Opinion
No. 825 C.D. 2013
01-03-2014
David W. Aston, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
David W. Aston (Claimant), currently representing himself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) denying his claim for benefits under Section 402(e) of the Unemployment Compensation Law (Law). Claimant contends the Board erred in determining that Mydatt Services, Inc. (Employer) discharged him for willful misconduct where the evidence does not establish a rule violation or an intentional disregard of Employer's interests. In addition, Claimant contends the Board, which adopted the referee's findings and conclusions, based its decision on hearsay statements in Employer's warnings rather than substantial competent evidence. For the reasons that follow, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law states an employee shall be ineligible for compensation for any week in which his unemployment is due to willful misconduct connected to his work.
I. Background
Claimant worked for Employer as an assistant security director, a supervisory position, from February 2011 until his last day in December 2012. Employer provided security services for the Montgomery Mall (Mall). Claimant's duties included the creation of Employer's work schedule.
In December 2011 and again in August 2012, Employer issued Claimant written warnings for unsatisfactory work performance, insubordination and violation of company policy. In November 2012, Employer issued Claimant a final written warning for unsatisfactory work performance and insubordination.
About a month later, Claimant created a work schedule for Sunday, December 9, 2012. Claimant scheduled himself to work from 8:00 a.m. to 6:00 p.m. Employer required two supervisors at the Mall on Sundays to cover deployment needs.
On December 9, 2012, Claimant left work around 4:00 p.m. without any notice to Employer's security director, Matthew Veneziale (Security Director). Claimant's decision to leave left only one supervisor on duty.
The next day, Security Director received a report that Claimant left work prior to the end of his shift on December 9. Security Director looked for Claimant's time card and discovered Claimant did not create a time card for that week. In addition, Claimant did not write the time he left work on the log report.
On December 13, Security Director interviewed Claimant, who reported he made a mistake when he scheduled himself to work until 6:00 p.m. on December 9, 2012. Claimant admitted he left work before the end of his shift without notifying Security Director. On December 14, 2012, Employer discharged Claimant for leaving work early without approval after receiving a final warning.
Thereafter, Claimant applied for unemployment compensation benefits. The local service center found Claimant eligible for benefits on the ground that Employer failed to establish willful misconduct (rule violation).
Employer appealed. A hearing was held at which Claimant was represented by counsel. Claimant and Security Director testified. Thereafter, a referee denied Claimant benefits under Section 402(e) of the Law on the basis that after receiving a final warning, Claimant's actions, in leaving work early without approval on Sunday, December 9, 2012, constituted willful misconduct.
Counsel for Claimant appealed, and the Board affirmed. In so doing, the Board reasoned:
[Security Director] credibly testified that (a) he conducted the investigation into reports that [Claimant] ... left early on December 9, 2012; (b) he was present at [Claimant's] separation; and (c) [Security Director] advised [Claimant] he was being discharged for ... leaving work early and without approval after receiving a final warning. [Claimant] has not established good cause for the behavior leading to his discharge and has not demonstrated that ... his final warning or other prior disciplinary actions were unwarranted. The Board discredits [Claimant's] argument that he forgot to create a final time card for his final week of work and that he
felt justified in leaving at 4:00 p.m. rather than 6:00 p.m. on December 9, 2012 because 4:00 p.m. was the end time he should have listed on the schedule for December 9, 2012.Bd. Op., 4/5/13, at 1. Claimant petitions for review.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 2013).
II. Issues
Claimant contends the Board erred in determining Employer discharged him for willful misconduct where the evidence does not establish a rule violation or an intentional disregard of Employer's interests. Further, Claimant asserts the Board, which adopted the referee's findings and conclusions, based its decision in part on hearsay consisting of prior discipline reports rather than substantial competent evidence.
III. Discussion
Claimant argues the evidence does not support a determination that he intentionally disregarded Employer's interests. In addition, Claimant asserts, Security Director could not cite any rule Claimant violated. Also, Claimant points out Security Director could not state the specific reason for Claimant's termination. Claimant also notes that his performance review, submitted into evidence, indicates his satisfactory performance during the applicable period. Therefore, Claimant urges, the Board erred in determining Employer discharged him for willful misconduct.
Willful misconduct is defined by the courts as: (1) wanton and willful disregard of an employer's interests; (2) deliberate violation of rules; (3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or, (4) negligence showing an intentional disregard of the employer's interests or the employee's duties and obligations. Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 827 A.2d 422 (2002). The employer bears the initial burden of establishing a claimant engaged in willful misconduct. Id. Whether a claimant's actions constitute willful misconduct is a question of law fully reviewable on appeal. Id.
Here, the Board adopted and incorporated the referee's findings and conclusions. Bd. Op. at 1. The referee found Employer discharged Claimant for leaving work early without approval after receiving a final warning. Referee Op., 2/7/13, Finding of Fact (F.F.) No. 17.
At the hearing, Security Director testified Employer terminated Claimant for leaving early on December 9, 2012 without approval. See Referee's Hr'g, 2/9/13, Notes of Testimony (N.T.), at 10. Security Director stated he previously informed Claimant of his responsibility to give him a call if he is leaving early and provide a reason. Id. at 10-11. However, on December 9, Claimant did not contact Security Director about leaving before his shift ended. Id. at 12. Security Director further stated he would have denied Claimant's request to leave early because "we were shorthanded and we had - we still had the obligation to fulfill the contractual hours' agreement." Id.
Moreover, Claimant does not dispute that prior to his termination he received three written warnings, including a final written warning. See F.F. Nos. 2-4.
Claimant contends the Board improperly relied on inadmissible hearsay regarding prior discipline. We disagree. Out-of-court statements, not offered to prove the truth of the matters asserted therein, are not hearsay. Pa. R.E. 801(c); Jerry v. Dep't of Corr., 990 A.2d 112 (Pa. Cmwlth. 2010). Here, the record indicates the referee admitted the disciplinary warnings for the sole purpose of showing Claimant received disciplinary action on those dates. See Referee's Hr'g, 2/19/13, Notes of Testimony at 4-6. In particular, the referee admitted the final warning to show that Claimant received it and understood that it was his final warning. Id. at 6. Thus, the finding that Claimant received a final warning prior to his termination was not based on inadmissible hearsay. Pa. R.E. 801(c); Jerry. We therefore reject Claimant's argument that the Board improperly relied on hearsay evidence. --------
More importantly, leaving work early without an employer's permission may constitute willful misconduct, even where the employer did not previously warn the employee of any policy against leaving early. Jackamonis v. Unemployment Comp. Bd. of Review, 408 A.2d 581 (Pa. Cmwlth. 1979); Blystone v. Unemployment Comp. Bd. of Review, 342 A.2d 772 (Pa. Cmwlth. 1975). Therefore, the Board's findings regarding prior discipline do not constitute reversible error.
Here, the Board credited Security Director's testimony that he advised Claimant that he needed to notify Employer if he intended to leave early and that he needed to provide a reason. If an employee knows of a work rule and intentionally disregards it, such conduct is more akin to disobedience of a direct instruction than inadvertence or negligence. Heitczman v. Unemployment Comp. Bd. of Review, 638 A.2d 461 (Pa. Cmwlth. 1994). Further, an employer's directive need not be written in order to support a determination that an employee's violation of the directive constitutes willful misconduct. Graham v. Unemployment Comp. Bd. of Review, 840 A.2d 1054 (Pa. Cmwlth. 2004).
By leaving work prior to the end of his shift on December 9, 2012 without notifying Employer, Claimant violated Employer's reasonable directive to provide notice and a reason for leaving work early. Jackamonis; Blystone. Moreover, leaving early without permission at a time when Employer was understaffed is a breach of Claimant's duty to Employer and an action clearly adverse to Employer's best interests. Lynch v. Unemployment Comp. Bd. of Review, 359 A.2d 834 (Pa. Cmwlth. 1976).
In addition, Claimant's receipt of a final warning in November 2012 provided him with clear notice that a decision to leave work early without approval could result in termination. As a result, the Board did not err in determining that Claimant's actions in leaving work early on December 9, 2012, without approval, constituted willful misconduct. Jackamonis; Lynch; Blystone.
As a final note, Claimant fails to assert on appeal here that he had good cause for leaving early without notifying Employer. The Board rejected as not credible Claimant's explanation that he erroneously scheduled the end of his shift for 6:00 p.m. rather than 4:00 p.m. Bd. Op. at 1. As the ultimate fact-finder in unemployment compensation cases, the Board is empowered to resolve all issues of witness credibility and evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).
For the above reasons, we discern no error in the Board's denial of benefits under Section 402(e) of the Law. Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 3rd day of January, 2014, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge