Anthony K. McGraw v. Department of Workforce Services

McGraw v. DWS

IN THE UTAH COURT OF APPEALS

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Anthony K. McGraw,

Petitioner,

v.

Department of Workforce Services, Workforce Appeals Board; and C.R. England, Inc.,

Respondents.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20020585-CA
 

F I L E D

(February 13, 2003)
 

2003 UT App 42

 

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Original Proceeding in this Court

Attorneys: Anthony K. McGraw, Birmingham, Alabama, Petitioner Pro Se

H. Craig Bunker, Salt Lake City, for Respondent Workforce Appeals Board

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Before Judges Bench, Davis, and Thorne.

PER CURIAM:

Petitioner Anthony K. McGraw seeks judicial review of a final agency action disqualifying him from unemployment compensation benefits because he was terminated for just cause. This case is before the court on a sua sponte motion for summary disposition. McGraw did not respond.

C.R. England, Inc. implemented a drug testing policy to comply with federal law. McGraw was selected for random drug testing. After he submitted a urine specimen to a company representative, McGraw signed a Federal Drug Testing Custody and Control Form containing the following certification:

I certify that I provided my urine specimen to the collector; that I have not adulterated it in any manner; each specimen bottle used was sealed with a tamper evident seal in my presence; and that the information provided on this form and on the label affixed to each specimen bottle is correct.

McGraw tested positive for the presence of cannabinoids at the level of 35 nanograms, which indicated direct inhalation of marijuana. C.R. England discharged McGraw under its zero tolerance policy for drug use.

McGraw contends that (1) the Workforce Appeals Board could not terminate benefits because some benefits were initially paid; (2) the Board gave too much weight to testimony of the employer's representatives; and (3) the former C.R. England employee who processed his sample was not called to testify. Although some benefits were paid prior to the determination of McGraw's ineligibility, the Department of Workforce Services was not bound to continue payment as a result.(1) McGraw's remaining claims challenge the sufficiency of the evidence supporting the findings of fact.

An agency's findings of fact will be upheld if they are supported by substantial evidence in light of the whole record before the court. See Van Leeuwen v. Board of Rev., 901 P.2d 281, 284 (Utah Ct. App. 1995). McGraw's central contention is that the Board gave too much weight to the testimony of the employer's representatives and too little weight to his own claims that the employer did not properly handle the urine specimen and/or that the employer improperly influenced the laboratory results. On review, "we defer to the [Board's] findings, because when reasonably conflicting views arise, it is the [Board's] province to draw inferences and resolve these conflicts." Id. McGraw sought to discredit his own signed certification that the urine specimen was collected in accordance with federal requirements, claiming that he had not read the form before signing it. The Board found the certification to be valid. Although the former employee who collected the specimen was unavailable, a representative testified about the employer's procedures and the test results received in this case. The actual testimony was limited to those facts that would be within the witness's knowledge. Finally, McGraw's claim that the independent laboratory was improperly influenced because it was contractually retained by the employer is wholly speculative. Under these circumstances, we conclude that the findings are supported by substantial evidence in the record.

The Board's determination to deny benefits based upon termination for just cause was reasonable and rational. See id. at 283 (stating court will not disturb agency's application of law to factual findings unless that determination "exceeds bounds of reasonableness and rationality"). McGraw's conduct was "culpable" given the dangerous nature of interstate trucking and the potential for liability. See Utah Admin. Code R994-405-202(1). It was undisputed that he had "knowledge" of his employer's zero tolerance policy for drug use. See id. R994-405-202(2). Finally, it was within McGraw's "control" not to use drugs. See id. R994-405-202(3).

Accordingly, we affirm the decision of the Workforce Appeals Board and dismiss the petition for review.

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Russell W. Bench, Judge

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James Z. Davis, Judge

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William A. Thorne Jr., Judge

1. The Department of Workforce Services deemed the initial payments to result in a no fault overpayment, and will not seek reimbursement unless McGraw applies for and is awarded benefits in the future.