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Risch v. Alaska Railroad Corp. and Alaska Dept. of Labor (8/19/94), 879 P 2d 358
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
JEFFREY W. RISCH, )
) Supreme Court No. S-5577
) Superior Court No.
v. ) 4FA-91-735 CI
STATE OF ALASKA, acting ) O P I N I O N
through its agency, the )
Alaska Department of Labor, )
Employment Security Division, )
and the ALASKA RAILROAD )
Appellees. ) [No. 4114 - August 19, 1994]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Jay Hodges, Judge.
Appearances: Brett M. Wood, Fairbanks,
for Appellant. Nora King, Assistant Attorney
General, Fairbanks, Charles E. Cole, Attorney
General, Juneau, for Appellee State of
Alaska. Eugene P. Hardy, Alaska Railroad
Corporation, Office of the General Counsel,
Anchorage, for Appellee Alaska Railroad
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton, Justices, and
Bryner, Justice, pro tem.*
The State of Alaska, Department of Labor, Employment
Security Division (ESD), determined that Jeffrey W. Risch was
discharged for misconduct in connection with his work and thereby
was disqualified from receiving benefits during the prescribed
statutory period.1 Specifically, ESD found, based on a positive
urinalysis, that Risch had intentionally used marijuana in
violation of a work rule. Risch appeals the superior court's
decision affirming ESD's decision.
Risch was employed as a locomotive engineer with the
Alaska Railroad Corporation (ARRC). On July 10, 1990, ARRC
ordered Risch to report for random urinalysis testing. Risch
submitted three specimens over several hours. The first specimen
was rejected for insufficient volume and apparently was
discarded. The attendant described the second specimen as cloudy
and rejected it for insufficient temperature. The attendant
marked this specimen "Void #1"and submitted it for analysis.
Risch produced a third specimen under observation which was clear
and adequate in temperature and volume. The attendant marked
this specimen "Void #2"and forwarded it for analysis.
One of these specimens tested positive for
cannabinoids, which indicate the use of marijuana. The other
specimen tested negative. On retesting by a different
laboratory, the positive specimen again tested positive. The
report for the negative specimen bears the handwritten notation,
"Sample not up to Temperature." ARRC terminated Risch effective
August 14, 1990, for using drugs in violation of company rules.
Risch applied for unemployment benefits. ARRC
contested Risch's entitlement to unemployment benefits on the
grounds that he had been terminated for misconduct. ESD
initially determined that Risch was "discharged for unintentional
violation of a company policy"and declared him eligible for
unemployment compensation. ARRC appealed this determination to
an ESD Appeal Tribunal, which determined that Risch was
terminated for misconduct connected with his work and therefore
was disqualified from receiving benefits for the statutory
period. Risch appealed to the Commissioner of Labor, who
affirmed the tribunal's decision. Risch then appealed to the
superior court. After ARRC was granted permission to intervene,
the superior court affirmed the tribunal's decision. Risch then
appealed to this court.
Risch claims that ESD's determination that he was
terminated for misconduct is based on improperly admitted
evidence and is not otherwise supported by substantial evidence.
Risch first claims that ESD improperly admitted the
drug test results into evidence because he was coerced into
waiving his rights of non-disclosure. Federal regulations
prohibit ARRC from releasing employee drug test records or
information derived from such tests without the "voluntary
written consent of the employee." 49 C.F.R. 219.711(c) (1993).
Risch argues that he never intended to authorize ARRC to release
the results of his drug tests to ESD, and that he was coerced
into waiving his objection to the disclosure at the ESD hearing.
This argument is without merit.
The unemployment application signed by Risch contains
the following authorization above the signature line:
I hereby apply for a determination of
monetary eligibility and authorize my
previous employers to release employment and
separation information to the Employment
Security Division. I also authorize the
Employment Security Division to verify my
eligibility for Unemployment Insurance with
other agencies . . . . I understand that
there are state and federal penalties for
providing false information. . . . I also
certify that the statements on these four
pages made in connection with this claim are
true to the best of my knowledge and belief.
ESD hearings were held on November 5 and December 3, 1990. At
the first hearing, Risch, who was representing himself, objected
to the introduction of all medical evidence by ARRC. After this
objection was overruled, ARRC's counsel questioned whether the
authorization on the unemployment application was a sufficient
written waiver under federal regulations to allow ARRC to release
the drug test results to ESD. Although ARRC's position was that
the authorization was sufficient, counsel questioned whether
Risch by his objection intended to withdraw the release. Risch
stated that he never intended to authorize release of
confidential medical information. The hearing officer then
warned Risch that "if you withdraw your release, it could
invalidate or otherwise stop all unemployment payments and it
could -- may turn this over to other offices to investigate
what's going on here. That could include the fraud
Risch then stated, "Okay. Well, under the threat of
punishment, maybe I'll withdraw . . . under the threat of punish
ment and fraud investigation, I will withdraw my objection."
Following this statement, the hearing officer clarified that he
did not mean to imply that Risch would be found guilty of fraud,
but only that he might be investigated. Both the hearing officer
and the counsel for ARRC then recommended that Risch consult with
an attorney before proceeding. Risch stated that he had already
had an opportunity to consult with an attorney, that he could not
afford one, and that he was prepared to go forward rather than
have "unemployment benefits interrupted while we fight over
Neither the hearing officer nor ARRC's counsel coerced
Risch into waiving his confidentiality rights. On the contrary,
both the hearing officer and ARRC's counsel appear to have taken
pains to explain the possible consequences of Risch's waiver
decision to him and to offer him additional opportunity to seek
legal advice before deciding. In addition, Risch was afforded a
choice on how to proceed. The fact that a choice different from
the one he made could have resulted in his losing his
unemployment benefits does not mean that he was wrongfully
deprived of the choice. Cf. Zeilinger v. Sohio Alaska Petroleum
Co., 823 P.2d 653, 658 (Alaska 1992) (employer not responsible
for burdensome financial condition of employee's own making).2
Risch also argues that the drug test results should not
have been admitted because the tests were conducted in violation
of federal law. Under the federal Hours of Service Act (HSA), 45
U.S.C. 61-66 (1988), no railroad employee can be required or
permitted to continue on duty when he has not had at least eight
consecutive hours off duty during the previous twenty-four hours.
45 U.S.C. 62(a)(2) (1988). At the time ARRC ordered Risch to
submit to drug testing, Risch had been technically on duty for
close to twenty-four hours.3 Risch argues that because the HSA
prohibits ARRC from requiring Risch to stay on duty without
having had at least an eight hour break within a twenty-four hour
period, and because federal regulations require that employees
remain on duty while being tested, ARRC violated federal law by
requiring Risch to take the test when he had not had a sufficient
break in the previous twenty-four hours. Risch further argues
that because the test results were obtained during a period when
ARRC was prohibited from requiring or allowing Risch to remain on
duty, the results should be disallowed.
Risch offers no support for his assertion that evidence
obtained in violation of a civil statute should be excluded. The
exclusive statutory penalty for violation of the HSA is a fine.
45 U.S.C. 64a(a) (1988). The purpose of the HSA is
to promote safety in operating trains by
preventing the excessive mental and physical
strain which usually results from remaining
too long at an exacting task. It must be
construed and applied in view of that purpose
and well-known circumstances attending the
practical operation of trains.
Chicago & Alton R.R. v. United States, 247 U.S. 197, 199-200
(1918) (citation omitted). This purpose would not be furthered
by excluding the drug tests, or frustrated by admitting them.
Risch's additional service (in submitting urine samples) did not
impinge on the safety of the railroad's operation. In addition,
there is no private right of action for an employee forced to
work in violation of the act. See United Transp. Union v. Lewis,
699 F.2d 1109, 1113 (11th Cir. 1983). The federal regulations
governing railroad drug testing do not provide for the
suppression of test results obtained in violation of the HSA.
See 49 C.F.R. 40.25, 219 (1993). For these reasons, ESD did
not err in admitting the drug test results despite the HSA
Risch also claims that there was not substantial
evidence in support of ESD's determination that he had
intentionally used marijuana in violation of company rules.4 We
disagree. First, there was substantial evidence before ESD that
Risch had tested positive for marijuana. It is undisputed that
one of the two specimens submitted by Risch tested positive for
marijuana, and that the other specimen tested negative. Risch
does not contend that one of these specimens was not produced by
him.5 Although none of ARRC's witnesses affirmatively linked the
positive result to the specimen marked Void #2,6 the evidence
supports ESD's determination that the valid specimen tested
positive. The negative report does bear the handwritten notation
"sample not up to temperature." Although this notation was not
explained by ARRC's witnesses, Risch did not object to it and ESD
was entitled to rely on it. This would appear to be "such
relevant evidence that a reasonable mind might accept as adequate
to support [the] conclusion"that Risch had cannabinoids in his
system on July 10, 1990. Storrs, 664 P.2d at 554.
Second, given the finding that Risch tested positive
for marijuana, ESD's further determination that Risch
intentionally used marijuana is also supported by substantial
evidence. Risch postulated several theories at the hearing on
how he could receive a positive result without having
intentionally used marijuana, including that his back medicine
produced a false positive result and that he had been
inadvertently exposed to marijuana while staying at railroad
accommodations. Dr. Fyfe refuted each of these theories. She
stated unequivocally that none of the medication Risch claimed to
have used could have produced a false positive result. Dr. Fyfe
also stated that passive inhalation of marijuana smoke would not
produce the level of cannabinoids found in Risch's sample.
Because Dr. Fyfe's testimony refutes Risch's claims that the
positive test could have resulted accidentally or from
unintentional use, it is substantial evidence in support of ESD's
finding that Risch used marijuana intentionally.
Finally, Risch argues that ARRC failed to establish
that he knew that marijuana use violated company rules or that
such a violation was willful7. Basically, Risch argues that
because at the time he was tested some marijuana use was legal in
Alaska, any use by him was not necessarily in willful violation
of ARRC's prohibition against the use of illegal substances.
This argument is without merit. First, Risch never
claimed before ESD that he had legally used marijuana. In fact,
he repeatedly denied using marijuana and claimed to be unfamiliar
with its smell. Second, as discussed above, there is substantial
evidence that Risch intentionally used marijuana. Third, the
parties do not dispute that marijuana use was generally illegal
under federal law and specifically prohibited, on or off duty,
for railroad workers at the time Risch was tested. See 49 C.F.R.
219.102 (1993). Fourth, ESD could rationally interpret 8 AAC
85.095(d) as requiring only that the employee willfully commit an
act that violated a reasonable employer standard of behavior, and
not as requiring that the employee know, at the time he committed
the act, that he was violating the employer standard.
The superior court's decision affirming ESD's
determination that Risch committed misconduct in connection with
his work is AFFIRMED. ESD did not err in admitting Risch's drug
test results into evidence. Risch validly waived the
confidentiality of the test results and excluding the tests is
not the appropriate remedy for violation of the HSA by ARRC.
ESD's factual finding that Risch intentionally used marijuana is
supported by substantial evidence. Finally, ESD did not err in
concluding that Risch's action constituted misconduct in
connection with work under AS 23.30.379(a)(2).
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 AS 23.20.379(a)(2) disqualifies an insured worker for
benefits for the first six weeks of unemployment if the worker
was discharged for misconduct connected with work.
2 Risch's coercion argument might have more force if the
hearing officer's explanation of the consequences of Risch
withdrawing his authorization was incorrect. However, the
hearing officer appears to have been correct, at least to the
extent that he warned Risch that his benefits might be cut off if
he withdrew the authorization on the application. Unless the
authorization was invalidly required or did not extend to the
drug tests, withdrawal of the authorization would, in effect,
cancel Risch's application.
Risch does not challenge ESD's authority to require
such an authorization in every application. Risch does argue
that the authorization he signed pertained only to "employment
separation information" and did not authorize disclosure of
otherwise confidential drug test results. He understands
"employment separation information"to mean only "the reason
Risch was discharged." This is too narrow a reading. It would
be nonsensical to allow a worker applying for unemployment
benefits to force his employer to withhold the evidence behind
the reason for discharge. In addition, AS 23.20.387 provides
that an applicant is ineligible for benefits if she knowingly
fails to reveal a material fact.
3 Apparently Risch had, in the twenty-four hour period
immediately preceding the testing order, worked eight hours, been
off duty approximately seven and one half hours, and then worked
another eight hour shift. Pursuant to railroad rules, employees
off duty for less than eight consecutive hours were counted as
having worked during their off period. Federal regulations
required that Risch remain on duty during the drug testing. 49
C.F.R. 219.601(b)(6) (1993). Although ARRC does not concede
that Risch testified accurately about his hours, it did not offer
any contradictory evidence. For purposes of this appeal,
therefore, we accept Risch's testimony as true.
4 Whether an employee was dismissed for misconduct is a
factual determination. Smith v. Sampson, 816 P.2d 902, 904
(Alaska 1991). This court therefore applies the substantial
evidence standard of review to ESD's determination. Id.
Substantial evidence is "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Storrs
v. State Medical Bd., 664 P.2d 547, 554 (Alaska), cert. denied,
464 U.S. 937 (1983). "In applying this standard, 'the reviewing
court does not reweigh the evidence or choose between competing
inferences; it only determines whether such evidence exists.'"
Smith v. Sampson, 816 P.2d at 904 (quoting Storrs, 664 P.2d at
5 The one specimen that tested positive for marijuana
might be considered substantial evidence in support of ESD's
determination that Risch had marijuana in his system, regardless
of whether this positive result was sufficiently linked to the
void #2 specimen. Nothing in the record indicates what effect
insufficient temperature might have on the test results. There
is, therefore, no reason to believe that void #1 would be more
likely to produce a false positive result or otherwise be
scientifically invalid. The regulations indicate that the
temperature requirement is intended as a check against specimen
tampering. See 49 C.F.R. 40.25(e)(2)(i) & (f)(13) (1993).
6 The assertions in ARRC's brief that ARRC witnesses Fyfe
and Baker linked the positive result to the valid test are not
supported by record. Sharon Baker's testimony consisted almost
entirely of reading her notes concerning the taking of Risch's
urine samples. She did not address the actual drug tests
performed on the samples. Dr. Fyfe also did not link a specific
specimen to a positive result, but only stated what result was
reached on each exhibit. Only ARRC's counsel stated that the
negative test result belonged to the invalid specimen and that
the positive test result came from the valid specimen.
7 ESD regulations define "misconduct connected with
work," the applicable statutory standard for temporary
disqualification from unemployment benefits, AS 23.20.379(a)(2),
as "any willful violation of the standards of behavior which an
employer has the right to expect of an employee." 8 AAC