City of Waterbury v. Adm'r, Unemployment Comp. Act

216 Conn.App. 717

285 A.3d 1176

CITY OF WATERBURY

v.ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT et al.

AC 44635

Appellate Court of Connecticut.

Argued September 7, 2022

Officially Released November 29, 2022

Daniel J. Foster, corporation counsel, for the appellant (plaintiff).

Richard T. Sponzo, assistant attorney general, with whom, on the brief, were William Tong, attorney general, Clare Kindall, solicitor general, and Matthew LaRock, deputy associate attorney general, for the appellee (named defendant).

Cradle, Suarez and Harper, Js.

CRADLE, J.

The plaintiff, the city of Waterbury, appeals from the judgment of the trial court, rendered in favor of the named defendant, the Administrator of the Unemployment Compensation Act (defendant), dismissing the plaintiff's appeal from the decision of the defendant Board of Review of the Employment Security Appeals Division (board). The board held that the defendant Thomas F. Eccleston II (claimant) was eligible for unemployment benefits because he was not discharged for wilful misconduct, even though he tested positive for marijuana use. On appeal, the plaintiff claims that the board (1) erred in finding the Palliative Use of Marijuana Act (PUMA); see General Statutes § 21a-408 et seq. ;¹ and specifically General Statutes § 21a-408p,² applicable to the present case, and (2) erroneously concluded that the claimant was not discharged for wilful misconduct. We disagree and, therefore, affirm the judgment of the court.

The following undisputed facts and procedural history are relevant to our resolution of the plaintiff's appeal. The claimant was employed by the plaintiff as a firefighter beginning in 1995. On November 23, 2015, in light of his issues with alcohol abuse and domestic violence, the claimant entered into a last chance agreement with the plaintiff and his union. The last chance agreement contained several stipulations regarding the claimant's employment, including one that stated the claimant "may be subject to immediate termination ... [i]f [the claimant] tests positive for alcohol (at the level of 0.04 or above) or a controlled substance." Subsequently, the claimant was prescribed and began lawfully using medical marijuana in compliance with the terms of PUMA. Following a random drug test administered on March 20, 2018, the claimant's employment was terminated for testing positive for marijuana, a controlled substance, in violation of the last chance agreement and other employer policies.

On April 28, 2018, the claimant submitted a claim for unemployment benefits to the defendant. The plaintiff contested the claim for benefits, asserting that the claimant had been discharged for wilful misconduct under General Statutes § 31-236 (a) (2) (B)³ for violating the last chance agreement by testing positive for a controlled substance. On June 19, 2018, the defendant concluded that the claimant was discharged for wilful misconduct and denied his claim for benefits. The claimant appealed the defendant's decision to the Employment Security Appeals Division (appeals division) in June, 2018, arguing that he was not discharged for wilful misconduct.

Following a hearing before the appeals division on August 6, 2018, an appeals referee for the appeals division reversed the defendant's decision. In an August 29, 2018 memorandum of decision, the appeals referee set forth the following findings of fact: "The claimant was employed by [the plaintiff] since 1995, most recently as Fire Lieutenant. On April 23, 2018, the [plaintiff] terminated the claimant after he exercised a leave of absence from March 28, 2018, until this formal separation. ... On March 20, 2018, the [plaintiff] randomly tested the claimant for drugs. The claimant tested positive for marijuana, triggering a leave of absence and eventual termination. ... The [plaintiff] terminated the claimant citing violation of the last chance agreement dated November 19, 2015; the Substance Abuse Testing Policy (Collective Bargaining Agreement); the Agreement between the city of Waterbury and the Local 1339, IAFF, AFL-CIO, and the [plaintiff's] Random Drug Testing Policy. ... During February, 2018, the claimant obtained a prescription for medical marijuana in connection with [post-traumatic stress disorder ]. As confirmed by the Connecticut Department of Consumer Protection, letter dated March 6, 2018, the claimant holds [a] medical marijuana Registration Card, valid January 31, 2018, through January 31, 2019. The claimant never used prescription marijuana within [twenty-four] hours of reporting for duty. ... The claimant only used prescribed marijuana outside of work. ... The [plaintiff] never charged the claimant with being or appearing intoxicated while on duty. ... The claimant entered [into] a last chance agreement on November 19, 2015, whereby any positive test for alcohol or a controlled substance will trigger immediate termination. ... An underlying policy of the rule is that THC levels may not be accurately detected at any given time and that the danger posed by the position requires clear thinking at all times."

In its conclusions of law, the appeals referee noted that "[i]t is undisputed that the claimant in the case before us has been designated by his physician as a qualifying patient suffering from a medical condition and that he was prescribed medical marijuana in accordance with [§] 21a-408p."⁴ The appeals referee determined that the plaintiff had "failed to allege ... that the claimant was discharged because he was impaired on the job" or that "the claimant was in possession of marijuana while at work, or that he was selling or trading drugs." (Emphasis omitted.) Finally, the appeals referee concluded: "Because the [plaintiff] did not demonstrate that the claimant in this case was impaired at work or discharged because he has been disqualified under state or federal law from performing the work for which he was hired as a result of a drug or alcohol testing program mandated by and conducted in accordance with such law,⁵ it has not established that the claimant was discharged for wilful misconduct in the course of the employment." (Footnote added.)

On September 19, 2018, the plaintiff appealed the decision of the appeals referee to the board. The board adopted the appeals referee's findings of fact and added the following relevant amendments: "We add the following sentence to the referee's finding of [fact]: The claimant was dependent on alcohol at the time that he entered into the last chance agreement. We modify the referee's [last] finding of fact ... as follows .... On March 30, 2018, the claimant's physician performed a fitness for duty test and found that the claimant was fit to perform his job as a firefighter without restrictions." (Internal quotation marks omitted.)

The board affirmed the decision of the appeals referee and, in doing so, reasoned: "[T]here is no evidence in the record, or claim by the [plaintiff] that it was mandated to conduct random drug tests on its firefighters by either state or federal law, and therefore the claimant is not disqualified from receiving benefits pursuant to [§] 31-236 (a) (14).⁶ ... The board has previously ruled that a claimant's violation of an employment agreement to participate in a drug treatment program as part of a return-to-work agreement without good cause or excuse may constitute wilful misconduct. ... [PUMA] prevents an employer from discharging an individual solely on the basis of the employee's status as a qualifying medical marijuana patient. See General Statutes [§] 21a-408p (b) (3). Such act does not restrict an employer from prohibiting the use of intoxicating substances during work hours, or being under the influence of intoxicating substances during work hours. [See General Statutes § 21a-408p (b) (3).] In response to the board's request for written argument, the [defendant] maintains that an employee's status as a safety-sensitive employee does not, in and of itself, cause such employee to fall outside the protections of § 21a-408p (b) (3). However, the [defendant] notes that a medical review officer (MRO) is required to report a positive test for marijuana to a third party, such as the employer, if the employee's continued performance of his or her safety-sensitive function is likely to pose a significant safety risk, see 49 C.F.R. § 40.327, at which time the employer may require a fitness-for-duty test.

"In the instant case, the [last chance] agreement was signed prior to the legislature's approval of medical or palliative marijuana, and was reasonable at the time based on the claimant's alcohol dependency. However, to the extent that the last chance agreement contained a blanket prohibition against the use of palliative marijuana, without specific consideration of the employee's fitness for duty, such agreement would be unreasonable as of the date of the claimant's discharge on April 23, 2018, based on the protections of [§] 21a-408p (b) (3). Moreover, the claimant's physician's prescribing palliative marijuana for the claimant's medical condition constituted good cause or a mitigating circumstance for the claimant's violation of the last chance agreement, which prevents us from finding that he committed wilful misconduct.

"To the extent that the [plaintiff] maintains that it did not discharge the claimant solely for his status as a qualifying patient, we do not need to determine whether the [plaintiff] violated § 21a-408p (b) (3). Rather, we only need to determine whether the claimant's violating the last chance agreement constituted wilful misconduct such that he is disqualified from receiving unemployment benefits. While the [plaintiff] argues that the claimant failed to disclose his medical condition or his prescription until the [plaintiff] received the positive drug test, it cites no specific provision requiring such disclosure in the last chance agreement." (Citations omitted; emphasis omitted; footnote added.)

Thereafter, on March 18,...