Opinion
No. 450 C.D. 2011
02-24-2012
Carol L. Cerilli, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Carol L. Cerilli (Claimant), petitions for review of the Order of the Unemployment Compensation Board of Review (Board), reversing the Decision and Order of the Unemployment Compensation Referee (Referee) finding her eligible for unemployment compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). The Board further ordered that Claimant had a fault overpayment, subject to recoupment, pursuant to Section 804(a) of the Law, 43 P.S. § 874(a), and awarded nineteen penalty weeks of UC benefits pursuant to Section 801(b) of the Law, 43 P.S. §871(b).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) provides, in relevant part:
An employe shall be ineligible for compensation for any week ---(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act.
Claimant, a teacher, worked at a day care owned by Carol Teslik (Employer). Upon becoming separated from her employment, Claimant filed a claim for UC benefits with the Indiana UC Service Center (Service Center) alleging that she was discharged by Employer due to poor performance and a decrease of student enrollment. The Service Center determined that Claimant was ineligible for benefits under Section 402(e) of the Law because she violated Employer's rule that children were never to be left unattended. The Service Center also determined that a fault overpayment pursuant to Section 804(a) of the Law was established and that Claimant was required to repay it. (Notice of Overpayment of Benefits, R. Item 5.) Additionally, the Service Center assessed a penalty for nineteen weeks of UC benefits, pursuant to Section 801(b) of the Law, stating that Claimant indicated she was out of work due to reduced enrollment when she was really discharged for a rule violation. (Notice of Penalty Weeks Determination, R. Item 5.) Claimant appealed and a hearing was held before a Referee, at which Claimant and Employer testified.
After finding that "[E]mployer did not provide first-hand testimony regarding the incident that caused [Claimant's] separation," the Referee issued a decision granting benefits to Claimant. (Referee's Decision/Order at 2.) The Referee reasoned that, where a claimant's unemployment is due to a discharge for willful misconduct, the employer has the burden of establishing that a claimant was discharged for willful misconduct in connection with the work in accordance with Section 402(e) of the Law, but that Employer did not meet its burden in this case because of the lack of first-hand testimony. The Referee further determined that, because Claimant was entitled to benefits, there was no overpayment pursuant to Section 804(a) of the Law, Section 801(b) of the Law was inapplicable and, therefore, no penalty weeks could be assessed. (Referee's Decision/Order at 2.)
Employer petitioned for appeal to the Board. The Board found the following relevant facts. Claimant was last employed by Employer on May 25, 2010 as a full-time teacher earning $9.50 per hour. Employer has a policy requiring supervision of children at all times and Claimant knew or should have known about the policy. The Board found that, on April 23, 2010, Employer observed one of Claimant's pre-school children sitting with a teacher named Sharon, and learned from others that this child had come in from outside because she had hurt her hands after falling down. Employer initially believed that Claimant was aware that the child was inside with another teacher; however, Employer later observed Claimant returning to the building with her class and, after a few minutes, heard her exclaim, "I'm missing a child." Employer informed Claimant that the child was with Sharon and was injured. Employer determined that Claimant had been missing this child from her control for sixteen minutes. A second incident occurred on May 6, 2010, when Employer saw a child playing in a water fountain. Employer asked the child where her teacher was, despite Employer's knowledge that Claimant was outside on the playground and unaware of the child's whereabouts. Employer took the child and sat down in a classroom where, after twenty-two minutes, Claimant came in looking for the child. After investigating these events, Employer terminated Claimant for her failure to know the location of children in her care. Upon termination, Claimant refused to sign Employer's documentation, but was aware of the reasons for her discharge. Claimant admitted that she informed the Service Center that she was laid off because enrollment was down. (Board's Decision/Order, Findings of Facts (FOF) ¶¶ 1-6, 8, 10-16, 22, 24-27.)
Employer filed a petition for appeal stating, in pertinent part, the following:
I wish to file the following appeal on decision made 11/8/2010. I can provide witness testimony and written evidence regarding the incident that lead to the termination of the employee.(Petition for Appeal with Request for Remand Hearing, attachment at 1, R. Item 11.) The Board, in its discretion, denied Employer's request for a remand hearing because Employer failed to allege proper cause for a remand. Therefore, the Board decided Employer's appeal based on the record created before the Referee. (Board Decision at 3.)
The Board concluded that:
the Referee erred in concluding there was no first[-]hand testimony. [Employer] specifically testified to observing a child on April 2[3], 2010, and [C]laimant's reaction and finding a child unaccompanied on May 6, 2010, and waiting for [C]laimant to return to the classroom. [Employer] also testified that she was not in the building when the child first returned to the building. The Board [found] credible [Employer's] first[-]hand testimony. [Claimant] has failed to credibly establish good cause for why, on May 6, 2010, a child was in the building unsupervised and why she did not return to locate the child until twenty-two minutes later. The Board conclude[d] that [Employer] has established that [Claimant's] failure to know the location of a child for twenty-two minutes on May 6, 2010, [rose] to the level of willful misconduct and [Claimant] is ineligible for benefits under Section 402(e) of the Law.(Board Decision/Order at 4.) As a result, the Board ordered the imposition of a fault overpayment subject to recoupment in accordance with Section 804(a) of the Law and awarded nineteen penalty weeks pursuant to Section 801(b) of the Law. (Board Decision/Order at 4.) Claimant now petitions this Court for review.
This "Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
Before this Court Claimant essentially argues that: (1) Employer did not meet its burden of establishing that Claimant was discharged for willful misconduct when the Board capriciously disregarded the evidence supporting the Referee's findings; (2) the Board erred by imposing a fault overpayment pursuant to Section 804(a); and (3) the Board erred by imposing penalty weeks pursuant to Section 801(b).
We have reordered and consolidated Claimant's arguments.
We note that Claimant's Petition for Review includes an objection not included in Claimant's brief in the Statement of the Questions Involved-that the Employer's Petition for Appeal to the Board was not sufficiently specific. (Claimant's Petition for Review at ¶ 5(a)-(b).) In appealing the Referee's Decision and Order, Employer submitted Board Form #UC-46A, titled "Petition for Appeal," attaching a statement that Employer wished to file an appeal of the Referee's Decision and could provide witness testimony and written evidence. (Attachment to Petition for Appeal, R. Item 11.) According to Rule 2116(a) of the Pennsylvania Rules of Appellate Procedure:
The statement of the questions involved must state concisely the issues to be resolved, expressed in the terms and circumstances of the case but without unnecessary detail. . . . No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.Pa. R.A.P. 2116(a). Here, Claimant's Statement of Questions Involved contains five issues, but does not include the issue raised in paragraphs 5(a)-(b) of Claimant's Petition for Review about Employer's lack of specificity in Employer's Petition for Appeal to the Board. Therefore, Claimant has not preserved that issue. However, even if this issue had been properly preserved, we further note that Claimant states in the Argument section of her brief that it was error for the Board to consider Employer's appeal because requesting a second chance to produce witnesses who were available at the time of the Referee's hearing is an "abuse of the legal process" and that "[s]eeking a 'do-over' is not a proper basis for an appeal." (Claimant's Br. at 12, 16.) Claimant does not cite any legal authority for these assertions or otherwise develop these objections. As such, we agree with the Board's argument that Claimant has waived this issue for failure to develop it in her brief. "When issues are not properly raised and developed in a brief, or when the brief is inadequate or defective because an issue is not adequately developed, this Court will not consider the merits of the issue." Ruiz v. Unemployment Compensation Board of Review, 911 A.2d 600, 605 n.5 (Pa. Cmwlth. 2006). Additionally, even if Claimant had adequately developed this issue in her brief, this Court has noted, pursuant to Board Regulations at 34 Pa. Code §§ 101.82, 101.102, that "what is sought by the . . . Board is some indication, however inartfully stated, of precisely what error(s) occurred and where the tribunal should focus its attention." Merida v. Unemployment Compensation Board of Review, 543 A.2d 593, 595 (Pa. Cmwlth. 1988) (emphasis in original). Employer's appeal to the Board on the basis that Employer requested a remand hearing in order to provide first-hand witness testimony, provided the Board with some indication, albeit inartfully, that the alleged error related to the Referee's Finding of Fact (FOF) 3, that "[E]mployer did not provide first-hand testimony regarding the incident that caused [Claimant's] separation." (Referee's Decision/Order, FOF ¶ 3.) This is precisely what the Board reviewed and, had the issue been preserved, we would discern no error.
Claimant first argues that the Board capriciously disregarded the evidence and the Referee's findings. Claimant argues that the weight of the evidence shows that Claimant's testimony was more credible than Employer's testimony. Claimant additionally argues that the Board gave no reason for disregarding the Referee's findings, particularly the Referee's FOF ¶ 3 that Employer did not provide first-hand testimony regarding the incident that caused Claimant's separation.
We note that, "where there is substantial evidence to support an agency's factual findings, and those findings in turn support the conclusions, it should remain a rare instance in which an appellate court would disturb an adjudication based upon capricious disregard." Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 203 n.14, 812 A.2d 478, 487 n.14 (2002). In Wintermyer, the Supreme Court further stated that:
review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court. As at common law, this review will generally assume a more visible role on consideration of negative findings and conclusions. Even in such context, however, this limited aspect of the review serves only as one particular check to assure that the agency adjudication has been conducted within lawful boundaries-it is not to be applied in such a manner as would intrude upon the agency's fact-finding role and discretionary decision-making authority.
Our review of the record establishes that Employer personally testified to observing Claimant on April 23, 2010 when, upon entering the building, Employer: (1) witnessed a different teacher sitting with one of Claimant's pre-school children inside the building; (2) observed, a few minutes later, Claimant entering the building and sitting down; and (3) witnessed, minutes later, Claimant running toward the door stating she was missing a child. (Referee Hr'g Tr. at 7-8.) Employer stated that "[i]t was then that I realized [Claimant] had no knowledge that the child had been inside for 16 minutes." (Referee Hr'g Tr. at 8.) Claimant disputed this version of the facts, insisting Claimant intentionally sent the child inside to another teacher because the child had fallen on the playground and required a washcloth to take care of her bleeding hands, but that Claimant was alone outside with ten children. (Referee Hr'g Tr. at 18.) Regarding the May 6, 2010 incident, the record establishes that upon arriving at the building, Employer found an unaccompanied child playing in a water fountain inside the building, sat down with the child, and waited for Claimant to return to claim the child. (Referee Hr'g Tr. at 8.) Employer testified that it was not until more than twenty minutes later that Claimant came looking for the missing child. (Referee Hr'g Tr. at 8.) Claimant does not offer any explanation or another version of the May 6 incident, and denies that it occurred. The Board credited Employer's testimony and did not credit Claimant's version of these events.
The Board is the ultimate finder of fact, and "questions of credibility and evidentiary weight to be given [to] conflicting testimony are matters for" the Board as fact finder and not for a reviewing court. Freedom Valley Federal Savings and Loan Association v. Unemployment Compensation Board of Review, 436 A.2d 1054, 1055 (Pa. Cmwlth. 1981). If the Board's findings are supported by substantial evidence, they are conclusive on appeal. Geesey v. Unemployment Compensation Board of Review, 381 A.2d 1343, 1344 (Pa. Cmwlth. 1978). Substantial evidence is defined as "such relevant evidence which a reasonable mind would accept as adequate to support a conclusion." Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). That Claimant may have provided "a different version of events, or . . . might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994.)
In this case, the Board determined that the Referee "erred in concluding there was no first-hand testimony" when there was and, specifically, explained the nature and extent of the first-hand testimony. (Board Decision/Order at 4.) Claimant is asking this Court to accept her version of the events of April 23 and May 6, but this Court may not do so. We disagree with Claimant's argument that the Board capriciously disregarded the findings of the Referee because, when there is conflicting testimony as there was in this case, it is within the province of the Board to resolve conflicts in the evidence, weigh the evidence, determine credibility, and the Board does not have to provide a reason for reversing the Referee. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 439-40 (Pa. Cmwlth. 2010).
We next address Claimant's argument that Employer did not meet its burden to prove that Claimant was discharged for willful misconduct pursuant to Section 402(e) of the Law. Claimant contends that there is a lack of testimony from Employer that Claimant's workplace behavior included acts of wanton or willful disregard of Employer's interests or testimony that Claimant deliberately violated Employer's rules. Claimant additionally argues that while the work rules were included in Record Item #2, they never formed the basis of Employer's attempt to meet its burden of proving that Claimant was aware of the work rules or violated them.
Although Section 402(e) does not define the term "willful misconduct," the Supreme Court has defined it as:
an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has a right to expect of an employee, or negligence indicating an intentional disregard of the employer's interest or of the employe's duties and obligations to the employer.Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 83-84, 351 A.2d 631, 632 (1976) (quoting Moyer v. Unemployment Compensation Board of Review, 110 A.2d 753, 754 (Pa. Super. 1955)). The employer has the burden of proving that an employee was discharged for willful misconduct. Graham v. Unemployment Compensation Board of Review, 840 A.2d 1054, 1056 (Pa. Cmwlth. 2004). The burden of proving that an employee engaged in willful misconduct in the form of a rule violation is on the employer to establish the existence of a rule, its reasonableness, and a violation of the rule. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997). Once the employer has met its burden, "the burden shifts to the claimant to show good cause for his violation of the rule." City of Williamsport v. Unemployment Compensation Board of Review, 560 A.2d 312, 313-14 (Pa. Cmwlth. 1989). Whether a claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297, 299 (Pa. Cmwlth. 1991).
Here, the evidence supports the Board's FOF ¶¶ 2, 3 that children are to be supervised at all times and specifically states that "[c]hildren are never to be left unattended" and that a teacher must request coverage before leaving her station for any reason. (Employer's Ex. 5.) Claimant neither objected to the introduction of this policy from Employer's handbook, (Referee Hr'g Tr. at 2, 4), nor disputed whether this policy was reasonable. Thus, we conclude that there is substantial evidence to support the Board's findings that "[E]mployer ha[d] a policy requiring supervision of children at all times" and that "[C]laimant knew or should have known the policy." (FOF ¶¶ 2, 3.) In addition, the record supports the Board's finding that Claimant deliberately violated Employer's policy and that she did not have good cause for her actions.
In Oliver, this Court held that a preschool teacher who stumbled over her feet and lost track of a child for four minutes did not have good cause for violating an employer's rule of 100% supervision when, after regaining her balance, the teacher did not count the number of children, and claimed that it was an honest mistake. Oliver, 5 A.3d at 442. As in Oliver, the Board here found that Employer's policy required supervision of children at all times; however, unlike the claimant in Oliver who attempted to show that she had good cause for her lapse in counting children, Claimant here did not offer good cause for why she was missing a child on May 6 and, instead, denies that the May 6 incident occurred at all. Regarding the April 23 incident, Claimant offered a possible explanation, but the Board did not accept Claimant's version and credited Employer's testimony. As we have stated, it is beyond purview that the Board is the ultimate finder of fact, and "questions of credibility and evidentiary weight to be given [to] conflicting testimony are matters for" the Board as fact finder and not for a reviewing court. Freedom Valley, 436 A.2d at 1055. Therefore, because the Board credits Employer's version of the events of May 6, 2010, we must affirm the Board that "[C]laimant's failure to know the location of a child for twenty-two minutes on May 6, 2010, does rise to the level of willful misconduct and [Claimant] is ineligible for benefits under Section 402(e) of the Law." (Board Decision/Order at 4.)
The claimant in Oliver admitted that she was missing one of the children for whom she was responsible for four minutes, but stated that it was an honest mistake. Oliver, 5 A.3d at 442. The Board did not find the claimant's version credible "in light of the fact that the employer had given the claimant a warning two weeks earlier, where she was told that she could not leave the children alone for any reason." Id. at 444 (Brobson, J., dissenting) (citation and emphasis omitted).
Next, Claimant argues that the Board erred by imposing a fault overpayment pursuant to Section 804(a) and by imposing penalty weeks pursuant to Section 801(b). Claimant maintains that she never intentionally misled the Service Center about her separation, she was confused about exactly why Employer terminated her, and the Board did not make any findings about her state of mind. Therefore, Claimant contends, the Board's conclusion denying UC benefits is not justified and the fault overpayment should be reversed.
Section 804(a) of the Law provides, in relevant part:
Any person who by reason of his fault has received any sum as compensation under this act to which he was not entitled, shall be liable to repay to the Unemployment Compensation Fund to the credit of the Compensation Account a sum equal to the amount so received by him and interest at the rate determined by the Secretary of Revenue as provided by section 806 of the act of April 9, 1929 (P.L. 343, No. 176), known as "The Fiscal Code," per month or fraction of a month from fifteen (15) days after the Notice of Overpayment was issued until paid.43 P.S. § 874(a) (emphasis added). In addition, Section 801(b) of the Law provides that penalty weeks may be assessed if a claimant makes a statement knowing that it is false or knowingly fails to provide material facts to obtain or increase any compensation or other benefits under the Law.
Section 801(b) provides in relevant part:
Whoever makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any compensation or other payment under this act or under an employment security law of any other state or of the Federal Government or of a foreign government, may be disqualified in addition to such week or weeks of improper payments for a penalty period of two weeks and for not more than one additional week for each such week of improper payment.43 P.S. § 871(b). --------
"The word 'fault' within the meaning of Section 804(a) connotes an act to which blame, censure, impropriety, shortcoming, or culpability attaches." Summers v. Unemployment Compensation Board of Review, 430 A.2d 1046, 1048 (Pa. Cmwlth. 1981). To find fault, the Board must make some findings with regard to Claimant's state of mind. Maiorana v. Unemployment Compensation Board of Review, 453 A.2d 747, 749 (Pa. Cmwlth. 1982). Conduct designed intentionally to mislead is sufficient to establish a fault overpayment. Greenawalt v. Unemployment Compensation Board of Review, 543 A.2d 209, 211 (Pa. Cmwlth. 1988). Where a claimant fails to provide truthful information to the Service Center, Amspacher v. Unemployment Compensation Board of Review, 479 A.2d 688, 692 (Pa. Cmwlth. 1984), and withholds pertinent information "which surely would have resulted in a denial of benefits," Carter v. Unemployment Compensation Board of Review, 442 A.2d 1245, 1248 (Pa. Cmwlth. 1982), the imposition of a fault overpayment is appropriate.
Here, the Board determined that "[C]laimant intentionally misled the [Service Center] by failing to provide the [Service Center] with information regarding her termination, namely that [Employer] was unhappy with her job performance and the May 6, 2010, incident." (Board Decision/Order at 4.) The Board found that "[E]mployer terminated [Claimant] for her failure to know the location of children in her care" and "[C]laimant simply shrugged her shoulders when [Employer] told her of the reason for her termination." (FOF ¶¶ 22, 23.) The Board further found that "[C]laimant refused to sign [Employer's] documentation at termination," "did not reduce her work hours," "was aware of the reasons . . . [Employer] discharged [Claimant]," "admitted that she informed the [Service Center] she was laid off," and "alleged that she did this because she felt enrollment was down." (FOF ¶¶ 24-28.) The above findings are indicative of Claimant's state of mind and support an inference of culpability. These findings show that Claimant was aware of the reasons for her termination and further reveal her indifference. Therefore, the Board's finding of culpability necessary to render Claimant liable for the overpayment under Sections 804(a) and the penalty weeks under 801(b) is not in error, and its imposition of a fault overpayment and the award of penalty weeks are appropriate.
Accordingly, the Order of the Board is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, February 24, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
Id. at 203-04, 812 A.2d at 487-88 (footnotes omitted).