Employment Sec. Com'n of Wyoming v. Western Gas Processors, Ltd.

• Decision Date: 01 February 1990
• Docket Number: No. 89-175,89-175
• Parties: , 58 USLW 2523, 5 IER Cases 140 EMPLOYMENT SECURITY COMMISSION OF WYOMING, Appellant (Respondent), v. WESTERN GAS PROCESSORS, LTD., Appellee (Petitioner).
• Court: Wyoming Supreme Court

Page 866

786 P.2d 866

86 A.L.R.4th 295, 58 USLW 2523, 5 IER Cases 140

EMPLOYMENT SECURITY COMMISSION OF WYOMING, Appellant (Respondent), v. WESTERN GAS PROCESSORS, LTD., Appellee (Petitioner).

No. 89-175.

Supreme Court of Wyoming.

Feb. 1, 1990.

Joseph B. Meyer, Atty. Gen. and William G. Hibbler, Sp. Asst. Atty. Gen., for appellant.

Robert G. Pickering of Bailey, Pickering & Stock, Cheyenne, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

URBIGKIT, Justice.

This is a misconduct, drug test, employment termination case. Appellant Employment Security Commission of Wyoming (ESC) appeals from a district court reversal ESC contends the determination was properly based upon findings of fact supported by substantial evidence and upon conclusions of law which are in accordance with law. ESC granted unemployment insurance benefits to employee Donald B. Wilson (Wilson) pursuant to W.S. § 27-3-311(c) (1989 Cum.Supp.) ¹ after determining his resignation from employer Western Gas Processors, Ltd. (Western), appellee, was forced and equivalent to discharge. Wilson was allowed unemployment benefits because his discharge was not for misconduct connected with his work because he "did not commit misconduct * * * by simply refusing to submit to an unreasonable demand by his employer." By holding ESC's determinations factually sustainable and justified within proper conclusions of law, we reverse the district court reversal of the agency award.

of its unemployment compensation benefit determination favoring the employee.

FACTS ²

Wilson was employed at Western late in 1985 to be a "Field Operations Maintenance" worker (handyman mechanic). When he was hired, there was no corporate policy indicating employees would be subject to any blood or urine tests for illegal drugs or legalized abused intoxicants to ensure the safety of the workplace; nor was there a policy which indicated employees would be subject to such testing when there was a particularized suspicion of improper use. ³ Soon after Wilson began work, his supervisor, Mike Keil, recognized Wilson had difficulty with mathematics and computer usage. In December of 1987 On June 17, 1988, the employee began a four week vacation and was due back on July 15. Two weeks before his return, co-employee Donald Schaff went to Keil to allege Wilson smoked marijuana on the job. This fellow worker reported he had occasionally smelled the scent of marijuana ⁴ on Wilson, that the co-worker "would get very uptight when he was faced with a problem or a subject that concerned him" and his eyes were sometimes reddish. ⁵ Schaff was the only fellow employee to make this allegation. The supervisor was aware the relation between these two workers was not friendly. Based on the unilateral and uncorroborated allegation of marijuana use, Keil then notified his supervisor of the Schaff report.

however, Keil noted in a performance report that "Don has a high sense of safety awareness and knowledge. His behavior towards safety and team mates is an asset to the Newcastle Plant and the company. He has a good attitude towards the company and is trying to increase his job knowledge."

On the first morning back to work following his vacation, Wilson was directed to take a company truck from Newcastle to Gillette (seventy-six miles distance) to pick up a fire extinguisher, get the truck's radio fixed, and meet with Keil at the company's Gillette office at one o'clock. On arriving at the office, the employee was handed a surprise (Dear John) letter signed by his supervisor. The pertinent parts of the letter read:

I am concerned about the state of your health and require you, as a condition of employment, to submit to a general physical examination, at Company expense, including an eye exam and blood and urine tests, which will involve among other things tests for illegal drugs.

Your physical examination is scheduled for Friday, July 15, 1988, at 2:00 P.M. with Dr. Naramore in Gillette.

Your safety, the safety of others and the safe operation of the gas processing equipment are primary concerns.

According to Company Policy if the blood or urine test results are positive for illegal drugs, you will be discharged immediately.[ ⁶ Until the tests results are known (three to five days) you will be on leave with pay and you are not to enter plant property for any reason.

If your blood/urine tests are negative and no other physical impairment is found, you must take immediate action to improve your performance and maintain an improved performance level. We can work together to meet this goal.

With this totally unexpected written notice, Wilson was given three options. He could submit to the physical and return to work in several days if the tests were negative; he could refuse the physical and Western would terminate him on the spot; or he could quit. Wilson did quit and asked if he should call his wife to drive to Gillette to pick him up to which the response was given that he could drive the company truck back the seventy-six miles to Newcastle and finish out the day at work.

On July 25, the ex-employee filed a claim for unemployment benefits. The initial determination by ESC allowed Wilson unemployment benefits and held Western's account chargeable with its proportionate share of benefits which might be paid. The

                employer protested but the determination was upheld in the redetermination by the Chief of Benefits to ESC who stated "[a]vailable facts indicate that the claimant [Wilson] was to be replaced regardless of the test results."   The employer appealed to an appeals examiner.  That hearing examiner reversed the redetermination after deciding the employee should be disqualified from benefits because he resigned without good cause connected with his work.  That decision was reversed by ESC by determination that Wilson did not commit misconduct when he refused to submit to the drug test because the demand was unreasonable under the circumstances.  The appeal by Western to the district court claimed ESC's findings of fact were arbitrary, capricious, and an abuse of discretion because they were not supported by substantial evidence and the conclusions of law were wrong.  The district court accepted the appeal contention and ESC now appeals
                

STANDARD OF REVIEW

The standard of review of an agency determination is well-established. Unemployment benefit cases involving contended misconduct normally present mixed questions of law and fact. Henson v. Employment Sec. Dept. of State, 113 Wash.2d 374, 779 P.2d 715 (1989). See generally Natrona County School Dist. No. 1 v. McKnight, 764 P.2d 1039 (Wyo.1988). A reviewing court is "confined to the matters explicitly referenced in W.S. 16-3-114(c) and W.R.A.P. 12.09." ⁷ Cook v. Zoning Bd. of Adjustment for the City of Laramie, 776 P.2d 181, 184 (Wyo.1989).

On appeal from a district court's consideration of an agency action, this court is not bound by the conclusions of the reviewing court. Rather, using the same evidentiary materials and the same review standards as the district court, we conduct an independent inquiry into the matter, just as if it had proceeded directly to us from the agency.

Southwest Wyoming Rehabilitation Center v. Emp. Sec. Com'n. of Wyoming, 781 P.2d 918, 920 (Wyo.1989). (Accord Employment Sec. Com'n of Wyoming v. Bryant, 704 P.2d 1311, 1314 (Wyo.1985) and Matter of North Laramie Land Co., 605 P.2d 367, 373 (Wyo.1980).) Our deference for findings of fact is reserved for the fact-finder which, in this case, is ESC. Department of Revenue and Taxation of State of Wyoming v. Casper Legion Baseball Club, Inc., 767 P.2d 608 (Wyo.1989). See Zezas Ranch, Inc. v. Board of Control, 714 P.2d 759, 764 (Wyo.1986).

When reviewing a claim that an agency determination is arbitrary, capricious, and an abuse of discretion because the findings of facts are not supported by substantial evidence, we determine if there is "such relevant evidence as reasonable minds would accept as adequate to support a conclusion." Southwest Wyoming Rehabilitation Center, 781 P.2d at 921. (Accord Beddow v. Employment Sec. Com'n.

                of Wyoming, 718 P.2d 12, 14 (Wyo.1986).)   Our review of an agency's findings of fact and conclusions of law is simple.  First, if we can find from the evidence preserved in the record a rational view for the findings of fact made by the agency, we then say the findings are supported by substantial evidence.  See Holdings' Little America v. Board of County Com'rs. of Laramie County, 670 P.2d 699, 704 (Wyo.1983).  Using judicial reliance upon and deference to agency expertise in its weighing of the evidence, a reviewing court will not disturb the agency determination unless it is "clearly contrary to the overwhelming weight of the evidence on record."  Southwest Wyoming Rehabilitation Center, 781 P.2d at 921.  (Accord Cody Gas Co. v. Public Service Com'n of Wyoming, 748 P.2d 1144, 1146 (Wyo.1988).)   See Ohlmaier v. Industrial Com'n of Arizona, 161 Ariz. 113, 776 P.2d 791 (1989).  See also for a drug test unemployment compensation award review, Grace Drilling Co. v. Board of Review of Indus. Com'n of Utah, 776 P.2d 63 (Utah.App.1989).  Second, we ask if the conclusions of law made by the agency are in accordance with law.  Belle Fourche Pipeline Co. v. State, 766 P.2d 537 (Wyo.1988)
                

When we review agency conclusions of law, we are alert to three possibilities. The agency may correctly apply their findings of fact to the correct rule of law. Belle Fourche Pipeline Co., 766 P.2d 537. In such case, the agency's conclusions are affirmed. But the agency could apply their findings of fact to the wrong rule of law or they could incorrectly apply their findings of fact to a correct rule of law. Ballard v. Wyoming Pari-Mutuel Com'n of State of Wyoming, 750 P.2d 286 (Wyo.1988). In either case, we correct an agency conclusion to ensure accordance with law. Rocky Mountain Oil & Gas Ass'n v. State Board of Equalization, 749...