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City of Gary v. Review Board of Indiana Department of Workforce Development

Court of Appeals of Indiana

July 22, 2014

CITY OF GARY, Appellant-Defendant,
v.
REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and GUADALUPE T. FRANCO, Appellees-Plaintiffs

APPEAL FROM THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT. The Honorable Steven F. Bier, Chairperson. Cause No. 13-R-04073.

ATTORNEY FOR APPELLANT: NICHOLAS A. SNOW, Harris Law Firm, P.C., Crown Point, Indiana.

ATTORNEYS FOR APPELLEES: GREGORY F. ZOELLER, Attorney General; KATHY BRADLEY, Deputy Attorney General, Indianapolis, Indiana.

BROWN, Judge. VAIDIK, C.J., and NAJAM, J., concur.

OPINION

Page 513

BROWN, Judge

The City of Gary, Indiana (the " City" ), appeals a decision by the Review Board of the Indiana Department of Workforce Development (the " Board" ) in connection with Guadalupe Franco's application for unemployment benefits finding that Franco had been discharged but not for just cause and was entitled to unemployment benefits. The City raises two issues, which we consolidate and restate as whether the record supports the Board's decision. We affirm.

FACTS AND PROCEDURAL HISTORY

Franco worked as an electro-mechanic for the City's Sanitary District from July 16, 2010, to August 14, 2013.[1] On August 5, 2013, Franco was injured in an accident while working to close an overhead valve which had not been operated for some time, and he received treatment the following day at Comprehensive Care. While at Comprehensive Care, he received an injection and other treatment for pain and provided a urine sample for drug testing. An initial screening was performed at Comprehensive Care, and the results of the initial on-site testing were " non-negative." Transcript at 30. The sample was then sent to MedTox Laboratories Inc. (" MedTox" ) for additional testing. The results of the MedTox testing were positive for cocaine metabolite. The City terminated Franco's employment for failing a drug test on August 14, 2013.

Franco filed a claim for unemployment benefits, and on September 11, 2013, a deputy for the Indiana Department of Workforce Development issued a Determination of Eligibility which found that Franco had not been discharged for just cause, that sufficient information had not been provided to sustain the City's burden of proof, and that Franco was not disqualified from unemployment benefits. The City appealed the deputy's determination, and a telephonic hearing was held on October 21,

Page 514

2013, before an administrative law judge (the " ALJ" ). The City presented evidence of its workplace policies related to drug testing, and the ALJ heard the testimony of several representatives of the City, Franco, and Dr. Frank Messana, the Medical Review Officer for Comprehensive Care.

The City presented an on-site screening custody form, which contained instructions and fields to be completed with respect to six steps. According to the custody form, step one related to obtaining donor information and consent, step two was to be completed by the collector and involved identifying the temperature of the specimen, the lot number, and the reason for the accident, and step three included certifications by the collector and tester that the on-site test was performed utilizing standard procedures. Following step three, there was a portion of the form to be completed by the Medical Review Officer, or the " MRO." Exhibits at 27. The form stated that step five was to be completed only if the specimen was sent to the lab for testing, and step five included fields to provide the date and the printed name and signature of the tester and a field below the words " received by printed name / signature" with a box next to the words " seal intact." Id. Step six stated " To be completed by MEDTOX" and provided a field for the date and a field below the words " released by printed name / signature." Id.

In the custody form admitted into evidence, steps one through three were completed, and Dr. Messana signed the section to be completed by the MRO. In the fields for step five, the date of August 6, 2013, is identified along with the printed name and signature of the tester. However, in step five, the field below the words " received by printed name / signature" and the box next to the words " seal intact" were not completed. Id. In addition, the fields in step 6 on the custody form, which was to be completed by MedTox, were not completed.

The record also includes a Laboratory Report, included in the exhibit together with the on-site screening custody form, which indicates the report was completed by MedTox on behalf of Comprehensive Care, that the sample was collected on August 6, 2013, that it was received on August 7, 2013, and that it was reported on August 10, 2013. The Laboratory Report, which contained identification numbers matching those on the custody form, lists the tests requested, indicates that the result of the test for cocaine metabolite was positive, and states that " alternative explanations should be explored for any positive result." Id. at 28. The record also includes a letter dated August 13, 2013, addressed to the City and signed by Dr. Messana stating that Franco had tested positive for cocaine.

Franco testified that he was shocked that there was a positive test result for cocaine, that he had not been using any drugs, and that he was dumbfounded and did not know why that result occurred. He further testified that he had stated to the individuals who were in the room when his employment was terminated that he would do anything possible to clear his name including taking a polygraph or submitting to alternative testing such as a hair follicle test, but the City refused. When asked if he had any prior random drug tests in the previous ten years working at the location, Franco testified that he had random drug tests given to all employees a few times and also several tests in connection with a few incidents in which he had been hurt, and when asked how many prior drug tests he had or if he ever had a positive drug test, Franco replied that he had approximately six or seven prior drug

Page 515

screens and that he never had a positive test. Franco's counsel argued that the City as the employer must submit into evidence reliable documentation from the laboratory establishing that the specimen was received intact and that the chain of custody was maintained by the laboratory and that no such evidence had been submitted in this case. In response, the City called Dr. Messana.

Dr. Messana testified regarding the screening custody form and the practices of Comprehensive Care. He testified that, if an initial screening test is performed at Comprehensive Care and there is a " non-negative," then the sample is sent to the laboratory and step five of the custody form is completed. Id. at 30. Dr. Messana further testified that the laboratory receives the specimen, confirms that the seal is unbroken, and performs another screening. Dr. Messana also testified that the initial screening " is very sensitive so it may pick up some false positives, and when it's sent to the laboratory, it is very specific, [] the follow-up testing they do. So we call it non-negative because there is a potential for it to go to the laboratory and when they do the [] very sensitive testing, . . . it may come back as being a negative test. So we don't refer to them as a positive test, it's just a non-negative . . . ." Id. at 31.

The following exchange occurred on cross-examination of Dr. Messana:

Q. And this on-site screening custody form . . . does this show that . . . Medtox indeed received the sample with the seal intact?
A. This form itself does not. They would have a form, there's actually several copies so the first copy the donor takes, copy two is kept for the medical review officer, in this case myself. There's another copy that's sent to the laboratory and they would have that and they would sign off, you know, stating, in the section 6 where they received it and the date so they actually have a copy of that for their records.
Q. So . . . the laboratory itself generates documentation if the specimen was received intact and that the chain of custody was maintained by the laboratory?
A. Correct.
Q. But we don't have that ...

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