Opinion
No. 1476 C.D. 2011
03-26-2012
Margarita Agosto, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Margarita Agosto (Claimant) petitions this Court for review of the May 23, 2011 order of the Unemployment Compensation Board of Review (Board) reversing the decision of the Referee and denying benefits. The issue before this Court is whether the Board erred when it concluded that Claimant was discharged for willful misconduct, and thus is ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law). We affirm the order of the Board.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant was last employed on December 15, 2010 as a full-time quality assurance technician by Tyson Foods (Employer). Claimant's responsibilities included completing batch sheets to verify that the weights and measures of production ingredients were correct. According to the record, Claimant was required to compare her batch sheets to the batch sheets used in the production areas. In order to confirm compliance and complete the check, Claimant was also required to observe production and physically view the production worker weighing and measuring ingredients for the batches. Claimant was required to sign off on the completed checks on her handheld computer. Employer's policy provides that material or job-related written or verbal misrepresentation may result in discharge. Claimant was aware of that policy, having signed an acknowledgement.
Claimant was suspended on December 15, 2010 and directed to return to the Personnel Department on December 20, 2010. Her employment was terminated on December 20, 2010.
On December 13, 2010, Claimant was assigned to do a verification check on the cook side of the production department. Upon learning that she did not have the correct batch sheet, Claimant recorded the weights and measures on a piece of scrap paper, intending to later transfer them to the correct batch sheet. When Claimant failed to submit the corresponding batch sheet, the discrepancy was noted in the quality assurance checks the next day. On December 15, 2010, Claimant admitted that she had used the incorrect batch form for the December 13, 2010 verification. Employer conducted an investigation, and learned that Claimant had not witnessed the production staff weighing and measuring the product on December 13, 2010, despite the fact that Claimant had entered the relevant information and signed off via her handheld computer. In fact, Employer determined that Claimant was only in the production area for 42 to 44 seconds, whereas the measuring process should have taken 10 to 20 minutes. On December 20, 2010, Employer discharged Claimant for falsification of records.
Employer testified that the department at issue has both a "cook side" and a "pack side."
Claimant subsequently applied for Unemployment Compensation (UC) benefits. On January 7, 2011, the Lancaster UC Service Center issued a determination finding Claimant ineligible for benefits under Section 402(e) of the Law. Claimant appealed and, on February 28, 2011, a hearing was held by a Referee. On March 7, 2011, the Referee mailed her decision reversing the determination of the UC Service Center and approving UC benefits. Employer appealed to the Board. On May 23, 2011, the Board reversed the order of the Referee and denied UC benefits. Claimant appealed to this Court.
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005). --------
Claimant argues that her conduct does not meet the definition of willful misconduct and, thus, should not disqualify her from UC benefits. We disagree.
Section 402(e) of the Law provides that an employee is ineligible for unemployment compensation benefits when his unemployment is due to discharge from work for willful misconduct connected to his work. The employer bears the burden of proving willful misconduct in an unemployment compensation case. Willful misconduct has been defined as (1) an act of wanton or willful disregard of the employer's interest; (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 a disregard of the employee's duties and obligations to the employer.Dep't of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 748 n.4 (Pa. Cmwlth. 2000) (citation omitted). This Court has held that violation of a reasonable work rule constitutes willful misconduct. Metropolitan Edison Co. v. Unemployment Comp. Bd. of Review, 606 A.2d 955 (Pa. Cmwlth. 1992). It is the employer's burden to prove the existence of the rule and its violation by the claimant. Id. "Once the employer meets its burden, a claimant may then prove he had good cause for his actions. Good cause is established where the action of the employee is justifiable or reasonable under the circumstances . . . ." Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008) (citation and quotation marks omitted).
Here, Claimant's representation to Employer that her verification check was complete, without having actually witnessed the weighing process, was a violation of Employer's policy prohibiting misrepresentation, and thus constituted willful misconduct. Employer clearly established its policy prohibiting misrepresentation, and that Claimant was aware of the policy. Further, Employer offered testimony establishing that at the time of the incident, it was and has always been Employer's policy that quality assurance technicians are required to observe production workers weighing and measuring product during each and every verification check, and that the completion of the verification check is a representation to Employer that such was done. If a quality assurance technician misses the weighing and measuring process, the technician is required to return later to observe another batch in production.
Claimant testified that although at one time, quality assurance technicians were required to physically observe production workers weighing and measuring ingredients during each verification check, the policy had been changed to once per week. However, Employer testified that it changed its verification policy to once per week with regard to the "pack side" of the department, but not for the "cook side."
"The Board is the ultimate fact finder and is empowered to make credibility determinations." Baldauf v. Unemployment Comp. Bd. of Review, 854 A.2d 689, 692 (Pa. Cmwlth. 2004). Moreover, where substantial evidence supports the Board's findings, credibility determinations made by the Board are not subject to review by this Court. Duquesne Light Co. v. Unemployment Comp. Bd. of Review, 648 A.2d 1318 (Pa. Cmwlth. 1994).
In this case, the Board found that Employer's policy prohibited material or job related written or verbal misrepresentation. The Board also found Employer's witness to be credible when he testified that Employer's policy required quality assurance technicians to physically observe each batch verification and that, on the occasion in question, the Claimant had not done so. The Board further found that Claimant had presented no credible evidence in support of her contention that she was required to observe only one batch per week. Thus, Claimant's submission of the documentation stating that the batch verification had been completed constituted a misrepresentation, and a violation of Employer's policy, for which Claimant demonstrated no good cause. Accordingly, the Board did not err by concluding that Claimant was discharged for willful misconduct, and is ineligible for benefits under Section 402(e) of the Law.
For all of the above reasons, we affirm the Board's order.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 26th day of March, 2012, the May 23, 2011 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
ANNE E. COVEY, Judge