Opinion
No. 1134 C.D. 2011
09-07-2012
Otis Babb, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Otis Babb (Claimant) petitions this court for review of the order of the Unemployment Compensation Board of Review (Board) which affirmed the Referee's determination that Claimant was ineligible for unemployment compensation benefits due to his willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law). After review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work . . . ."
Claimant was employed as a Retail Merchandiser part-time with Advantage Sales and Marketing (Employer) for approximately seven years, until Employer terminated his employment on August 11, 2010, for falsification of his time card. Claimant applied for benefits, which were granted by the Job Center. Employer appealed, and a hearing was held before the Referee on November 10, 2010.
At the hearing at which Claimant did not appear, Employer presented the testimony of Eunice Jacobi, Retail Supervisor. Ms. Jacobi testified that Employer had a policy regarding the falsification of time cards, which directed employees to accurately enter their time and also provided that failure to follow the policy would result in discipline up to and including termination. Hearing of November 10, 2010, Notes of Testimony (N.T.) at 4. Employer submitted Claimant's signed acknowledgment that he had received its policy. Id. at 5. Ms. Jacobi testified that on July 26, 2010, Claimant was supposed to be at a Foodtown in Lansdale to do a reset, but she received a call from the Team Leader at the location that there was no coverage at the store. Ms. Jacobi testified that after attempting to call Claimant that morning, she finally spoke with him that evening and asked where he had been. Ms. Jacobi testified that Claimant told her he had gone to the wrong store and got lost, that he could not remember which store he had gone to, and that he arrived at Foodtown in Lansdale at 10:00 a.m. Ms. Jacobi testified that she "reprimanded him over the phone, told him that was unacceptable" and that he should have called to tell her he was going to be late. Id. at 6. Ms. Jacobi explained that Employer has a project tracking system that enables employees to enter their hours worked over their computer at night. She further testified that an employee's schedule is preset in their computers, but the program allows the employee to enter their actual time worked, including start time, time spent driving to and from a location, and end time. Id. at 7.
Ms. Jacobi explained that employees were food brokers who go into stores and do resets (presumably of the store's product/stock). N.T. at 5.
Ms. Jacobi testified that while doing Employer's payroll on July 29th, she noticed a discrepancy in Claimant's timesheets for his start time entries for July 26th and 27th. Claimant's timeheets indicated that he started work at 7:30 a.m. on July 26th when he started at 10:00 a.m. and that he started work at 7:30 a.m. on July 27th when he started at 8:40 a.m. Id. at 9-10. With respect to the 27th, Ms. Jacobi testified that she learned from the Team Leader that Claimant had not arrived at the scheduled location on that date until 8:40 a.m. Id. at 8. When she finally spoke with Claimant about both timesheets on August 4, 2010, Claimant told her that when he attempted to enter the correct times on his computer, the computer "wouldn't hold the time and that it reverted back to scheduled times." Id. Ms. Jacobi testified, however, that Claimant was able to change and save his drive times and administrative times. Ms. Jacobi testified that Claimant did not tell her he was having a problem with entering his start time on the computer until she asked him about the discrepancy. Finally, Ms. Jacobi testified that according to Employer's IT consultant, if Claimant was having an issue with changing and saving his start times, then "[n]othing would've saved." Id. 12.
The Referee denied Claimant benefits under Section 402(e) of the Law, 43 P.S. § 802(e). Claimant appealed to the Board, which issued a Board Hearing Order remanding for a second hearing before a Referee who, acting as a hearing officer for the Board, was to take additional testimony and evidence on Claimant's reason for his failure to appear at the first hearing and, if necessary, for the parties to provide additional testimony and evidence on the merits. The Board reserved a decision on whether Claimant had proper cause for his nonappearance at the first hearing.
The Board's order specifically provided that if it found that Claimant did not have proper cause for his nonappearance, then the additional testimony and evidence on the merits may not be considered by the Board. Remand Order, Original Record, Item 11.
After the remand hearing, the Board affirmed the decision of the Referee and denied benefits. The Board found that Claimant's testimony regarding his untimely arrival to the first hearing was not credible, and that Employer had credibly established that it had a policy requiring accurate entry of time worked, that Claimant was aware of this policy and that Claimant violated this policy when he entered "hours in excess of what he actually worked, resulting in falsification of employer records." Board's Decision and Order, mailed March 31, 2011, at 3. Accordingly, because it found that Claimant did not have good cause for failing to appear at the first hearing, the Board did not consider his testimony on the merits at the remand hearing.
On appeal to this court, Claimant presents the following issues for our review: 1) whether substantial evidence of record supports the finding that he did not have good cause for failing to appear at the first hearing; 2) whether the Board erred or abused its discretion in disregarding his testimony on the merits; and 3) whether the Board erred in concluding that Claimant's conduct constituted willful misconduct, rendering him ineligible for benefits.
We have condensed and reworded Claimant's issues in order to more accurately present and address the issues he has raised on appeal. With respect to Claimant's first issue, the Board argues that because Claimant did not challenge any findings of fact in his petition for review or his brief, the issue is waived, citing both Grever v. Unemployment Compensation Board of Review, 989 A.2d 400 (Pa. Cmwlth. 2010), and Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636 (Pa. Cmwlth. 1998). A review of Claimant's petition for review and his brief reveals, however, that the issue of whether the Board's finding that he did not have good cause to appear at the first hearing, although not artfully worded, is fairly comprised therein, and allows for meaningful appellate review. Therefore, we will address the issue. The Board also argues that Claimant waived his request for a remand by failing to raise it in his petition for review, although it is raised in his brief. Because we affirm the Board's decision, it is unnecessary to address the Board's argument.
Claimant asserts that at the remand hearing, he presented "unrebutted testimony establishing that he was ill and under doctor's care on 11/10/2010, causing a slight delay in arriving at the . . . hearing office." Claimant's Brief at 6. Claimant further asserts that he presented "unrebutted evidence that he was in the reception area during the time frame during the 11/10/2010 hearing, but was not permitted in the hearing room." Id. Arguing that the purpose of the Law is remedial in nature, and that the disqualifying provisions should be narrowly construed, Claimant essentially argues that he presented good cause for his failure to appear at the first hearing and therefore, his testimony on the merits at the remand hearing should have been considered by the Board.
The Board's regulation provides that:
If a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records. The tribunal may take such other action as may be deemed appropriate.34 Pa. Code §101.51. We have held that the above provision of the Board's regulations, while not permitting a referee or the Board to dismiss the case based solely upon a party's failure to appear, allows the referee to proceed with the hearing and decide the appeal from the record before him. Cannady v. Unemployment Comp. Bd. of Review, 487 A.2d 1028 (Pa. Cmwlth. 1985) (citing Gadsden v. Unemployment Comp. Bd. of Review, 479 A.2d 74 (Pa. Cmwlth. 1984)). A party may request a remand for a hearing on the merits provided he establishes proper cause for his absence. 34 Pa. Code § 101.24. If, however, the Board thereafter concludes that the testimony and evidence by the absent party does not establish proper cause, then the Board may refuse to consider the additional testimony on the merits. Eat 'N Park Hospitality Group, Inc. v. Unemployment Comp. Bd. of Review, 970 A.2d 492 (Pa. Cmwlth. 2008). A decision to grant or deny a request to reopen a hearing is within the Board's discretion. Cannady.
This Court has held that the referee is not required to reopen a hearing for a party who was absent from the original hearing where that party did not present in writing good cause for his or her absence from the hearing. See, e.g., Lee v. Unemployment Comp. Bd. of Review, 458 A.2d 629 (Pa. Cmwlth. 1983). --------
With respect to his absence from the first hearing, Claimant testified that he arrived "about five minutes or ten minutes after the hearing was out." Remand Hearing, March 1, 2011, N.T. at 4. Claimant testified that he was "standing in line" to sign in and thought it was about 10:25 a.m., or 5 to 10 minutes after the scheduled hearing. Id. at 5. Claimant explained that before he even got up to the hearing room, he had difficulty with the directions and could not find the stairs to get to the upper floors where the hearing was. Claimant testified he went outside the building to look for another way up to the hearing, before someone was able to direct him to the elevators at the end of the hallway. Claimant testified that when he finally got up to the desk to sign in, he was told by the receptionist that his hearing was over. Claimant admitted that he did not call to tell the Referee he was running late because he "thought [he] would be able to make it but [he] got delayed." Id. at 8. Claimant testified he did not "feel well that day" and was lightheaded. Id. at 6. Although he presented a doctor's note dated January 19, 2011, stating that he was being treated for various medical problems, including diabetes, Claimant testified that he did not receive any treatment the day of the hearing.
Acting as fact-finder on remand, the Board found Claimant not credible with respect to his untimely arrival at the first hearing. The Board further found that "[i]f the claimant was running late, for any reason, the claimant should have contacted the Referee's Office to advise." Board's Decision and Order, March 31, 2011, at 2. Claimant's argument that his unrebutted testimony established proper cause for his failure to appear at the first hearing is, in essence, an impermissible attack on the Board's credibility determination. It is well settled that fact-finding is the province of the Board who may accept or reject any testimony, even uncontradicted testimony, which may not be disturbed on appeal. Russo v. Unemployment Comp. Bd. of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). Moreover, having found not credible Claimant's testimony regarding proper cause for his absence at the first hearing, the Board properly disregarded his testimony on the merits. See, e.g., Eat 'N Park v. Unemployment Comp. Bd. of Review, 970 A.2d 492, 494 (Pa. Cmwlth. 2008) (determining that employer failed to provide a proper way to contact its witness; therefore, Board found no proper cause and refused to consider the witness's testimony).
Finally, we consider whether the Board erred in determining that Claimant's conduct constituted willful misconduct under Section 402(e) of the Law. Claimant asserts that there was no falsification of Employer's records, asserting that "due to computer snafu, [he] was simply unable to input the exact number of hours worked." Claimant's Brief at 5. Claimant argues that, through "no fault of his own, [he] provided an estimated number of hours, which was in close proximity to the actual hours worked" and that this [conduct] "did not arise to falsification of records." Id. Finally, Claimant asserts that as his testimony that he had computer problems was unrebutted, the Board capriciously disregarded credible competent evidence. We disagree.
A "capricious disregard" of evidence is a "willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result." Newcomer Prods. v. Workers' Comp. Appeal Bd. (Irvin), 826 A.2d 69, 74 (Pa. Cmwlth. 2003) (citation omitted). Here, Claimant's testimony on the merits was not considered because the Board determined that Claimant failed to establish proper cause for his failure to appear at the first hearing. Therefore, Claimant's argument that the Board capriciously disregarded credible competent evidence is without merit.
Moreover, the record supports the Board's conclusion that Employer established willful misconduct. Willful misconduct has been defined as the wanton and willful disregard for an employer's interests; the deliberate violation of an employer's rules; the disregard of the standards of behavior which an employer can rightfully expect of an employee; or negligence indicating an intentional disregard of the employer's interests or an employee's duties or obligations. Frumento v. Unemployment Comp. Bd. of Review, 466 Pa. 81, 351 A.2d 631 (1976). In order to show willful misconduct based upon the violation of a work rule or policy, the employer must establish the existence of the rule, its reasonableness, the employee's awareness of the rule, and the employee's violation of the rule. Melomed v. Unemployment Comp. Bd. of Review, 972 A.2d 593 (Pa. Cmwlth. 2009).
Employer's evidence accepted by the Board as credible established that it had a policy that required an employee to accurately enter his actual hours worked into his computer every night, and that Claimant was or should have been aware of this policy. Employer also established that Claimant's entries were inaccurate on July 26 and 27, 2010, and that Claimant did not advise his supervisor of any alleged computer problem when it occurred. Employer therefore met its burden of proving that Claimant's conduct constituted willful misconduct under Section 402(e) the Law.
Accordingly, the Board's order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 7th day of September, 2012, the order of the Unemployment Compensation Board of Review in the above captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge