Opinion
No. 760 C.D. 2013
02-11-2014
Monica Leon, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Monica Leon (Claimant) petitions for review of the April 4, 2013 order of the Unemployment Compensation Board of Review (Board), which reversed a referee's determination and held that Claimant is ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law). 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 in which her unemployment is due to her discharge or temporary suspension from work for willful misconduct connected with her work.
Claimant was employed as a manager by American Family Dental Care (Employer) from March 2010 until her last day of work on October 2, 2012. Employer's policy requires employees to maintain an accurate record of all time worked through Employer's time-management system. Specifically, employees are required to clock in and out for the work they are performing, including for lunch or any other break, and they must do so from their work location only. The policy states that falsifying time and/or punching in another person's time, or any other violation of Employer's policy, may result in discharge. On October 2, 2012, Employer discharged Claimant for clocking in from an unauthorized location and for doing so prior to her actual arrival. (Board's Findings of Fact Nos. 1-4, 11.)
Section 2.2(B) of Employer's Employee handbook states as follows:
RECORDING YOUR TIME: You are required to maintain an accurate record of all time worked. All employees must record their hours on the time management system which is located on the work premises. Employees are not permitted to use any personal devices to record their time worked without the permission of management. Time In/Out must be recorded upon arrival, departure, lunch and also when leaving the premises for personal reasons. Any correction in work times must be reviewed and approved by the management. Falsifying time and/or punching another person's time may result in discharge.(Record Item 10, Ex. E-3) (emphasis in original).
The local job center determined that Claimant was eligible for benefits, and Employer appealed, asserting that Claimant was discharged for reasons that constitute willful misconduct. A referee held a hearing on December 12, 2012, at which Claimant participated pro se and Employer participated with counsel.
Aleksandra Radomiak (Radomiak), an owner and manager of the business, testified that Claimant's violations of Employer's time recording policy constituted the primary reason for Claimant's discharge. Radomiak testified that Employer's records showed that Claimant violated Employer's policy on August 31, 2012, when she clocked in from a location and IP address that was not related to Employer or any of its affiliated companies. In support of her testimony, Radomiak referenced a document previously submitted to the bureau, containing an "IP log" and a statement that the IP address used by Claimant does not belong to any of Employer's locations. (Record Item No. 3, Ex. 10.)
Radomiak also stated that, according to Employer's records, Claimant clocked in at the front desk at approximately 8:20 a.m. on September 25 and 26, 2012, but she did not appear in Employer's video footage of the area at those times. With respect to these latter incidents, Radomiak testified that she viewed the videotape and discussed it with Claimant. Radomiak also referenced a written statement by Kelly Martinez, dated September 27, 2012, to the effect that she personally observed Claimant arrive at work on September 25th and 26th at 9:05 a.m. and 9:15 a.m. respectively. (Notes of Testimony (N.T.) at 7-10; Ex. E1.)
Radomiak said that when she received information that Claimant did not report to work on September 26th until 9:15 a.m., she questioned Claimant, and Claimant responded that she clocked in at 8:22 a.m. and then left for coffee without checking out. Radomiak confirmed that Employer's policy requires employees to "punch out" when they leave the office, and she stated that her review of Employer's records reflected that Claimant did not punch out and back in that morning. (N.T. at 6, 10-13.)
During her testimony, Claimant acknowledged that she had received an employee handbook and understood that Employer's policy requires employees to punch out any time they leave the office. Claimant noted that she was a salaried employee and indicated that this procedure would not affect her salary, adding that management employees routinely went out for a few minutes to get coffee without clocking in and out. She also stated that on several occasions she had clocked out from a Smile Crafters location when she brought over a deposit, which might explain the difference in IP addresses. Addressing the two discrepancies between the times she checked in and the times she appeared on Employer's video, Claimant testified that she entered through the back and went directly into her office after she punched in. (N.T. at 18-21.)
In rebuttal, Radomiak stated that Employer's policy is very clear and requires employees to check out and back in when they leave for any reason. Radomiak also stated that the hallway appears on camera and that Claimant did not appear on the video until forty five minutes after she clocked in. (N.T. at 21-22.)
The referee accepted Claimant's testimony as credible, found that she did not falsify her time log or violate Employer's policies, and concluded that she was not ineligible for benefits under section 402(e) of the Law. Employer appealed to the Board, which reversed the referee's decision. Specifically, the Board credited Radomiak's testimony that the IP address used by Claimant on August 31, 2012, was not Employer's IP address or the IP address of any company affiliated with Employer. The Board rejected Claimant's contrary testimony as not credible, noting Claimant's admission that she used her cell phone to clock out on at least one occasion. Regarding the September 25th and 26th incidents, the Board also credited Radomiak's testimony that Claimant clocked in at the front desk and Employer's video did not show her doing so. The Board found Claimant's testimony that she did not provide her password to another employee to be not credible. "Based upon the circumstantial evidence," the Board found that Claimant violated Employer's policy by not keeping accurate time records and failed to show good cause for her conduct. (Board's op. at 3.) Accordingly, the Board held that Claimant is ineligible for benefits under section 402(e) of the Law.
On appeal to this Court, now represented by counsel, Claimant asserts that the Board's critical findings are not supported by substantial evidence. With respect to the Board's finding that in August 2012 Claimant clocked in from a location that was unrelated to Employer, Claimant notes that Radomiak did not know Employer's IP address and that, as the referee observed, the supporting documentation was hard to read. Claimant further asserts that the findings that she violated Employer's policy on September 25 and 26, 2012, are supported "largely" by a letter prepared by Martinez, who was not present to testify at the hearing. Claimant contends that the statements in the letter are uncorroborated hearsay and, as such, do not constitute competent evidence to support the Board's findings. To the extent that Claimant has preserved these issues for our review, we disagree with Claimant's contentions.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Initially, we note that Claimant does not challenge the Board's findings in her amended petition for review. See Maher v. Unemployment Compensation Board of Review, 983 A.2d 1264 (Pa. Cmwlth. 2009) (holding that failure to raise an issue in the petition for review constitutes a waiver of that argument). With respect to the merits of the case, Claimant's petition for review generally states that the Board "erred by concluding that [Claimant] is ineligible for benefits under [section 402(e) of the Law] on the basis that she in engaged in willful misconduct by violating [Employer's] policies by not keeping accurate time records and that she failed to show good cause for this conduct." In her brief, Claimant's Statement of Questions Involved contains substantially similar language and likewise does not indicate why the Board's determination's is erroneous. See Leone v. Unemployment Compensation Board of Review, 885 A.2d 76 (Pa. Cmwlth. 2005) (stating that if an issue is not raised in the statement of question presented, the Court may consider it waived). --------
As the Board notes, Employer cited two reasons for Claimant's discharge: clocking in from an unauthorized location on August 31, 2012; and clocking in prior to her arrival time on September 25 and 26, 2012. With respect to the first reason, the Board credited Radomiak's testimony that Employer's records confirmed that Claimant clocked in from an IP address that was not affiliated with Employer; the Board rejected Claimant's contrary testimony. As to Claimant's violations of Employer's time recording policy, the Board accepted as credible Radomiak's testimony that Claimant twice clocked in at about 8:20 a.m. but did not appear in the video footage, which Radomiak personally viewed, until after 9:00 a.m.. Moreover, Claimant acknowledged that she left the office to get coffee without clocking out, which was a violation of Employer's policy.
In unemployment compensation cases, the Board is the ultimate fact finder, empowered to make all determinations of witness credibility and evidentiary weight. Ellis v. Unemployment Compensation Board of Review, 59 A.3d 1159 (Pa. Cmwlth. 2013). The Board's findings of fact are conclusive on appeal if they are supported by substantial evidence. Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997). In reviewing the record to determine whether it contains substantial evidence to support the Board's findings, we must view the record in a light most favorable to the party that prevailed before the Board and give that party the benefits of all logical and reasonable inferences deducible from the evidence. Id.
Applying these standards, we conclude that the credible testimony of Radomiak constitutes substantial evidence that supports the Board's findings. Having found that Claimant clocked in from a location unrelated to Employer and clocked in earlier than her actual arrival time on two occasions, the Board properly concluded that Claimant is ineligible for benefits under section 402(e) of the Law.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 11th day of February, 2014, the order of the Unemployment Compensation Board of Review, dated April 4, 2013, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge