Opinion
No. 1766 C.D. 2013
07-17-2014
Gary L. Macer, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Gary L. Macer (Claimant), proceeding pro se, petitions for review of the August 30, 2013 order of the Unemployment Compensation Board of Review (Board), which affirmed the decision of a referee and held that Claimant is ineligible for benefits pursuant to 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 his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work.
Although the Law does not define the term willful misconduct, our courts have defined it as including: (1) the wanton or willful disregard of the employer's interests; (2) the deliberate violation of the employer's rules/directives; (3) the disregard of the standards of behavior which an employer can rightfully expect from an employee; and (4) negligence demonstrating an intentional disregard of the employer's interest or the employee's duties and obligations to the employer. Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436, 439 (Pa. Cmwlth. 2000). If the employer satisfies its burden of establishing willful misconduct, the burden shifts to the employee to show that he had good cause for his conduct. Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012). "A claimant has good cause if his actions are justifiable and reasonable under the circumstances." Id. (citations omitted). Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Noland v. Unemployment Compensation Board of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
Claimant worked as a CDL Driver/Laborer with Mobile Dredging & Pumping Company (Employer) from September 13, 2011, to March 6, 2013. Employer terminated Claimant's employment following an incident on March 6, 2013, where Claimant allegedly refused to obey an order from a supervisor to get back to work. The local service center denied Claimant's application for benefits. Claimant appealed, and a referee conducted a hearing at which both Claimant and Employer participated.
At the hearing, Ron Ciancaglione (Ciancaglione), the foreman at the job site, testified that on March 6, 2013, he and five members of his crew were working in the northern part of Fairfax, Virginia, on a snowy day, pumping mud from a water ruder at Covanta, a power plant. Ciancaglione stated that the crew took a break from 9:30 a.m. until 11:45 a.m. Ciancaglione explained that after receiving a call from Employer's vice-president, David Huggler (Huggler), he told the crew members at 10:30 a.m. that they would lose their jobs if they did not return to work. Ciancaglione testified that he was the only one who resumed working and, at 11:45 a.m., Covanta's Chief Engineer asked that he and the crew leave the worksite. (Findings of Fact Nos. 4-5, 11-13.)
With the exception of Claimant's hearsay argument (which we find lacks merit), Claimant does not specifically challenge any of the Board's factual findings; accordingly, the Board's findings are binding on appeal. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1055 (Pa. Cmwlth. 2010).
Huggler testified that the crew's work was supposed to continue in the event of inclement weather so long as there was not a safety issue. Huggler stated that although it was snowing on March 6, there was no safety issue at the worksite, and the publically-declared state of emergency did not include the area of the worksite. Huggler also stated that, at approximately 10:15 a.m., he received a call from Covanta's Chief Engineer, who said that the crew was not working ambitiously and would need to stay until 2:00 p.m. to finish the job. Huggler testified that he contacted Ciancaglione and told him to motivate the crew members to resume working and inform them they would have to stay later than anticipated. Huggler said that Ciancaglione called him at 11:45 a.m. and told him that they were kicked off the site and that the job was not completed. Huggler testified that he then opened his email and saw a message from Covanta informing him that the crew was asked to leave because Ciancaglione had been the only one working. Huggler added that with the exception of Ciancaglione, all of the members of the crew were fired. (Findings of Fact Nos. 8-10, 13, 18; Board's decision.)
Claimant testified that he took a short break around 11:00 a.m. because he was cold and he wanted to warm up by sitting in his truck. He said that it was snowing and the Commonwealth of Virginia had issued a state of emergency. Claimant also testified that he resumed working at 11:30 a.m. According to Claimant, he left the site at 12:45 p.m. to empty the truck at a dumping facility and returned to the site and worked until 2:00 p.m., at which point he and the crew were asked to leave. Claimant testified that Ciancaglione did not inform him that he needed to get out of the truck and finish the job or he would be fired. (Referee's decision at 2; Board's decision at 1.)
Another member of Claimant's crew, Anthony Evans, testified and corroborated Claimant's version of the facts and stated that the snowy conditions made it difficult to work. (Id.)
Following the hearing, the referee resolved all conflicts in the evidence in Employer's favor. Crediting Employer's evidence, the referee found that Covanta complained to Employer's vice-president that work was not being completed as desired; Ciancaglione advised the crew members that they needed to get out of the truck and continue working; the Chief Engineer informed Ciancaglione and the crew to leave the worksite; the crew members had not completed the job when they were asked to leave; and Claimant was discharged for failing and/or refusing to perform a work assignment. The referee rejected the testimony of Claimant and Evans as not credible, specifically their testimony that they worked from 11:30 a.m. to 2:00 p.m. The referee found that Claimant failed to offer any credible evidence to establish a good cause reason for his failure to work from approximately 9:30 a.m. until 11:45 a.m., when the Chief Engineer told the crew to leave the site. (Referee's decision at 2.)
Claimant appealed to the Board, which affirmed the referee's decision, adopting the referee's credibility determinations, findings, and conclusions. The Board further found that Claimant worked in the northeastern part of Virginia, away from the declared state of emergency. In addition, the Board accepted Ciancaglione's testimony and found as fact that he told the crew members that they must get back to work or face termination and that, thereafter, Ciancaglione was the only one who resumed working. Finally, the Board rejected as not credible the testimony of Evans and Claimant that the snowy conditions were too severe to work and Claimant's testimony that he worked to the best of his ability given the snowy conditions. (Board's decision at 1.)
On appeal to this Court, Claimant argues that the Board erred in finding that he refused to work without good cause because the testimony of Employer's witnesses is "unbelievable." (Claimant's brief at 10.) Claimant contends that his testimony and that of Evans constitutes the "weight" of the evidence and demonstrates that Claimant "worked under adverse weather conditions to the best of his abilities, and never failed or refused to [work]." (Id. at 9.)
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of facts are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
It is not this Court's role to reweigh the evidence or decide the credibility of the witnesses. Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 450 (Pa. Cmwlth. 1994). Instead, the Board, as the ultimate finder of facts, determines the credibility of witnesses and the weight to be assigned to the evidence. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108 (Pa. Cmwlth. 1994). In making such determinations, the Board is free to reject the testimony of any witness, even uncontradicted testimony. Daniels v. Unemployment Compensation Board of Review, 755 A.2d 729, 731 (Pa. Cmwlth. 2009). There is no basis for reversal when a witness merely presents a different version of the facts as found by the Board if there is substantial evidence to support the Board's findings. Ruiz v. Unemployment Compensation Board of Review, 887 A.2d 804, 808 (Pa. Cmwlth. 2005).
Here, after expressly accepting the testimony of Employer's witnesses as credible, the Board found that Claimant disobeyed Ciancaglione's order to return to work and that the crew was working in the northeastern part of Virginia, away from the state of emergency. (Board's decision at 1.) Our review of the record confirms that substantial evidence supports the Board's findings. (Notes of Testimony (N.T.) 24-25, 31-34.) Although Claimant and his witness presented conflicting evidence, this was a matter for the Board, as fact-finder, to resolve. The Board rejected Claimant's evidence as not credible, and this Court will not upset that determination on appeal. Duquesne Light Co. v. Unemployment Compensation Board of Review, 648 A.2d 1318, 1320 (Pa. Cmwlth. 1994) ("Where there is a conflict in testimony, credibility determinations and the resolution of evidentiary conflicts are within the [Board's] discretion and are not subject to reevaluation on judicial review.").
We note that in general, an employer can reasonably expect that its employees will follow its verbal directives, and an employee's failure to do so constitutes willful misconduct. Graham v. Unemployment Compensation Board of Review, 840 A.2d 1054, 1057 (Pa. Cmwlth. 2004). --------
Next, Claimant contends that Ciancaglione's testimony that the Chief Engineer told him that the crew had to leave the worksite was hearsay.
Under Pennsylvania administrative law, a hearsay statement that is not objected to is still competent evidence and may form the basis for a finding of fact if it is corroborated by other competent evidence. Remaly v. Unemployment Compensation Board of Review, 423 A.2d 814, 816 (Pa. Cmwlth. 1980). "[I]t is unnecessary that the finding of willful misconduct be supported by substantial evidence absent the hearsay. . . . All that is necessary is that facts adding weight or confirming the hearsay be established by competent evidence." Socash v. Unemployment Compensation Board of Review, 451 A.2d 1051, 1053 (Pa. Cmwlth. 1982).
Even if Ciancaglione's testimony that the Chief Engineer told him that the crew had to leave the worksite was hearsay, Claimant did not lodge an objection. (N.T. at 33.) Further, Ciancaglione also testified that he told the crew members they would lose their jobs if they did not return to work; that he was the only one to continue working; that he met with the Chief Engineer; and that, immediately thereafter, the crew left the worksite and the job was not completed. This testimony was non-hearsay, competent evidence that sufficiently corroborates the allegedly hearsay portion of Ciancaglione's testimony.
Moreover, the Board specifically found that Ciancaglione told the crew members to return to work and that they did not. There is no question that Ciancaglione's testimony in this regard is not hearsay. Given the fact that Claimant disobeyed Ciancaglione's direction to get back to work, the Board's finding that the Chief Engineer told Ciancaglione that he and the crew had to leave the worksite is immaterial to the Board's and this Court's determination that Claimant engaged in willful misconduct. See Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095, 1117 (Pa. Cmwlth. 2005) (concluding that an improper finding that does not affect the outcome of the case constitutes harmless error); see also Pearson v. Unemployment Compensation Board of Review, 954 A.2d 1260, 1264 (Pa. Cmwlth. 2008) ("[A] single refusal to follow instructions can constitute willful misconduct even when the claimant had a good work record.").
Finally, Claimant argues that the Board erred because its decision that Claimant is ineligible for benefits is inconsistent with other decisions of a referee holding that other crew members involved in this incident were eligible for benefits.
In Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 717 (Pa. Cmwlth. 2005), the claimant complained that he was denied benefits while another employee was granted benefits. This Court observed that, except for the employee's "bare allegations" in his petition for review, there was no evidence on the record that he and the other employee were similarly situated. Id. Satisfied that the Board properly applied the law to the facts of the case before it, we affirmed the Board's order concluding that the claimant was ineligible for benefits. Id.
Similarly, here, Claimant has offered only a bald allegation in his brief that his co-workers received benefits and that Ciancaglione testified in all three cases. However, there is nothing in the record or Claimant's submissions to this Court to support these assertions. "It is well settled that an appellate court cannot properly consider averments of facts appearing only in a party's brief that are not part of the record." City of Philadelphia v. Workers' Compensation Appeal Board (Ford-Tilghman), 996 A.2d 569, 575-76 (Pa. Cmwlth. 2010). See also Warehime v. Warehime, 860 A.2d 41, 43 n.2 (Pa. 2004) ("[The appellee] asks us to take cognizance of events which have supposedly occurred since this litigation commenced; he at one point even requests that we take judicial notice of facts that are not of record. We decline this invitation. Rather, we believe it appropriate to decide this matter on the basis of the record before this court."). Without such evidence, this Court cannot confirm whether Claimant's co-workers received benefits, whether an appeal was filed with the Board, or whether the co-workers were similarly situated as a matter of fact. In light of the present record, we cannot conclude that the Board erred in adjudicating this particular dispute, by discrediting the testimony of Claimant and his witness and resolving all conflicts in the evidence in Employer's favor.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 17th day of July, 2014, the order of the Unemployment Compensation Board of Review, dated August 30, 2013 is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge