Opinion
No. 1716 C.D. 2011
06-27-2012
Shelly M. Banta, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Shelly M. Banta (Claimant) petitions for review of the July 13, 2011, order of the Unemployment Compensation Board of Review (UCBR), which affirmed the decision of a referee to deny Claimant unemployment compensation benefits pursuant to 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). Under section 402(e) of the Law, a claimant shall be ineligible for benefits for any week in which his or her unemployment is due to discharge from work for willful misconduct.
Claimant worked as a Clerk Typist II for the County of Erie (Employer) in a Magisterial District Justice office from January 24, 1990, through December 22, 2010. (Findings of Fact, Nos. 1-2.) Claimant's job duties included the use of an online resource called JNET, which is an investigative tool used by law enforcement to give current addresses for people who are to be served warrants by a constable. (Findings of Fact, No. 3.)
The UCBR adopted and incorporated the referee's findings of fact and conclusions of law in their entirety. Thus, any reference to the findings of fact in this opinion can be found in the referee's February 28, 2011, decision.
Prior to 2008, the clerks would print out a photo of the person to be served and attach it to the warrant for the convenience of the constables. (Findings of Fact, No. 4.) In early 2008, the State's policy changed to prohibit the distribution of photos to the constables. (Findings of Fact, No. 5.) After early 2008, the clerical staff in the District Justice's office continued to allow the constables to view photos of the people to be served from the JNET system. However, they ceased printing and giving the photos to the constables. (Findings of Fact, No. 6.)
In December 2010, Claimant's brother, who was one of the constables working out of the District Justice's office, came under investigation regarding the alleged non-service of a warrant on a particular individual from 2008. (Findings of Fact, No. 7.) On December 21, 2010, Claimant's brother, who had been suspended from his constable position, came into the District Justice's office. (Findings of Fact, No. 8.) While Claimant's brother was at the office, Claimant printed out a photo of the individual that triggered the investigation of her brother and gave it to her brother. (Findings of Fact, No. 9-10.)
On December 22, 2010, the District Justice learned that Claimant had given the photo to her brother and discharged Claimant for violation of the State's policy prohibiting the distribution of photos to constables. (Findings of Fact, No. 11-12.)
The referee found Employer's testimony credible that on December 22, 2010, Claimant first stated that she did not remember what she had done with the photo but later admitted that she had given it to her brother. The referee found Claimant's testimony that she originally gave the photo to her brother, but then took it back and threw it into the garbage, not credible. (Referee's Decision at 2.)
The referee determined that Claimant was trying to give her brother information regarding an individual to help him defend against the investigation. (Id.) The referee found that Claimant's reason for printing the picture did not amount to good cause for violating Employer's rule regarding the prohibition of distributing the photographs. (Id.)
The referee concluded that Employer met its burden of proving willful misconduct and denied benefits pursuant to section 402(e) of the Law. Claimant appealed to the UCBR, which affirmed, stating:
[Employer] credibly established that he verbally informed the claimant and other staff members that they were prohibited from disseminating JNET photos to constables.
[Employer] credibly established that constables were permitted to look at JNET photos electronically but they were not permitted to have a printed copy of the JNET photo in their possession. The [UCBR] does not credit the claimant's testimony that she was unaware that she was not permitted to give a printed copy of JNET photos to constables. Furthermore, the [UCBR] does not credit the claimant's testimony that she threw the JNET photo away after printing it and briefly showing it to her brother. While the claimant asserts that other staff members were giving printed copies of JNET photos to constables, the claimant has not shown that [Employer] was aware of it.(UCBR's Decision at 1.) Claimant now petitions this court for review.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Claimant argues that the UCBR erred in upholding the referee's decision to deny Claimant benefits. More specifically, Claimant contends that there was no clear work rule in place regarding the printing of photos from JNET.
Willful misconduct has been defined as: (1) a wanton and willful disregard of the employer's interests; (2) a deliberate violation of the employer's rules; (3) a disregard of the standards of behavior that an employer rightfully can expect from its employees; or (4) negligence that manifests culpability, wrongful intent, or evil design, or an intentional and substantial disregard of the employer's interests or the employee's duties and obligations. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010)(en banc). The employer has the burden of proving that it discharged an employee for willful misconduct. Id.
When an employee is discharged for violating a work rule, the employer must prove the existence of the work rule, the reasonableness of the rule, and the fact of its violation. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011). The burden then shifts to the employee to prove that he or she had good cause for violating the rule. Id. An employee establishes good cause by showing that his or her conduct was justified or reasonable under the circumstances. Id.; see also Anderson Equipment Company v. Unemployment Compensation Board of Review, 994 A.2d 1192, 1195 (Pa. Cmwlth. 2010).
Here, the UCBR found that Employer had a rule that employees were not permitted to print photos off of JNET and that Claimant was aware of the rule. At the hearing, Claimant admitted that she printed a photo from JNET for her brother, who was a constable. (N.T., 2/22/11, at 30-31.) Claimant's justification for violating the rule was to help her brother defend himself in the investigation against him. (Id. at 30, 35.) The UCBR properly concluded that this reason was insufficient to establish good cause.
Employer presented the JNET Policy Reminder, (C.R., Employer's Ex. 1), a letter of November 2, 2009, (C.R., Employer's Ex. 2), and a letter of November 6, 2009, (C.R., Employer's Ex. 3). These documents, which were faxed to Employer's office, state the Commonwealth's rule that information derived via JNET may not be disseminated to constables. Employer testified that the rule was that "JNET can continue to be used but it can't be disseminated to a constable." (N.T., 2/22/11, at 9.) Employer further testified that he informed all of the secretaries that they were no longer allowed to give the photos to the constables. (Id. at 10.) Claimant testified that she "always got a copy of a fax" but she did not pay attention to them. (Id. at 34, 36.) --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 27th day of June, 2012, the order of the Unemployment Compensation Board of Review, dated July 13, 2011, is hereby affirmed.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge