Opinion
No. 104 C.D. 2013
08-27-2013
Courtney L. Snyder, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Courtney L. Snyder (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed the order of the Referee and found Claimant ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The facts, as found by the Board are as follows:
1. The claimant was last employed as a personal care aide by Kinkora Pythian Home [Employer] from July 8, 2011, at a final rate of $8.55 per hour and her last day of work was July 20, 2012.
2. The employer received a report that the cell phone of one of its clients was missing.
3. The claimant was working on the date of the disappearance of the client's phone.Board Decision, January 3, 2013 (Decision), Findings of Facts Nos. 1-8, at 1-2.
4. The employer received a report from the client's family member that based on the call records of the lost cell phone, a phone call was made to a specific phone number.
5. In response to the client's family member's assertion, the employer called the phone number given by the client's family member and the phone number was that of the claimant's mother.
6. The employer questioned the claimant regarding the claimant's mother's phone number appearing on the phone record of the client's cell phone.
7. The claimant did not provide any response denying the allegation, but repeatedly stated the same statement seven times, "this is the first time I'm hearing this."
8. The employer discharged the claimant for theft because the claimant provided no explanation for her mother's phone number appearing on the client's cell phone records.
Claimant's Reproduced Record does not contain page numbers; citations to the Reproduced Record have been omitted.
The Board determined:
The failure of a party to reply to a statement made in her presence or hearing is significant only where the nature of the statement, and the circumstances under which it was made, are such as tender a reply natural and proper. L. Washington & Assocs. v. UCBR 662 A.2d 1148, 1149-1150 (Pa. Cmwlth. 1995). Silence is considered an admission, only when the circumstances are such that one ought to speak and does not. Id. at 1150.
Here the Board finds that the circumstances were such that the claimant ought to have spoken and did not. Specifically, the claimant was confronted by the employer pursuant to an investigation regarding a stolen cell phone, which occurred on a day when the claimant was working. The employer told the claimant that the investigation found that the claimant's mother's phone number appeared as the last dialed number on the client's phone records. The claimant admitted that when the employer questioned her about how her mother's phone number might have appeared on the client's phone records, she stated repeatedly that 'it was her first time hearing this.' The claimant was given seven chances to explicitly deny the allegation made by the employer, and failed to do so. Under these circumstances, the claimant, had her mother's phone number not appeared on the phone records, should have explicitly denied the allegation. However, the claimant failed to do so and her silence constituted an admission that she stole the cell phone. As such, the Board does not find the claimant's denial at the hearing as credible.Board Decision at 2-3.
The employer has established that the claimant committed willful misconduct in connection with her work. There is no good cause for theft. Thus, benefits will be denied under Section 402(e) of the Law.
Claimant contends that the Board's Findings of Fact Nos. 4-5 are unsupported by the evidence of the record. Claimant also contends that the Board erred when it found that the statement "this is the first time I'm hearing this" equates to silence in the face of an accusation which constitutes an admission of the charges against her.
This Court's scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Keystone Coca-Cola Bottling Corp. v. Unemployment Compensation Board of Review, 693 A.2d 637, 642 (Pa. Cmwlth. 1997), appeal denied, 553 Pa. 684, 717 A.2d 535, certiorari denied, 525 U.S. 867 (1998).
Whether a claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an employer's interest, deliberate violation of rules, disregard of standards of behavior which an employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982).
A single proven incident of theft will support a disqualification. Kostik v. Unemployment Compensation Board of Review, 315 A.2d 308 (Pa. Cmwlth. 1974). Even purely circumstantial evidence of theft may support a finding of willful misconduct. Ford v. Unemployment Compensation Board of Review, 504 A.2d 427 (Pa. Cmwlth. 1986). Further, when an employer proves that the claimant knowingly engaged in theft, such conduct constitutes willful misconduct and precludes the claimant from benefits as a matter of law not subject to rationale of good cause. Department of Navy v. Unemployment Compensation Board of Review, 632 A.2d 622 (Pa. Cmwlth. 1993).
Claimant argues that the Board's Findings of Fact Nos. 4-5 were based on two hearsay documents and the hearsay testimony of one of Employer's witnesses. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted and is inadmissible. Pa. R.E. 801-02.
Claimant first argues that the Board based its findings on Service Center Exhibit 12: a Verizon call record printout from the owner of the phone. The Referee sustained Claimant's objection to Exhibit 12 as hearsay, however stated "I'll still allow you to testify... if you ask[ed] the Claimant any questions about that information." Notes of Testimony, September 17, 2012 (N.T.), at 6. As Employer argues, this caveat was in accord with the well-established course-of-conduct exception to hearsay. Girard Giant Eagle v. Unemployment Compensation Board of Review, 659 A.2d 60 (Pa. Cmwlth. 1995). While this exception allows questions about the hearsay document, testimony may only go towards the Employer's "state of mind" in questioning claimant, and will not bolster any contention that Employer's beliefs were justified.
Claimant also argues that the Board based its findings on Service Center Exhibit 13, a handwritten statement by Employer's witness, Heather Klase (Klase) who testified at the hearing. N.T. at 4, 12-13. The Referee sustained Claimant's objection to the document insofar as it contained hearsay evidence. N.T at 6. Employer claims that the Board did not base its findings on Exhibit 13, "the Board based its findings on the competent testimony of Employer's witness [Klase]." Brief for the Board, Respondent, at 8. However, Klase's testimony was almost entirely stricken from the record because the Referee found it to be hearsay. N.T. at 12-13. The only competent information that Klase testified about (that was not stricken by objection) was that a resident's phone was missing, that Klase was given a number to call relating to the missing phone, and that she did call that number. N.T. at 12-13.
Based upon the evidence admitted before the Referee, the Board's Finding of Fact No. 4 is not supported by competent evidence. Finding of Fact No. 4 reads: "The employer received a report from the client's family member that based on the call records of the lost cell phone, a phone call was made to a specific phone number." The Referee sustained an objection to the call records, and sustained an objection to the content of client's family member's statements to the Employer's staff. N.T. at 5, 12. Mitch Himmelberger (Himmelberger), Employer's executive director and representative before the Referee, was permitted to testify that he received a report concerning the phone call and statements by the client's family, however this information was only admitted to explain Himmelberger's course of conduct, not the substance of those statements made to Himmelberger. The evidence before the Referee only supports that Employer believed that a phone call was made to a specific number, and does not support a finding that Employer received a report with that information.
The Referee admitted Service Center exhibit No. 7, the employer questionnaire for Claimant's unemployment compensation request, over Claimant's objection. N.T. at 4. Although the document was prepared by Himmelberger, and was therefore admissible, the Referee should have sustained the objection insofar as the document contained hearsay statements; specifically, the statements made by Client's family and statements made by Claimant's family.
In addition, Finding of Fact No. 5 is not supported by competent evidence. Finding of Fact No. 5 reads: "In response to the client's family member's assertion, the employer called the phone number given by the client's family member and the phone number was that of the claimant's mother." The Referee sustained Claimant's objections to Klase's testimony concerning the content of that phone call. N.T. at 13. There was no competent evidence submitted to the Referee that identified claimant's mother as the person called pursuant to the investigation, as all evidence that would support this claim (including the Verizon phone record) was properly objected to as hearsay evidence.
The Referee did ask Klase if the person with whom she spoke identified themself as Claimant's mother before sustaining Claimant's hearsay objection. N.T. at 13. This Court finds this to be error and this testimony inadmissible under Pa. R. E. 801-802, which provides that any statement, not made by the declarant at trial, to prove the truth of the matter asserted is inadmissible.
Claimant's second contention on appeal is that the Board erred when it found that Claimant's statement "this is the first time I'm hearing of this", was an admission by silence to the accusations against her. Both parties cite L. Washington & Associates, Inc. v. Unemployment Compensation Board of Review, 622 A.2d 1148 (Pa. Cmwlth. 1995), as the primary test to determine when a party has admitted an accusation by silence.
In L. Washington, this Court determined whether an employer fulfilled its burden of demonstrating willful misconduct without any firsthand testimony establishing the violation of a claimant sleeping on the job. Id. at 1149. This Court found the claimant was ineligible for benefits and held that there was still competent evidence because a claimant's silence may constitute an admission that he or she violated employer policy. This Court explained:
The failure of a party to reply to a statement made in his presence or hearing is significant only where the nature of the statement, and the circumstances under which it was made, are such as render a reply natural and proper.... Silence is considered an admission, only when the circumstances are such that one ought to speak and does not.Id. at 1149-50.
Claimant sought to distinguish her situation and cited Carson v. Unemployment Compensation Board of Review, 711 A.2d 582 (Pa. Cmwlth. 1998). In Carson, an employee maintenance driver Roy Carson (Carson) allegedly tested positive for drug use, however the employer failed to submit competent evidence of the testing results. The Board concluded that Carson's failure to deny the positive results of the test was sufficient to sustain the employer's burden that Carson committed willful misconduct.
This Court reversed the order of the Board and stated that Carson's situation was distinguishable from that of the claimant in L. Washington because there was no circumstance presented where Carson would be expected to deny that he had positive drug test results. Specifically, this Court stated:
The circumstances present in this case simply do not support the legal conclusion that claimant should have denied the status of his drug test results. Unlike in L.
Washington and McIntyre, there is no competent evidence establishing that claimant tested positive for drug use. We, therefore, conclude that employer failed to prove that claimant engaged in willful misconduct such that his unemployment compensation should be denied.Id. at 585. (Emphasis added.)
We will not penalize claimant for the tactical errors made by employer in this case. Our holdings in L. Washington and McIntyre are not to be considered a lessening of employer's burden of proof in a willful misconduct case. It is not appropriate to require a claimant to deny uncorroborated, hearsay allegations raised by an employer at a hearing, particularly when the burden of proof lies with employer. Furthermore, the holdings in L. Washington and McIntyre should not be considered as a way to circumvent having a qualified individual testify about the results of a medical test.
McIntyre v. Unemployment Compensation Board of Review, 687 A.2d 416 (Pa. Cmwlth.), petition for allowance of appeal denied, 584 Pa. 649, 694 A.2d 624 (1997). In McIntyre, claimant had been confronted by his supervisor regarding a positive drug test result for cocaine. Claimant did not deny the assertion, and additionally stated that he had also spoken with the drug testing facility and had been informed of his positive drug result. In accord with L. Washington, this Court concluded that if the supervisor's assertions against claimant were untrue, claimant should have voiced a denial.
In addition, our Supreme Court addressed a substantially similar issue in Harmon v. Mifflin County School District, 552 Pa. 92, 713 A.2d 620 (1998). Claimant Terry Harmon (Harmon) was accused of providing money to another employee for the purchase of marijuana, based upon statements made to the School District by another employee who had been charged with conspiracy to possess and deliver marijuana. Harmon neither affirmed nor denied the accusations against him before the School District, and invoked his Fifth Amendment privilege at every level of appeal. The Commonwealth Court held that Harmon's invocation of his Fifth Amendment privilege against self-incrimination in response to questions put to him before the board constituted substantial evidence of improper conduct.
The School Board terminated Harmon, who then appealed to the Court of Common Pleas of Mifflin County, which reversed the School Board's decision. The trial court was in turn reversed by the Commonwealth Court which remanded the matter for the trial court to address Harmon's challenge to the evidentiary basis for the School Board's finding of improper conduct. On remand, the court of common pleas again reversed the School Board's decision which was again reversed by the Commonwealth Court in an en banc decision. Harmon, 552 Pa. at 97, 713 A.2d at 622.
Our Supreme Court reversed and held that there was insufficient evidence to sustain the charge for willful misconduct. Specifically, the Supreme Court stated:
The logic of Ault, Petrone, and Baxter persuades us that any inference to be drawn from a party's invocation of the Fifth Amendment cannot be the naked one countenanced by the Commonwealth Court in this case. [Harmon's] failure to answer questions does not supplant the District's burden of presenting independent, probative evidence of [Harmon's] involvement in the asserted conduct....Harmon, 552 Pa. at 101-02, 713 A.2d at 625. (Emphasis added.)
"Difficulty of proof has never been allowed as an excuse for dispensing with it." Ault 398 Pa. at 255, 157 A.2d at 378. Absent independent, probative evidence of the charged misconduct, the implications of [Harmon's] refusal to testify on Fifth Amendment grounds are too broad and speculative to constitute substantial evidence that Appellant provided money ... to purchase marijuana.
Ault v. Unemployment Compensation Board of Review, 398 Pa. 250, 157 A.2d 357 (1960); Petrone v. Unemployment Compensation Board of Review, 557 A.2d 1118 (Pa. Cmwlth 1989); Baxter v. Palmigiano, 425 U.S. 308 (1976). --------
In the present matter, the Referee directly asked Claimant, "Did you make a phone call to your mother from the resident's cell phone?" to which the Claimant replied "No." N.T. at 15. Even if this Court were to consider Claimant's initial statements to Employer ("this is the first time I'm hearing of this") as silence in the face of an accusation, there was still insufficient probative evidence to justify any inference from Claimant's silence. Carson and Harmon (and to an extent L. Washington) require that the employer present independent, competent testimony corroborating an accusation of misconduct before the Court may make an adverse inference from a claimant's silence. Employer has failed to provide any competent evidence that Claimant stole and used the client's phone. As in Carson, the Claimant was not required to respond to uncorroborated hearsay allegations, particularly when the burden of proof rested with Employer. It was therefore an error for the Board to hold that Claimant's statements constituted a silent admission to theft.
Accordingly, this Court reverses the order of the Board that found Claimant ineligible for benefits under Section 402(e) of the Law.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 27th day of August, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is reversed.
/s/_________
BERNARD L. McGINLEY, Judge