Medelez, Inc. v. State

• Decision Date: 03 October 2019
• Docket Number: No. 36225-6-III,c/w 36335-0-III,36225-6-III
• Parties: MEDELEZ, INC., an Oregon Corporation, Respondent, v. STATE OF WASHINGTON, DEPARTMENT OF EMPLOYMENT SECURITY, Appellant.
• Court: Washington Court of Appeals

MEDELEZ, INC., an Oregon Corporation, Respondent, v. STATE OF WASHINGTON, DEPARTMENT OF EMPLOYMENT SECURITY, Appellant.

No. 36225-6-III

c/w 36335-0-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

October 3, 2019

UNPUBLISHED OPINION

FEARING, J. —

Nothing uses up alcohol faster than legal argument. Paraphrase of Robert A. Heinlein

This court is the fourth, and conceivably not the last, body to resolve whether Jeffrey Metzener qualifies for unemployment compensation on his termination from employment from Medelez, or, alternatively whether his drinking alcohol on a day off work as a truck driver and his flunking an alcohol screen that day disqualifies him from benefits. The law demands that we review the highest administrative officer, the Employment Security Department (ESD) commissioner, when resolving the appeal. Because substantial evidence supports the commissioner's ruling, we affirm the commissioner's grant of benefits and thereby reverse the superior court.

FACTS

This appeal concerns whether Jeffrey Metzener, an employee of Medelez Inc. (Medelez), committed employment misconduct that disqualifies him for unemployment benefits after his September 2016 termination from employment with Medelez. Metzener began work as a truck driver with Medelez on February 15, 2016, but the facts begin earlier.

In November 2015, Jeffrey Metzener applied for a job with another employer, but tested positive for marijuana on a November 20 pre-employment drug screen. As a result, the employer did not hire him. In order to preserve his commercial driver's license (CDL) needed to drive a truck, the Department of Licensing required Metzener to undergo a substance evaluation and comply with a substance abuse plan issued as a result of the evaluation. As a result of his evaluation, substance abuse professional William Ellis, Jr. prepared a two-page substance abuse plan, which read, in part:

My recommendations were as follows: to complete an eight to twelve-hour alcohol/other drug information school [(ADIS)] at a state certified agency within the next 30 days.

On December 5th, 2015 a face-to-face return to duty evaluation was performed. It has been confirmed that Mr. Metzener completed the aboverecommendation at ADIS on December 5th, 2015. Therefore, [he] has satisfactorily complied with my recommendation. Mr. Metzener may return to safety sensitive duties once he produces a negative return-to-duty screen and has received reinstatement of his CDL. He should have reinstatement by no later than December 12th, 2015. If he does not have his CDL by that time he will need to contact me, and it will be released that day.

For Mr. Metzener to remain in compliance with his SAP [substance abuse plan] he will need to abide by the following:

[(1)] Remain abstinent from all mind/mood altering chemicals except when prescribed by a physician. If he is prescribed such medication, he will be responsible of informing his supervisor with verification of the mind/mood altering medication. . . .

[(2)] Mr. Metzener, must complete the minimum, of six DOT follow-up drug screens within the next twelve months of performing safety sensitive duties. The actual amount of tests may be more than six. You, the Employer, will receive a separate letter outlining the follow-up plan."

[(3)] If Mr. Metzener is laid off from performing safety sensitive duties, he will not have to perform follow-up urine screens. When he returns to safety sensitive duties the return to duty drug testing will resume from where it left off. Mr. Metzener will be subject to follow-up testing for up to sixty (60) months of performing safety sensitive duties. DOT [Department of Transportation] follow-up testing is in addition to any other testing he would be required to complete. These DOT follow-up tests are to be unpredictable and unannounced. Once Mr. Metzener is notified to submit to a DOT follow-up drug screen, he will have three (3) hours to complete the process.

Clerk's Papers (CP) at 56-57, 126 (boldface and underline omitted).

Medelez claims that, as a result of the positive marijuana testing, the State immediately revoked Jeffrey Metzener's commercial driver's license and the State would not reinstate the license until he passed a return to duty screen. William Ellis' substance abuse plan supports this factual contention, but no other evidence confirms the assertion. In a response to Metzener's application for unemployment compensation, Medelezimpliedly declared that the State had not revoked Metzener's CDL at the time of his positive marijuana drug screen. Medelez wrote that Metzener's "CDL license will be suspended within 2 weeks" from either the date of Metzener's termination from employment with Medelez or the later date of the response. CP at 128.

When applying for employment with Medelez in February 2016, Jeffrey Metzener informed Medelez of his November 2015 drug screen positive result and handed Medelez a copy of his substance abuse plan. Metzener passed a February 2016 drug screen before beginning his employment with Medelez. Metzener believed this screening constituted his return-to-duty test required under the substance abuse plan.

On Jeffrey Metzener's hire, employer Medelez maintained a policy requiring employees to submit to random urine drug testing. The policy declared:

Any employee or perspective employee is required to, um, submit to pre-employment, random, post accident . . . testing, um, that we require or it needs to be done. Uh, refusal to take a test. Um, or a tampering with a sample will result in termination.

. . . [I]f at any time, an employee tests positive for controlled substance . . ., [it] will result in a decision not to hire or a termination from employment if already employed. A positive test conducted on a current employee will result . . .—with the employee being suspended from work immediately for a period of time. . . .

. . . The employee must understand and agree that he or she is subject to do a urine drug screen test at any time for continued employment.

CP at 52-53. The policy did not reference alcohol or a breathalyzer. Medelez never informed Jeffrey Metzener that he could not drink alcohol off duty. Medelez never specified whether it would test employees for any substance while off-duty.

By September 2016, after seven months of employment, Medelez had not yet directed Jeffrey Metzener to submit to any follow-up drug screens mentioned in the substance abuse plan. Metzener was curious as to the lack of any screening. On some unknown date in September, Metzener told Medelez's recently hired safety and compliance manager, Dawn Fischer, that he had worked for Medelez for seven months and Medelez had yet to schedule a drug screening. Metzener and Fischer agreed to the need of follow-up testing. Fischer instructed Metzener to deliver another copy of his substance abuse plan to her office because she could not locate the first copy. According to Metzener, he did so.

During the same month, Jeffrey Metzener experienced debilitating back pain, which limited his ability to perform some job duties. Metzener informed Dawn Fischer and his supervisor, Mario Rodriguez, about his back problems, and the two afforded him assistance for some difficult tasks. An emergency room doctor prescribed Metzener pain medication. Metzener ingested the medications in limited quantities before sleep since the medication interfered in safe driving.

On September 21, 2016, Jeffrey Metzener informed Dawn Fischer and Mario Rodriguez that he needed surgery for his back and his recovery from the surgery would temporarily prevent him from work duties. Metzener's surgery was scheduled for September 29, 2016. Metzener told Rodriguez that he could return to work two weeksafter the surgery. No evidence suggests that Fischer or Rodriguez then told Metzener that he could not be working anyway because he lacked a valid CDL.

On September 21, 2016, Jeffrey Metzener worked his scheduled shift. Before departing the workplace on September 21, Mario Rodriguez took from Metzener the keys to the Medelez truck that Metzener drove. Rodriguez informed Metzener that Medelez would not permit him to drive until further notice. Since Rodriguez provided no explanation for seizing the keys, Metzener concluded that Medelez placed him on a leave of absence because of his disability and upcoming surgery and that Medelez did not expect him to return to work until after he recovered from surgery. Metzener believed he would not return to work until October 11. No Medelez employee told Metzener that Rodriguez took the keys because Metzener had failed to undergo a return to duty drug screening.

On September 21, Mario Rodriguez also told Jeffrey Metzener to telephone safety coordinator Dawn Fischer, which action Metzener promptly took. During the September 21 conversation, Dawn Fischer informed Jeffrey Metzener that he needed to complete his return-to-duty drug screen before returning to work. Fischer labeled the drug screen Metzener underwent at the start of his employment with Medelez as a "pre-employment" test. CP at 59. The return-to-duty test differs from a pre-employment test in that someone must observe the employee urinate for a return-to-duty test, but not a pre-employment test.

Even before the taking of his company truck keys on September 21, Jeffrey Metzener had gained approval from Medelez to miss work on September 22 because of a medical appointment. On September 22, Metzener, during lunch with his wife, drank two alcoholic beverages. He never expected to be tested for his blood alcohol level that day. Medelez had never told Metzener that he could not drink alcohol on days he did not work.

On September 22, Dawn Fischer searched for a copy of Jeffrey Metzener's substance abuse plan, but could not locate a copy in Medelez's offices. We do not know if Fischer's search meant that Metzener had not earlier given her another copy or that Fischer lost the second copy. Anyway, Fischer contacted William B....