IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
KEVIN L. WRIGHT, SR., )
Appellant, )
v.
CLAYMONT STEEL and )
UNEMPLOYMENT INSURANCE )
APPEAL BOARD, )
Appellees. )
Submitted: May 12, 2008
Decided: August 4, 2008
On Appeal from the Unemployment Insurance Appeal Board.
AFFIRMED.
OPINION AND ORDER
BRADY, J.
This is an appeal from a decision of the Unemployment Insurance
Appeal Board ("Board") which denied unemployment benefits to Kevin L.
Wright, Sr. ("Wright"). Wright was terminated from his employment with
Claymont Steel ("Claymont") due to a violation of Claymont’s substance
abuse policy. After a hearing that took place on September 11, 2007, a
Division of Unemployment Insurance Appeals Referee determined that
Wright was disqualified from receiving unemployment benefits because he
was terminated for just cause. The Board affirmed the Referee’s decision on
December 10, 2007, and the instant appeal followed. After considering the
parties’ briefs and the record in this matter, the Board’s decision is
AFFIRMED.
Facts
Wright worked as a shipper/checker/loader for Claymont from
September 18, 2006 to June 14, 2007. On his date of hire, Wright executed
a form whereby he acknowledged receipt of Claymont’s Substance Abuse
Policy ("Policy").1 Pursuant to the Policy, any employee who tests positive
for any level of an illegal drug is subject to immediate termination.
However, if an employee voluntarily discloses a substance abuse problem,
Claymont will select and pay for an appropriate treatment program. The
employee’s continued employment is contingent upon successful completion
of the selected treatment program. The Policy also sets forth a procedure for
testing for illegal drugs. If an employee’s urine sample tests positive for an
illegal substance, the test is not considered positive until a laboratory test
confirms the initial result.
On January 22, 2007, Wright approached Patty Stevens2 ("Stevens")
and voluntarily disclosed a substance abuse problem with alcohol and
cocaine.3 After disclosing his problem, Wright signed a Continued
Employment Agreement ("Agreement") which set forth, in pertinent part, as
follows:
I understand that Claymont Steel has agreed to continue
my employment provided I meet and satisfy each of the
following conditions:
1. I must immediately enroll and successfully complete a
rehabilitation program approved by Claymont Steel
...
3. During the 12 months following my return to work, I
agree to allow and will promptly comply with Claymont
Steel’s requests to conduct drug screening and searches
on a random, unannounced basis.
4. I agree to participate in and complete any follow-up
programs and/or treatment which are deemed necessary
by the rehabilitation counselors approved by Claymont
Steel...
I understand that if I fail to satisfy any of the conditions
listed above, I will be terminated. I further understand
that in addition to the conditions set forth above, I must
abide by all other Claymont Steel regulations and
policies.
After Wright entered into the above agreement, Claymont referred
him to an intensive outpatient substance abuse program at PACE, Inc. On
May 15, 2007, PACE’s executive director sent correspondence informing
Stevens that Wright "has not completed the substance abuse program at
PACE and has been given a negative discharge status."5
Upon Wright’s discharge from PACE, he was referred to Dr. Alvin
Turner to receive individual substance abuse counseling. Stevens testified
that Claymont agreed to give Wright the opportunity to undergo treatment
with Dr. Turner, despite his negative discharge from PACE. She testified
that he missed two out of his first three scheduled appointments prior to his
termination.6
On April 26, 2007, Stevens obtained a urine sample from Wright. She
tested the sample and it came back positive for cocaine. Pursuant to
Claymont’s policy, Stevens sent the sample to an outside lab. The lab
results indicated a negative result for cocaine.7
However, Stevens testified that the lab uses a different standard for a
positive test result than Claymont. Specifically, the lab has a minimum
threshold that a sample must exceed before it is considered positive, whereas
Claymont does not permit any level of illegal drugs.8 Accordingly, on June
4, 2007, Stevens obtained a second urine sample, which also tested positive
for cocaine. She sent the sample to the lab with the following instruction:
"If test is negative, please test for presence."9
As before, the lab results came back negative for cocaine. However,
the requested "presence" test came back as "reconfirmed."10 According to
Stevens, the "reconfirmed" test result indicated that the test that she used --
which apparently tests for trace amounts -- was accurate. Therefore,
according to Stevens’ interpretation of the lab results, the lab confirmed
Wright’s positive test.11
Wright testified on his own behalf in front of the Appeals Referee. He
stated that, despite the letter from PACE stating otherwise, he received a
neutral discharge from PACE.12 He stated that PACE was going to give him
a successful discharge upon his successful completion of treatment with Dr.
Turner. However, he did not submit any documentary evidence or provide
any witnesses to support that assertion. Wright testified that he missed two
out of his first three appointments with Dr. Turner. He stated that he missed
the first appointment because of a work-related emergency, and he missed
the second appointment because of a power-outage in Dr. Turner’s office.13
Wright provided no witnesses or independent documentary evidence to
support these assertions.14
Wright stated that he was taking medications, vitamins, and
supplements and that, in his belief, these items caused him to test positive
for cocaine.15 However, he did not submit any evidence documenting that
he was on any medication at the time, and he did not provide any evidence
that the medications, vitamins and supplements could cause a false positive
drug test.
Based on the above, the Claims Referee determined that Wright
violated the Continued Employment Agreement by failing to successfully
complete a treatment program and twice testing positive to the employer-
administered drug tests. The Referee did not accept the results of the two
lab tests since the individuals who performed the tests were not present to
testify regarding the tests’ methods and reliability. However, the Referee
found that Claymont’s in-house drug tests were sufficiently reliable.
Accordingly, the Referee determined that Wright was fired for just cause.
Wright appealed the Referee’s decision to the Board. Wright did not
present any additional documentary or testimonial evidence to the Board
regarding his contention that he received a neutral discharge from PACE.
He also did not submit any additional evidence supporting his position that
he had valid reasons for missing his first two appointments with Dr. Turner.
Wright did present a witness in support of his claim that he received a
false-positive drug screening. Wright presented the testimony of Mariano
Spittili, a former Claymont employee who was terminated for testing
positive for cocaine.16 According to Mr. Spittili, he was taking the same
sports supplement as Wright, and Mr. Spittili claims the supplement caused
him to test positive for cocaine.17
Wright also provided additional testimony regarding the reason why,
in his opinion, he was fired. Wright testified that on April 28, 2007 he was
injured when he was hit by a train at work.18 He stated that his attorney
contacted Claymont regarding the accident, but Claymont did not document
the accident.19 Wright suggested that Claymont disingenuously terminated
his employment for violating its Substance Abuse Policy, while, in actuality,
Claymont chose to fire him because they did not want to "deal with this
issue with him and the train."20 Wright provided no evidence to corroborate
this allegation or to corroborate the alleged work injury.
The Board determined that Claymont terminated Wright for just
cause. The Board did not accept Wright’s testimony regarding his neutral
discharge from PACE. In particular, the Board stated that at "both the
hearing below and before the Board, the claimant testified that he had been
given a neutral discharge by PACE, in clear contradiction of the
documentary record."21 Accordingly, the Board found that Wright failed to
successfully complete the PACE program in direct violation of the
Agreement with Claymont, and, as such, Claymont had just cause to
terminate Wright as of May 15, 2007. The Board did not find Wright to be a
particularly credible witness, and Wright’s lack of evidence corroborating
his version of events further damaged his credibility with the Board.22
The Board did not determine whether or not Wright’s two failed drug
tests provided a separate, independent basis for terminating his employment
for just cause. Rather, the Board stated the following:
Because the claimant failed to abide by the agreement
memorialized in the Continued Employment Agreement
of January 2007 by being negatively discharged from the
PACE program, the employer had just cause to terminate
the claimant at any time following May 15, 2007. While
the claimant’s failure of a second drug test in June may
have precipitated the employer’s action, just cause for
that action had been established on May 15th.23
Accordingly, the Board affirmed the decision of the Claims Referee,
and the instant appeal followed.
Standard of Review
This Court’s review of the Board’s decision is limited to determining
whether the decision is free from legal error and supported by substantial,
competent evidence.24 "The Board is to solve any questions as to credibility
and conflicts."25 On appeal, Wright is bound by the record of the
administrative hearing and cannot seek to enlarge the record by offering
additional evidence.26 "Where a party with the burden of proof fails to
convince the Board below, the resulting finding of fact can be overturned by
this Court only for errors of law, inconsistencies, or a capricious disregard
for competent evidence."27
Analysis
Pursuant to the Delaware Code, an individual who is discharged from
work for just cause is not eligible to receive unemployment compensation.28
Previous decisions of this Court have held that an employee’s failure to
abide by the terms of a substance abuse rehabilitation agreement constitutes
just cause for terminating employment.29
Wright does not allege any legal error in the Board’s decision.
Rather, Wright claims that Claymont did not have requisite just cause,
because "[n]one of the stipulations of my work agreement were ever
violated..."30 Specifically, Wright claims that the Board erred in finding
that Wright failed to successfully complete his substance abuse treatment.
He further argues that the he never tested positive for any illegal drugs
because his two positive tests were not properly confirmed by the lab. As he
suggested in the proceedings below, Wright claims that he was dismissed
because Claymont employees failed to properly report a work accident and
are now attempting to "sweep [the accident] under the rug by getting rid of
the employee and defaming his character."31
After reviewing the evidence in record, the Court finds that the
Board’s decision is supported by substantial evidence and, therefore, must
be AFFIRMED.
The record demonstrates that the Agreement between Wright and
Claymont required Wright to "immediately enroll and successfully complete
a rehabilitation program approved by Claymont Steel."32 Substantial
evidence indicates that Wright never successfully completed the
rehabilitation program selected by Claymont. Rather, the evidence in the
record indicates that Wright was negatively discharged from PACE. Wright
claims that he was given a neutral discharge from PACE. Even assuming
that this is the case, a neutral discharge is not a successful completion.
Although Claymont had just cause to discharge Wright when he failed
to successfully complete the PACE program, Stevens testified that Wright’s
superiors agreed to give Wright a final chance with Dr. Turner, but Wright
missed two of his first three appointments and twice tested positive for
cocaine, thus forcing Claymont to terminate Wright’s employment. As
Stevens testified, the second drug test was the final proverbial straw, but the
record supports the Board’s finding that Wright failed to satisfy his
obligations under the Agreement prior to the disputed positive drug screens.
Although Wright transferred from PACE to Dr. Turner (with the
apparent blessing of Claymont), the Board was not satisfied that Wright
followed through with his treatment with Dr. Turner. Wright proffered
reasons for missing his first two appointments that, if true, might be
legitimate, but the Board did not find Wright to be a particularly credible
witness and was not inclined to accept his version of events. It is the role of
the Board, not this Court, to weigh the evidence and "solve any questions as
to credibility and conflicts."33 Therefore, this Court must accept the Board’s
determination regarding the credibility of Wright’s proffered reasons for
missing his scheduled appointments with Dr. Turner.
Wright attached to his Opening Brief a letter from PACE which
supports Wright’s contention that he was given a neutral, rather than an
unsuccessful, discharge from the program. This letter is not part of the
record and, in fact, is dated February 25, 2008, more than two months after
the Board issued its decision in this matter. Similarly, Wright attached a
letter from Dr. Turner, confirming Wright’s attendance at two therapy
sessions. The letter is dated December 14, 2007, four days after the Board
issued its decision. The Court is bound by the record of the proceedings
below, and Wright cannot seek to enlarge the record by offering additional
evidence.34
It is regrettable if the facts upon which the Board based the decision
are incomplete or, perhaps, even inaccurate. However, both parties were
given an opportunity to establish the record regarding their position. If
Claymont had failed, until following a hearing at which they were
unsuccessful, to present documentation of Wright’s unsuccessful completion
of the PACE program, Wright would, legitimately, object to giving that new
information any consideration. So, equally, should this Court not consider
an expansion of the record offered by Wright.
Further, assuming the Court were to consider the letter from PACE,
the Court notes that the letter indicates that Wright was given a neutral
discharge. Nothing in the letter suggests that he successfully completed the
program, as he was required to do under the terms of the Agreement with
Claymont. Therefore, the Court will not consider the letters attached to
Wright’s opening brief.
Wright’s Positive Drug Screens and Alleged Work Injury
Wright devotes a substantial portion of his opening brief to the issue
of whether or not his two positive drug screens satisfied the requirement for
a positive drug test under Claymont’s Policy. However, the Board did not
base its decision on this issue. The Board explicitly refrained from ruling on
this issue and, instead, rested its decision on Wright’s failure to successfully
complete the PACE program pursuant to Wright’s Agreement with
Claymont. Therefore, this Court need not address whether or not Wright’s
positive drug screens provided an independent basis to terminate his
employment for just cause.
The Board’s decision did not specifically address Wright’s claims
regarding his alleged work injury. However, given the Board’s
determination that Wright was terminated for just cause, the Board implicitly
rejected Wright’s claim that he was discharged in furtherance of some type
of conspiracy to cover-up his alleged injury. Nothing in the record leads this
Court to an alternative conclusion.
Conclusion
For the forgoing reasons, the decision of the Unemployment Insurance
Appeal Board is hereby AFFIRMED.
IT IS SO ORDERED.