Clevenger v. Nevada Employment Sec. Dept., 18827

• Decision Date: 31 March 1989
• Docket Number: No. 18827,18827
• Parties: Donna M. CLEVENGER, Appellant, v. NEVADA EMPLOYMENT SECURITY DEPARTMENT, Stanley P. Jones, in his capacity as Executive Director and Harold Knudson, in his capacity as Chairman of Nevada Employment Security Department Board of Review; Linda K. Lee, in her capacity as a member of the Nevada Employment Security Department Board of Review, Mel Myers, in his capacity as a member of the Nevada Employment Security Department Board of Review, Respondents.
• Court: Nevada Supreme Court

Page 866

770 P.2d 866

105 Nev. 145

Donna M. CLEVENGER, Appellant, v. NEVADA EMPLOYMENT SECURITY DEPARTMENT, Stanley P. Jones, in his capacity as Executive Director and Harold Knudson, in

his capacity as Chairman of Nevada Employment Security

Department Board of Review; Linda K. Lee, in her capacity

as a member of the Nevada Employment Security Department

Board of Review, Mel Myers, in his capacity as a member of

the Nevada Employment Security Department Board of Review,

Respondents.

No. 18827.

Supreme Court of Nevada.

March 31, 1989.

[105 Nev. 146] John S. Bodger, Carson City, for appellant.

Crowell, Susich, Owen & Tackes and Thomas Susich, Carson City, Erickson, Thorpe, Swainston, Cobb & Lundemo and Roger B. Whomes, Reno, for respondents.

OPINION

PER CURIAM:

This is an appeal from an order of the district court upholding the decision of the

Nevada Board of Review that denied unemployment benefits to appellant because of her termination for misconduct, that misconduct being the continued use of marijuana.

FACTS

Appellant Clevenger worked as an explosive operator for Day & Zimmerman/Basil Corporation (DZB) from 1980 until she was terminated in December of 1986. In July, 1986 appellant was involved in an occupational accident. ¹ DZB's policy required appellant to submit to a screening test for controlled substances. ² The results of the drug screen were positive, showing the presence of THC metabolites, an element of marijuana. Appellant was suspended for five days. At the end of the five day suspension, appellant returned to work and continued to have periodic negative test results until September, 1986. After a positive test in September, appellant placed herself in a substance abuse counseling program for 30 days.

Appellant returned to work on October 14, 1986, and was subjected to random screening tests. All tests were negative until December 9, 1986. At that time appellant tested positive for the presence of THC metabolites, and was terminated.

Appellant denied using marijuana since completing the drug counseling program in September 1986 and challenged the results of the EMIT test conducted on her urine. She claimed that she had taken four Advil tablets and the pain reliever in those pills could interfere with the EMIT test conducted on SYVA equipment.

Appellant requested a retest. DZB explained that she could obtain a test at her own expense, with the understanding that DZB would pay the cost of the retest and reinstate her if the retest result was negative. Appellant did not proceed further, but DZB conducted a retest on the December 9 urine sample by use of a gas chromatograph mass spectrophotometer. The chromatograph test result was positive for THC metabolites and confirmed the results of the EMIT test.

Appellant filed a claim for unemployment benefits in late December, 1986. She was denied those benefits because she was discharged for misconduct within the meaning of NRS 612.385. ³

Appellant appealed the decision denying benefits and prevailed before the appeals referee. Benefits were reinstated. The appeals referee based her decision to overturn the Unemployment Board's earlier denial of benefits largely on her own research. The referee found the method of drug testing (EMIT) to be unreliable, and the potential for human error to be ever present. Additionally, the referee discussed the potential effect of passive marijuana smoke upon the test results. ⁴

The referee found that there was no evidence of "behavior which adversely affected her work performance or proved detrimental to her employer's interests", and found that there is reasonable doubt that appellant violated the employer's policy by off-duty conduct.

DZB appealed the referee's findings to the Board of Review. The Board reversed the referee, and benefits were again denied. The Board considered appellant's history of drug abuse, the fact that appellant did not obtain a retest on her own, and DZB's methodic application of its drug testing program. The Board found that a preponderance of evidence showed that appellant had used a controlled substance and was properly discharged for misconduct.

Appellant appealed the Board's decision to the district court. The district court found the Board of Review's decision to be proper, not arbitrary or capricious, and supported by substantial evidence. The appeal to this court followed.

There is nothing in the record on appeal, nor was any evidence presented at any of the hearings below, demonstrating that appellant was under the influence of a controlled substance on December 9, other than the results of the screening tests.

DISCUSSION

Nevada law requires that an employee's misconduct be connected with his or her work before that person can be deemed ineligible for unemployment benefits. NRS 612.385 states:

Discharge for misconduct. A person is ineligible for benefits for the week in which he has filed a claim for benefits, if he was discharged from his last or next to last employment for misconduct connected with his work, and remains ineligible until he earns remuneration in covered employment equal to or exceeding his weekly benefit amount in each of not more than 15 weeks thereafter as determined by the executive director in each case according to the seriousness of the misconduct. (Emphasis added).

There are numerous cases where an employee's misconduct is sufficient ground for termination, but does not justify the denial of unemployment benefits because the misconduct was not shown to be connected with his or her work. Blake v. Hercules, Inc., 4 Va.App. 270, 356 S.E.2d 453 (1987); Glide Lumber Products Co. v. Employment Division, 86 Or.App. 669, 741 P.2d 907 (1987). (These cases are cited as illustrations and not necessarily to approve their holdings.)

When off-the-job conduct violates an employer's rule or policy, such as prohibiting the use of marijuana, an analysis must be made to determine if the employer's rule or policy has a reasonable relationship to the work to be performed; and if so, whether there has been an intentional violation or willful disregard of that rule or policy. In analyzing a statute similar to NRS 612.385, the Virginia Supreme Court stated the rule as follows:

[A]n employee is guilty of "misconduct connected with his work" when he deliberately violates a company rule reasonably designed to protect the legitimate business interests of his employer, or when his acts or omissions are of such a nature or so recurrent as to manifest a willful disregard of those interests and the duties and obligations he owes his employer.

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