Opinion
No. 1597 C.D. 2012
05-21-2013
Annessa E. Vlachos, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Annessa E. Vlachos (Claimant), pro se, petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for benefits. The Board affirmed the decision of the Referee that Claimant was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) because she was discharged for willful misconduct. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant part, that "[a]n employe 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).
Claimant was employed as a part-time meat wrapper by Thomas Family Market Foodtown (Employer) from November 25, 2011, until she was discharged on March 8, 2012. On March 9, 2012, Claimant applied for unemployment compensation benefits. On her application, Claimant stated that she was terminated for "not paying for [a] soda immediately." Certified Record Item No. 2 (C.R. ___) at 3. On the employer questionnaire, Employer stated that Claimant was discharged for "retail theft." C.R. 3 at 1. The Scranton UC Service Center denied benefits. Claimant appealed, and a hearing before a Referee was held on April 24, 2012. At the hearing, Claimant was represented by a non-attorney, Victor Vlachos, and Employer was represented by its President, Thomas Baseski.
Baseski testified that Employer has a policy that all food and beverages purchased by an employee in the store must be accompanied by a receipt. The policy also provides that if an employee brings an item from home that is sold in the store, the employee must notify the manager on duty, who will attach a note to the item. This policy is recited in the handbook given to all employees at the time of hire and it is posted in every department and next to the time clock. Employer produced a document, signed by Claimant on November 29, 2011, acknowledging that she received and understood the employee handbook. Notes of Testimony, April 24, 2012, at 7-8 (N.T. ___); Service Center Exhibit 11.
Employer also presented the testimony of the store manager, Scott Shotwell. Shotwell testified that on March 8, 2012, he was alerted by another employee that Claimant had a soda that she did not pay for. Shotwell looked at the store's security footage, which showed Claimant pulling a soda out of her pocket while walking down an aisle. Because there are no cameras in the soda aisle, there was no video of Claimant taking the soda. However, there was also no video of Claimant paying for the soda. After reviewing the footage, Shotwell called Claimant into his office along with Claimant's aunt, the deli manager. Claimant admitted to taking the soda without paying for it. Claimant stated that the checkout lines were too long, so she had planned on paying for the soda during her lunch break.
Claimant testified that she often brought bottles of soda to work and that the soda she was seen drinking on March 8, 2012, was one that she had brought from home three days earlier. According to Claimant, she admitted to taking the soda without paying for it because she felt intimidated by Shotwell questioning her. As for her admission on her application for benefits that she took the soda without paying for it, Claimant asserted that she was confused as a result of the medication she was taking. On her March 14, 2012, claimant questionnaire, Claimant changed her answer and stated that the soda in question was one from home. On cross-examination, Claimant admitted that she never contacted Employer to correct her admission.
Claimant testified that she had undergone extensive dental work and was taking Vicodin, Valium, Paxil and Xanax as prescribed.
Claimant also presented the testimony of her father-in-law, who typically packed Claimant's lunch. He testified that he would occasionally pack a 1.5 liter bottle of soda; however, he could not recall whether he did so on March 8, 2012.
The Referee denied benefits, concluding that Claimant's behavior constituted willful misconduct because she committed theft and violated Employer's policy regarding purchases and marking of grocery items brought from home. The Board, finding Claimant not credible, affirmed the Referee's decision. The Board concluded that Claimant's actions constituted willful misconduct because Claimant violated Employer's policy without good cause. Claimant now petitions for this Court's review.
On appeal, Claimant argues that the Board erred by failing to give more weight to her testimony and that of her father-in-law. Claimant contends that the evidence was insufficient to support the Board's holding that she committed willful misconduct. Finally, Claimant argues that the Referee erred by permitting Employer to introduce evidence relating to a violation of Employer's policy when the UC Service Center's Notice of Determination did not address the policy.
Our scope of review is limited to determining whether the Board's adjudication is in violation of constitutional rights, errors of law were committed, or whether findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987).
Claimant raises additional issues that do not warrant extensive analysis. Claimant argues that the Referee denied her due process by not allowing her to question Hayley Baseski, who filled out the Employer Questionnaire. Baseski did not testify at the hearing because the Referee found her proffered testimony irrelevant. There is no right to cross examine a witness who does not testify. If Claimant wished to question Baseski, she could have called her as part of her case. Additionally, Claimant waived this issue because she failed to object during the hearing to Baseski not testifying.
Claimant also argues that the Referee denied her due process by admitting hearsay evidence. Specifically, Claimant argues that UC Service Center Exhibits 9 (an email) and 7 (the Employer Questionnaire) contain hearsay and should not have been admitted by the Referee. This argument is without merit. Exhibit 9 was not admitted; Claimant objected and Employer agreed to leave it out. Exhibit 7 is not hearsay because it was not offered to prove the truth of the matter asserted; it was offered for the independent legal significance of Employer objecting to Claimant's application for benefits. In any event, neither the Referee nor the Board relied on the Employee Questionnaire in rendering their decisions.
We consider, first, Claimant's argument that the Board erred by finding Employer's witnesses credible over Claimant. Where there is a conflict in testimony, determinations of credibility and resolutions of conflicting evidence are within the Board's discretion. Duquesne Light Co. v. Unemployment Compensation Board of Review, 648 A.2d 1318, 1320 (Pa. Cmwlth. 1994). Such determinations are not subject to judicial review. Id. So long as the Board's findings of fact are supported by substantial evidence, they are conclusive on appeal. Id. Here, Claimant and Employer presented conflicting testimony as to whether Claimant took the soda without paying for it, and the Board resolved this conflict in favor of Employer.
We consider, next, Claimant's argument that Employer failed to present sufficient evidence to prove willful misconduct. Although not defined in the Law, the courts have established that it means the following:
(1) an act of wanton or willful disregard of the employer's interest;Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1996). Whether conduct rises to the level of willful misconduct is a question of law to be determined by this Court. PMA Reinsurance Corp. v. Unemployment Compensation Board of Review, 558 A.2d 623, 625 (Pa. Cmwlth. 1989). It is the employer's burden to establish that a claimant's conduct constituted willful misconduct. Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286, 1288 (Pa. Cmwlth. 2003).
(2) a deliberate violation of the employer's rules;
(3) a disregard of standards of behavior which the employer has a right to expect of an employee; [or]
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.
Where willful misconduct is based upon the violation of a work rule, the employer must establish the existence of the rule, its reasonableness, and that the employee was aware of the rule. Bishop Carroll High School v. Unemployment Compensation Board of Review, 557 A.2d 1141, 1143 (Pa. Cmwlth. 1989). Stated another way, "the employer must show the existence of the rule and its knowing violation." BK Foods, Inc. v. Unemployment Compensation Board of Review, 547 A.2d 873, 875 (Pa. Cmwlth. 1988) (emphasis original). Once employer meets its burden, the burden then shifts to the claimant to prove that the rule was unreasonable or that she had good cause for violating the rule. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 600, 633 A.2d 1150, 1155 (1993).
In the present case, Employer proved that it had a rule requiring employees to have a receipt for items they purchased in the store or to contact the manager if they brought a grocery item from home. This rule is reasonable because Employer, a grocery store, must ensure that its products are not being pilfered by its own employees. Claimant was aware of Employer's policy, as evidenced by her written acknowledgement and the posting of the policy in multiple places throughout the store.
Employer proved that Claimant violated the policy. Claimant admitted to the store manager that she took a bottle of soda and did not pay for it. The Board rejected as not credible her subsequent claim that she brought the soda from home. But, even if she had, she would still have been in violation of Employer's policy because she failed to inform the manager that she had brought the soda from home. Further, the Board discredited Claimant's claim that she was confused when she made her admission because of medication. Because the Board discredited Claimant's testimony, she did not establish good cause for violating Employer's policy.
Finally, we consider Claimant's argument that the Referee erred by allowing Employer to introduce evidence regarding its policy because the UC Service Center's Notice of Determination did not find a policy violation. Claimant asserts that Employer should have been barred from producing such evidence under the following regulation:
When an appeal is taken from a decision of the Department, the Department shall be deemed to have ruled upon all matters and questions pertaining to the claim. In hearing the appeal the tribunal shall consider the issues expressly ruled upon in the decision from which the appeal was filed. However, any issue in the case may, with the approval of the parties, be heard, if the speedy administration of justice, without prejudice to any party, will be substantially served thereby.34 Pa. Code §101.87. Claimant also cites several cases where this Court reversed an adjudication of the Board for deciding a case based upon a different section of the Law or on a different factual basis than in the Notice of Determination. See, e.g., Harwood v. Unemployment Compensation Board of Review, 531 A.2d 823 (Pa. Cmwlth. 1987); Sterling v. Unemployment Compensation Board of Review, 474 A.2d 389 (Pa. Cmwlth. 1984).
The cases cited by Claimant are distinguishable from the present case. Here, the UC Service Center, the Referee and the Board all considered whether Claimant's act of taking a soda from the store's inventory without paying for it was willful misconduct under Section 402(e) of the Law. Claimant was given proper notice of the matters that would be raised at the hearing before the Referee. In any case, because Claimant did not raise this issue before the Board, it is waived.
For the above stated reasons, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 21st day of May, 2013, the order of the Unemployment Compensation Board of Review dated August 3, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge