Opinion
No. 1686 C.D. 2011
07-05-2012
James A. Brunner, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner James A. Brunner (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the Referee's decision and denied Claimant unemployment compensation benefits pursuant to Section 402(e) of the Pennsylvania Unemployment Compensation Law (Law), relating to willful misconduct. For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802 (e).
Claimant was employed with Blair County (Employer) as a Licensed Practical Nurse (LPN) from March 15, 2005, through February 28, 2011. On February 28, 2011, he was discharged from his employment for repeated violations of two of Employer's policies: falsification of official records and leaving the facility without proper authorization. Claimant subsequently filed for unemployment compensation benefits. On March 15, 2011, the UC Service Center issued Claimant a Notice of Determination, denying Claimant unemployment compensation pursuant to Section 402(e) of the Law. Claimant appealed.
An Unemployment Compensation Referee (Referee) conducted a hearing on April 19, 2011. The sole issue on appeal was whether Claimant's employment was terminated for willful misconduct in connection with his work. (Certified Record (C.R.), Item No. 13.) The Referee made the following relevant findings of fact:
1. The claimant was last employed as an LPN with Blair County at a rate of $17.25 per hour from March 15, 2005 through February 28, 2011, his last day of work.
2. On February 28, 2011 the employer was investigating allegations regarding theft at the employer's premises.
3. In reviewing surveillance footage it was determined that the claimant had left the employer's premises on both February 22, 2011 and February 28, 2011 for periods of approximately 30 minutes at a time.
4. The employer has policies which provide for the immediate discharge of employees who engage in the falsification of time records and who leave the employer's premises without authorization.
5. The claimant was aware of the employer's policies.
6. The claimant was called into a meeting with the employer on February 28, 2011 to discuss his absence from the employer's premises on these two dates.
7. The claimant admitted to the employer at that time that he had left the employer's premises without authorization on each date.
8. The claimant did not punch in or out while leaving the employer's premises for an extended period of time.
9. The claimant was informed that his employment was being terminated by the employer for a violation of the employer's policies.(Id.)
The Referee rejected Claimant's assertion that he had good cause for his actions because other employees engaged in this same behavior. (Id.) The Referee concluded that, even assuming this testimony to be true, such reasoning did not establish good cause for Claimant to engage in such behavior. (Id.)
Additionally, the Referee rejected Claimant's affirmative defense of disparate treatment. Claimant testified that, previously, when another employee had violated this same policy, Employer did not discharge him from employment, but gave him a warning instead. (Id.) The Referee, however, found this argument to be not credible, noting that Claimant failed to provide any firsthand testimony to corroborate his claim. (Id.) Furthermore, the alleged event that Claimant alluded to occurred approximately three years before Claimant's own incident. (Id.)
Based on these findings, the Referee affirmed the determination of the UC Service Center, concluding that Employer established, at the very least, that Claimant left the premises without authorization and that Claimant failed to show either good cause for his conduct or that Employer's policy was unreasonable given the circumstances. (Id.) Claimant appealed to the Board, which adopted the Referee's findings of fact and conclusions of law and affirmed the Referee's decision. Claimant now petitions for review with this Court. (C.R., Item No. 15.)
On appeal to this Court, Claimant does not challenge the Board's finding that he acted in violation of Employer's policies. Rather, he challenges the Board's determinations regarding his affirmative defense of disparate treatment. He essentially raises two separate issues. First, he argues that the Board erred in its conclusion that Employer did not engage in disparate treatment with respect to Claimant. Second, he essentially asserts that the Board's findings relating to said disparate treatment, adopted from the Referee's findings, are not supported by substantial evidence.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. §704.
First, we address Claimant's assertion that the Board's findings of fact relating to disparate treatment, as adopted from the Referee's decision, are not supported by substantial evidence. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal so long as the record taken as a whole contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984).
In Claimant's brief, he first challenges whether the Board made an error of law in concluding that Employer did not engage in disparate treatment with respect to Claimant. We address the issue of substantial evidence first, however, because substantial evidence is required to make findings of fact, which are necessary to support legal conclusions. --------
The Board, affirming the determination of the Referee, found Claimant's testimony that a particular employee had engaged in the same behavior that led to Claimant's dismissal but was not discharged under Employer's policies to be not credible. In an unemployment case, it is well settled that the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). The mere fact that a party presents sufficient evidence as a matter of law does not guarantee his success; the evidence must, in addition, be believed, i.e., found credible by the fact finder. Kirkwood v. Unemployment Comp. Bd. of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987). Questions of credibility are not subject to re-evaluation on judicial review. Peak, 509 Pa. at 277, 501 A.2d at 1388. Additionally, the record reveals that Employer presented substantial evidence to support a contrary finding. Two witnesses who testified on Employer's behalf both stated that they had no knowledge of the alleged incident reported by Claimant. (C.R., Item No. 12 at 7, 18.) Because the Board did not find Claimant's testimony credible and Employer offered contradictory evidence, the Board's findings relating to disparate treatment are supported by substantial evidence.
Finally, we address Claimant's argument that the Board erred in concluding that Employer did not engage in disparate treatment with respect to Claimant. This Court has held that:
[D]isparate treatment is an affirmative defense by which a claimant who has engaged in willful misconduct may
still receive benefits if he can make an initial showing that: (1) the employer discharged claimant, but did not discharge other employees who engaged in similar conduct; (2) the claimant was similarly situated to the other employees who were not discharged; and (3) the employer discharged the claimant based upon an improper criterion.Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964 A.2d 970, 974 (Pa. Cmwlth. 2009).
As discussed above, Claimant failed to establish that Employer did not discharge other employees who engaged in the same behavior, because the Board did not find credible Claimant's testimony on the subject. Additionally, as noted in Respondent's brief, in order to show disparate treatment, Claimant is required to make an initial showing that all three elements are met before the burden shifts to Employer to show that it had a proper purpose for discharging the claimant. Claimant, however, failed to provide any evidence to establish that Employer discharged him based on an improper purpose. The Board, therefore, did not err in concluding that Employer did not engage in disparate treatment with respect to Claimant.
Accordingly, the order of the Board is affirmed.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 5th day of July, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge