Opinion
No. 2197 C.D. 2012
06-19-2013
Adrian A. Harry, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Adrian A. Harry (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) denying his claim for benefits under Section 402(e) of the Unemployment Compensation Law (Law). Claimant contends the Board erred in determining he committed willful misconduct because the record lacked evidence connecting Claimant to an alleged violation of his Employer's computer use policy. Claimant further contends the Board erred in affirming the denial of his subpoena request, which would have provided for alternative expert testimony regarding the sufficiency of Employer's evidence. For the reasons that follow, 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 states an employee shall be ineligible for compensation for any week in which his unemployment is due to willful misconduct connected to his work.
I. Background
In the present case, the Board adopted the referee's findings and conclusions, which affirmed the local service center's denial of benefits under Section 402(e). Claimant worked for the Pennsylvania College of Technology (Employer) in Williamsport, Pennsylvania, from January 1990 until his last day of work on June 4, 2012. At the time of his termination, Claimant worked as a full-time manager of computer services at a final annual salary of approximately $68,000.
Employer's acceptable use policy for information technology (IT) resources (IT use policy) states that its IT services are primarily designed for instructional, research or administrative purposes. However, employees and students may use these resources for personal purposes as long as such use does not interfere with the intended primary uses, and does not interfere with an employee's normal duties and responsibilities. Nonetheless, Employer's IT use policy prohibits the use of Employer's IT resources for displaying obscene, lewd or otherwise offensive images or texts.
Claimant became aware of Employer's IT use policy at the time of hire. In addition, Claimant received updates as they became available. A violation of Employer's IT use policy can result in disciplinary action, which may include loss of privileges, suspension, termination or legal action.
In May 2012, Employer discovered a plethora of pornographic movies on Claimant's computers, secondary hard drives and external drives. In addition, Claimant's internet favorites list on his primary hard drive contained numerous links to pornographic websites. Employer also found a stack of pornographic DVDs in Claimant's office.
Further, many of Claimant's personal files on his two computers, including his wife's school work and his family photos, were intermingled with pornographic material. The pornographic material dated as far back as 2010. However, no pornographic-related activity occurred during Claimant's medical leave of absence.
In her decision, the referee determined Employer met its burden of establishing it discharged Claimant for willful misconduct. A deliberate violation of an employer's rules or policies may constitute willful misconduct. Williams v. Unemployment Comp. Bd. of Review, 531 A.2d 88 (Pa. Cmwlth. 1987). However, the employer must first prove the existence of a reasonable work rule and its violation. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158 (Pa. Cmwlth. 2012). If the employer does that, the burden shifts to the claimant to show good cause for the rule violation. Id.
Willful misconduct is defined by the courts as: 1) wanton and willful disregard of an employer's interests; 2) deliberate violation of rules; 3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or, 4) negligence showing an intentional disregard of the employer's interests or the employee's duties and obligations. Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 827 A.2d 422 (2002).
Here, the referee found Claimant knew of Employer's policy prohibiting the use of its IT resources for displaying obscene material and that Claimant violated that policy on several occasions dating back to 2010. See Referee's Dec., 8/15/12, at 2. Therefore, the referee ruled Claimant ineligible for benefits under Section 402(e) of the Law.
After reviewing the record and the parties' arguments, the Board adopted the referee's decision and affirmed the denial of benefits for willful misconduct. Claimant petitions for review.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 2013). Substantial evidence is evidence which a reasonable mind would accept as adequate to support a conclusion. Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558 (Pa. Cmwlth. 2012).
II. Discussion
A. Substantial Evidence
1. Argument
Claimant first contends the Board erred in ruling him ineligible for benefits based on willful misconduct where Employer did not establish by substantial competent evidence that he actually violated Employer's IT use policy. More particularly, Claimant asserts the record does not contain any actual evidence of a violation of Employer's IT use policy. The only evidence tending to show an IT use violation was Employer's report purporting to detail the contents of several computer hard drives and external drives. Claimant further asserts a report of misconduct alone cannot constitute substantial evidence of willful misconduct. See Pa. State Police v. Unemployment Comp. Bd. of Review, 468 A.2d 533 (Pa. Cmwlth. 1983) (an employer may not rely exclusively on its own determination that an employee violated a work rule as proof of the violation before the referee or Board).
Here, Claimant argues, Employer did not produce the actual pornographic material that he allegedly downloaded. Thus, the referee had absolutely no physical evidence to support a determination as to whether the material was obscene, lewd or otherwise offensive. In support of his position, Claimant cites Anderson v. Commonwealth, 550 A.2d 1049 (Pa. Cmwlth. 1988), where this Court reasoned the best evidence rule, memorialized as Pennsylvania Rule of Evidence 1002, prohibits the introduction of secondary evidence unless it is shown that the original documentation was lost or destroyed, or beyond the jurisdiction of the court.
Rule 1002 provides, "An original writing, recording or photograph is required in order to prove its content unless these rules, other rules prescribed by the Supreme Court, or a statute provides otherwise." Pa. R.E. 1002.
Although Anderson involved the violation of a township ordinance, Claimant argues the best evidence rule also applies in unemployment compensation cases. See Fera v. Unemployment Comp. Bd. of Review, 407 A.2d 942 (Pa. Cmwlth. 1979) (claimant's best evidence argument rejected where claimant failed to object to testimony regarding the existence of a written company rule). Here, Claimant urges, the best evidence rule requires more than Employer's witnesses' testimony as to the pornographic nature of the material.
In addition to the lack of substantial evidence of an IT use violation, Claimant contends there is also insufficient evidence connecting him to the alleged violation. He asserts this case is analogous to our decision in Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286 (Pa. Cmwlth. 2003). The employer in Conemaugh discharged the claimant for violating its computer use policy. However, the employer's report could not identify the person actually using the computer assigned to the claimant. Moreover, the employer could not produce a witness to testify that he or she saw the claimant using his computer in a manner that violated the work rule. Similarly, the employer failed to prove the claimant used another computer to visit pornographic websites. As such, the referee and the Board found the employer's report inadequate to rebut the employee's credible testimony that he did not use the computers improperly. We therefore affirmed the award of benefits.
Here, Claimant argues, the facts are even more compelling than those in Conemaugh. Claimant asserts Employer acknowledged anyone could have accessed Claimant's computer over the network and placed pornographic material on his hard drives. Moreover, Employer moved Claimant's entire office during his absence on medical leave. Also, Employer provided no evidence that anyone witnessed him downloading pornographic material, and he repeatedly denied such accusations. Because the burden rest squarely upon Employer to establish Claimant's violation of the IT use policy, the circumstantial evidence Employer presented here cannot support a determination that he violated Employer's IT use policy. Conemaugh.
In response, the Board asserts Employer presented substantial evidence showing Claimant downloaded and stored pornographic material on a shared drive and that he saved pornographic links on the internet browser's favorites list of his local user account. Further, the Board asserts, Employer established that DVDs containing pornographic videos were stored in Claimant's office.
The Board also contends Claimant never raised a violation of the best evidence rule before the referee or argued that Employer must present the pornographic material at the referee's hearing. Thus, the Board urges this argument is waived. In addition, Commonwealth agencies are not bound by the technical rules of evidence during agency hearings. 2 Pa. C.S. §505. This Court previously determined the best evidence rule "is a technical rule of evidence not generally applicable to administrative proceedings." DiLucente Corp. v. Pa. Prevailing Wage Appeals Bd., 692 A.2d 295, 298 (Pa. Cmwlth. 1997).
Further, the Board argues, the record contains substantial evidence supporting the findings made. Employer's IT Security Analyst, Daniel Bennett (IT Analyst), testified from firsthand knowledge that Claimant had pornographic material on his two work computers intermixed with his personal files, including his wife's school work and family photos. See Notes of Testimony (N.T.), 7/12/12, at 8, 11-12. IT Analyst further testified Claimant had other hard drives that were not connected to the network which also contained pornographic material. Id. at 12. The Board contends that in light of this testimony there is substantial evidence supporting its determination of willful misconduct. See Blicha v. Unemployment Comp. Bd. of Review, 876 A.2d 1077 (Pa. Cmwlth. 2005) (where record showed over 150 pornographic images were found on claimant's assigned computer, the employer met its burden of proving willful misconduct in the nature of a violation of its computer and email usage policy prohibiting the display or transmission of sexually explicit images, messages or cartoons).
Certified Record (C.R.), Item #12.
2. Analysis
It is well settled that the Board is the ultimate fact-finder in unemployment compensation cases and is empowered to resolve all issues of witness credibility, conflicting evidence and evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Further, it is irrelevant whether the record includes evidence that would support findings other than those made by the Board; the proper inquiry is whether the evidence supports the findings actually made. Id. In addition, the party prevailing below is entitled to the benefit of all reasonable inferences drawn from the evidence. Id.
Claimant first contends the Board erred in determining he engaged in willful misconduct by violating Employer's IT use policy where Employer failed to present substantial competent evidence of a violation of Employer's IT use policy by not producing any of the allegedly pornographic material at the referee's hearing. We disagree.
First, the record, especially the transcript of the referee's hearing, does not reveal that Claimant objected to Employer's failure to submit the alleged pornographic material into evidence. Rather, it appears Claimant acknowledged that Employer established that it found pornographic material on Claimant's computers. In closing, Claimant's legal representative stated (with emphasis added):
The issue is to prove ... that [Claimant] is guilty of willful misconduct and that he put this information, this pornography on his computer in violation of [Employer's] policies and we would submit to you that they didn't do that. The only thing that was proved here today was that there was pornography on computers, computers that he had access to and computers that we have no knowledge if he had access to computers they haven't proved were his at all. And so therefore, you know, again we're not here to decide whether ... it was in their best interest to terminate him. We're here to decide whether they proved that he did this and I would suggest to you that the only thing [IT Analyst] proved and I think his own testimony will support was pornography on the computer that was assigned to [Claimant], but I think there was absolutely nothing here today to prove that he did it and their investigative report is just that.N.T. at 39-40.
Further, Claimant made no best evidence rule objection at the referee's hearing. Consequently, we conclude Claimant's best evidence argument is waived. Yost; Fera.
In addition, the Board's findings that Claimant's computers contained pornographic material are supported by substantial evidence. The Board adopted the following findings made by the referee:
5. The employer found a plethora of pornographic movies on the claimant's secondary hard drives and external drives and also an internet favorites list on his primary hard drive with his local user account name which was full of URLs to pornographic websites. The employer also found a stack of adult pornographic videos in the claimant's office.Referee's Dec., 8/15/12, Findings of Fact Nos. 5-7.
6. Many of the claimant's personal files such as his wife's school work and his family photos were mixed in with the pornographic materials on said drives.
7. Said materials went as far back as 2010 and no material was dated during the time that the claimant was off on a medical leave of absence.
Employer's manager of employment, Hillary Hofstrom (Employment Manager), testified that IT Analyst performed the investigation and compiled Employer's report concerning Claimant's violation of the IT use policy. N.T. at 11. Employment Manager asked IT Analyst what, in his opinion, linked the "concern areas of the investigation" to Claimant. Id. IT Analyst replied:
The main thing here is the sheer volume of information. On these drives as the report here indicates, there was pornographic, non pornographic DVD[s] contained on these hard drives, so it wasn't just limited to pornography. Within these hard drives were also personal files owned by [Claimant] which can be linked to one of his accounts. Things such as his wife's school work, you know. Personal family photos, stuff like that
on the same exact hard drive as these DVD[s] and other pornographic materials. So they're on two separate machines.N.T. at 11.
At the referee's hearing, Claimant did not dispute the pornographic nature of the material. Employer's Director of Computer Services, Ronald Miller (IT Director), testified he informed Claimant the day he suspended him that IT staff discovered pornographic material on Claimant's computers and that such material violates Employer's IT use policy. Id. at 18. IT Director further testified Claimant told him he did not know how it got there. Id. IT Director and Assistant Director Gallahad Mallory then performed an inventory of Claimant's office. Id. IT Director recalled (with emphasis added):
We then walked into [Claimant's] office and at that point when we walked into the office I observed [Assistant Director] he was looking over at a file cabinet and we saw pornographic DVD[s] on a pile that was readily - anybody could have see[n] it walking into and that pile of pornographic DVD[s] was - pile, I mean seven or eight pornographic DVD[s]. Those DVD[s] were stacked next to other DVD[s], Mickey Mouse Clubhouse, personal files ... at that time we took one of the DVD[s] over to our office and to put it in the computer to see what was contained on that DVD and we saw that it was pornography so we took some pictures of the DVD[s] and put them back in [Claimant's] office. We also found personal thumb drive in [Claimant's] office and when we looked at the personal thumb drive, we saw a list of URL[s] of pornographic sites and movie sites that were listed on the thumb drive ....Id.
IT Director further testified that Claimant, prior to his termination, cleaned out his office. Id. at 19. Thereafter, IT Director did an inventory. Id. The DVDs and thumb drives were removed. Id.
We are satisfied that IT Analyst's and IT Director's testimony provides substantial evidence for the Board's findings. In Burchell v. Unemployment Compensation Board of Review, 848 A.2d 1082 (Pa. Cmwlth. 2004), we determined that credited evidence that files containing pornographic material found in the claimant's computer supported a conclusion that the claimant used the computer to download pornographic material in violation of the employer's policy. We further noted in Burchell that the presence of pornographic material in the claimant's computer supported a reasonable inference that the claimant displayed the obscene material in violation of the employer's policy. See also Blicha (applying Burchell, where over 150 pornographic images were found on the claimant's computer, such evidence established the claimant was using the employer's computer to download and display pornographic material).
Additionally, we conclude Employer adequately established Claimant was the person who downloaded and stored the pornographic material. IT Analyst testified that given the sheer volume of material and where it was located, it would be difficult for someone to plant all of that evidence. N.T. at 12. Further, the pornographic materials dated back to 2010. Id. Moreover, the computers did not show any pornographic related activity taking place during the course of Claimant's absence on medical leave. Id.
Viewing this evidence in a light most favorable to Employer as the prevailing party below, we conclude there is substantial evidence supporting the Board's determination that Claimant violated Employer's IT use policy by downloading and displaying obscene, lewd and otherwise offensive material on Employer's computers. Blicha; Burchell.
B. Subpoena
1. Argument
Claimant also contends the Board erred in affirming the referee's decision where the referee arbitrarily denied Claimant's subpoena request to present expert testimony regarding Employer's computer operations from one of Employer's IT professionals. Claimant asserts a referee is obliged to issue requested subpoenas where the issuance would lead to relevant and probative testimony. AVCO Corp. v. Unemployment Comp. Bd. of Review, 739 A.2d 1109 (Pa. Cmwlth. 1999).
Here, Claimant argues the referee erred or abused her discretion by denying his subpoena request to present the testimony of James Folmer (IT Expert), a fellow IT professional working for Employer. Claimant maintains IT Expert's testimony might have aided his case. He also claims he needed IT Expert's knowledge, given the complexity of the technical terminology used by Employer's witnesses, to counter Employer's testimony.
Claimant also contends Employer did not meet its required burden of proof where it failed to produce an expert witness on computers. Pennsylvania courts hold that in cases where the subject matter is beyond the knowledge and experience of a lay person, that expert testimony is required to establish a case. E.g., Electron Energy Corp. v. Short, 597 A.2d 175 (Pa. Super. 1991). Here, Claimant argues, the various issues related to computers, including the use of passwords for accessing Employer's computers, the means by which material could be placed on a computer by a remote computer, the details as to what "open share" means and how it impacts this case, and the manipulation of data, require testimony from an expert in computer science. Therefore, Claimant urges, Employer needed to produce expert testimony regarding these issues. Id.
The Board counters the referee properly denied Claimant's subpoena request for IT Expert. The issuance of a subpoena is a matter of discretion for the local service center, referee or Board. See Section 506 of the Law, 43 P.S. §826; 34 Pa. Code §101.31; Flores v. Unemployment Comp. Bd. of Review, 686 A.2d 66 (Pa. Cmwlth. 1996). A referee is only obligated to issue a subpoena where it would lead to relevant and probative evidence. AVCO.
More importantly, the Board argues Claimant failed to preserve this issue by not raising it below. Also, Claimant, IT Analyst and IT Director must be considered IT professionals. Thus, the testimony of an additional IT professional would be cumulative.
2. Analysis
A referee has discretion to refuse to issue a subpoena. Juniata Cnty. Childcare & Dev. Servs., Inc. v. Unemployment Comp. Bd. of Review, 6 A.3d 1037 (Pa. Cmwlth. 2010). The referee or Board, in their discretion may refuse to issue a subpoena if it was requested "for purposes of harassment or to commence a 'fishing expedition.'" Id. at 1046 (citation omitted). However, as discussed above, nothing relieves the obligation to issue a subpoena if its issuance would lead to relevant and probative testimony. Id. To that end, a subpoena should be issued where the referee or Board "has been supplied with information that a particular witness would produce directly contrary evidence and that a witness in question would not appear without the issuance of a subpoena." Alston v. Unemployment Comp. Bd. of Review, 967 A.2d 432, 438 (Pa. Cmwlth. 2009).
Here, the record shows Claimant sought a subpoena for IT Expert on July 11, 2012, the day before the referee's hearing. See C.R. Item #12 (Claimant's Subpoena Request). At hearing, Claimant's legal representative asserted a need for IT Expert's technical expertise concerning the use of Employer's computers. N.T. at 3-4. However, Claimant's representative then indicated, "We're willing to go ahead I mean with the hearing and if at the end, you know, reiterate again or if we don't feel that we need him, you know ...." Id. at 4. At the end of hearing, however, Claimant's representative did not reiterate the need for an expert or repeat her request for the subpoena. See id. at 39-41. Claimant also failed to raise this issue on appeal to the Board. Given these circumstances, we conclude Claimant's failed to preserve this issue for appellate review. See Yost (issues not raised before the referee or Board are waived).
Regardless, Claimant failed to indicate that IT Expert would present evidence contrary to Employer's position. Moreover, Pennsylvania courts recognize that a person has a right not to testify as an expert against his will. Boucher v. Pennsylvania Hospital, 831 A.2d 623 (Pa. Super. 2003); Columbia Gas Transmission Corp. v. Piper, 615 A.2d 979 (Pa. Cmwlth. 1992); see generally Pennsylvania Trial Guide, Trial Procedure §31.11 (Third Revised Ed. 2013). Therefore, the use of a subpoena to compel expert testimony is viewed with great caution. In sum, even if Claimant preserved this issue for appeal, we conclude the referee did not abuse her discretion by failing to grant Claimant's subpoena request. --------
We also reject Claimant's argument that Employer failed to meet its burden of proving Claimant engaged in willful misconduct without producing expert testimony regarding the use of Employer's computers. Claimant, IT Director and IT Analyst are all "IT professionals" who are familiar with Employer's IT resources. The "expert" Claimant sought to subpoena is merely another member of Employer's IT staff. Therefore, we reject the argument that Employer could not establish Claimant violated its IT use policy without expert testimony as to the capabilities of Employer's computers.
III. Conclusion
For the above reasons, we discern no error or abuse of discretion in the Board's decision denying Claimant benefits under Section 402(e) of the Law. Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 19th day of June, 2013, for the reasons stated in the foregoing opinion, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge