Opinion
No. 423 C.D. 2013
03-07-2014
Shaun Ornot, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Shaun Ornot (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) finding him ineligible for unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law) because his termination was due to willful misconduct. Finding no error in the Board's decision, we affirm.
Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-914. Section 402(e) provides, in pertinent part:
An employe shall be ineligible for compensation for any week—43 P.S. §802(e).
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(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.
"Willful misconduct" has been defined 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 employee's duties and obligations to the employer.
Claimant was employed since 2006 by Premier Safety & Service, Inc. (Employer) as a full-time regional sales manager. Claimant received a vehicle allowance of $300 per month plus work-related fuel expenses for using his personal vehicle for work travel. To purchase fuel for business travel, Claimant used an Employer-issued fuel card. Each week he submitted an expense report setting forth the miles he travelled for work and attached the receipts for purchases he made with Employer's fuel card during that week.
For the week of August 5-11, 2012, Claimant submitted an expense report for $249.92 in fuel expenses for 526 miles of business travel. For the week of August 12-18, 2012, Claimant submitted an expense report for $90.45 in fuel expenses for 580 miles of business travel. Noting the discrepancies in the amount charged for one week and the next for approximately the same number of miles, Employer's President, Keith Varadi, spoke with Claimant on August 21, 2012, and terminated his employment for using Employer-purchased fuel for personal purposes. Claimant then filed a claim for benefits which the UC Service Center denied, finding that Claimant was discharged for willful misconduct. Claimant appealed that determination.
Before the Referee, Claimant testified that he owns only one vehicle, a pick-up truck, which he uses for both business and personal purposes. He testified that following the week ending August 11, 2012, he used his vehicle to travel to Ohio on personal business, but that he did not charge Employer for fuel related to that trip and he did not tell Employer that he charged it for the fuel.
Claimant explained that the discrepancy in his expense reports, $249.92 for 526 miles of travel during the August 5th week versus $90.45 for 580 miles of travel during the August 12th week, occurred because he obtained fuel during the intervening weekend for business use during the August 12th week. While he may have used the fuel for personal purposes during the week, he explained that it is difficult to distinguish and account for the fuel left over from business travel and that left over from his own purchases for personal use, and that Employer never instructed him on how to adjust his expense report for personal travel.
Employer presented the testimony of President Varadi, who testified that in his capacity as a regional sales manager, Claimant was required to travel within Allegheny, Butler, Beaver and Mercer Counties to visit customers. As per company policy, Claimant was to purchase all fuel for business purposes with an Employer-provided fuel credit card, but could not use the credit card to purchase fuel for his personal use. When reviewing his weekly expense report for August 5-11, 2012, Employer noticed that Claimant charged nearly $250.00 for 526 miles of travel, which Employer deemed unusual.
President Varadi sent Claimant an email dated August 19, 2012, asking Claimant to specify the locations to and from which he travelled and the customers that he visited on those days. He stated that the following day, Claimant entered his office and stated that the fuel expenses for that week were high because Claimant attended a personal function in Ohio during that period and used the company credit card because he was short on funds. President Varadi also testified that Claimant did not offer to reimburse the company for his personal use of fuel. He stated that later that evening, Claimant was terminated via a telephone call from his sales manager.
Regarding Employer's policies on reimbursing expenses, President Varadi testified that when Claimant began employment in 2006, he was given a copy of Employer's company handbook, of which the travel and entertainment policy (T&E policy) section was updated via email on December 19, 2010. He pointed out several sections in the handbook, namely: Section 11 which pertains to employee conduct and disciplinary action and states that theft or inappropriate removal or possession of property may result in termination; Section 1.3.1 which requires that employees limit expenditures to items and amounts necessary for business purposes; and Sections 5.0 and 5.7 which disallow as a business expense costs incurred for entertainment of friends and relatives when a vendor/customer relationship does not exist.
Based on the testimony and evidence presented at the hearing, the Referee found that Claimant was aware of Employer's policy that fuel that an employee purchases may be used only for business travel. In assessing Claimant's explanation that there was no way to distinguish between work and non-work-related fuel consumption, the Referee noted that Claimant's own computations show charges of $249.92 for 526 miles of travel invoiced on August 16, 2012, and only $90.45 for 580 miles of travel the following week. The Referee also credited President Varadi's testimony that on August 20, 2012, Claimant admitted that he used Employer-provided fuel for personal travel to Ohio. Therefore, the Referee affirmed the Service Center's denial of benefits.
Claimant appealed to the Board, which adopted and incorporated the Referee's findings and conclusions, and affirmed its decision that Claimant engaged in willful misconduct without justification. The Board noted that:
[C]laimant testified that he was unaware of the employer's mileage and gas policies. However, as established by the competent, credible evidence and testimony on the record, the claimant's actions prove that he was, in fact, aware of the policy. Specifically, the claimant submitted weekly reports to the employer regarding his gas and mileage usage. Furthermore, the Board finds credible the employer's testimony that the claimant admitted his wrongdoing in a private meeting with the employer.(Board's January 22, 2013 decision, at 1.) This pro se appeal followed.
Claimant filed a motion for reconsideration, which the Board denied. Claimant was represented by counsel during the proceedings before the Referee and initially before the Board. Claimant's pro se appearance began with the filing of his motion for reconsideration and has continued to the present.
Our review is limited to determining whether the Board's findings of fact are supported by substantial evidence in the record, whether errors of law were committed, whether agency procedure was violated, or whether constitutional rights were violated. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 596, 633 A.2d 1150, 1153 (1993). We have defined "substantial evidence" as such "relevant evidence that a reasonable mind might consider adequate to support a conclusion." Palladino v. Unemployment Compensation Board of Review, 81 A.3d 1096, 1100 n.3 (Pa. Cmwlth. 2013).
Claimant initially contends that there is not substantial evidence to support the Board's finding that Employer maintained a fuel and mileage policy under which Employer's fuel credit card can only be used to purchase gas for business travel. However, there is more than ample testimony to support that finding. President Varadi testified extensively about the policy and introduced the Employer's company handbook which was provided to Claimant when he began his employment. The handbook states that the only expenses allowed were those incurred "essential for the purpose of business" and that travel and expense funds cannot be used except to advance a vendor/customer relationship. Moreover, Claimant testified that he submitted weekly expense reports listing only business-related miles and the cost of Employer-provided fuel.
A violation of an employer's policy may constitute willful misconduct when the employer establishes the existence of a policy and its violation. Williams v. Unemployment Compensation Board of Review, 596 A.2d 1191, 1193 (Pa. Cmwlth. 1991). If the employer satisfies its burden, the burden then shifts to the claimant to establish that his action was justified or reasonable under the circumstances. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976).
Claimant contends that the Board erred in finding that he admitted to intentionally using Employer-provided fuel for personal purposes. Instead, he argues that the Board should have accepted his testimony that the difference in his August 5-11, 2012 expense report for $249.92 in fuel costs for 526 work miles and his expense report for August 12-18, 2012, for $90.45 in fuel costs for 580 work miles occurred because he refueled his vehicle during the intervening weekend for business use during the following week. He also contends that the Board erred in finding that he told President Varadi that he used the fuel credit card for personal purposes and that he did not offer to reimburse any personal fuel costs that he may have mistakenly charged to Employer. However, the Board did not find his testimony credible; instead, it accepted President Varadi's testimony that during a private meeting on August 21, 2012, Claimant admitted using Employer-provided fuel for a personal trip to Ohio and that Claimant did not offer to reimburse Employer for the cost of the fuel he consumed. While Claimant's argument, essentially, is that we should accept his version of events, as we have stated over and over and over again, questions of credibility and evidentiary weight are within the sole discretion of the Board. See Eduardo v. Unemployment Compensation Board of Review, 434 A.2d 215, 217 (Pa. Cmwlth. 1981). Based on President Varadi's testimony alone, the Board had substantial evidence to support its finding that Claimant charged Employer for fuel for personal use.
Although the Referee incorrectly concluded that Claimant travelled to Ohio to attend a Bruce Springsteen concert, this error is harmless. Claimant has already admitted that he travelled to Ohio for a personal matter and, therefore, the exact nature of that matter is immaterial. See Sturpe v. Unemployment Compensation Board of Review, 823 A.2d 239, 242 (Pa. Cmwlth. 2003). Similarly, Claimant contends that Findings Nos. 4-5 and 8-9 are erroneous because they state that Claimant had a company credit card when he had only a fuel card and that they misstate the dates of Claimant's expense reports. Because these issues are immaterial to the instant appeal, they will not be addressed. See id. Claimant challenges Finding No. 11 on the basis that he did not admit to using and did not use Employer's fuel for the "sole purpose" of conducting personal business. Finding No. 11 does not state that Claimant used the fuel for the "sole" purpose of conducting personal business. Rather, it states that Claimant admitted to using Employer's fuel for personal business. This finding is supported by both Claimant's and President Varadi's testimony before the Referee.
Claimant also contends that even if the Board's finding that he improperly charged fuel to Employer for personal use is supported by substantial evidence, the Board erred in finding that Claimant's misconduct was not justified because he was unable to comply with Employer's policy because it was difficult to differentiate fuel left over from business travel from fuel he purchased and vice versa. However, he was not terminated because of improper accounting but because the Board accepted President Varadi's testimony that Claimant admitted using Employer's fuel for out-of-state travel because he was low on funds.
Claimant also contends that the fuel and mileage policy was not enforced uniformly but has offered no evidence in support of this contention. --------
Accordingly, because substantial evidence supports the finding that Claimant used Employer's fuel credit card for personal use and he has not satisfied his burden of proving that his conduct was justified, the Board's decision to deny benefits pursuant to Section 402(e) of the Law is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 7th day of March, 2014, the order of the Unemployment Compensation Board of Review dated January 22, 2013, at No. B-546619, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Rossi v. Unemployment Compensation Board of Review, 544 Pa. 261, 267, 676 A.2d 194, 197 (1996). Where an employee's conduct is justifiable or reasonable under the circumstances, it does not constitute willful misconduct. Id.