           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Felicia Davis,                                  :
                              Petitioner        :
                                                :
               v.                               :    No. 1983 C.D. 2015
                                                :    Submitted: February 12, 2016
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                FILED: March 22, 2016

               Felicia Davis (Claimant) petitions for review of an order of the
Unemployment Compensation Board of Review (Board) denying her claim for
unemployment compensation (UC) benefits under Section 402(e.1) of the
Unemployment Compensation Law (Law).1                      The Board rejected Claimant’s
reasons for refusing her employer’s request for drug testing as not credible.
Claimant contends she was unable, under the circumstances, to comply with the
request for a drug test. Claimant also asserts her employer failed to comply with
the several details of its drug policy. We affirm.


       1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, added by
the Act of December 9, 2002, P.L. 1330, 43 P.S. §802(e.1). Section 402(e.1) of the Law states
an employee shall be ineligible for compensation for any week “[i]n which [her] unemployment
is due to discharge or temporary suspension from work due to failure to submit [to 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).
                                      Background
            The referee found the following relevant facts. Claimant worked for
Tenet Health System Hahneman (Employer) as a laboratory representative 2 from
April 2006 until her last day on February 9, 2015.


            Employer has a drug/alcohol policy which: (1) defines standards of
conduct for employees; (2) establishes procedures for testing of controlled
substances and intoxicants; and, (3) sets out consequences for violations of the
policy. Claimant received and acknowledged receipt of Employer’s policies in
March 2007. As such, Claimant knew or should have known of Employer’s
drug/alcohol policy.


            On Friday, February 6, 2015, Employer received reports of Claimant
leaving the restroom with a white powder under her nose. Employer also received
reports of Claimant’s erratic behavior in the workplace. Employer submitted the
reports to its Human Resources (HR) Division. The following Monday, Employer
received authorization to request that Claimant submit to a drug/alcohol test.
Employer asked Claimant to report to the HR Division at the end of her shift.
When Claimant reported, Employer requested that she submit to the drug/alcohol
test based on reasonable suspicion.


            Claimant informed Employer she could not comply with the urine test
because she recently urinated. Employer asked Claimant to drink some water in
order to provide a urine sample. Claimant declined the offer of water and informed
Employer that she needed to pick up her grandchildren to take them to school.



                                          2
Employer then requested that Claimant submit to a blood test. Claimant again
replied that she could not do so because she needed to leave to pick up her
grandchildren. By letter dated February 9, 2015, Employer discharged Claimant
for violation of its drug/alcohol policy based on her failure to submit to testing.


             In March 2015, Employer and Claimant’s union agreed to a last
chance agreement for Claimant. Employer asked that Claimant sign the agreement
by March 26, 2015. However, Claimant did not sign the agreement. On March 26,
Employer upheld Claimant’s termination based on her failure to submit to testing
in violation of Employer’s drug/alcohol policy.


             Thereafter, Claimant applied for UC benefits, which the local UC
service center denied under Section 402(e.1) of the Law. The service center
determined Employer met its burden of showing Claimant refused to submit to a
drug/alcohol test conducted under an established substance abuse policy.


             Claimant appealed, and the Board scheduled a referee’s hearing.
Claimant testified on her own behalf. Lynn SanSoucie (Supervisor), a laboratory
supervisor, testified for Employer.      Supervisor testified Employer terminated
Claimant for refusing to submit to a drug test. Referee’s Hr’g, Notes of Testimony
(N.T.), 3/31/15, at 5. Employer’s drug/alcohol policy permits reasonable suspicion
testing. Id. Refusal to submit to drug testing can result in corrective action,
including termination of employment. N.T. at 6. Claimant signed an HR form
acknowledging receipt of Employer’s policies. Id.




                                           3
            Supervisor testified Employer decided to request that Claimant submit
to drug testing on Monday, February 9, 2015, for two reasons. N.T. at 6. First, an
employee observed Claimant exit the bathroom the previous Friday with white
powder under her nose and notified Supervisor. Id. Second, other employees
observed Claimant’s actions at various times that day and informed Supervisor that
they suspected Claimant was on drugs. Id.


            Supervisor further testified that on Friday she contacted her
immediate supervisor, who, in turn, contacted HR. N.T. at 6. The following
Monday morning, Supervisor received voicemail directions from Employer’s HR
Director to escort Claimant to “Worknet” for a urine drug screen. Id. Supervisor
observed Claimant and told her to meet her at the end of the shift. N.T. at 7. At
the end of her shift, Claimant came to Supervisor’s room. Id. Noting other people
were around, Supervisor told Claimant to get her coat and go with her to HR. Id.


            On the way to HR, Supervisor informed Claimant that she was going
to Worknet to take a urine drug test because other employees reported seeing her
engaged in suspicious activity. N.T. at 7. Claimant started getting loud and
replied that she just urinated and would not provide Supervisor with a urine test.
Id. Supervisor then asked Claimant to talk about it and suggested that she drink
some water and wait to take the urine test. Id. Claimant again stated that she could
not stay and that she needed to pick up her grandchildren to take them to school.
Id. Supervisor then requested that Claimant take a blood test, which would be
quick. Id. Claimant refused and told Supervisor she would not give her any blood.
Id. Supervisor then asked Rashida Conyers (Conyers), an employee, to be her



                                         4
witness. Id. Claimant then repeated that she was leaving and that she would not
take a drug test. Id. Supervisor further testified Claimant told her she could
suspend or fire her. Id.


             Supervisor then told HR what occurred. N.T. at 7. HR Director
asked Conyers to write a witness notice and tell her what happened. Id. Conyers
complied. Id.


             Thereafter, HR decided at a meeting to terminate Claimant’s
employment by letter effective that day.       N.T. at 8.    Following Claimant’s
termination, her union became involved. Id. After a hearing, Employer agreed to
offer Claimant an opportunity to continue working if she signed a last chance
agreement, which would require drug testing for a period of time. Id. Claimant,
however, refused to sign the agreement.         Ultimately, Employer terminated
Claimant for refusing drug testing and refusing to sign the last chance agreement.
Id.


             Claimant also testified regarding her refusal to submit to drug testing
on Monday, February 9, and her later refusal to sign the last chance agreement.
Claimant acknowledged her awareness of Employer’s drug/alcohol policy. N.T. at
10. Claimant stated that when her shift ended on Monday morning, she needed to
go home and take her three grandchildren to school. N.T. at 11. When Supervisor
asked her to take a urine drug test, Claimant explained she just used the bathroom.
Id. Claimant also testified she told Supervisor that she was not refusing the drug
test, but that she needed to leave right away to pick up her grandchildren. Id.



                                         5
Claimant also stated that Supervisor told her she would be suspended until she took
a drug test. Id.


             When asked why she did not submit to a blood test, Claimant testified
that she was “off the clock” and needed to take her grandchildren to school. N.T.
at 14. Claimant recalled that there were three people waiting for blood tests and
that she would have needed to wait her turn. Id. Claimant also asserted that she
would have submitted to a drug test the next day, and if anything was in her
system, it would still be there. Id.


             Further, Claimant testified she did not sign the last chance agreement
Employer offered her because such an agreement is for an employee on drugs and
she was not on drugs. N.T. at 12. Claimant believed that Employer’s putting her
into a drug program essentially amounted to an accusation that she had a drug
problem, which she did not. Id. To that end, Claimant testified: “I feel as though,
for me to agree to that, I’m admitting to you that I’m on drugs, I’m not on drugs,
I’ve never been on drugs, I just can’t admit to something that I’m not on.” N.T. at
13. In short, Claimant did not feel she should be drug tested for a whole year just
because someone said something about her. Id.


             In addition, Claimant testified Employer did not follow its own
drug/alcohol policy. N.T. at 16. Claimant asserted Employer’s policy requires that
two supervisors observe and question the employee before they request that the
employee submit to testing. Id. Here, Supervisor never asked her if she was under




                                         6
the influence of drugs before requested that she submit to a urine drug test. N.T. at
16-17.


             Following the hearing, the referee issued a decision and order
affirming the service center’s determination of ineligibility under Section 402(e.1)
of the Law. In her decision, the referee reasoned (with emphasis added):

             At the [UC] hearing, [Claimant] testified she failed to
             submit to the test due to urinating prior to reporting to the
             HR Division as she was unaware she was scheduled to
             submit to a drug test. [Claimant] further testified she did
             not have time to drink more water and wait to urinate as
             she needed to pick her grandchildren up. In addition,
             [Claimant] testified she was aware that failing to submit
             to a drug/alcohol testing could result in a discharge from
             employment.

             Based on the testimony received at the hearing, the
             Referee concludes that [Employer] has met its burden of
             proving that [Claimant’s] fail [sic] to submit to the
             drug/alcohol test in violation of an established drug and
             alcohol policy; therefore, [Claimant] must be denied
             benefits under Section 402(e.1) of the Law.

Referee’s Dec., 4/1/15, at 3.


             On appeal, the Board affirmed. In so doing, the Board adopted and
incorporated the referee’s findings and conclusions. Additionally, the Board noted
(with emphasis added):

             [Claimant] alleged that her refusal to submit to drug
             testing on February 9, 2015, was due to having to get
             home to get her grandchildren to school, and because she
             had recently just gone to the bathroom and could not
             supply a urine sample at the time. The Board does not


                                          7
             find either of [Claimant’s] reasons for refusing to be
             credible. [Claimant] was well aware that her refusal
             could lead to her discharge, which did in fact occur that
             same day.

Board Dec. at 1. Claimant petitions for review.2


                                      Discussion
                                     A. Argument
             Claimant contends the Board erred in finding her ineligible for UC
benefits under Section 402(e.1) of the Law because she never refused to take the
drug test. Rather, Claimant testified she needed to leave so she could get her
grandchildren to school. If Employer would have notified her earlier of the need to
take a drug test, she could have made arrangements for her grandchildren, who are
in her custody, and she could have taken the drug test. N.T. at 10-11.


             In addition, Claimant observes, Section 402(e.1) requires that a drug
test must be administered pursuant to “an employer’s established substance abuse
policy.” 43 P.S. §802(e.1). Under Section 402(e.1), Claimant asserts, an employer
must follow its drug policy in order to discharge an employee for drug use on the
job. UGI Utils. Inc. v. Unemployment Comp. Bd. of Review, 851 A.2d 240 (Pa.
Cmwlth. 2004).      Here, Claimant argues Employer completely disregarded its
policy.



      2
          Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Wise v. Unemployment Comp. Bd. of Review, 111 A.3d
1256 (Pa. Cmwlth. 2015).



                                            8
             First, Claimant asserts Employer’s policy requires that a supervisor
reasonably suspect an employee’s drug use. In the present case, Supervisor did not
observe, first hand, any behavior that would lead her to suspect Claimant was using
drugs. Notably, Supervisor did not bring any of the witnesses who observed
Claimant using drugs to the referee’s hearing.         Therefore, Claimant argues,
Employer presented no evidence to show Supervisor had a reasonable suspicion
that Claimant was using drugs.


             Second, Employer’s policy requires that the employee’s supervisor
get an opinion from another supervisor regarding the employee’s condition. Here,
Supervisor failed to get a second opinion from another supervisor.


             Third, Employer’s policy requires that the supervisor fill out a
checklist documenting the employee’s behaviors. Supervisor did not follow this
step.


             Fourth, Employer’s policy requires that the supervisor immediately
tell the employee of her behavior and have the employee escorted away from the
work area. Here, Supervisor permitted Claimant to finish her entire shift before
approaching her about the drug test.


             Fifth, Employer’s policy requires that Employer provide the employee
with an opportunity to explain her behavior before the drug test is administered.
Supervisor did not give Claimant this chance.         Supervisor did not question
Claimant or ask her to explain her behavior prior to requesting a drug test.



                                          9
              Sixth, Employer’s policy requires that if both supervisors concur that
a drug test is appropriate, the sample should be collected on-site when feasible or
arrangements should be made to take the test off-site. Here, Claimant argues, it
would have been feasible for Employer to have Claimant take the drug test at the
beginning of her shift the next day. At that time, the alleged drugs would still be in
her system.


              In sum, Claimant argues, the evidence shows Employer disregarded
nearly every step of its drug policy in asking Claimant to submit to a drug test. As
such, Employer failed to meet Section 402(e.1)’s requirement that it follow its
established substance abuse policy.      Consequently, Claimant requests that we
reverse the Board’s order denying her UC benefits.


                                    B. Analysis
              Section 402(e.1) of the Law states an employee shall be ineligible for
UC benefits for any week in which her unemployment results from her failure to
submit to 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
(CBA).    43 P.S. §802(e.1).     Pursuant to Section 402(e.1), an employer must
demonstrate it had an “established substance abuse policy,” and that the claimant
violated it, in order to render the claimant ineligible for benefits for refusing or
failing a drug test. Greer v. Unemployment Comp. Bd. of Review, 4 A.3d 733,
736 (Pa. Cmwlth. 2010).        Under the plain meaning of Section 402(e.1), the
employer’s “established substance abuse policy” need only set forth when an



                                         10
employee may be required to submit to a drug test. Architectural Testing, Inc. v.
Unemployment Comp. Bd. of Review, 940 A.2d 1277, 1280 (Pa. Cmwlth. 2008)
(en banc). Section 402(e.1) requires only that the drug test be conducted pursuant
to an established policy. Id.


             While not contesting the existence of an established policy or her
awareness of it, Claimant first asserts she did not actually refuse the test. Rather,
she was unable to take it under the circumstances. Before the referee, Claimant
testified Employer confused her by requesting she take a drug test after her shift
ended on Monday morning.         N.T. at 10.     Claimant needed to leave work
immediately after she punched out to pick up her grandchildren and take them to
school. N.T. at 11. Claimant also testified she could not provide a urine sample at
that time because she just used the bathroom. Id.


             The Board, however, specifically rejected as not credible Claimant’s
reasons for not submitting to the drug test. Bd. Dec. at 1. In UC cases, the Board
is the ultimate fact-finder and is empowered to resolve all issues of witness
credibility, conflicting evidence and evidentiary weight. Ductmate Indus., Inc. v.
Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Further,
it is irrelevant whether the record includes evidence that would support findings
other than those made; the proper inquiry is whether the evidence supports the
findings actually made. Id. In addition, the party prevailing below is entitled to
the benefit of all reasonable inferences drawn from the evidence. Id. Because the
Board found Claimant’s reasons for refusing Employer’s request for a drug test not
credible, we must conclude Employer established that Claimant violated its



                                         11
substance abuse policy by refusing to submit to drug/alcohol testing.         Greer;
Architectural Testing.


             Claimant also contends Section 402(e.1) requires that Employer must
follow the details of its drug policy in order to discharge an employee for drug use
on the job. UGI Utilities. Here, however, Claimant asserts Employer completely
disregarded its policy. Therefore, Claimant argues the Board erred in denying her
claim under Section 402(e.1).


             Claimant’s interpretation of UGI Utilities is too expansive, especially
in a case such as this which deals with a refusal and therefore no actual drug test.
In UGI Utilities, the claimant took a drug test, and test results showed a failure to
pass the test. At issue was the quality of proof of the test results. This Court
stated, “We agree that Section 402(e.1) requires an employer to show that it
followed its established ‘substance abuse policy’ in discharging an employee for
drug use on the job.” UGI Utilities, 851 A.2d at 246. Claimant here relies on that
language. That language, however, was not essential to our holding, which we
summarized:

                    To conclude, we hold that Section 402(e.1) of the
             Law requires an employer to demonstrate that it had
             adopted a substance abuse policy that was violated by the
             employee in order for that employee to be rendered
             ineligible for benefits. The terms of that policy may be
             trumped by a statute or collective bargaining agreement,
             but it is the claimant’s burden to develop the record
             appropriately to succeed in that defense. However,
             Section 402(e.1) does not relieve an employer of laying a
             foundation for a drug test report. Here, Employer used
             the testimony of its human relations personnel to
             demonstrate chain of custody and foundation, i.e.,

                                         12
             relevancy and authenticity, of the lab report showing
             Claimant’s positive drug test results. Although irregular,
             once admitted, Employer’s lab reports of Claimant’s
             positive drug tests were entitled to be given probative
             value.

Id. at 252 (emphasis added). In short, we reject Claimant’s reliance on UGI
Utilities. This is because plucking dictum out of a decision that does not involve
the same issue is not helpful in resolving this case.


             Since UGI Utilities, this Court clarified its position. In the subsequent
en banc decision in Architectual Testing, which, like the current case, involved a
refusal for a drug test requested on the basis of reasonable suspicion, we explained:

                     Therefore, we hold that in order for a claimant to
             be rendered ineligible for benefits under Section 402(e.1)
             of the Law, the employer need only have an established
             substance abuse policy which permits it to conduct drug
             tests; the employer’s policy need not explicitly state that
             an employee may be discharged for a refusal to submit to
             such a test (although well-drafted policies will do so).

Architectual Testing, 940 A.2d at 1281-82 (emphasis added). Further, the Court
held that reasonable suspicion to request a drug test could be proved in part by out-
of-court statements by co-employees to an employer. Id. at 1282-83. That is the
situation here.


             This Court reiterated the limited burden on the employer in Greer.
We stated that to establish a disqualification under Section 402(e.1), an employer
need only show that it had an established substance abuse policy, and that the
claimant violated it. Greer, 4 A.3d at 737 (citing UGI Utilities, 851 A.2d at 252,



                                          13
the emphasized block quote above). If an employer meets this initial burden, a
claimant is rendered ineligible for UC benefits unless she can demonstrate that the
employer’s substance abuse policy violates either the law or a CBA. Greer.


               There is no question in this case that Employer had an established
substance abuse policy which authorized testing based on reasonable suspicion.
See Hr’g Record,3 Claimant’s Ex. #1 (Employer’s drug/alcohol policy).
Reasonable suspicion may be established by significant and observable changes in
an employee’s performance, appearance, behavior or speech. Id.


               On Monday, February 9, 2015, Employer requested that Claimant
submit to a drug test based on reports from employees that on the previous Friday
she exited a bathroom with a white powder under her nose and that she engaged in
erratic behavior in the workplace. F.F. Nos. 4, 8; N.T. at 6-7.


               Upon receiving the reports of Claimant’s erratic behavior, Supervisor
contacted her supervisor, who contacted Employer’s HR Division. F.F. No. 5;
N.T. at 6. Thus, Employer acted in compliance with its drug/alcohol policy. See
Claimant’s Ex. 1 (Employer’s drug/alcohol policy at 3). Although Claimant argues
that a second supervisor must also observe the employee’s suspicious behavior or
characteristics, this is only required when the HR Department is closed. Id. Such
was not the case here.




      3
          Certified Record, Item No. 8.



                                          14
             The following Monday morning, Supervisor received authorization
from HR Director to require Claimant to submit to a drug test. F.F. No. 6; N.T. at
6. Supervisor asked Claimant to meet her when she finished her shift. F.F. No. 7;
N.T. at 7. When they met after Claimant’s shift ended, Supervisor informed
Claimant of the reports of her observed behavior and requested that she submit to a
drug/alcohol test. F.F. No. 8; N.T. at 7. Based on the above facts, the referee, and
ultimately the Board, determined Claimant refused Employer’s requests that she
provide a urine or blood sample for drug testing. Referee’s Dec. at 3; Bd. Dec. at
1.   Thus, Employer’s initial burden under Section 402(e.1) of the Law was
satisfied. Greer; UGI Utilities.


             Claimant nonetheless argues Employer failed to follow several details
in its drug/alcohol policy. However, the deficits about which Claimant complains
are procedural in nature, pertaining to record-keeping, documentation, and safety
in the workplace.    Their relevance in a refusal case is not explained.      More
importantly, they do not rise to the level of a legal challenge that could overcome
the adverse factual findings. This is because compliance with these details of the
substance abuse policy is not part of the Employer’s initial burden.         Greer;
Architectual Testing; UGI Utilities.      Further, Claimant did not prove that the
alleged failure to comply with the details of the policy constituted a violation of
law or a violation of a CBA, the affirmative defenses available to a claimant under
Section 402(e.1). Greer; UGI Utilities.




                                          15
          Discerning no error or abuse of discretion in the Board’s order, we
affirm.



                                  ROBERT SIMPSON, Judge




                                    16
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Felicia Davis,                        :
                       Petitioner     :
                                      :
            v.                        :   No. 1983 C.D. 2015
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :



                                    ORDER

            AND NOW, this 22nd day of March, 2016, for the reasons stated in
the foregoing opinion, the order of the Unemployment Compensation Board of
Review is AFFIRMED.




                                     ROBERT SIMPSON, Judge
