Opinion
No. 1824 C.D. 2013
04-30-2014
Harvey Calderon, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Harvey Calderon (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed an Unemployment Compensation Referee's (Referee) decision denying Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), based on willful misconduct. For the reasons set forth below, we affirm the Board's order.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant filed for unemployment compensation benefits after being discharged from his employment as a fire alarm technician with Total Fire Safety LLC (Employer) on August 7, 2012. The Allentown UC Service Center (Service Center) issued a determination denying benefits to Claimant based on willful misconduct. (Certified Record (C.R.), Item No. 4.) The Service Center also determined that Claimant was at fault for an overpayment of benefits in the amount of $6,960, because he failed to report that he had been discharged from his employment. (Id.) Claimant appealed the Service Center's determination, and a Referee conducted an evidentiary hearing. Following the hearing, the Referee affirmed the Service Center's decision, concluding that Employer met its burden to prove that Claimant was discharged for willful misconduct as a result of excessive absenteeism. The Referee also affirmed the determination regarding the fault overpayment of benefits. Claimant appealed to the Board.
The Board affirmed the Referee's decision. In so doing, the Board made the following findings of fact:
1. The claimant was last employed full time as a fire alarm technician by Total Fire Safety from June 18, 2012 until as [sic] last day of work August 7, 2012, with a final rate of pay of $20.00 per hour.
2. The employer requires all employees to report any absence from work with a telephone call. Text messages and/or e-mails are not an acceptable way to report off from work.
3. The claimant signed the employer's policies.
4. The claimant was absent on July 3, 2012, July 20, 2012, July 23, 2012, and August 3, 2012.
5. The claimant was ill on July 23, 2012, but did not report off to the employer on that date.
6. The claimant did not provide a reason for the other absences.
7. On August 7, 2012, the employer discharged the claimant for excessive absences.(C.R., Item No. 11 at 1-2.)
8. The claimant did not report the separation from employment while filing for unemployment compensation benefits.
9. The claimant filed for and received unemployment compensation benefits totaling $6,960.00 for compensable weeks ending August 11, 2012 through November 10, 2012.
The Board, in concluding that Claimant was discharged for willful misconduct, reasoned:
The claimant was excessively absent within the approximately six weeks that he worked for the employer. The claimant only provided a reason for one of his absences. However, he did not have good cause for his failure to report off on that date. The claimant did not have good cause for his pattern of absenteeism, particularly as a new employee.(Id. at 2.)
Claimant now petitions this Court for review. On appeal to this Court, Claimant makes the following arguments: (1) the Board erred in determining that Employer discharged Claimant for willful misconduct where Employer failed to follow its own policy for progressive discipline; and (2) substantial evidence of record does not exist to support the Board's finding that Claimant did not report the separation from employment while filing for unemployment compensation benefits.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. --------
First, we will address Claimant's argument that the Board erred in determining that Employer discharged Claimant for willful misconduct where Employer failed to follow its own policy for progressive discipline. Claimant argues that Employer had a progressive discipline policy which required Employer to provide its employees with written warnings before termination. (Pet'r Br. at 9-10.) Claimant was absent four times and did not receive any written warnings. (Id. at 10.) Thus, Claimant argues that he is entitled to benefits because Employer did not follow its policy. (Id.)
Claimant did not raise this issue at the hearing before the Referee. It is well settled that issues must be raised at the earliest possible opportunity. Wing v. Unemployment Comp. Bd. of Review, 496 Pa. 113, 117, 436 A.2d 179, 181 (1981). A claimant's failure to raise an issue before the Referee results in waiver of the issue. Dehus v. Unemployment Comp. Bd. of Review, 545 A.2d 434, 436 (Pa. Cmwlth. 1988). This Court is precluded from reviewing any issue not raised before the governmental agency. See Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. § 703(a); Pa. R.A.P. 1551(a); Wing, 496 Pa. at 116-17, 436 A.2d at 180. Thus, by failing to raise the issue at the hearing before the Referee, Claimant has waived any claim regarding the issue of Employer's failure to follow its progressive discipline policy.
Next, we will address Claimant's argument that substantial evidence of record does not exist to support the Board's finding that "[t]he claimant did not report the separation from employment while filing for unemployment compensation benefits." (C.R., Item No. 11 at 2.) Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984). "The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
Claimant argues that substantial evidence of record does not exist to support the finding that "[t]he claimant did not report the separation from employment while filing for unemployment compensation benefits." (C.R., Item No. 11 at 2.) Claimant contends that he "testified with certainty that he reported his termination at the time he applied for benefits." (Pet'r Br. at 11.) He argues that this testimony was uncontested at the hearing, thus, substantial evidence does not exist to support the Board's finding. (Id.)
Our review of the record reveals that there is substantial evidence to support the Board's finding. The claim record shows that Claimant did not disclose that he was discharged until May 7, 2013. (C.R., Item No. 1.) At that point, he had already received unemployment compensation benefits for the weeks ending August 11, 2012 through November 10, 2012. (C.R., Item No. 4.) Although Claimant testified that he immediately informed the Service Center that he was discharged, the Board was not required to credit his testimony. The Board has sole discretion to make credibility determinations and resolve evidentiary conflicts, and these determinations are not subject to judicial review. Bell v. Unemployment Comp. Bd. of Review, 921 A.2d 23, 26 n.4 (Pa. Cmwlth. 2012). Because the claim record indicates that Claimant did not disclose that he was discharged until after he had already filed for unemployment compensation benefits, there is substantial evidence of record to support the Board's finding.
Accordingly, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 30th day of April, 2014, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge