BOARD OF APPEALS
DECISION
DECISION NO: 1059-BH-90
DATE: October 24, 1990 |
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| CLAIMANT: Darlene Handy
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APPEAL NO.: 9007505
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EMPLOYER:
Baltimore City Police Dept.
c/o Dept. of Personnel |
L.O. NO: 1 |
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APPELLANT: Employer |
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
| For the Claimant: |
For the Employer:
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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
K:W:W
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Date of Hearing: October 2, 1990
COPIES MAILED TO:
CLAIMANT
EMPLOYER
UNEMPLOYMENT INSURANCE - BALTIMORE
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