NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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