Opinion
No. 1424 C.D. 2011
02-08-2012
Melvin M. Shelton , Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Melvin M. Shelton (Claimant) petitions for review of the July 8, 2011, decision of the Unemployment Compensation Board of Review (Board), which affirmed the decision of the referee 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). Pursuant to section 402(e) of the Law, an employee is ineligible for benefits for any week in which his unemployment is due to his discharge from work for willful misconduct.
Claimant was a full-time employee of the Pennsylvania Turnpike Commission (PTC), as an Assistant Director of Projects East, with a final rate of pay of $45.66/hr. He was discharged on September 8, 2010, for the misuse of his PTC-assigned vehicle and falsification of work hours. The local job center determined that Claimant was ineligible for benefits, and Claimant appealed. At a hearing held on January 3, 2011, the referee denied a request for a continuance, submitted by Claimant's counsel via email, deeming it to be late, and heard testimony from witnesses present on PTC's behalf. Neither Claimant nor his counsel appeared at the hearing. The referee affirmed the determination of the local job center, denying unemployment benefits under section 402(e) of the Law.
Claimant appealed on grounds that the discharge was improper, and that the referee's refusal to grant a continuance constituted an abuse of discretion. On April 5, 2011, the Board remanded to the referee, instructing the referee to serve as the Board's Hearing Officer, and to receive testimony and evidence on the claimant's reason for his nonappearance at the previous hearing. (R. Item 13, Board Hearing Order, Reproduced Record (R.R.) at 37a.) The Board further authorized the parties to provide new or additional testimony and evidence on the merits, to be considered by the Board only if the Board determined that Claimant had proper cause for his nonappearance at the previous hearing. Following a remand hearing on May 2, 2011, at which both Claimant and PTC witnesses appeared, the Board issued its Order on July 8, 2011, incorporating the referee's findings and conclusions, and affirming the decision of the referee. In its Order, the Board concluded that Claimant had proper cause for his nonappearance at the initial hearing, and stated that it had considered the entire record of the prior proceedings, including the remand hearing. (R. Item 16, Board's Order.)
On appeal to this Court, Claimant asserts, first, that PTC did not meet its burden to establish the existence of a PTC policy against taking a PTC vehicle out of state, nor did it establish that Claimant was aware of such policy, and second, that PTC did not meet its burden to establish that Claimant falsified work hours. At the initial, January 3, 2011 hearing, at which Claimant did not appear, Pat Caro, Labor Relations Specialist for the PTC, testified that Claimant acted in violation of company policy when he falsified work hours on various dates in August 2010, and when he took his assigned vehicle, which was to be used for business purposes only, out of state to his residence in Virginia for the 2010 Labor Day Weekend. Caro testified that Claimant was discharged because Claimant violated: (1) PTC's Policy 3.10 - Code of Conduct, specifically sections 10.3 (Implement and adhere to the policies of the Commission including this Code of Conduct); 10.5 (Respect the Rules and Regulations of the Commission and ensure they are administered fairly); and 10.8 (Refrain from engaging in any activity that would reflect unfavorably on or discredit the Commission), and (2) PTC's Policy 6.4 - PTC Vehicle Policy, which prohibits the use of a PTC vehicle for private purposes. (R. Item 9, Transcript of Testimony - Referee's Hearing Held Jan. 3, 2011, with Employer Exhibits (T.T.), at 5-7, R.R. at 16a-18a.) Caro offered into evidence the PTC Driver's Manual, which states that PTC vehicles shall not be operated outside Pennsylvania unless approved by the Chief Executive Officer or designee. (T.T., Exhibit E-3.) Caro testified that Claimant signed the last (signature) page of PTC's Policy 3.10, acknowledging receipt of that policy, and stated that PTC Driver's Manual is distributed to all employees who have a PTC-assigned vehicle. (T.T. at 7 , R.R. at 18a.)
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
A PTC witness testified that Claimant also violated PTC's policy against engaging in political activity at work, as such policy is set forth in PTC's Handbook, when campaign materials were found in his PTC-assigned vehicle and in his office. However, the referee determined that because PTC had already decided to terminate Claimant for other reasons at the time the campaign materials were found, no testimony on the issue, or evidence of the existence of such campaign materials, would be accepted as part of the record. (T.T. at 23, R.R. at 34a.)
Caro testified that Claimant had falsified work hours on two dates in August 2010. He stated that Caro, a management employee, was not permitted to set his own work hours, and, like all PTC managers, was required to work a Monday to Friday daylight schedule. Caro testified that PTC does not have "comp" time, but that it has "flex" time, permitting work-hour flexibility within one hour of a core 8:00 to 4:00 PM shift. Private investigators from Atlantic Security International Investigations, Inc., testified as to their surveillance (1) of Claimant on August 13, 2010, and (2) at Claimant's Philadelphia residence, where his PTC vehicle remained parked, on August 5, 2010, between 6:00 AM and 4:00 PM. (T.T. at 11-12, R.R. at 22a-23a.)
Caro's testimony as to PTC managers' schedules and work-hour requirements was given at the initial, January 3, 2011 hearing, at which Claimant did not appear. At the remand hearing on May 2, 2011, during Caro's closing statement, he referred to PTC's requirement that managers work core hours, with no "comp" time, and Claimant's counsel objected to his introduction of new testimony. The referee agreed, and noted that Caro's remarks were not testimony that had been provided thus far at this hearing, and stated that he would ask the Board not to consider that testimony in its decision. (T.T. at 33, R.R. at 71a.) --------
The private investigators offered evidence that on August 13, 2010, surveillance of Claimant's Philadelphia residence, where his PTC-assigned vehicle was parked, began at 6:00 AM. At 9:59 AM on that date, Claimant was observed leaving the residence and driving away in the PTC vehicle, and he was observed returning to the residence in the vehicle at 3:40 PM. James Schultheis, a Special Investigator with the PTC, testified as to his surveillance of Claimant over the 2010 Labor Day Weekend, during which Claimant drove to his residence in Virginia in the PTC-assigned vehicle. (T.T. at 20-22, R.R. at 30a-32a.)
At the May 2, 2011 remand hearing, Claimant testified that in his capacity as a labor coordinator, he was called upon to help resolve labor issues twenty-four hours a day and seven days a week. (T.T. at 12, R.R. at 50a.) Claimant stated that union officials called him at all hours of the day and night, and he "didn't really have a work schedule." (T.T. at 15, R.R. at 53a.) Claimant agreed that he had submitted a request to be paid for eight hours of work on both August 5 and August 13, 2011. On August 13, 2010, Claimant averred that there was a possibility that a business agent called him at home to discuss labor issues, preventing him from leaving the house earlier, and in the afternoon on that date, it was possible that he may have left work in the afternoon to go to a doctor's appointment, and then returned home at 3:40 PM, rather than drive back to the PTC office. He also noted that he had been told that when he had to take time off, he did not have to charge himself for it. (T.T. at 14, R.R. at 52a.) Claimant admitted that on August 13, 2010, although he put in a request for payment for eight hours of work, he did not work a full eight hour day; his response to the referees's question as to why he would make such a request when he had not worked a full eight hours was that he "didn't get paid for time beyond the eight hours or twelve hours a day. Like I say, I work 24/7." (T.T. at 15-16, R.R. at 53-54a.) Claimant offered no evidence to show that he had performed work outside the period of time on August 13, 2010, on which surveillance had occurred.
Claimant explained that on August 5, 2010, when surveillance occurred at his Philadelphia residence throughout the day, and his PTC-assigned vehicle remained parked there, he was in fact using a loaner car provided by his wife's mechanic, who was servicing her car, and if he requested pay for eight hours on that date, he would, in fact, have worked eight hours of work on that day. Claimant testified that there was no prohibition from taking the PTC-assigned vehicle to his residence in Virginia, because he had received written authorization, signed by PTC senior executives and approved by the PTC Chairman, to do so. (T.T. at 19, R.R. at 57a.) Claimant did not produce evidence of such authorization because, he said, such documentation was either in his office desk at PTC or in the glove compartment of the PTC vehicle, and PTC's legal counsel had not responded to his request for their return. (T.T. at 20-21, R R. at 58a-59a.)
In its Order, the Board stated that it did not find credible that Claimant believed he could simply not work his scheduled hours and substitute other hours worked, with no specific approval from a supervisor. The Board noted that although Claimant averred he had the approval of the PTC Chairman, he significantly did not request a subpoena to require his presence to support this claim. Finally, the Board found PTC credible that Claimant submitted a claim for eight hours of pay and did not leave his home on such occasion. (R. Item 16, Board's Order.)
Whether a claimant's conduct constitutes willful misconduct, rendering a claimant ineligible for unemployment benefits, is a question of law subject to this Court's review. Orend v. Unemployment Compensation Board of Review, 821 A.2d 659 (Pa. Cmwlth. 2003). The employer bears the burden to demonstrate that a claimant has been discharged for willful misconduct. Id. Although the law does not define willful misconduct, the term has been interpreted to include the following: (1) the wanton and willful disregard of an employer's interests; (2) a deliberate violation of the employer's work rules; (3) the disregard of standards of behavior an employer can rightfully expect of an employee; or (4) negligence indicating the intentional disregard of an employer's interest or an employee's duties and obligations. Smith v. Unemployment Compensation Board of Review, 967 A.2d 1042 (Pa. Cmwlth. 2009). If an employer meets its burden to establish willful misconduct, the burden of proof shifts to the claimant to demonstrate that he had good cause for his action. Id.
On appeal, the Board declined to address Claimant's argument that he was permitted to take the PTC-assigned vehicle out of state because he had written permission to do so. The Board averred it was not necessary to address this additional reason for discharge, based on the Board's denial of benefits for falsification of a timesheet, citing Anderson v. Unemployment Compensation Board of Review, 485 A.2d 900 (Pa. Cmwlth. 1985) (claimant who is terminated for multiple reasons can be denied benefits if only one of the reasons constitutes willful misconduct). We will not, therefore, address this issue.
The Board found ample evidence in the record to establish that Claimant knowingly falsified his work hours, and by this action, violated basic standards of behavior expected of an employee. The Board specifically rejected as not credible Claimant's assertions that he was permitted to substitute any hours worked at other times in place of regularly scheduled work time. The Board is the ultimate finder of fact, and, as such, has the discretion to make credibility determinations and resolve conflicts of evidence. City of Pittsburgh, Department of Public Safety v. Unemployment Compensation Board of Review, 927 A.2d 675, 679 (Pa. Cmwlth. 2007). The Board's credibility determinations are binding on this Court. Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997). Accordingly, we affirm.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 8th day of February, 2012, the order of the Unemployment Compensation Board of Review in the above-matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge