC benefits. On
appeal, Claimant argues that George Junior Republic (Employer) failed to meet its
burden of establishing the existence of an “established substance abuse policy,” as
Employer neither appeared at the hearing nor submitted evidence in advance thereof.
1
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.
Therefore, Claimant asserts the Board committed an error of law in concluding that
Claimant was ineligible for benefits under Section 402(e.1). Upon review, we
affirm.
I. Background
Claimant worked for Employer as a full-time clinical manager from October
6, 2014, until January 6, 2020, at which time he was terminated for allegedly refusing
to submit to drug testing. (Referee’s Decision, Findings of Fact (FOF) ¶¶ 1, 10.)
Claimant then applied for benefits online, in which he admitted that he was
discharged for failing to submit to a drug test. (Certified Record (C.R.) at CR 008-
09.) In his application, Claimant was asked whether “[E]mployer ha[d] an
established substance abuse policy,” whether Claimant “violate[d] the substance
abuse policy,” and whether the policy “require[d] a suspension or discharge,” all of
which Claimant answered in the affirmative. (Id. at 9.) Employer did not return the
Employer Questionnaire that it was sent requesting more information related to
Claimant’s discharge. (Id. at 12-14.) A representative of the UC Service Center
(Service Center) conducted two telephone interviews with Claimant. In the first
Record of Oral Interview, Claimant admitted that he told the head of Employer’s
Human Resources Department (HR Manager) that he “had smoked mari[juana] with
friends.” (Id. at 16.) Because Claimant had indicated on his application for benefits
that Employer had violated the substance abuse policy, the representative asked
Claimant to clarify this response. (Id.) Claimant explained that Employer “did [not]
violate the substance abuse policy” and asserted that after his initial urinalysis tests
were “not accurate” due to “possible temperature issue[s],” he decided to go to the
HR Manager to inform him that another test “would come back positive for
2
mari[juana].” (Id.) Additionally, in the second Record of Oral Interview, Claimant
again “admitted that [he] used the marijuana.” (Id. at 27.)
The Service Center subsequently determined that Claimant was ineligible for
benefits under Section 402(e.1). Claimant, proceeding pro se, appealed the Service
Center’s determination, and a hearing before the Referee was held on March 9, 2020.
Employer did not appear at the hearing or submit any documents. Claimant appeared
unrepresented and testified at the hearing as follows. Claimant admitted that he “did
go out and . . . smoke[] a marijuana joint.” (C.R. at 61.) When asked why Claimant
told Employer about the marijuana joint, Claimant explained that he “wanted to be
honest with [Employer].” (Id. at 65.) When asked why Employer had asked him to
take a drug test, Claimant stated that he had been charged with driving under the
influence (DUI), that this DUI was “in the paper,” and that “once it hits the paper,”
it was “a mandatory thing. Once it hits the paper, you submit.” (Id. at 67-68.) The
Referee asked for clarification as to whether Claimant meant that Claimant had to
submit “[t]o a drug test,” and Claimant responded, “[y]es. Submit urinalysis.” (Id
at 68.) Claimant testified that the HR Manager informed him that he would need to
submit to another urinalysis after the first two tests were inconclusive and that if he
was “not going to submit again . . . that [the HR Manager was] going to have to
terminate [him].” (Id. at 70-71.)
Following the hearing, the Referee affirmed the Service Center’s
determination, finding Claimant ineligible for UC benefits under Section 402(e.1).
The Referee made the following findings. Claimant went to a non-work, family
function and consumed marijuana, for which he did not have a prescription, in
December 2019. That same month, Claimant also was charged with DUI. Claimant
reported the charge to Employer, and Employer asked Claimant to submit to a drug
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test. On January 6, 2020, Claimant produced two urine samples for testing at
Employer’s request. Because the results of these two samples came back as
inconclusive, Claimant was asked to provide another sample. Instead, Claimant
asked to speak to the HR Manager. The HR Manager informed Claimant that “if he
did not submit further urine samples for testing[,] then he would be terminated.”
(FOF ¶ 9.) Claimant then admitted to the HR Manager that the test would show that
there was marijuana in his system, that he was voluntarily submitting himself to a
rehabilitation program, and that he wanted to reapply for his position after the
program’s completion. Employer discharged Claimant for failure to submit further
testing samples.
In the reasoning section of the Referee’s Decision, the Referee explained that
Pennsylvania [c]ourts have held that introducing drug test results into
evidence is not the sole means by which an employer can demonstrate
a claimant violated a substance abuse policy when considering an
unemployment claim. Violation of an employer’s substance abuse
policy also can be established by a claimant’s own admission that he or
she violated the policy.
(Referee’s Decision at 3.) The Referee further added that “Pennsylvania [c]ourts
have consistently held that a party admission is not hearsay and in proceedings
before the Board, an oral or written statement constituting a party admission may be
relied upon by the Board.” (Id.) The Referee found that Claimant admitted to
“refus[ing] to provide further urine samples for testing even though he was aware he
could be discharged for such.” (Id.) Accordingly, the Referee held that Claimant
was ineligible for benefits under Section 402(e.1).
Claimant appealed the Referee’s Decision to the Board, arguing that the
Referee’s finding of fact which stated that Claimant was charged with a DUI was
incorrect, as he was actually charged with disorderly conduct. (Attachment to
4
Petition for Appeal, C.R. at 89.) The Board adopted and incorporated the Referee’s
findings and conclusions and affirmed the Referee’s Decision. Claimant now
petitions this Court for review.2
II. Parties’ Arguments
In his pro se Petition for Review (Petition), Claimant alleges that the Board’s
finding3 stating that he was smoking marijuana and charged with a DUI was in error,
as he “was not smoking any controlled substance” and no “controlled substances
[were] in [his] system at the time of [his] discharge.” (Petition for Review (Pet.) at
2.) In his brief, Claimant, now represented by counsel, does not address that issue.
Instead, Claimant argues that Employer failed to carry its burden by not providing
“substantial evidence that [] Employer had an established substance abuse policy,
the terms and provisions of that policy, and whether the drug/alcohol test requested
or implemented was not in violation of the law or an existing labor agreement.”
(Claimant’s Brief (Br.) at 7.) Relying on Moore v. Unemployment Compensation
Board of Review, 578 A.2d 606 (Pa. 1990), Claimant argues that his testimony
regarding any policy and his violation thereof cannot be used to corroborate the
2
“The Court’s review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, whether a practice or procedure of the Board was not
followed or whether the findings of fact are supported by substantial evidence in the record.” W.
& S. Life Ins. Co. v. Unemployment Comp. Bd. of Rev., 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
The Board is the ultimate factfinder and is entitled to make its own determinations as to witness
credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d 1383,
1388 (Pa. 1985). Accordingly, this Court will not disturb those findings where supported by
substantial evidence, and the prevailing party below is entitled to the benefit of all reasonable
inferences drawn from the evidence. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Rev.,
949 A.2d 338, 342 (Pa. Cmwlth. 2008).
3
Claimant refers to the Referee’s Decision. However, in UC matters, the Board is the
factfinder, and it is the Board’s Order that we review. Accordingly, we will refer to the Board’s
Order, which adopted and incorporated the Referee’s findings and conclusions.
5
existence of the policy because of Employer’s failure to submit evidence of an
established substance abuse policy and its failure to attend the hearing and provide
such evidence. (Claimant’s Br. at 10-12.) Accordingly, Claimant asserts that the
Board’s Order was not supported by substantial evidence because the transcript from
the Referee’s hearing “simply makes no mention or even a passing allusion to the
existence of an actual written, established substance abuse policy.” (Id. at 13.)
In a footnote, the Board responds that Claimant did not raise the issues he now
argues in his brief in his appeal before the Board, and, therefore, these issues are
waived. (Board’s Br. at 7 n.3.) On the merits of Claimant’s arguments, the Board
asserts that an employer “need only show that it has a drug policy that allows it to
test,” and that “[t]he record is replete with evidence that Employer had a policy
permitting it to drug test Claimant.” (Id. at 7.) The Board points to Claimant’s
admissions in his application for benefits that Employer had an established substance
abuse policy, that he violated the policy, and that the policy called for suspension or
discharge from employment. (Id. at 7-8.) The Board further submits that Claimant’s
admissions at the hearing that his DUI was being reported in the paper and that he
was aware that it was mandatory to submit to a drug test also prove the existence of
a policy. Additionally, the Board argues that Moore actually provides that a
claimant’s testimony and admissions can both independently establish the existence
of a policy or provide sufficient corroboration of the employer’s hearsay evidence
regarding the policy. (Id. at 9.) And, therefore, because “Claimant here conceded
(1) the existence of the policy; (2) that it called for discharge from employment when
violated; and (3) that his illegal drug use was violative of the policy,” these
“admissions alone were sufficient to carry Employer’s burden of proof.” (Id.) While
an employer “bears the burden of proving willful misconduct, a finding of willful
6
misconduct can be based solely upon the claimant’s testimony, if sufficient.” (Id.
at 9-10 (citing Kelly v. Unemployment Comp. Bd. of Rev., 747 A.2d 436 (Pa.
Cmwlth. 2000) (emphasis in original)).) Because Claimant’s testimony satisfied
Employer’s burden, the Board argues that Employer did not need to provide
additional documentary evidence. Finally, the Board argues that Claimant admitted
that he refused to submit to a third urinalysis test, thereby precluding benefits under
402(e.1). (Id. at 12-13.)
III. Discussion
The Board argues that Claimant did not raise the question of whether
Employer failed to carry its burden by proving the existence of the drug policy in his
administrative appeal and, therefore, that issue is waived. In reviewing decisions of
the Board, “[o]nly questions raised before the [Board] shall be heard or considered.”
Pennsylvania Rule of Appellate Procedure 1551(a), Pa.R.A.P. 1551(a). However,
Pennsylvania Rule of Appellate Procedure 1551(a) does permit an exception to this
rule for
(1) [q]uestions involving the validity of a statute.
(2) [q]uestions involving the jurisdiction of the government unit over
the subject matter of the adjudication.
(3) [q]uestions that the court is satisfied the petitioner could not by the
exercise of due diligence have raised before the government unit.
If, upon hearing before the court, the court is satisfied that any such
additional question within the scope of this paragraph should be
raised, it shall remand the record to the government unit for further
consideration of the additional question.
Id. As such, unless an exception applies, issues not raised before the Board have not
been preserved for appellate review and are deemed waived. Chapman v.
7
Unemployment Comp. Bd. of Rev., 20 A.3d 603, 611 (Pa. Cmwlth. 2011); Jimoh v.
Unemployment Comp. Bd. of Rev., 902 A.2d 608, 611 (Pa. Cmwlth. 2006).
In Claimant’s appeal to the Board, the only issue that Claimant raised was an
error in the finding of fact stating that Claimant “was charged with [DUI] and he
reported the charge to [] [E]mployer.” (FOF ¶ 5.) Claimant did not raise the issue
regarding Employer’s failure to carry its burden by proving the existence of an
established drug policy before the Board. Because this issue is not one attacking the
validity of a statute, the jurisdiction of the Board over the issue, or one that could
not by the exercise of due diligence have been raised before the Board, we must find
that Claimant has waived this issue.
The sole remaining issue raised in Claimant’s Petition is that the Referee’s
finding of fact with regard to Claimant’s DUI was in error.4 Claimant does not
address this issue in his brief. “[A]n issue raised in a Petition for Review but not
argued in the claimant’s brief is waived.” Chene v. Workmen’s Comp. Appeal Bd.
(Giant Eagle, Inc.), 632 A.2d 1058, 1060 (Pa. Cmwlth. 1993) (citing Tyler v.
Unemployment Comp. Bd. of Rev., 591 A.2d 1164 (Pa. Cmwlth. 1991)).
Accordingly, this issue is also waived.5
4
Claimant also argues that he “was not smoking any controlled substance nor [did he]
ha[ve] any controlled substances in [his] system at the time of [his] discharge.” (Pet. at 1.) These
arguments were not raised before the Board in Claimant’s administrative appeal and, therefore, are
also deemed waived.
5
Even if this issue was not waived, the Board’s decision was supported by substantial
evidence. It is well-settled that this Court is “bound by findings of fact that are supported by
substantial evidence . . . .” Pedersen v. Unemployment Comp. Bd. of Rev., 459 A.2d 869, 872 (Pa.
Cmwlth. 1983). Substantial evidence is defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Peak, 501 A.2d at 1387 (quoting Murphy v.
Dep’t of Pub. Welfare, 480 A.2d 382, 386 (Pa. Cmwlth. 1984)). A party’s admission has been
upheld on multiple instances as constituting substantial evidence to support a Board determination.
(Footnote continued on next page…)
8
Even if Claimant had not waived the question of whether Employer failed to
carry its burden by proving the existence of the drug policy, it would not change the
outcome. Section 402(e.1) provides that an employee shall be ineligible for
compensation for any week
[i]n which his unemployment is due to discharge or temporary
suspension from work due to a 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.
43 P.S. § 802(e.1). “Under the plain meaning of Section 402(e.1) of the Law, an
employer’s established substance abuse policy only needs to set forth when an
employee may be required to submit to a drug test.” Architectural Testing, Inc. v.
Unemployment Comp. Bd. of Rev., 940 A.2d 1277, 1280 (Pa. Cmwlth. 2008). In
order to carry its burden under Section 402(e.1), “the Law requires an employer to
demonstrate that it had adopted a substance abuse policy that was violated by the
employee . . . .” UGI Utils., Inc. v. Unemployment Comp. Bd. of Rev., 851 A.2d 240,
252 (Pa. Cmwlth. 2004). The burden then shifts to the claimant to show that the
policy is contrary to the law or a collective bargaining agreement. Id.It is well-settled that even where an employer fails to appear at the hearing,
benefits still “may be denied if the employee seeking benefits proves the employer’s
See, e.g., Dillon v. Unemployment Comp. Bd. of Rev., 68 A.3d 1054 (Pa. Cmwlth. 2013); Greer v.
Unemployment Comp. Bd. of Rev., 4 A.3d 733 (Pa. Cmwlth. 2010).
In the present case, the Referee’s finding of fact challenged by Claimant in his Petition
stems from Claimant’s own admissions at the hearing. When asked why Employer requested
Claimant to take a drug test, Claimant stated that it was because “[he] had caught a DUI.” (C.R.
at 67.) Claimant explained that his DUI was “in the paper,” and that “[o]nce it hits the paper,” it
was “a mandatory thing” to “[s]ubmit [to] urinalysis.” (Id. at 68.) Accordingly, the finding of fact
was supported by substantial evidence given Claimant’s explicit admission that Employer’s
request for him to submit to a drug test resulted from his DUI charge.
9
case.” Moore, 578 A.2d at 608-09 (citing Devlin v. Unemployment Comp. Bd. of
Rev., 454 A.2d 1189 (Pa. 1983)). In Moore, the petitioner argued that the employer
failed to prove the existence of the policy at issue. The employer there did not appear
at the hearing but did provide documents as to the policy and its terms in advance of
the hearing. The claimant argued that these documents were hearsay and incapable
of supporting a factual finding as to the existence of the policy. We explained that,
where a claimant does not object to the documents’ introduction, it is possible for
the claimant to “provide[] sufficient corroboration to allow the hearsay evidence to
constitute substantial evidence, capable of supporting the referee’s [] factual
finding[s].” Id. at 609. However, we also stated that it was likewise possible for the
claimant to “establish[] the existence of the policy by [the claimant’s] own
testimony . . . .” Id. (emphasis added). Because the claimant in Moore “testified
that after he initially refused to take the test, he was told by his superiors that he
would be discharged if he didn’t submit to testing,” this Court found that “substantial
evidence existed to prove that the employer had a drug testing policy which provided
for immediate dismissal upon refusal to submit a test.” Id. Thus, while an employer
can carry its burden through hearsay corroborated by the claimant’s testimony, that
burden may also be carried independently by the claimant solely through the
claimant’s own testimony.
A claimant’s “admissions [] constitute independent evidence of themselves
and are therefore capable of independently providing competent evidence to support
the findings of the Board.” Unemployment Comp. Bd. of Rev. v. Houp, 340 A.2d
588, 591 (Pa. 1975). “[W]ords of a party constitute an admission and therefore may
always be used against him.” Stugart v. Unemployment Comp. Bd. of Rev., 85 A.3d
606, 608 (Pa. Cmwlth. 2014) (quoting Evans v. Unemployment Comp. Bd. of Rev.,
10
484 A.2d 822, 827 (Pa. Cmwlth. 1984)). We have held that out-of-court statements
by a claimant on his submissions, such as the “claimant questionnaire” and the
“internet claim form,” constitute party admissions that are admissible as an
exception to the hearsay rule. Havrilchak v. Unemployment Comp. Bd. of Rev., 133
A.3d 800, 804 n.3 (Pa. Cmwlth. 2015) (citing Stugart, 85 A.3d at 606); see also
Greer v. Unemployment Comp. Bd. of Rev., 4 A.3d 733, 739 (Pa. Cmwlth. 2010). In
Greer, we determined that the “[v]iolation of an employer’s substance abuse policy
[] can be established by a claimant’s own admission that he or she violated the
policy” where the claimant admitted such in his questionnaire. 4 A.3d at 737. In
summary, an employer’s burden under Section 402(e.1)—to establish the existence
of an established drug policy and that the claimant either refused to submit or failed
a required drug test—may be met solely by a claimant’s admissions, whether those
admissions occur in submissions to the Board or at the hearing before the Referee.
While Employer did not attend the hearing to provide such evidence or submit
any documentation as to the existence of a policy, Claimant’s statements in his
application for benefits and during his testimony before the Referee constitute
admissions that may be used against him. Havrilchak, 133 A.3d at 804 n.3; Stugart,
85 A.3d at 606. In his application for benefits, Claimant admitted that “[E]mployer
ha[d] an established substance abuse policy,” that Claimant “violate[d] the substance
abuse policy,” and that the policy “require[d] a suspension or discharge.” (C.R. at
9.) Just as the claimant in Greer proved that he violated the policy through his
responses to the questionnaire, Claimant here established the existence of the policy
in his answers to the questionnaire. Furthermore, at the hearing, when the Referee
asked Claimant why Employer requested Claimant submit to a drug test, Claimant
explained that his DUI was “in the paper,” and that “once it hits the paper,” it was
11
“a mandatory thing. Once it hits the paper, you submit . . . Submit urinalysis.” (Id.
at 68.) Claimant further stated that the HR Manager informed him that if he was
“not going to submit again . . . that [the HR Manager was] going to have to terminate
[him].” (Id. at 70-71.)
Similar to the claimant in Moore who provided corroborating testimony as to
the existence of the employer’s drug policy, Claimant’s admissions here constitute
competent, independent evidence that “establish[] the existence of the policy by his
own testimony . . . .” 578 A.2d at 609. Accordingly, even if it had not been waived,
we would hold that the Board’s findings are supported by substantial evidence and
that those findings support the legal conclusion Claimant admitted to the existence
of Employer’s established drug policy, thus carrying Employer’s burden under
Section 402(e.1).
IV. Conclusion
Based on the foregoing, we affirm the Board’s Order finding Claimant
ineligible for benefits.
_____________________________________
RENÉE COHN JUBELIRER, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Courtney Hubbard, :
Petitioner :
:
v. : No. 592 C.D. 2020
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
NOW, March 3, 2021, the Order of the Unemployment Compensation Board
of Review is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge