Dolan v. Svitak
| Decision Date | 10 February 1995 |
| Docket Number | No. S-93-543,S-93-543 |
| Parties | , 10 IER Cases 500 Dan DOLAN, Commissioner of Labor, State of Nebraska, Appellee, v. Jeffery J. SVITAK, Appellee, and Chief Industries, Inc., Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Employment Security: Appeal and Error. In an appeal from the Nebraska Appeal Tribunal to a district court regarding unemployment benefits, that court conducts the review de novo on the record, but on review by the Court of Appeals or the Supreme Court, the judgment of the district court may be reversed, vacated, or modified for errors appearing on the record.
2. Final Orders: Appeal and Error. When reviewing an order for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the district court's ruling.
4. Administrative Law: Presumptions: Proof. A rebuttable presumption of validity attaches to the actions of administrative agencies. The burden of proof rests with the party challenging the agency's action.
5. Employment Security. In order for a violation of an employer's rule to constitute misconduct, the rule must bear a reasonable relationship to the employer's interests.
6. Employment Security: Controlled Substances. A worker who knowingly and deliberately violates a work rule that unquestionably seeks to enhance the employer's reputation in the community for taking a stand against illegal drug use on the job, has been guilty of wanton and willful disregard of the employer's interests, deliberate violation of rules, as well as disregard of standards of behavior which the employer can rightfully expect from the employee.
Timothy D. Loudon, of Berens & Tate, P.C., Omaha, for appellant.
John F. Sheaff, Lincoln, for appellee Dolan.
Chief Industries, Inc., appeals from the judgment of the district court reversing the decision of the Nebraska Appeal Tribunal and restoring unemployment compensation benefits to Jeffery J. Svitak without disqualification.
In an appeal from the Nebraska Appeal Tribunal to the district court regarding unemployment benefits, that court conducts the review de novo on the record, but on review by the Court of Appeals or the Supreme Court, the judgment of the district court may be reversed, vacated, or modified for errors appearing on the record. Neb.Rev.Stat. §§ 48-638 (Reissue 1993) and 84-917 and 84-918 (Reissue 1994). When reviewing an order for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Lee v. Nebraska State Racing Comm., 245 Neb. 564, 513 N.W.2d 874 (1994). However, when reviewing a question of law, an appellate court reaches a conclusion independent of the district court's ruling. Hausse v. Kimmey, 247 Neb. 23, 524 N.W.2d 567 (1994).
A rebuttable presumption of validity attaches to the actions of administrative agencies. The burden of proof rests with the
party challenging the agency's action. In re Application of United Tel. Co., 230 Neb. 747, 433 N.W.2d 502 (1988); Haven Home, Inc. v. Department of Pub. Welfare, 216 Neb. 731, 346 N.W.2d 225 (1984).
Chief Industries assigns that the district court erred in not finding that a positive drug test result alone constitutes misconduct under the Nebraska Employment Security Law and erred in refusing to take judicial notice of statutes, regulations, and studies establishing a nexus between one's employment and a positive drug test result.
Chief Industries adopted a drug-free workplace policy, effective August 1, 1992, requiring its employees to submit to drug testing. The policy specified that violations would lead to disciplinary action up to and including discharge. A positive drug test result was listed as one of the policy violations. Chief Industries adopted the policy as an attempt to improve job safety, to ensure quality production for its customers, and to demonstrate to the community its stand against chemical abuse. On May 5, 1986, Bonavilla Homes, a division of Chief Industries, employed Svitak on a full-time basis as a roof setter. Svitak, pursuant to the drug-free workplace policy, submitted a urine sample for the purpose of drug testing on September 1, 1992. On September 9, Chief Industries discharged Svitak due to positive test results for marijuana.
Svitak applied to the Nebraska Department of Labor for unemployment insurance benefits. The Nebraska Department of Labor allowed benefits, finding that Chief Industries did not discharge Svitak for misconduct in connection with work. Chief Industries appealed to the Nebraska Appeal Tribunal.
On October 29, 1992, the Nebraska Appeal Tribunal held a hearing regarding Chief Industries' appeal. At the hearing, Milton F. Ehly, personnel development manager for Chief Industries, testified that Chief Industries based its discharge of Svitak solely on the positive drug test results. Ehly also testified that he did not know of Svitak ever performing his job under the influence of marijuana.
On November 4, 1992, the Nebraska Appeal Tribunal reversed the Department of Labor's determination and ruled that a positive drug test result for the presence of illegal drugs constitutes misconduct under the Nebraska Employment Security Law regardless of the lack of evidence showing impairment in the workplace. As a result, the Nebraska Appeal Tribunal disqualified Svitak from receiving unemployment benefits for 7 weeks.
Dan Dolan, Commissioner of Labor for Nebraska, filed a petition in district court to review the Nebraska Appeal Tribunal decision. The district court reversed the Nebraska Appeal Tribunal decision and restored Svitak's benefits without disqualification. The court held that in order to disqualify a discharged employee from unemployment compensation, the misconduct must be connected with work performance. The court found that Chief Industries did not prove a connection with work performance and did not prove that Svitak's off-duty conduct was reasonably related to the employer's interest. Chief Industries appeals. Pursuant to our authority to regulate the caseloads of the appellate courts, we have transferred the case to the Supreme Court's docket.
Chief Industries adopted a "Drug-Free Workplace Policy" to be effective September 10, 1992, which policy included some minor revisions to the August 1 policy. Svitak was furnished a copy of that policy on August 6, as indicated by his signature attached to the policy statement. According to a memorandum also attached to the policy statement, Chief Industries declared that it had as its purpose to give employees 30 days' notice of intent to test and to enforce the policy so that any employee could rid his or her system of any chemical traces.
Chief Industries declared further in the policy statement:
It is our hope and intent that by adopting this policy we will improve our plant in the following ways:
1) Improve the safety of all employees by assuring all of us that we are working without the influence of chemicals which may impair our physical skills or judgment for ourselves or toward our co-workers;
2) Insure that the product we produce for our customers will be produced with the utmost skill and quality available; and,
3) That our reputation internally and in the community shows we have taken a stand against the detrimental effects associated with chemical abuse out of respect for our employees and customers.
II. Prohibited Conduct
Violations of the following prohibited conduct will subject the offending employee to disciplinary action up to and including discharge.
1) Using, being under the influence of, or possessing alcohol or illegal drugs while performing Company business or while in or about a Company facility or worksite.
....
VI. Positive Results Defined
Being "under the influence of a chemical substance" which will result in a positive test result shall be determined by having contained within the body a minimum of the limits of one or more chemicals listed on Attachment A.
Attachment A reads as follows:
SEVEN DRUG PANEL
Plus Alcohol
Drug Screening Level
5. Cannabinoids 100 ng/mL
Svitak's urine test results were as follows
Test Name Results Initial Confirm
Test Level Test Level
(ng/mL) (ng/mL)
Marijuana
Metabolites (THC) **POSITIVE** 100 15
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Initial screen performed by Enzyme Immunoassay.
MARIJUANA METABOLITE QUAL
THC"COOH **POSITIVE**
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Dolan states in his petition and Chief Industries admits in its answer that "Svitak was discharged on September 9, 1992, for violating the employer's Drug Free Workplace policy by testing positive for marijuana use." Dolan's argument, to rebut Chief Industries' claim that benefits should have been denied Svitak, is Dolan's statement in his brief that there was not any evidence of impairment, of on-the-job use, of Svitak's having placed himself or others at risk, or of a level of drugs in Svitak's system equal to impairment. All of Dolan's statements are true. Therefore, we must decide whether Svitak's admitted violation of the policy which was promulgated for the avowed salubrious and salutary purposes sought by Chief Industries and agreed to by Svitak, constitutes "discharged for misconduct connected with his or...
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