Christopher L. Borland, Relator, vs. Bridon Cordage LLC., Respondent, Department of Employment and Economic Development, Respondent.

Christopher L. Borland, Relator, vs. Bridon Cordage LLC., Respondent, Department of Employment and Economic Development, Respondent. A04-1994, Court of Appeals Unpublished, August 23, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1994

 

Christopher L. Borland,

Relator,

 

vs.

 

Bridon Cordage LLC.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed August 23, 2005

Affirmed

Randall, Judge

 

Department of Employment and Economic Development

File No. 13021 04

 

Christopher L. Borland, 1202 Levison Street, Albert Lea, MN 56007-3566 (pro se relator)

 

Bridon Cordage LLC, 909 - 16th Street, Albert Lea, MN 56007 (respondent)

 

Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, Saint Paul, MN 55101-1351 (respondent commissioner)

 

            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Relator Christopher L. Borland challenges the decision of the senior unemployment review judge (SURJ) that he was disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  We conclude that the record supports the SURJ's determination.  We affirm. 

FACTS

            Relator Christopher Borland was terminated by respondent-employer Bridon Cordage LLC. for alleged employee misconduct because relator tested positive for THC[1] on three separate occasions.  From July 1998 to July 2004, relator was employed as a machine operator with Bridon Cordage LLC., a plastics manufacturing firm.  When relator was hired, he was made aware of the company's drug policy.  The drug policy states that employees are subject to random drug testing.  If the first drug test comes back positive, the employee must undergo an assessment and is subject to random drug testing for the next two years.  An employee who fails a second drug test can be terminated, depending on whether the employee asks for a final retest.

On March 13, 2004, supervisor Bob Baseman allegedly observed relator smoking marijuana in a car located in the company's parking lot.  In accordance with the company's drug policy, relator was asked to provide a urine sample for a drug test.  The result of the first test showed that relator tested positive for THC.  Following the positive test result, relator entered into an assessment program and was allowed to return to work shortly thereafter.  On July 16, 2004, approximately four months after the first drug test, respondent-employer requested that relator take a second drug test.  The result of the second test again showed that relator tested positive for THC.  On July 20, 2004, according to company policy, respondent-employer terminated relator.  Respondent-employer, however, suspended relator's termination because company policy dictates that an employee is entitled to a retest at the employee's own expense if he requests a retest, which relator did.  On August 10, 2004, the results of relator's retest came back positive for THC.  Respondent-employer sent relator a letter confirming his termination.

D E C I S I O N

            This court reviews the decision of the senior unemployment review judge rather than that of the Unemployment Law Judge (ULJ).[2]  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  On certiorari appeal, the findings made by the SURJ are viewed in the light most favorable to the SURJ's decision and when the evidence reasonably sustains the findings, they should not be disturbed.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  

            Whether a former employee is disqualified from receiving unemployment benefits is a mixed question of law and fact.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The determination of whether an employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether an act constitutes employment misconduct, however, is a legal question, which this court reviews de novo.  Id.

An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2004).  Minn. Stat. § 268.095, subd. 6(a) (2004), provides the definition for employment misconduct:

Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.[3]

 

Conduct resulting from the employee's chemical dependency, however, "is not employment misconduct unless the employee was previously diagnosed chemically dependent or had treatment for chemical dependency, and since that diagnosis or treatment has failed to make consistent efforts to control the chemical dependency."  Minn. Stat. § 268.095, subd. 6(b) (2004). 

Courts have typically interpreted this statute to mean that an employee who makes consistent efforts to control his chemical dependency is entitled to benefits.  See Moeller v. Minnesota Dep't of Transp., 281 N.W.2d 879, 881-82 (Minn. 1979) (when record shows employee was very concerned about retaining job and made reasonable effort to do so by attempting to control addiction to alcohol, employee was qualified to receive benefits); Independent Sch. Dist. No. 709 v. Hansen, 412 N.W.2d 320, 325 (Minn. App. 1987) (employee's continued AA attendance was sufficient to establish consistent efforts to maintain treatment).  Courts have denied an employee unemployment benefits if he fails to make these consistent efforts.  See, e.g., Umlauf v. Gresen Mfg., 393 N.W.2d 198, 200 (Minn. App. 1986) (employee failed to attend aftercare program as part of treatment); Torgerson v. Goodwill Indust., Inc., 391 N.W.2d 35, 38 (Minn. App. 1986) (employee failed to participate in AA on regular basis, as was advised by counselor and as he had agreed to do).

Relator argues for the first time on appeal that he did not commit employment misconduct, claiming chemical dependency is not considered employment misconduct under Minn. Stat. § 268.095, subd. 6(b) (stating that "[c]onduct that was a direct result of the applicant's chemical dependency is not employment misconduct unless the applicant was previously diagnosed chemically dependent or had treatment for chemical dependency.").  On the other hand, respondent-employer argues that relator is not chemically dependent and is not covered under the statute. 

Generally, we will not address an issue that is raised for the first time on appeal. See Imprint Tech. Inc. v. Comm'r of Econ. Sec., 535 N.W .2d 372, 378 (Minn. App. 1995) (stating that issues not raised below may not be raised for the first time on appeal).  Because relator did not raise this issue before the SURJ and the record is not adequately developed for our review, we decline to consider this issue.[4] 

Relator next argues that respondent-employer failed to follow company policy when it terminated him because the policy requires that a person who fails a drug test is entitled to a drug assessment or treatment program.  We disagree.

Company policy states, "If the employees fail[ ] to successfully complete the assessment or any recommended counseling or rehabilitation program, by either withdrawing from a program or testing positive during or after completion of the program, he/she will be terminated."  The record reflects that respondent-employer complied with this policy.  Specifically, after relator's first drug test came back positive
for THC, relator entered into an assessment program.  Following the assessment program, realtor was allowed to return to work.  Relator did not choose to attend counseling as a result of the positive test.  Approximately four months later, relator was given another drug test, which came back positive for THC.  It was only after testing positive for a second time, nearly four months after the initial positive test, that relator was fired.  We conclude that the SURJ did not err in denying further review.

Finally, relator claims that respondent-employer failed to follow its drug-testing policy because his lab results did not provide the exact threshold detection levels indicated by his particular samples.  We disagree.

Here, plant manager Andersen testified that the threshold levels were built into the test and a positive result indicates that a particular threshold detection level was exceeded.  Andersen testified that the lab does not provide any company with the exact threshold-detection level; it simply indicates whether the employee has tested positive or negative for alcohol or drug consumption.  That is the company's stated policy.  The ULJ addressed the issue and found Andersen's testimony to be credible.  See Scheunemann,562 N.W.2d at 34 (stating that fact-finder is charged with making credibility determinations).  Ultimately the ULJ determined that an exact threshold-detection level indicated by relator's particular sample was unnecessary because neither the lab nor the company required a specific threshold level to be included on the lab results summary
report.  The SURJ did not err in adopting the ULJ's findings and in denying further review.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] THC refers to "tetrahydrocannabinol."  In layman's terms, that is the illegal hallucinatory component of the marijuana or cannabis plant.

[2] The term senior unemployment review judge has replaced that of commissioner's representative effective August 1, 2004.  2004 Minn. Laws ch. 183, § 71.

[3]  The statutory definition in effect at the time of the discharge is the definition that controls.  See Brown v. Nat'l Amer. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).

[4] Even if we were to address the issue, the record does not support relator's argument.  First, the record does not reflect that relator is chemically dependent as required by the statute.  Specifically, relator did not attend any chemical-dependency treatment.  Although relator contends that he is now attending out-patient treatment, he provided no evidence to support this contention.  Finally, the ULJ made a factual determination that appellant is not chemically dependent and that he had not sought treatment for chemical dependency.