Opinion
No. 1981 C.D. 2011
06-06-2012
Richard F. Bryan, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Richard F. Bryan (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) that denied his claim for benefits under Section 402(e) of the Unemployment Compensation Law (Law) (willful misconduct). Claimant contends the Board erred in adopting the referee's findings that relied on objected-to hearsay. Furthermore, Claimant argues the referee did not provide him with a fair hearing. Upon review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
For several years, Claimant worked full-time for Littman Jewelers (Employer) as an assistant manager. During that time, Employer maintained a rule prohibiting employees from unilaterally altering their times in the computerized timesheet log from what the time clock recorded when they punched in. If an employee had a valid reason to change his time in the log, Employer allowed the employee to do so by following a set procedure. Specifically, the policy required employees to ask an authorized employee, such as a member of management, to make the change in the log, generate a printout of the altered timesheet, and have the requesting employee sign the printout to verify the change.
In 2011, Employer's store manager, Amy Scharmer, (Employer's Manager) received information that Claimant routinely arrived late for work and took excessively long breaks. Employer's Manager investigated these accusations by watching the store's video surveillance footage and reviewing the timesheet log. Thereafter, Employer's Manager discovered Claimant habitually arrived late for work and took long breaks, and altered his punch-in times to reflect otherwise. Moreover, Employer's Manager concluded Claimant made these changes without following the proper procedure. As a result, Employer terminated Claimant's employment. Thereafter, Claimant applied for unemployment benefits, which were initially denied. Claimant appealed, and a hearing ensued.
Before the referee, Employer presented Employer's Manager's testimony, and Claimant testified on his own behalf. Specifically, Employer's Manager testified that her audit of the timesheet logs and review of the security videotape revealed Claimant improperly altered his punch-in times. Employer's Manager explained that the video allowed her to see when Claimant actually clocked in, and the timesheet logs revealed if Claimant later changed his punch-in time in the computerized log.
Claimant objected to Employer's Manager's testimony regarding what she observed on the videotape, but the referee overruled his objection. Additionally, after cross-examining Employer's Manager, Claimant requested a continuance to review the logs Employer's Manager used in her audit. The referee also denied this request.
Subsequently, Claimant admitted he altered his punch-in times without following Employer's policy. However, he claimed Employer gave him permission to do so. Specifically, Claimant explained that he altered his times to reflect the time he worked after-hours dropping off Employer's nightly bank deposits. Claimant testified Employer's Manager asked him to make the deposits and told him he would be compensated for his time.
Employer's Manager agreed Claimant dropped off bank deposits after hours and that he was entitled to compensation for doing so, but she also testified Claimant was not authorized to change his punch-in times for himself. Additionally, Employer's Manager testified she reviewed the bank deposit log and identified several changed punch-in times that were not related to a bank deposit.
Thereafter, the referee determined Claimant committed willful misconduct by altering his punch-in times in violation of Employer's policy. In reaching his decision, the referee found Employer's Manager's testimony more credible than Claimant's testimony where they conflicted. Furthermore, the referee concluded Claimant failed to credibly justify his actions or establish Employer's policy was unreasonable. Thus, the Board affirmed the referee's denial of benefits. Claimant appealed.
On appeal, the Board adopted the referee's findings and affirmed. Specifically, the Board determined Employer's Manager's testimony was credible with regard to what she observed on the security videotape. Furthermore, the Board acknowledged Claimant conceded he changed his punch-in times without authorization on several occasions. As to Claimant's alleged good cause, that he was allowed to correct his time to reflect the time he spent making bank deposits, the Board deemed his testimony was not credible. Moreover, the Board determined Claimant had a fair opportunity to examine the documents presented against him.
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. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
Claimant argues the Board erred in determining Employer established he committed willful misconduct as its adopted findings rely solely on objected-to hearsay evidence. Furthermore, Claimant contends the referee deprived him of a fair hearing by denying him a continuance to examine the documents Employer submitted as exhibits.
On the day Claimant's reply brief was due to this Court, Claimant filed a motion requesting a two-day extension to the briefing schedule, with which the Board concurred. Thereafter, Claimant submitted his reply brief within the requested two-day period. Upon consideration, we grant Claimant's motion and accept his reply brief.
Before the referee, Claimant objected to Employer's Manager testifying to what she observed when viewing a security videotape. Specifically, before the referee, Claimant's attorney interjected:
I'm going to object at this point. We're talking about evidence that's not before the Referee, or it's not introduced here. It's the best evidence rule and due process requires that we would have the opportunity to look at the same evidence that you are referring to.Notes of Testimony (N.T.), 6/6/11, at 8.
Here, Claimant abandons his argument that the videotape must be produced under the best evidence rule, Pa.R.E. 1002; rather, he contends Employer's Manager's testimony contained hearsay. However, Claimant's objection, whether on hearsay grounds or under the best evidence rule, lacks merit. Specifically, Employer's Manager's testimony does not contain hearsay; she merely described Claimant's nonassertive conduct that she observed on a videotape. Pa. R.E. 801(a)(2); Davis v. Civil Serv. Comm'n of Phila., 820 A.2d 874 (Pa. Cmwlth. 2003) (describing conduct observed on a videotape does not constitute hearsay). Additionally, because agencies are not bound by the technical rules of evidence, and the best evidence rule is a technical rule, the best evidence rule is generally not applicable at a referee's hearing. 2 Pa. C.S. §505; see DiLucente Corp. v. Pa. Prevailing Wage Appeals Bd., 692 A.2d 295 (Pa. Cmwlth. 1997).
In Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976), the Court observed in pertinent part:
(1) [h]earsay evidence, properly objected to, is not competent evidence to support a finding of the Board ... [while] (2) hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board, if it is corroborated by any competent evidence in the record, but a finding of face based solely on hearsay will not stand.
Furthermore, Employer's Manager testified to the contents of the videotape for the limited purpose of quantifying the amount of altered time at issue, as the timesheet log sufficiently established Claimant manipulated the log without following the proper policy. Therefore, such testimony does not require the admission of the underlying videotape. See Dep't of Envtl. Res. v. Hamilton Contracting Co., 665 A.2d 849 (Pa. Cmwlth. 1995) (the best evidence rule is not applicable to documents related to collateral and undisputed issues); see also Commonwealth v. Dent, 837 A.2d 571 (Pa. Super. 2003) (videotape's admission not required where its contents are described to summarize an investigation rather than prove an element of the charge). Thus, even if the best evidence rule applied here, the videotape would not fall subject to its restrictions in this case.
Next, we address whether the referee erred in denying Claimant a continuance to review Employer's exhibits, which included three five-page logs. A referee is authorized to grant a party a continuance for proper cause pursuant to 34 Pa. Code §101.23. We may not overturn a referee's decision to grant or deny a continuance absent a clear abuse of discretion. Skowronek v. Unemployment Comp. Bd. of Review, 921 A.2d 555 (Pa. Cmwlth. 2007).
Here, in an unemployment compensation case hinging on whether Claimant falsified timesheets, Claimant was aware, or should have been aware, that such logs contained information necessary for the proper determination of the issues. Therefore, Claimant should have sought a subpoena compelling the production of these documents. See 34 Pa. Code §101.31 (authorizing subpoenas). Clearly, had he availed himself to the appropriate procedure, Claimant would have had ample time to review Employer's logs prior to the hearing. See N.T. at 28; see also Liebel v. Unemployment Comp. Bd. of Review, 558 A.2d 579 (Pa. Cmwlth. 1989) (due process is not violated where the party requesting a continuance does not follow the available procedure).
Furthermore, Claimant's attorney ably cross-examined Employer's Manager regarding the exhibits before objecting or requesting a continuance. See N.T. at 22-28. Additionally, Claimant admitted he altered his punch-in times and conceded the changes did not always directly correlate to nightly bank deposits. N.T. at 33-34. Moreover, not only did Claimant not dispute the contents of the logs at the hearing, but he does not explain how he suffered prejudice as a result of the denial of the continuance. Thus, we discern no abuse of discretion in the referee declining to grant Claimant a last minute continuance. See Skowronek (this Court does not view last-minute requests for continuances favorably); Martin v. Unemployment Comp. Bd. of Review, 393 A.2d 514 (Pa. Cmwlth. 1978).
In addition, the Board's findings are supported by substantial evidence, and Claimant's conduct constituted willful misconduct without good cause. Specifically, Employer maintained a work rule prohibiting employees from unilaterally altering the timesheet logs, and requiring changes to be made according to a given procedure. F.F. Nos. 2, 4; N.T. at 12-14, 38. Claimant, an assistant manager, was aware or should have been aware of the policy. F.F. No. 5; N.T. at 13, 34. However, Claimant unilaterally changed his punch-in times in the computer system in violation of Employer's policy. F.F. Nos. 7-12; N.T. at 7-10.
Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge ... from work for willful misconduct connected with his work ...." 43 P.S. §802(e). "Our Supreme Court defines willful misconduct as behavior that evidences a willful disregard of the employer's interest, a deliberate violation of the employer's work rules, or a disregard of standards of behavior that the employer can rightfully expect from its employees." Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 341 (Pa. Cmwlth. 2008) (citing Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997)). If the employer proves the existence and violation of a known work rule, the burden shifts to the claimant to show either the rule was unreasonable, or he had good cause to violate it. Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205 (Pa. Cmwlth. 2006). This Court defines "good cause" as justifiable or reasonable action taken under the circumstances confronting an employee. Id. --------
Moreover, Claimant did not prove he had good cause to violate Employer's work rule. Specifically, the Board rejected Claimant's assertion that Employer granted him permission to change his own punch-in times because he made after-hours bank deposits for Employer. Bd. Op., 9/3/11 at 1; see McCarthy v. Unemployment Comp. Bd. of Review, 829 A.2d 1266 (Pa. Cmwlth. 2003) (the Board is free to accept or reject a witness's testimony in part or in whole). Thus, Claimant's argument lacks merit.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 6th day June, 2012, the order of the Unemployment Compensation Board of Review is AFFIRMED.
Additionally, Petitioner's unopposed Motion for Enlargement of Time is GRANTED.
/s/_________
ROBERT SIMPSON, Judge
Id. at 370 (citations omitted) (emphasis in original); Myers v. Unemployment Comp. Bd. of Review, 533 Pa. 373, 625 A.2d 622 (1993).