Opinion
No. 1672 C.D. 2012
06-06-2013
Joseph S. Campisi Jr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Joseph S. Campisi, Jr. (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying unemployment compensation benefits. The Board affirmed the decision of the Referee that Claimant was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) because his repeated violation of Employer's operations policy constituted willful misconduct. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant part, that "[a]n employe 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 as a toll collector for the Pennsylvania Turnpike Commission (Employer) from June 26, 1995, until he was discharged on February 16, 2011. Claimant was subsequently reinstated on March 14, 2011. As a condition of his reinstatement, Claimant signed a last chance agreement, which he understood to be a final warning that any future violations of Employer's policies could result in termination of his employment. Reproduced Record at 56a-57a (R.R. ___).
On March 13, 2012, Claimant was discharged for failing to comply with Employer's auditing procedures. Claimant applied for unemployment compensation benefits, which were granted by the Duquesne UC Service Center. Employer appealed and a hearing before a Referee was held on May 16, 2012.
Pat Caro, Employer's manager of labor relations, acted as Employer's spokesperson and testified that Claimant had been terminated for violating Fare Collection Bulletin 6.4, which details operations procedures. Caro then submitted a copy of Fare Collection Bulletin 6.4 into evidence.
Ronald Duckett, a district manager, was present and ready to testify on behalf of the employer, but the Referee determined that his testimony was unnecessary.
Vicki Isabella, the manager of Employer's Mid-County Interchange and Claimant's supervisor, also testified on Employer's behalf. Isabella testified that Fare Collection Bulletins are kept in a binder at the interchange that is accessible by all employees. Fare Collection Bulletin 6.4 requires that toll collectors "sign in" on two forms: the payroll form and the money sheet. R.R. 18a. At the end of his shift, a toll collector must indicate on the money sheet his name, shift, key number, money bag number, and the total amount of money he collected. On January 6, 2012, Isabella posted a flyer on the bulletin board reminding all toll collectors that they must comply with the money sheet procedures. Claimant was responsible for complying with money sheet procedures and had demonstrated an ability to do so by complying with them on a majority of his shifts.
The flyer stated:
Cash Deposit Sheet must be filled out completely by the collector.R.R. 61a.
* Name, shift, Key #, Money bag #, Witness & Deposit
For those collector's who do not want to fill out the deposit sheet properly, disciplinary action will be issued.
Isabella testified that on eight occasions between March 2011 and March 2012, Claimant failed to complete his money sheets. On each occasion Isabella met with Claimant and reminded him of his responsibilities. Two of Claimant's violations occurred after Isabella posted the flyer. Claimant's final violation occurred on February 9, 2012; he was discharged on March 13, 2012. On cross-examination, Isabella admitted that other toll collectors had violated the policy and that Claimant was the only one terminated for his violations. However, she explained that Claimant had violated the policy more times than any other employee; his reinstatement in 2011 had been conditioned on him not violating any of Employer's policies.
Claimant appeared, pro se, and testified on his own behalf. Claimant testified he was the only person to have been fired for failing to properly fill out the money sheet, which he excused as a mere "administrative oversight." R.R. 32a. Claimant admitted that he had made this mistake on eight different occasions, but contended that he was never provided with proof of these infractions and that Isabella only talked to him about failing to sign in on one or two occasions. Claimant asserted that he never saw the posted flyer because the bulletin board is small relative to the size of the room in which it is located.
The Referee found that Claimant violated Employer's policy requiring completion of the money sheets and lacked good cause for doing so. Accordingly, the Referee held that Claimant was ineligible for benefits under Section 402(e) of the Law. The Board affirmed on the basis of the Referee's factual findings and legal conclusions. In doing so, the Board credited "[E]mployer's testimony that not only was the policy regarding money sheets displayed prominently, [C]laimant was counseled each of the eight (8) times he failed to adhere thereto." Board Opinion at 1. Claimant now petitions for this Court's review.
On appeal, Claimant argues that the Board erred in finding that Employer met its burden of proving that Claimant's conduct constituted willful misconduct. Claimant argues, in the alternative, that even if Employer met its burden, Claimant was treated disparately from similarly situated toll collectors.
Our scope of review is limited to determining whether the Board's adjudication is in violation of constitutional rights, errors of law were committed, or whether findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987).
In his brief, Claimant argues that his discharge was too remote in time from his last infraction, which occurred more than a month earlier. Claimant's Brief at 12. Claimant did not raise this argument in his petition for review or before the Referee. As such, it is waived. Oliver v. Unemployment Compensation Board of Review, 29 A.3d 95, 98 (Pa. Cmwlth. 2011). In any event, Claimant would not prevail on this issue because he was suspended as soon as the final infraction was discovered and discharged following Employer's administrative review. --------
We consider, first, Claimant's argument that Employer failed to present sufficient evidence to prove willful misconduct. Although not defined in the Law, the courts have established that "willful misconduct" means the following:
(1) an act of wanton or willful disregard of the employer's interest;
(2) a deliberate violation of the employer's rules;Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1996). Whether conduct rises to the level of willful misconduct is a question of law to be determined by this Court. PMA Reinsurance Corp. v. Unemployment Compensation Board of Review, 558 A.2d 623, 625 (Pa. Cmwlth. 1989). It is the employer's burden to establish that a claimant's conduct constituted willful misconduct. Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286, 1288 (Pa. Cmwlth. 2003).
(3) a disregard of standards of behavior which the employer has a right to expect of an employee; [or]
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.
Where willful misconduct is based upon the violation of a work rule, the employer must establish the existence of the rule, its reasonableness, and that the employee was aware of the rule. Bishop Carroll High School v. Unemployment Compensation Board of Review, 557 A.2d 1141, 1143 (Pa. Cmwlth. 1989). Stated another way, "the employer must show the existence of the rule and its knowing violation." BK Foods, Inc. v. Unemployment Compensation Board of Review, 547 A.2d 873, 875 (Pa. Cmwlth. 1988) (emphasis in original). Once employer meets its burden, the burden then shifts to the claimant to prove that the rule was unreasonable or that he had good cause for violating the rule. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 600, 633 A.2d 1150, 1155 (1993).
Here, Employer met its burden of proof. Employer established the existence of a rule requiring toll collectors to complete their money sheets at the end of each shift. Claimant was aware of this rule because he had completed his money sheets on numerous other occasions. Employer had also posted a flyer reminding employees of the policy. Further, Claimant's supervisor reminded him to fill out the money sheets on every occasion where he failed to do so. The rule was reasonable and necessary because it enabled Employer to keep track of the tolls collected at the interchange. On February 9, 2012, Claimant violated Employer's rule for the eighth time. His only explanation for this violation was that he forgot and that he was not aware of the rule. The Board rejected Claimant's explanation as not credible; therefore, he failed to establish good cause for violating Employer's rule.
We consider, next, Claimant's argument that he was the victim of disparate treatment because he is the only toll collector who was discharged for violating the money sheet policy. To establish the affirmative defense of disparate treatment a claimant must show that: (1) the employer discharged claimant, but did not discharge other employees who engaged in similar conduct; (2) the claimant was similarly situated to the other employees who were not discharged; and (3) the employer discharged the claimant based upon an improper criterion. Geisinger Health Plan v. Unemployment Compensation Board of Review, 964 A.2d 970, 974 (Pa. Cmwlth. 2009). Disparate treatment is not established by the mere fact that one employee was discharged for willful misconduct and others were not discharged for the same conduct. Id. at 975.
Here, even though Claimant was the only employee discharged for failing to fill out his money sheets, he did not establish that other employees who committed the same violation were similarly situated. Employer's witnesses testified that other toll collectors who violated the policy did so once or twice, whereas Claimant failed to complete his money sheet eight times. Further, Claimant had been reinstated on March 14, 2011, pursuant to a last chance agreement in which he agreed that further violations of Employer's rules or policies could result in his discharge. Claimant offered no evidence that other employees were working pursuant to a last chance agreement or had been similarly warned. Therefore, Claimant failed to establish the defense of disparate treatment.
For the above stated reasons, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 6th day of June, 2013, the order of the Unemployment Compensation Board of Review dated August 2, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge