ROBERT D HACKNEY, Employee

CITY OF JEFFERSON Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 35 of 2001, if he is otherwise qualified

Dated and mailed July 30, 2002
hacknro . usd : 178 : 8  VL 1007.15   MC 629   MC 652.3 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

In its petition for commission review, the employer alternatively argues that the employee quit his job because he feared he might be discharged and that he was discharged for misconduct connected with his employment when he submitted a urine sample with high nitrite levels. The commission rejects both arguments. Although the employer asserts that it had not yet made any decision to discharge the employee at the time that the employee submitted his resignation letter, the employer's witness makes clear that it had removed the employee from his duties, had no intention of returning him to those duties because to do so would violate DOT regulations and the employee's last chance agreement, and had dismissed the employee's personal drug test result and physician's letter as unpersuasive. At the conclusion of its meeting with the employee, it intended to rely on the medical review officer's conclusion that the employee had adulterated his urine sample. Given these circumstances, it is clear that the employer had removed the employee from his duties and did not contemplate ever returning him to work. There is nothing in the record to support a conclusion that the employee remained meaningfully employed or that there was any likelihood that he would resume wage earning services for the employer in the future. That it had not yet formally discharged the employee does not alter the fact that the employer had effectively ended the employee's employment when it received notice of the test result. The employee's resignation occurred after that decision was made.

The remaining issue is whether the employer proved that the employee's discharge was for misconduct connected with his employment. The employer asserts that it proved that the employee submitted an adulterated urine sample to the employer and that doing so constituted misconduct. However, the record contains no proof that the employee's urine sample was adulterated. Exhibit 2, which appears to be a photocopy of a fax from the medical review officer, does not constitute a certified medical opinion. Moreover, it does not set out the results of the validity test cited by the employer in its brief. Nowhere in the record are the nitrite levels specified. The references to the federal regulations are meaningless without the test results. The employer may not rely solely upon hearsay to establish a critical fact to its case. The employer failed to submit the second part of the department's drug test form which permits the medical review officer to certify the test result and explain his opinion. This would have proved the employer's contentions. Exhibit 9 only establishes that the sample was collected and sealed according to DOT guidelines.

The employer failed to establish the urine sample was adulterated. The employee testified that he was told the sample had unacceptably high nitrite levels and offered an alternative explanation for that result which did not involve any employee misconduct. Since the employer failed to establish the key fact of its case, the commission has no alternative but to affirm the allowance of benefits.

cc: Attorney Susan M. Love

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uploaded 2002/08/09