Summary
In O'Brien, we found the drug test report properly authenticated based on the testimony of a witness for the employer, a police department, who was not associated with the laboratory conducting the test.
Summary of this case from Rutkowski v. Unemployment Comp. Bd. of ReviewOpinion
2012-08-3
Steven M. O'BRIEN, Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
Marc L. Gelman, Philadelphia, for petitioner. Judith M. Gilroy, Assistant Counsel, Harrisburg, for respondent.
Marc L. Gelman, Philadelphia, for petitioner. Judith M. Gilroy, Assistant Counsel, Harrisburg, for respondent.
BEFORE: PELLEGRINI, President Judge, and BROBSON, Judge, and COLINS, Senior Judge.
OPINION BY President Judge PELLEGRINI.
Steven O'Brien (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) finding him ineligible for benefits under Section 402(e.1) of the Unemployment Compensation Law (Law) because his termination from employment with the Philadelphia Police Department (Employer) was due to his failure to pass a drug test conducted pursuant to Employer's substance abuse policy. Finding no error in the Board's decision, we affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, as amended, added by Section 3 of the Act of December 9, 2002, P.L. 1329, 43 P.S. § 802(e.1). That section provides in pertinent part:
An employe shall be ineligible for compensation for any week—
(e.1) In which his unemployment is due to discharge or temporary suspension from work due to 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.
Claimant was employed as a full-time lieutenant with Employer beginning April 17, 1989. He was discharged on July 25, 2011, after testing positive for the anabolic steroids Nandrolone, Norandorsterone, and Noretiocholanlone. Claimant filed a claim for unemployment compensation benefits, which the Unemployment Compensation Service Center denied, finding that Claimant was discharged for failure to pass a drug test administered pursuant to Employer's policy. Claimant appealed.
Before the Referee, Lieutenant John Kay (Lieutenant Kay), a lieutenant with Employer's internal affairs division and the officer in charge of the drug screening unit, testified that in April, 2011, the drug screening unit was made aware of an ongoing federal investigation of Claimant for the illegal use of steroids. On June 6, 2011, Claimant was brought to the internal affairs division and ordered to submit to a reasonable suspicion urine drug test. Lieutenant Kay stated that Employer had a contract with Drug Scan, Inc., which normally performed Employer's drug tests. Because Drug Scan did not have the capability to do tests for anabolic steroids, it sent the specimen to another laboratory, Aegis, which performed the test, sent the results to Drug Scan, which in turn sent the results back to Employer. He further testified that Claimant tested positive for Nandrolone, an anabolic steroid. On June 20, 2011, Claimant was notifiedof the test results and ordered to report to employee medical services for a review of the results to determine whether they were consistent with Claimant's legitimate medications or recent medical history. Lieutenant Kay stated that Claimant met with the medical review officer, and the medical review officer determined that the test results were not consistent with Claimant's stated legitimate medication. Lieutenant Kay said that in addition to being illegal under federal law, testing positive for Nandrolone violated Directive 55, Employer's drug testing policy.
Lieutenant Kay also testified that the employee drug screen report detailed the step-by-step process of the collection of the urinalysis and the results of the test. He also identified the drug screen test identification form which was signed by Claimant and discussed Employer's drug policy. There was also a substance use form from the Philadelphia Department of Public Health that Claimant filled out. The final forms were a chain of custody form from Aegis and the Aegis laboratory report. The Referee admitted the documents over Claimant's objections.
Upon questioning by the Referee, Claimant acknowledged that he signed the form, which read, “I hereby acknowledge that the urine specimen [identified by] this identification number is my own.” [R.R. at 61.]
On cross-examination, Lieutenant Kay stated that it was Employer's policy that drug use by members of the police department would not be tolerated. He further stated that the drugs for which Claimant tested positive were not on the list of specifically identified drugs contained in Employer's policy as the “normal testing panel,” (Reproduced Record [R.R.] at 63), but steroids were listed elsewhere in the policy.
Based on the testimony at the hearing, the Referee found that Employer's Disciplinary Code stated that “any use or ingestion of illegal substances is cause for immediate dismissal from employment,” (R.R. at 75), and Claimant was or should have been aware of the Disciplinary Code. She further found that the Drug Screen Unit received information which indicated that Claimant could be involved in the use of steroids, so Claimant submitted to a drug test. Claimant tested positive for the steroids Nandrolone, Norandrosterone, and Noretiocholanolone. The Referee further found that the drug results were not consistent with Claimant's medical history, and Claimant was terminated for failure to pass a drug test.
Based on these findings, the Referee determined that Lieutenant Kay “testified competently and credibly” that Claimant tested positive for anabolic steroids, and Employer established the chain of custody of the testing sample. (R.R. at 76.) Claimant “refused to testify stating that he was not aware how the steroids were in his system,” id., and the Referee drew an adverse inference from the failure to respond, especially considering that the test results were not consistent with Claimant's history. The Referee, therefore, affirmed the denial of benefits.
Claimant appealed to the Board arguing that chain of custody for the drug test results was not properly established and that the Referee improperly established an adverse inference due to Claimant's failure to testify. In addition to the Referee's findings of fact, the Board found that “[C]laimant did not testify at the Referee's hearing and has not offered any explanation for the positive drug test.” (R.R. at 123.) The Board determined that Lieutenant Kay had sufficient knowledge of Employer's drug testing program to overcome Claimant's chain of custody objections and affirmed the denial of benefits. This appeal followed.
Our scope of review is limited to determining whether the Board's findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated. Greer v. Unemployment Compensation Board of Review, 4 A.3d 733 (Pa.Cmwlth.2010) (citing Architectural Testing, Inc. v. Unemployment Comp. Bd. of Review, 940 A.2d 1277 (Pa.Cmwlth.2008)).
The sole issue that Claimant raises on appeal is that Employer did not properly establish the chain of custody with regard to the drug screen report, Aegis' Drug Testing Custody Control Form, and Aegis' Test Result Form. To support this contention, he cites UGI Utilities, Inc. v. Unemployment Compensation Board of Review, 851 A.2d 240 (Pa.Cmwlth.2004), a case in which the employer's health and safety officer had no knowledge about the testing procedure, where we stated that “lab reports and chain of custody control files should be admitted through the testimony of [a medical review officer].” Id., at 248. However, that statement did not mean to imply that reports must be always admitted only through a medical review officer, but rather, through someone with knowledge of the testing procedure. See id., at 251 (“The proponent of a lab report must present evidence sufficient to support a finding that the report is what its proponent claims ... In this case, the appropriate way to lay a foundation as to authenticity and chain of custody was by testimony of the MRO.” (emphasis added)).
We rejected the argument that a medical review officer was necessary to admit drug testing results in Turner v. Unemployment Compensation Board of Review, 899 A.2d 381 (Pa.Cmwlth.2006). In this case, this Court re-emphasized our earlier determinations that:
[I]t is not essential to produce either the person who made the entries or the custodian of the record at the time the entries were made or that the witness qualifying the business records even has personal knowledge of the facts reported in the business record. As long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness of the business records of a company, a sufficient basis is provided to offset the hearsay character of the evidence.
Id., at 386 (quoting Business Records as Evidence Act, 42 Pa.C.S. § 6108(b)).
Here, Lieutenant Kay explained that he was in charge of the drug screening unit and had extensive knowledge of Employer's policy and drug testing procedures. He explained, in detail, the process by which the urinalysis test was conducted on Claimant, the specimen was submitted to Drug Scan and forwarded to Aegis, and results were returned to Employer. He demonstrated significant knowledge of the testing process for normal spectrum drugs, as well as the specialty testing for steroid use, and also explained Claimant's test results in detail. He offered into evidence the reports which indicated the chain of custody and the results of the test. Because Lieutenant Kay's testimony provided sufficient information relating to the preparation of Claimant's drug test results and the accompanying reports, and the documents were properly admitted, the Board properly found that Claimant violated Employer's drug policy.
Accordingly, the order of the Board is affirmed.
ORDER
AND NOW, this 20th day of June, 2012, the order of the Unemployment Compensation920Board of Review, dated November 15, 2011, is hereby affirmed.