Decision Number 1059-BH-90 - Discharge - Sections 8-1002, 8-1002.1, 8-1003 - Maryland Unemployment Decisions Digest - Appeals

BOARD OF APPEALS

DECISION

Issue: Whether the claimant was discharged for gross misconduct or misconduct, connected with her work, within the meaning of Section 6(b) or 6(c) of the law.

- NOTICE OF RIGHT OF APPEAL TO COURT -

YOU MAY FILE AN APPEAL FROM THIS DECISION IN ACCORDANCE WITH THE LAWS OF MARYLAND. THE APPEAL MAYBE TAKEN IN PERSON OR THROUGH AN ATTORNEY IN THE CIRCUIT COURT OF BALTIMORE CITY, IF YOU RESIDE IN BALTIMORE CITY, OR THE CIRCUIT COURT OF THE COUNTY IN MARYLAND IN WHICH YOU RESIDE.

THE PERIOD FOR FILING AN APPEAL EXPIRES AT MIDNIGHT ON November 23, 1990.

APPEARANCES

PROCEDURAL STATEMENT

The Hearing Examiner issued a decision in this case on June 28, 1990. The employer, the City of Baltimore, filed an appeal of the Hearing Examiner's decision on July 13, 1990.

The Board granted an appeal on September 11, 1990, and the hearing was scheduled for October 2, 1990 at 1:45 p.m. Subsequently, in an oral motion made to the Board's counsel, the employer withdrew its request for a hearing and asked for a decision on the record. All notices from the Board had been sent to the claimant's last known address of record. When the claimant did not appear for the hearing, the Board decided to grant the employer's motion and review the case solely on the record established before the Hearing Examiner.

REVIEW OF THE RECORD

Upon review of the record in this case, the Board of Appeals reverses the decision of the Hearing Examiner. This decision is made based upon the Board's evaluation of the totality of the evidence, and includes the Board's different conclusion as to the credibility of the claimant's testimony.

The Board finds as a fact that the claimant was employed from November 17, 1989 to May 3, 1990 as a police cadet. As part of that job, she was required to take a physical prior to her twenty-first birthday, the time at which she would have been entered into the police academy. Part of that physical exam included a drug screening test.

On April 20, 1990, the claimant took a drug screening test. The chain of custody was properly observed and documented. The claimant's urine sample was given a preliminary "EMIT" test, and a positive finding for cocaine derivative was found. The sample was later retested using a gas chromatography mass spectrograph test, a test which is considered to be the state of the art in testing for drugs. This second test reconfirmed the presence of cocaine derivatives in the claimant's system. The results of this test were recorded on April 23, 1990.

On that same day, April 23, 1990, the claimant had tests done on both her blood and her urine for the presence of cocaine. These tests showed that none was present in either on that date.

Significantly, however, cocaine is normally out of a bodily system within 48-72 hours. Moreover, the level of cocaine derivatives in the claimant's system on April 20 was such that it was entirely feasible that she could have tested positive on April 20 and negative three days later.

The Board finds as a fact that the claimant had ingested the substance cocaine during the time that she was employed by the police department. This does not mean that she necessarily did so during work hours.

CONCLUSIONS OF LAW

The Board concludes that the claimant was discharged for gross misconduct, connected with the work, within the meaning of Section 6(b) of the law. As a police cadet, the claimant has a continuing duty to her employer to refrain from violation of criminal laws. Her ingestion of cocaine, even if technically not during work hours, constituted a serious violation of this duty. This is a deliberate violation of standards of conduct the employer has a right to expect, showing a gross indifference to the employer's interest. This conduct thus meets the definition of gross misconduct in Section 6(b).

DECISION

The claimant was discharged for gross misconduct, connected with her work, within the meaning of Section 6(b) of the Maryland Unemployment Insurance Law. She is disqualified from the receipt of benefits from the week beginning April 29, 1990 and until she becomes re-employed, earns at least ten times her weekly benefit amount ($1,250), and thereafter becomes unemployed through no fault of her own.

The decision of the Hearing Examiner is reversed.

Thomas W. Keech, Chairman
Donna P. Watts, Associate Member
Hazel A. Warnick, Associate Member

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Date of Hearing: October 2, 1990
COPIES MAILED TO:

CLAIMANT
EMPLOYER
UNEMPLOYMENT INSURANCE - BALTIMORE

LOWER APPEALS DECISION

DECISION

Issue: Whether the claimant was discharged for misconduct connected with the work, within the meaning of Section 6(c) of the Law. Whether the claimant was discharged for gross misconduct connected with the work, within the meaning of Section 6(b)

-NOTICE OF RIGHT TO PETITION FOR REVIEW-

ANY INTERESTED PARTY TO THIS DECISION MAY REQUEST A REVIEW AND SUCH PETITION FOR REVIEW MAY BE FILED IN ANY OFFICE OF THE DEPARTMENT OF ECONOMIC AND EMPLOYMENT DEVELOPMENT OR WITH THE APPEALS DIVISION. ROOM 5I5 1100 NORTH EUTAW STREET, BALTIMORE, MARYLAND 21201 EITHER IN PERSON OR BY MAIL.

THE PERIOD FOR FILING A PETITION FOR REVIEW EXPIRES AT MIDNIGHT ON July 13, 1990.

APPEARANCES

FINDINGS OF FACT

The claimant was employed from November 17, 1989, in Baltimore City police Cadet Program at a pay rate of $16,312 gross per year for full-time employment. One of the conditions of this employment was an agreement by the claimant to submit to unannounced drug testing. Under the Program just before reaching the age of 21, the claimant/Cadet had to submit to a complete physical including a drug test. The claimant tested positive for cocaine as a result of this test and, therefore, was terminated from the Cadet Program.

As soon as the claimant learned the test results, on or about April 23, 1990 she immediately submitted to private testing, which showed a negative result. Despite this information which she submitted to her employer, the termination effective May 3, 1990, based on the employer's testing results remained in effect.

CONCLUSIONS OF LAW

It is held that the claimant was discharged by decision of the employer but the evidence does not substantiate a finding of gross misconduct or misconduct connected with the work within the meaning and intent of those provisions of the Maryland Statute. The determination of the Claims Examiner was warranted and will be affirmed.

DECISION

The claimant was discharged but not for misconduct connected with the work within the meaning of Section 6(b) or 6(c) of the Law. Benefits are allowed if she be otherwise eligible under the Law.

The determination of the Claims Examiner is hereby affirmed.

P. J. Hackett, Hearing Examiner

Date of Hearing:6/20/90
cc/Specialist ID:01052
Cassette No:4473
Copies mailed on 6/28/90 to:

Claimant
Employer
Unemployment Insurance -Baltimore (MABS)