Opinion
No. 1780 C.D. 2011
03-27-2012
Joseph B. Brown, 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 PRESIDENT JUDGE PELLEGRINI
Joseph B. Brown (Claimant) has filed a pro se petition for review from an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Referee which denied him unemployment compensation benefits because he voluntarily terminated his employment without cause of a necessitous and compelling nature pursuant to Section 402(b) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937), 2897, as amended, 43 P.S. §802(b). That section provides:
An employe shall be ineligible for compensation for any week -
(b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature irrespective of whether or not such work is in "employment" as defined in this act.
Claimant was employed as a full-time maintenance/janitorial worker by Youth Enrichment Programs (Employer) from June 21, 2010, through April 4, 2011. On or around March 7, 2011, Claimant's work hours were reduced to part-time due to performance-related issues and tardiness. One week after his work hours were reduced, Claimant's grandmother passed away. Claimant left his job to attend her funeral but he was scheduled to return to work on March 26, 2011. Claimant returned to work on March 26, 2011, but did not return to work after that date. Claimant only stopped by work on April 15, 2011, to pick up his paycheck.
Claimant filed for unemployment compensation benefits alleging that he was discharged for not working hard enough but he was unable to work to Employer's standard because he was mourning his grandmother's passing. The UC Service Center granted him benefits because Claimant denied that he was involved in "the incident that caused the separation" and that Employer did not provide information to show Claimant that was involved in the incident causing the separation to sustain its burden of proving willful misconduct under Section 402(e) of the Law. (April 28, 2011 Notice of Determination.)
Section 402(e) of the Law, 43 P.S. §802(e) provides, in relevant part:
An employe shall be ineligible for compensation for any week -
(e) in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act.
There is nothing in the record to explain what the "incident" might have been which caused the separation.
Employer appealed arguing that Claimant had resigned from his position. At a hearing before the Referee, Alisha Rylander (Rylander), Employer's Business Manager, testified that three weeks prior to Claimant's last day of work, around March 7, 2011, his schedule had changed to part-time because there were negative complaints about his job performance and his tardiness. A week or so after that, Claimant's grandmother passed away and Claimant went out of town. Rylander stated that Claimant came back to work on or around March 26, 2011, but then left and never showed up again. He did call in and say he wasn't coming back, but did not speak to a supervisor. The next time Rylander saw Claimant was when he came in to pick up his paycheck on April 15, 2011. Rylander stated that she told Claimant she needed a resignation letter from Claimant in order to give him his paycheck and he said okay and wrote her a short letter.
Although she understood that Claimant is now alleging that it was not his signature on the resignation letter, Rylander testified that every time Claimant signed his name to a document, he signed it differently. "As far as signatures, #1, we don't have time to forge anybody's signature. We have too many things going on and when I'm actually looking through his file he signs his name different every time, so he has Joe Brown, then he has Joseph Brown, then he has Joseph Brown signed totally different here, then he has Mr. Joe Brown, then Joseph. Like he never signs his name in one way and I have documentation to show that and we've been giving him chances." (June 2, 2011 Hearing Transcript at 6.) Rylander stated that continuing work was available for Claimant because he was never taken off of the schedule. Employer then offered into evidence eight documents that Claimant had signed with varying styles and monikers, i.e., Mr. Joe Brown, Joseph Brown, Mr. Joe [b]rown, and [j]oseph Brown, which Claimant all identified as his own signature.
Claimant testified that he worked from June 21, 2010, until his last day of work on March 29, 2011. He stated that he went to his grandmother's funeral and when he returned to work, he was discharged because of his job performance. "I was always getting in trouble for somebody else's situation." (June 2, 2011 Hearing Transcript at 6.) Claimant continued to state that he returned to work on March 28, 2011, and on March 29, 2011, Tanya Davis, the owner of the business, called him into the office where she and Rylander were waiting to speak with him. At that meeting, they discussed complaints against him regarding his work performance and stated that they had to terminate his employment because of the complaints. He said that he worked the rest of his hours that day and then clocked out. He denied ever giving Employer a resignation letter, and that the letter Employer gave to the UC Center was a forgery.
The Referee reversed the decision of the UC Service Center finding that Section 402(e) of the Law was not applicable because this was not a case of willful misconduct. Instead, the Referee denied benefits under Section 402(b) of the Law relating to voluntary termination. The Referee found Rylander credible that although Claimant was scheduled to work after March 26, 2011, and he did return by that date from the funeral, he only contacted her on April 15, 2011, to pick up his paycheck. The Referee also found that contrary to Claimant's testimony, he was not discharged by Employer, and he signed a resignation letter because he had abandoned his job. The Referee concluded that because Claimant did not have cause of necessitous and compelling reason to abandon his job, he was not entitled to unemployment benefits.
On Claimant's appeal to the Board, he attached additional documentation to his appeal, apparently to establish that he returned to work after March 26, 2011, which included a receipt from Amtrak for travel from Philadelphia, Pennsylvania, to Kingstree, South Carolina, dated March 27, 2011, through March 29, 2011; an earnings statement from Employer for the period starting March 12, 2011, and ending March 25, 2011; and an earnings record from Employer dated April 15, 2011, showing he was paid for 22.53 hours at $9 per hour for a total of $202.77. The Board found that because they were not entered at the Referee's hearing, it would not consider those records in making its decision and affirmed the Referee. This appeal by Claimant followed.
Our scope of review of the Board's decision is limited to determining whether an error of law was committed, constitutional rights were violated or findings of fact were supported by substantial evidence. Frazier v. Unemployment Compensation Board of Review, 833 A.2d 1181 (Pa. Cmwlth. 2003). --------
Claimant contends that the Board erred in finding that he voluntarily terminated his employment, and Employer submitted falsified information regarding his resignation. Relying on the Amtrak stub, earnings record and earnings statement he submitted to the Board, he claims that he returned to Philadelphia from his grandmother's funeral in South Carolina on March 29, 2011, and went back to work on March 30, 2011, only to be terminated on April 5, 2011.
However, even if those records supported his version of events, we may not consider evidence that is not part of the certified record on appeal. Laush v. Unemployment Compensation Board of Review, 679 A.2d 1385 (Pa. Cmwlth. 1996). Moreover, while Claimant testified that he returned to work on March 28, 2011, and on March 29, 2011, and that he was terminated from his employment for unsatisfactory performance, the Board did not find him credible. The Board found Employer's witness' testimony credible that Claimant did not return to work after attending his grandmother's funeral but for one day, and then he only came to pick up his paycheck more than two weeks later, even though continuing work was available. The Board also believed Rylander when she testified that Claimant gave her a resignation letter and rejected Claimant's testimony that he was terminated from employment due to his job performance.
Because the Board is the ultimate factfinder and determiner of credibility in unemployment compensation cases, McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266 (Pa. Cmwlth. 2003), we will not disturb those determinations on appeal. Consequently, because Claimant failed to prove he had been terminated and then failed to prove that he had a necessitous and compelling reason to voluntarily terminate his employment, the Board did not err in its determination.
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 27th day of March, 2012, the order of the Unemployment Compensation Board of Review, dated August 16, 2011, at No. B-521681, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Willful misconduct has been defined as (1) the wanton and willful disregard of the employer's interests; (2) the deliberate violation of rules; (3) the disregard of standards of behavior which an employer can rightfully expect from his employee; or (4) negligence which manifests culpability, wrongful intent, evil design or intentional and substantial disregard for the employer's interests or the employee's duties and obligations. Sheetz, Inc. v. Unemployment Compensation Board of Review, 578 A.2d 621 (Pa. Cmwlth. 1990).