Opinion
No. 814 C.D. 2012
12-20-2012
Chase Spencer Carignan, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEADBETTER
Petitioner, Chase Spencer Carignan, petitions, pro se, for review of the order of the Unemployment Compensation Board of Review (Board) that affirmed as modified the referee's denial of benefits, pursuant to Section 402(e) of the Unemployment Compensation Law (Law). Petitioner argues that he did not commit willful misconduct and that the referee acted inappropriately and with bias. 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 to receive benefits during any week in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. --------
Petitioner was employed by Dairy Farmers of America, Inc. (Employer) from May 24, 2010, until August 19, 2011, as a full-time operations technician. On June 12, 2011, Petitioner took a leave of absence under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601. Petitioner later submitted a FMLA Return to Work Certification (Certification) filled out by his doctor to Employer. The Certification stated that Petitioner was released to return to work with light-duty restrictions from July 17, 2011 through August 17, 2011 and released without any duty restrictions as of August 18, 2011. Employer suspected that a "1" had been added before each date after the fact. Employer contacted Petitioner's doctor and requested a copy of the Certification. On August 11, 2011, the doctor faxed a copy of the Certification which stated that Petitioner required light-duty from "7-7-11 thru 8-7-11" and could return to work without limitations on "8/8/11." Certified Record (C.R.) at Item 6, Exhibit E-2. On August 17, 2011, the doctor's office faxed a note to Employer stating:
[Petitioner] was unable to perform the physical requirements of his work due to surgery from July seventh two thousand eleven through August seventh two thousand eleven. May return back to work with no restrictions on August eighth two thousand eleven.C.R. at Item 6, Exhibit E-3. On August 17, 2011, Employer met with Petitioner regarding the date discrepancy. Petitioner stated that the doctor had changed the dates on the certification. By letter dated August 19, 2011, Employer terminated Petitioner's employment for falsification of documents.
Petitioner applied for unemployment compensation benefits at the Lancaster Unemployment Compensation Service Center (Service Center), which denied benefits pursuant to Section 402(e) of the Law and found a non-fault overpayment pursuant to Section 804(b) of the Law, 43 P.S. § 874. Claimant appealed this determination and a referee conducted a hearing. Employer was represented by a tax representative and Jill Valdez, human resource manager, testified for Employer. Petitioner testified on his own behalf. At the hearing, Valdez testified about her suspicions regarding the Certification, her contact with Petitioner's doctor's office, the meeting with Petitioner and Employer's policy prohibiting the falsification of documents. Petitioner testified that he resigned at the end of the August 17 meeting by stating "I'm done" and that he resigned because Employer had violated his right to maintain the privacy of his medical records under the FMLA and the Americans with Disabilities Act. Petitioner did not testify regarding the alleged falsification of the Certification. The referee denied benefits pursuant to Section 402(b) of Law, determining that Petitioner had quit without necessitous and compelling cause, and affirmed the non-fault overpayment.
Petitioner appealed to the Board which determined that he had not resigned from his position, but rather had been terminated from employment. The Board concluded Petitioner was ineligible for benefits under Section 402(e) of the Law and that the falsification of documents constituted willful misconduct. The Board also rejected Petitioner's argument that the referee acted inappropriately by acting as an advocate for Employer. The Board denied Petitioner's request for remand. Finally, the Board affirmed the non-fault overpayment determination. This appeal followed.
Petitioner argues that Employer did not satisfy its burden to show that he falsified the Certification. Petitioner challenges the Board's denial of his request for remand. He asserts that the Board erred in determining that the referee acted in an appropriate manner.
Willful misconduct within the meaning of Section 402(e) includes the deliberate violation of the employer's work rules. Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 827 A.2d 422 (2003). Where willful misconduct is based upon the violation of a work rule, the employer must establish the existence of the rule, its reasonableness, and that the employee was aware of the rule. Bishop Carroll High School v. Unemployment Comp. Bd. of Review, 557 A.2d 1141, 1143 (Pa. Cmwlth. 1989). The burden then shifts to the claimant to prove that the rule was unreasonable or that he had good cause for violating the rule. Gillins v. Unemployment Comp. Bd. of Review, 633 A.2d 1150, 1156 n.3 (Pa. Cmwlth. 1993).
Employer satisfied its burden. Valdez testified that the employee handbook prohibited the falsification of information on reports required by the company and that violation of the policy could lead to termination. The employee handbook and Petitioner's acknowledgment of receipt of the handbook were submitted into evidence without objection. Valdez testified that an employee returning from FMLA leave must submit a certification and that Petitioner's Certification appeared to have been altered. The copy of the Certification Employer obtained directly from the doctor's office and the copy of the Certification submitted to Employer by Petitioner were submitted into the record along with a faxed note from the doctor's office confirming that Petitioner was unable to work from July 7 through August 7 and released to full duty on August 8. The Board credited Valdez's testimony regarding falsification of the Certification. Board's Opinion at 3. Further, Petitioner failed to establish that another person altered the Certification or that he had good cause for violating Employer's rule. Hence, we conclude that the Board did not err in determining that Petitioner had been discharged for willful misconduct. See Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203 (Pa. Cmwlth. 1981) (affirming denial of benefits based on a determination of willful misconduct stating that a deliberate falsification of employment records in violation of employer's policy constitutes a conscious disregard of standards of behavior an employer has the right to expect).
The Board has the discretion to decide whether to grant a request for a remand. 34 Pa. Code § 101.104; Volk v. Unemployment Comp. Bd. of Review, 49 A.3d 38, 42 (Pa. Cmwlth. 2012). The referee is permitted to determine the order in which the evidence shall be presented at hearings and has the discretion to determine the relevancy of evidence and testimony. 34 Pa. Code § 101.21; see also Creason v. Unemployment Comp. Bd. of Review, 554 A.2d 177 (Pa. Cmwlth. 1989) (stating that a "referee has wide latitude in admission of evidence and may exclude evidence that is not relevant").
Petitioner argues that the referee acted inappropriately when he interrupted the cross-examination of Valdez. Petitioner asked Valdez questions about from whom she obtained the allegedly falsified Certification. Valdez testified that she found the Certification in her mailbox and that she believed that she received the Certification from Ken Jackson, Petitioner's line lead. Petitioner asked several questions about how the Certification ended up in her mailbox and she answered all the questions. The referee eventually interrupted the questioning after it became repetitive and asked Petitioner the relevance of the line of questioning. Petitioner did not provide a reason regarding relevance.
Having reviewed the record, we conclude that the questioning was repetitive and the witness had answered the questions within the best of her ability. Further, Petitioner did not provide his own testimony as to whom he submitted the Certification. The Board did not err in concluding that the referee appropriately limited Petitioner's cross-examination.
Petitioner also argues that the referee acted improperly when he made certain the copies of the employee handbook were admitted into the record after Employer rested his case. Throughout the hearing when a document was discussed the referee ensured that each party had a copy of the document, marked the document and asked if anyone had an objection. The referee followed this procedure with the employee handbook and asked Petitioner "Any objection to admitting this document to the record?" Notes of Testimony (N.T.) at 10. Petitioner replied "No, sir." Id. As Petitioner failed to object to either the referee's process or the actual admission of the document, this issue is waived. Schaal v. Unemployment Comp. Bd. of Review, 870 A.2d 952, 954-955 (Pa. Cmwlth. 2005) (holding that a claimant waives review of an issue by failing to raise it before the referee when he had an opportunity to do so).
Petitioner asserts that during his testimony regarding the FMLA the referee acted with bias when he stated, "I guess I could make up a law and subsection. How do we know where that came from?" N.T. at 14. Petitioner was attempting to read into the record a subsection of the FMLA and had given Employer a copy. Employer's tax representative objected to a copy being entered into evidence questioning its authenticity and relevancy. The referee ultimately sustained the objection because Petitioner was unable to authenticate it. This decision was within the referee's discretion. Additionally, the text of the FMLA is irrelevant to the question of whether Petitioner falsified the Certification. Therefore, we conclude that the Board did not abuse its discretion in denying Petitioner's request for remand.
For all of the foregoing reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 20th day of December, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge