Opinion
No. 2230 C.D. 2012
10-07-2013
Richard McConnell, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Richard McConnell (Claimant), representing himself, petitions for review of an Order of the Unemployment Compensation (UC) Board of Review (Board) finding Claimant ineligible for UC benefits under Section 402(e) of the UC Law (Law). The Board determined that the United States Postal Service (Employer) met its burden to establish that Claimant violated Employer's Standards of Conduct policy without good cause. On appeal, Claimant argues that the Board erred: (1) by finding that Claimant was discharged; and (2) by not proving any nexus between Claimant's off-duty conduct and his work. Because Claimant's conviction of one count of indecent exposure violates Employer's reasonable Standards of Conduct policy, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant was employed as a mail handler from 2007. (Board Decision, Findings of Fact (FOF) ¶ 1.) Claimant was arrested on July 15, 2011 and charged with two counts of indecent exposure. (FOF ¶ 5.) Employer suspended Claimant on July 27, 2011, for his conduct, after which Claimant filed a claim for UC benefits. (Claimant Separation Information, R. at Item 2.)
On August 15, 2011, the Altoona UC Service Center (Service Center) determined that Claimant was not ineligible for UC benefits under Section 3 of the Law after concluding that Claimant's actions for which he was arrested were not work related and did not affect his ability to perform his job. (Notice of Determination, R. at Item 4.) Employer appealed the Service Center's determination and a hearing was held before a UC Referee (Referee) on October 7, 2011.
43 P.S. § 752. Section 3 states:
Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of the Commonwealth. Involuntary unemployment and its resulting burden of indigency falls with crushing force upon the unemployed worker, and ultimately upon the Commonwealth and its political subdivisions in the form of poor relief assistance. Security against unemployment and the spread of indigency can best be provided by the systematic setting aside of financial reserves to be used as compensation for loss of wages by employes during periods when they become unemployed through no fault of their own. The principle of the accumulation of financial reserves, the sharing of risks, and the payment of compensation with respect to unemployment meets the need of protection against the hazards of unemployment and indigency. The Legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this Commonwealth require the exercise of the police powers of the Commonwealth in the enactment of this act for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.
At the hearing Employer's witness, Cheryl Lomax, Supervisor of Distribution Operations (Supervisor), testified "that the Claimant's name and photograph and a summary of the charges filed against him appeared in several local news television broadcasts and also appeared in an article of general circulation." (Referee Decision at 2.) Supervisor formally introduced into evidence Section 16.6 of the Contractual Interpretation Manual (CIM) of the National Postal Mail Handler's Union, and Section 665.16 of the Employer's Standards of Conduct. (Hr'g Tr. at 4-5, Exs. ER-1, ER-2.) Claimant did not testify. The Referee reversed the Service Center's determination finding Claimant ineligible for UC benefits under Section 3 of the Law. (Referee Decision at 3.) The Referee found that the criminal charges pending against Claimant that led to his indefinite suspension were due to Claimant's own fault. (Referee Decision at 2.) Claimant appealed to the Board.
The Board issued an Order to remand the case for another hearing to be held after the disposition of Claimant's criminal charges. (Board Order, December 9, 2011.) On May 19, 2012, Claimant's union representative notified the Referee that Claimant entered a plea of guilty on one count of indecent exposure and was sentenced as a misdemeanor offense. (Letter from Claimant's Representative to Referee, May 19, 2012, R. at Item 16.)
The remand hearing was held on June 11, 2012, at which Claimant and his union representative testified and Employer did not appear. After the remand hearing, the Board found the following facts:
1. The claimant was last employed as a mail handler by the U.S. Postal Service from 2007 at a final rate of $20.93 an hour and his last day of work was July 15, 2011.
2. The employer maintains a Standards of Conduct that states that employees must not engage in criminal, dishonest, notoriously disgraceful, immoral, or other conduct prejudicial to the postal service.
3. The employer maintains a further policy that permits the employer to indefinitely suspend an employee in most cases where the employer has reasonable cause to believe that an employee is guilty of crimes for which a sentence of imprisonment can be imposed.
4. The claimant was aware [or] should have been aware of the employer's Standard[s] of Conduct.
5. On July 15, 2011 the claimant was arrested and charged with two counts of indecent exposure.
6. The claimant pled guilty to one count of indecent exposure.
7. This is a misdemeanor.
8. The claimant was not incarcerated as a result of his guilty plea.
9. The claimant does not deliver mail to people's homes.
10. The claimant does not have a postal service uniform and was not wearing a uniform at the time of the incident.(FOF ¶¶ 1-16.) The Board resolved the conflicts in the testimony in favor of Employer, found Employer's testimony to be credible, and determined that Claimant was ineligible for UC benefits under Section 402(e) of the Law. (Board Op. at 2-3.) The Board did not rule under Section 3 of the Law because it denied UC benefits pursuant to Section 402(e). (Board Op. at 3.) Claimant timely appealed to this Court.
11. The claimant's job duties involve both loading and unloading trucks and sorting mail.
12. The claimant has no contact at work with the public.
13. The building where the claimant work[s] is not open to the public.
14. The claimant's co-workers did not indicate that they would no longer be interested in working with the claimant.
15. The claimant was discharged for violating the employer's [S]tandards of [C]onduct.
16. The claimant did not have adequate justification for his actions.
Our review "is limited to determining whether [a c]laimant's constitutional rights were violated," whether the Board's findings of fact are supported by substantial evidence, and whether an error of law was committed below. Wagner v. Unemployment Compensation Board of Review, 965 A.2d 323, 325 n.5 (Pa. Cmwlth. 2009).
Claimant argues that his off-duty conduct was neither prejudicial to Employer nor had any connection to his work as a mail handler; therefore, he is not ineligible for benefits. We preliminarily observe that, in making this argument, Claimant appears to be addressing what must be proven under Section 3 of the Law. However, because this case involves a work rule violation, the Board properly applied Section 402(e).
Claimant raises the additional arguments that: (1) his constitutional rights were violated when his bail was initially set at $250,000, which caused sensationalized publicity resulting in his suspension from work; and (2) other postal service employees involved in more serious crimes were not precluded from working for Employer. However, Claimant did not introduce any evidence to support these arguments. Moreover, these additional arguments are not relevant to a determination of Claimant's ineligibility for UC benefits, even if they could be relevant in another cause of action not involved here.
Section 3 requires an employer to meet the burden of showing that the alleged employee's misconduct directly affects his or her ability to perform the assigned duties. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 597, 633 A.2d 1150, 1154 (1993).
In Maskerines v. Unemployment Compensation Board of Review, 13 A.3d 553, 555 (Pa. Cmwlth. 2011), the employer sought to deny benefits for a discharged claimant for off-the-job conduct that violated a work rule. This Court held that where the claimant violated the work rule for which removal was one of the consequences, as in the instant case, Section 402(e) does not require the employer to show that the off-the-job conduct directly affected the claimant's job performance. Id. at 560. Therefore, here, where Claimant's conviction for off-the-job conduct violated the work rule, and the work rule provided for removal, Section 402(e) applies. "Section 3 and Section 402(e) are not parallel legal theories, but are independent bases on which to deny an employee unemployment compensation, and the legal analysis under each section is different." Maskerines, 13 A.3d at 557. Claimant's argument that his off-duty behavior has no connection with his work is, therefore, inapposite given the application of Section 402(e) rather than Section 3 of the Law to the facts of this case.
Unlike the work rule in the instant case that specifically provides for disciplinary action, including removal of an employee when there is a conviction for a violation of a criminal statute, the work rule in Maskerines did not provide for removal, but the claimant and employer had entered into an agreement providing for removal if the claimant violated the work rule. Maskerines, 13 A.3d at 555 n.4.
Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. . . ." 43 P.S. § 802(e). Whether an employee's actions constitute willful misconduct is a question of law subject to judicial review and the burden of proving willful misconduct is on the employer. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). Although the term "willful misconduct" is not defined by statute, it has been interpreted by this Court to include, among other things, the deliberate violation of rules or a disregard of standards of behavior that an employer can rightfully expect from his employee. Id. at 521; Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 309 A.2d 165, 168-169 (Pa. Cmwlth. 1973). In a case involving the violation of an employer's work rules and policies, an employer must establish the existence of the rule and its violation. Williams v. Unemployment Compensation Board of Review, 596 A.2d 1191, 1193 (Pa. Cmwlth. 1991). "If the employer proves the existence of the rule, the reasonableness of the rule, and the fact of its violation, the burden of proof shifts to the claimant to prove that he had good cause for his action." Id. Good cause is established "where the action of the employee is justifiable or reasonable under the circumstances." Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976).
Employer proved the existence of several work rules applicable to Claimant. The Board specifically referenced that portion of Section 665.16 of Employer's Standards of Conduct providing that "employees must not engage in criminal . . . notoriously disgraceful . . . or other conduct prejudicial to the postal service," (FOF ¶ 2), to determine that Claimant committed willful misconduct when he violated this policy. Focusing on this portion of Section 665.16, Claimant argues that his conduct was not prejudicial to Employer because: it occurred twenty miles away and did not involve any other employees; he was not identified as a postal service employee and was not wearing a uniform; and, he worked in a secure building without any contact with the public. (Claimant's Br. at 9.) As we have previously stated, Claimant's argument that his non-work-related misconduct should not deem him ineligible for UC benefits applies to Section 3 of the Law. However, Section 665.16 of Employer's Standards of Conduct further provides that "[c]onviction for a violation of any criminal statute may be grounds for disciplinary action against an employee, including removal of the employee, in addition to any other penalty imposed pursuant to statute." (Hr'g Tr. at Ex. ER-2.) (emphasis added).) Claimant testified at the remand hearing that he "pled guilty to one count of misdemeanor indecent exposure on May 2." (Remand Hr'g Tr. at 4.) The criminal docket in Claimant's case indicates the same. Therefore, Claimant's conviction of this crime violates Employer's Standards of Conduct and supports the Board's determination that Claimant is ineligible for UC benefits pursuant to Section 402(e) of the Law.
The Criminal Docket of the Montgomery County Court of Common Pleas indicates that Claimant was arrested on two misdemeanor counts of indecent exposure pursuant to Section 3127 of the Crimes Code, 18 Pa. C.S. § 3127, on July 15, 2011, entered a guilty plea to one of the counts under Section 3127 of the Crimes Code on May 2, 2012, and was sentenced to confinement of a minimum of thirteen days and maximum of twenty-three months with a two-year probation. (Montgomery County Court of Common Pleas Docket Number CP-46-CR-0005485-2011.)
Black's Law Dictionary defines "conviction" as "the act or process of judicially finding someone guilty of a crime" or "the state of having been proved guilty." Black's Law Dictionary 384 (9th ed. 2009). A person who has pleaded guilty has been found guilty of a crime, or is "convicted." Id. at 383. Therefore, Claimant's plea of guilty to Section 3127 of the Crimes Code, 18 Pa. C.S. § 3127, constitutes a "conviction."
Having established the work rule and its violation, the burden shifted to Claimant to prove that he had good cause to violate Employer's Standards of Conduct. However, Claimant did not present any good cause justifying the conduct resulting in his conviction. The Board found that "[C]laimant did not have adequate justification for his actions," (FOF ¶ 16), and concluded that Claimant's actions rose to the level of willful misconduct.
Claimant does not challenge the reasonableness of Employer's work rules or contend that he was not aware of the rules.
The Board's findings of fact "are conclusive on appeal so long as the record, taken as a whole, contains substantial evidence to support those findings." Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). Here, the record contains Employer's work rule in the form of its Standards of Conduct and Claimant's admission that he pleaded guilty to one of the two counts of the criminal charges for indecent exposure and did not offer any good cause to justify this conduct. This is such relevant evidence as a reasonable mind might accept as adequate to support the Board's conclusion that Claimant's conduct constituted willful misconduct. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 275, 501 A.2d 1383, 1387 (1985).
Claimant also challenges the finding of fact that he "was discharged." (FOF ¶ 15.) A review of the record shows that Claimant completed the Claimant Questionnaire by checking the box admitting that he was "suspended" and that his suspension began on July 27, 2011. (Claimant Separation Information, Claimant Questionnaire, R. at Item 2.) Employer testified that, "based on that . . . suspension due to a crime situation . . . we were not going to be able to permit him to work . . . . (Hr'g Tr. at 8.) Because Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge or temporary suspension from work," 43 P.S. § 802(e) (emphasis added), there is no legal significance here to whether Claimant was suspended or discharged.
In his brief to this Court, Claimant states that he retired on August 31, 2012. (Claimant's Br. at 11.) --------
Accordingly, for the foregoing reasons, we affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, October 7, 2013, the Order of the Unemployment Compensation Board of Review entered in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge