Opinion
No. 1681 C.D. 2012
03-26-2013
Scott F. Caldwell, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Scott F. Caldwell (Claimant) petitions this Court for review of the order of the Unemployment Compensation Board of Review (Board), which affirmed the Referee's determination that he is ineligible to receive unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, § 402(e), as amended, 43 P.S. § 802(e). Section 402(e) provides that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work . . . ." 43 P.S. § 802(e).
Claimant was employed by Dollar General Corporation (Employer) as a Store Manager from 2005 through April 13, 2012. (Record Item (R. Item) 10, Referee's Decision and Order, Findings of Fact (F.F.) ¶1; R. Item 9, Hearing Transcript (H.T.) at 3, 10; R. Item 2, Claimant Statement at 1.) On April 13, 2012, after a lengthy interrogation by a representative of Employer's loss prevention department, Claimant admitted to having repeatedly taken merchandise from Employer without paying for it. (R. Item 10, F.F. ¶2; R. Item 9, H.T. at 4-9, 11-14; R. Item 2, Claimant Statement.) Claimant handwrote and signed a statement admitting that over the six years that he worked for Employer he had taken merchandise, including "beverages for immediate consumption, damaged items, apparel, personal hygiene items, medicinal items, and seasonal merchandise." (R. Item 10, F.F. ¶¶2-3; R. Item 9, H.T. at 3-5, 8, 14; R. Item 2, Claimant Statement.) Claimant's Statement estimated that he had failed to pay for a total of approximately $2,760 of merchandise, taken repeatedly in small amounts over several years, and that he also took approximately $10 a week in cash from Employer for a shorter period, totaling $690. (R. Item 2, Claimant Statement at 1.) Claimant also signed a "Promissory Agreement," agreeing to pay back $3,463.70 to Employer. (R. Item 10, F.F. ¶3; R. Item 9, H.T. at 3, 5, 8, 14; R. Item 2, Promissory Agreement.) Employer discharged Claimant for theft. (R. Item 10, F.F. ¶4; R. Item 9, H.T. at 3.)
Claimant filed for unemployment benefits and the Unemployment Compensation Service Center found Claimant ineligible because he had been discharged for willful misconduct. (R. Item 5, Service Center Notice of Determination.) Claimant appealed, and the Referee conducted a hearing at which Claimant and Employer's District Manager testified and Claimant's Statement and Promissory Agreement were introduced in evidence.
At the hearing, Claimant did not dispute that he wrote and signed the Statement and that he signed the Promissory Agreement. (R. Item 9, H.T. at 11-14.) Claimant testified that the Statement was the product of a three and one-half hour interrogation, and that he "was under duress." (R. Item 9, H.T. at 11-12, 14.) Claimant testified that "I don't want to say I was forced, but it [the Statement] was not of my own freewill." (R. Item 9, H.T. at 11-12.) Claimant disputed the accuracy of the dollar amounts in the Statement and Promissory Agreement and the characterization of his conduct as theft, but did not deny that he had taken some merchandise, particularly items removed from inventory, without paying, and admitted that he knew that was not acceptable conduct. (R. Item 9, H.T. at 11-14.) Claimant contended that he signed the Statement and Promissory Agreement because he was afraid that he would be publicly accused of theft and prosecuted if he refused. (R. Item 9, H.T. at 14; R. Item 3, Internet Initial Claims at 4.)
Employer's District Manager, who was present during the interrogation, testified that the loss prevention representative questioned Claimant repeatedly and at length and that Claimant "admitted to taking whatever it was at that point, medicines, seasonal apparel." (R. Item 9, H.T. at 4, 7.) Employer's District Manager admitted that the loss prevention representative discouraged Claimant from leaving the room to go to the bathroom before he wrote the Statement, but testified that Claimant was not prevented from getting up and walking out if he chose to do so. (R. Item 9, H.T. at 7.)
On June 5, 2012, the Referee issued a decision affirming the Service Center's determination. The Referee found that both Claimant's Statement and his testimony showed that Claimant knowingly took merchandise without paying and knew that this was not approved by Employer. (R. Item 10, Referee's Decision and Order at 2.) The Referee, accordingly, held that Claimant was ineligible for benefits because he had committed willful misconduct. (R. Item 10, Referee's Decision and Order at 2.) Claimant appealed the Referee's decision to the Board.
The Board, on August 1, 2012, affirmed the Referee's decision denying benefits. (R. Item 12, Board Decision and Order.) The Board adopted the Referee's findings and conclusions and made the additional finding that "[b]ased upon the totality of evidence and testimony presented, the Board does not credit the claimant's testimony that his admissions of theft were coerced or made against his will." (R. Item 12, Board Decision and Order.) Claimant timely filed a petition for review appealing the Board's order to this Court.
Our scope of review of the Board's decision is limited to determining whether errors of law were committed, constitutional rights or agency procedures were violated, and necessary findings of fact were supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 182 n.1, 772 A.2d 416, 418 n.1 (2001). --------
In unemployment compensation cases the burden of proving willful misconduct is on the employer. Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008); Lindsay v. Unemployment Compensation Board of Review, 789 A.2d 385, 389 (Pa. Cmwlth. 2001). Willful misconduct is conduct by the employee that evidences wanton or willful disregard of the employer's interests, deliberate violation of the employer's rules, disregard of standards of behavior that an employer can rightfully expect from an employee, or negligence that indicates an intentional disregard for the employer's interests or the employee's duties or obligations. Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 182, 772 A.2d 416, 418 (2001); Bell Beverage v. Unemployment Compensation Board of Review, 49 A.3d 49, 55-56 (Pa. Cmwlth. 2012); Walsh, 943 A.2d at 369. Whether a claimant's actions constitute willful misconduct is a question of law. Temple University, 565 Pa. at 182 n.1, 772 A.2d at 418 n.1; Bell Beverage, 49 A.3d at 56; Walsh, 943 A.2d at 368.
It is well settled that theft constitutes willful misconduct that disqualifies the employee from receiving benefits. Temple University, 565 Pa. at 182, 772 A.2d at 418; Bell Beverage, 49 A.3d at 56; Gibson v. Unemployment Compensation Board of Review, 760 A.2d 492, 495 (Pa. Cmwlth. 2000); Unemployment Compensation Board of Review v. Houp, 340 A.2d 588, 590 (Pa. Cmwlth. 1975). "An employee's theft from an employer is willful misconduct. An act of theft disregards the employer's interests and the standards of behavior that the employer has a right to expect of an employee." Bell Beverage, 49 A.3d at 56 (quoting On Line, Inc. v. Unemployment Compensation Board of Review, 941 A.2d 786 (Pa. Cmwlth. 2008)). Even a single instance of theft is sufficient to constitute willful misconduct. Gibson, 760 A.2d at 495; Davis v. Unemployment Compensation Board of Review, 426 A.2d 753, 755 (Pa. Cmwlth. 1981). The employer need not show that the theft was above a particular dollar threshold; the taking of items of minor value constitutes willful misconduct where the employee knows that it is not permitted by the employer. Gibson, 760 A.2d at 495; Wright v. Unemployment Compensation Board of Review, 465 A.2d 1075, 1076-77 (Pa. Cmwlth. 1983) (taking of trash bags and toilet paper without employer permission constituted willful misconduct, even though these items "by their nature are not of great value").
Claimant argues that the finding that he committed willful misconduct was not supported by substantial evidence. (Petitioner's Brief at 9-11.) This contention is without merit. Claimant admitted in his handwritten, signed Statement that he "neglected to purchase" merchandise that "included beverages for immediate consumption, damaged items, apparel, personal hygiene items, medicinal items, and seasonal merchandise," and that "[m]y reasons for this were for need basis, because of the long hours and inordinate amount of stress and workload that I have been subjected to" and because he felt that he was not being adequately compensated for his work. (R. Item 2, Claimant Statement at 1.) In his Statement, Claimant also admitted that he took small amounts of cash to avoid scrutiny for cash variances. (R. Item 2, Claimant Statement at 1-2.) In addition, Employer's District Manager testified that Claimant orally admitted in the interrogation that he took multiple items of merchandise without paying. (R. Item 9, H.T. at 7.) Claimant's admissions in his Statement and the oral admissions testified to by Employer's representative are competent evidence sufficient to support a finding of willful misconduct. Wright, 465 A.2d at 1076; Davis, 426 A.2d at 754-55; Houp, 340 A.2d at 591-92.
Claimant argues his Statement and oral admissions cannot establish willful misconduct because they were made under "coercion and duress." (Petitioner's Brief at 11-13.) This argument likewise fails. Claimant did not show coercion or duress that affected the credibility of his admissions. The mere fact that a statement admitting theft is made in an interrogation by an investigator for the employer does not make it involuntary or coerced. Davis, 426 A.2d at 754-55 (affirming Board decision that statement and judgment note were not coerced even though they were written and signed in questioning by employer's security department); Houp, 340 A.2d at 591 (claimant's written confession of theft obtained by employer's investigator was voluntary and knowing even "[t]hough we do not condone some of the tactics of the investigator").
Moreover, the Board found that Claimant's claim of coercion was not credible. (R. Item 12, Board Decision and Order.) The Board is the ultimate finder of fact and arbiter of witness credibility, and where its findings and credibility determinations are supported by substantial evidence, they are conclusive. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671-72 (Pa. Cmwlth. 2010); Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). The Board's finding concerning Claimant's admissions is amply supported by the evidence. Claimant admitted that he could not say he was forced to write and sign the Statement. (R. Item 9, H.T. at 11-12.) Employer's District Manager testified that Claimant was not prevented from leaving if he had chosen to do so. (R. Item 9, H.T. at 7.) In addition, the Statement is written in Claimant's own language, repeatedly expressing his personal feelings toward Employer's compensation and treatment of him, and was corroborated by Claimant's testimony at the Referee's hearing admitting that he took merchandise without paying for it and knew that that conduct was against Employer's policies. (R. Item 2, Claimant Statement; R. Item 9, H.T. at 12-13.)
Indeed, the only factual aspect of the Statement that Claimant's testimony suggested was dictated by the interrogator was the estimate of the total quantity and dollar value of the merchandise that Claimant took without paying. (R. Item 9, H.T. at 12.) The total amount taken by Claimant and the dollar value of that merchandise, however, is immaterial to the Board's determination that Claimant committed willful misconduct. Employer was not required to prove that a particular quantity of merchandise was taken or any dollar value to establish willful misconduct and the Board made no finding as to the total amount or dollar value of what Claimant took.
For the foregoing reasons, we affirm the order of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 26th day of March, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge