Young v. Employment Security Appeals Referee Office

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-OCT-2024
08:03 AM
Dkt. 87 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

FRANCISCO R. YOUNG, Claimant-Appellant-Appellant, v.
EMPLOYMENT SECURITY APPEALS REFEREE OFFICE,
Agency-Appellee-Appellee;
MAUI COUNTY PARKS AND RECREATION,
Employer-Appellee-Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

Claimant-Appellant-Appellant Francisco R. Young

appeals from the Circuit Court of the Second Circuit's: 1

(1) August 12, 2020 findings of fact, conclusions of law, and

decision and order denying his appeal; (2) September 22, 2020

Order denying his motion for reconsideration; and

(3) September 28, 2020 final judgment in favor of Agency-

1 The Honorable Peter T. Cahill presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Appellee-Appellee State of Hawai‘i Department of Labor and

Industrial Relations Employment Security Appeals Referees'

Office (ESARO) and Employer-Appellee-Appellee County of Maui

Department of Parks and Recreation.

Young worked for the County as a carpenter-cabinet

maker from June 2017. Young was subject to a December 23, 2008

Supplemental Agreement between the County and his union.

The Supplemental Agreement governed alcohol and

substance testing, which was "intended to help keep the

workplace free from the hazards resulting from the use of

alcohol and controlled substances." The definition of

controlled substances included amphetamines. Regarding

controlled substances, the Supplemental Agreement provided that

the "[e]mployee shall not . . . [r]efuse to submit to a required

controlled substance test." Under the Supplemental Agreement,

an employee who refuses to submit to a controlled substance test

"shall be discharged unless the Employee agrees to sign

Exhibit 63A.09c., Controlled Substance Last Chance Agreement,

whereby the Employee agrees to resign from employment in the

event of a positive controlled substance test or second refusal

to be tested within three (3) years of the first refusal to

test." (Emphasis added.)

2
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Young's work hours were from 7:00 a.m. to 3:30 p.m.,

and at about 7:15 a.m. on November 15, 2018, Young's supervisor

informed him "that he was selected for a random drug test" at

8:00 a.m. Young then informed his supervisor that he needed to

take his daughter to the doctor. The supervisor said Young

could take the test before picking up his daughter, but Young

chose to leave without submitting to the test.

The next day, the County informed Young that he would

be discharged unless he signed the Last Chance Agreement.

Young chose to sign the Last Chance Agreement.

About six months later, in May 2019, Young was again

selected for a random drug test. Young's test came back as

positive for amphetamines and methamphetamines. Young requested

testing of the split sample, which also came back positive for

amphetamines and methamphetamines. Following the results of the

split sample, the County informed Young it accepted his

resignation pursuant to the Last Chance Agreement.

According to Young's testimony, his union filed a

step 1 grievance and a step 2 grievance, which were denied.

Young further testified the union did not want to go to

arbitration as "they claimed that they [sic] didn't have any

merit."

3
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Young also applied for unemployment insurance

benefits. According to a summary of the fact-finding interview,

Young informed the Unemployment Insurance Division that he

"tested positive for drugs" and he was "forced to resign as to

the terms and conditions of the last chance agreement[.]"

Young's request for unemployment insurance benefits

was denied because he "quit in lieu of termination effective

6/20/19 as per violating the company's last chance agreement put

in place on 11/16/[1]8." The Unemployment Insurance Division

concluded Young was "discharged for misconduct connected with

work."

Young appealed to the ESARO, which affirmed the

Unemployment Insurance Division's decision. Young then appealed

to the circuit court, which affirmed the ESARO's decision.

Young filed a timely notice of appeal to this court.

On appeal, Young contends the circuit court erred in:

(1) "failing to examine procedural challenges raised";

(2) "concluding [he] was properly discharged for misconduct";

(3) "deferring to a non-existent finding"; and (4) "affirming

the ESARO's improper burden shifting." (Formatting altered.)

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve the

points of error as discussed below, and affirm.

4
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

(1) Young's first, third, and fourth points of error

are related to his positive drug test results. In his first

point of error, Young argues he was denied an opportunity to

discuss the test result with the medical review officer and

provide information on the medications he was taking. In his

third point of error, Young argues the circuit court erred in

affirming a non-existent finding that the medical review officer

properly interviewed him after his positive drug test result.

And in his fourth point of error, Young argues the ESARO

improperly shifted the burden by finding he "provided no

legitimate medical explanation for his positive test results[.]"

In these arguments, Young appears to challenge his

resignation. But for signing the Last Chance Agreement, Young

would have been terminated after his refusal to test. And by

signing the Last Chance Agreement, Young agreed "that a

resignation from employment deprives the Employee of the right

to grieve . . . or challenge the resignation."

As Young himself testified, the union nevertheless

unsuccessfully pursued step 1 and step 2 grievances. Young also

testified that the union stopped short of going to arbitration

based on lack of merit.

5
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

In sum, any challenge to his resignation was addressed

by the Last Chance Agreement and should have been raised in the

union grievances. Thus, we need not further address these

arguments.

(2) Next, Young's second point of error contends the

circuit court erred in "concluding [he] was properly discharged

for misconduct." (Formatting altered.) He argues that the

hearing officer improperly relied on Hawai‘i Revised Statutes

(HRS) § 383-30(2) and "entered its decision without addressing

paragraphs 9 and 10" of the Last Chance Agreement. Young

further argues that the County breached the no-fault and

confidentiality clauses of paragraphs 9 and 10 when it presented

reasons for his discharge.

The County points out that Young raised this issue for

the first time on appeal and this court should not consider this

issue. Even if we were to consider this issue, Young fails to

show error.

Under HRS § 383-30(2) (2015), an individual is

disqualified from receiving unemployment insurance benefits if

the discharge or suspension was based on misconduct. See Hawai‘i

Administrative Rules § 12-5-51(e)(7) (providing that misconduct

includes "Employee's unauthorized use of intoxicants on the

job"). Paragraph 9 of the Last Chance Agreement provided that

the "Employee's resignation from employment . . . shall be

6
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

reported in the Employee's personnel file as a resignation

without fault" and Paragraph 10 provided that the Last Chance

Agreement "shall be confidential[.]"

Here, the Unemployment Insurance Division concluded

Young was discharged for misconduct based on his positive drug

test and denied his request for benefits. This decision was

supported by Young's own statements. On October 2, 2019,

shortly after he filed a claim for benefits, Young provided a

statement to the Unemployment Insurance Division that he "tested

positive for drugs" and he was "forced to resign as to the terms

and conditions of the last chance agreement that was in place

from November 2018[.]"

The record further shows the County made its statement

two days later, on October 4, 2019, and provided the information

the Unemployment Insurance Division requested. In other words,

the record shows it was Young who placed his positive drug test

and the Last Chance Agreement before the Unemployment Insurance

Division, disregarding paragraphs 9 and 10 of the Last Chance

Agreement.

In sum, Young fails to show the ESARO's decision was

in violation of constitutional or statutory provisions, in

excess of its jurisdiction, made upon unlawful procedure,

7
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

clearly erroneous, arbitrary or capricious, or an abuse of

discretion.

Based on the foregoing, we affirm the circuit court's

September 28, 2020 final judgment.

DATED: Honolulu, Hawai‘i, October 28, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Ryan D. Hurley,
Bianca K. Isaki, /s/ Keith K. Hiraoka
for Claimant-Appellant- Associate Judge
Appellant.
/s/ Sonja M.P. McCullen
Amy Chan, Associate Judge
Deputy Attorney General,
for Agency-Appellee-Appellee,
Director of Labor and
Industrial Relations.

Caleb P. Rowe,
Richelle K. Kawasaki,
Deputies Corporation Counsel,
for Employer-Appellee-
Appellee,
County of Maui, Department of
Parks and Recreation.

8