Opinion
No. 1078 C.D. 2013
03-13-2014
Joshua J. Collins, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Joshua J. Collins (Claimant) petitions pro se for review of the May 6, 2013 order of the Unemployment Compensation Board of Review (Board), which reversed a referee's determination and held that Claimant is ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any week in 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). The burden of proving willful misconduct rests with the employer. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999).
Claimant worked as a full-time truck driver for Steve Twigg Trucking (Employer) from December 8, 2011, until December 6, 2012, when he was discharged for excessive tardiness. Employer has a written attendance policy, which states: "[Employer] expects that every employee will be regular and punctual in attendance. This means being in the office, ready to work, at their starting time each day. Absenteeism and tardiness places a burden on other employees and on [Employer]." (Findings of Fact Nos. 1-2; Record Item 2, #7.) Employer's standard of conduct policy provides that excessive absenteeism "may result in disciplinary action, including termination of employment." (Finding of Fact No. 4; Record Item 2, #7.)
On October 3, 2012, Claimant was required to be at work at 5:00 a.m., but he overslept and did not report to work until 5:30 a.m. (Finding of Fact No. 5.) On that same date, Employer provided Claimant with a written warning, which stated: "This is to inform you that you are on warning that you have been late showing up for work and our customers expect us to be at the job at a specific time. This issue needs to be resolved immediately. If you feel that this is not accommodating to you, you may want to seek employment elsewhere." (Record Item 2, #8.)
On October 10, 2012, Claimant was required to be at work at 6:00 a.m., but he reported at 6:20 a.m., without notifying Employer that he would be late or providing a reason for his tardiness. On December 7, 2012, Claimant was required to report to work at 7:00 a.m., but he reported at 7:20 a.m., without notifying Employer that he would be late or providing a reason for his tardiness. On December 7, 2012, Employer terminated Claimant. (Findings of Fact Nos. 6-8.)
Claimant applied for unemployment compensation. On December 9, 2012, the local service center determined that Claimant was ineligible for benefits under section 402(e) of the Law because Employer warned him about his tardiness and Claimant did not demonstrate good cause for his tardiness. Claimant appealed, and the referee held a hearing which Claimant attended and Employer participated by telephone.
Stephen Twigg, Employer's president, testified that Employer has an attendance policy which requires employees to show up for work on time and that Claimant was provided with a copy of this policy. (Notes of Testimony (N.T.) at 15-16.) Twigg stated that Claimant had a history of being late and that he provided Claimant with verbal warnings about being late. (N.T. at 11-12.) Twigg said that he and other employees began calling Claimant in the morning on his cell phone to ensure that he was awake and would arrive at work on time, and that by October 2012, Claimant's tardiness was becoming "quite an issue." (N.T. at 16-17.) Twigg further stated that after he issued Claimant verbal warnings, Claimant arrived at work approximately twenty minutes late on October 3, October 10, and December 7, 2012, and that Claimant did not provide advance notice or a legitimate explanation for any of these instances of tardiness. (N.T. at 11-12, 15.) Twigg said that he again gave Claimant verbal warnings for his tardiness on October 3 and October 10, 2012, and that he decided to terminate Claimant's employment on December 7, 2012. (N.T. at 12-13, 15.)
Connie May, an administrative assistant for Employer, testified that Twigg and other employees would call Claimant in the morning to make sure that he was awake and would attend work. (N.T. at 19.) May also stated that she recalled "a couple of occasions" where Twigg provided Claimant with verbal warnings about being late and that beginning in October 2012, Twigg became increasingly upset with Claimant's tardiness. Id. Raychel Boggs, Employer's secretary, testified that she was present in the office on October 3 and October 10, 2012, and observed that Claimant arrived at work late. (N.T. at 22.) Finally, truck drivers Thomas Koons and Jack Koons testified that they heard Twigg and another employee discuss who was going to call Claimant in the morning and that there were times the drivers had to leave for their assignments without Claimant because Claimant was late for work. (N.T. at 24-25.)
Claimant testified in a brief fashion. He stated that he was usually "the first one on the job" and denied that he received warnings concerning his tardiness. (N.T. at 28.) Claimant said that he did not remember if he was late on October 3, that he arrived early on October 10, and that he was only a few minutes late on December 7, 2012. (N.T. at 28, 31, 33.) Claimant also submitted a paystub for the pay period ending October 5, 2012, to show that he received a 50 cent raise per hour and questioned why Twigg would give him a raise if he was an unproductive employee. (N.T. at 32-33.) The referee asked Twigg why he gave Claimant a raise, and Twigg stated that he did so because Claimant was complaining that a co-worker received a raise and Twigg wanted to "keep [Claimant] quiet." (N.T. at 33.) Claimant further testified that Twigg was impatient and would often get angry at his drivers, and that he thought Twigg fired him because Twigg could not reach him in the early morning on December 7, 2012. (N.T. at 33, 41.)
After receiving evidence, the referee determined that Claimant was not ineligible for benefits under section 402(e) of the Law, finding it unconceivable that Employer would tolerate Claimant's tardiness "for such a lengthy period of time." (Referee's decision at 2.) The referee ultimately found that Employer failed to demonstrate that Claimant's actions rose to the level of willful misconduct. Id. at 3.
Employer appealed, and the Board reversed. In doing so, the Board provided the following assessment of the evidence:
Here, [Employer] had a reasonable attendance policy that required its employees to be diligent and punctual in reporting to work. It further provided that a violation of the attendance policy could lead to disciplinary action including discharge. [Twigg] testified that [Claimant] was aware or should have been aware of the attendance policy because he was provided with a copy of it when he started working for [Employer]. Despite the attendance policy, [Claimant] was often tardy without good cause. In particular, as corroborated by [Employer's] witnesses, on October 3, October 10, and December 7, [2012], [Claimant] was at least twenty (20) minutes late for work without notifying [Employer] of his tardiness and without providing an explanation about it. [Twigg] testified that he warned [Claimant] about his tardiness. One of [Employer's] witnesses, [May,] confirmed that she was present and observed [Claimant] receiving verbal warnings for his tardiness "on a couple of occasions." Nevertheless, [Claimant] continued to report late to work even after the warnings without providing notification or explanation as to why he was late. Another witness for [Employer], [Boggs,] testified that she observed people trying to reach [Claimant] to make sure he would report to work on time. She further credibly corroborated that she personally observed that [Claimant] did not report to work on time on October 3 and October 10. Two additional witnesses for [Employer], [Thomas Koons and Jack Koons,] further testified that [Claimant] was tardy "quite often" and that sometimes other drivers would leave for their assignments without him because they could not wait for him.(Board's decision at 3.)
In turn, [Claimant] denied receiving any warnings about his attendance. He further stated that he did not remember whether he was late on October 3, 2012. He also denied being late on October 10, 2012, and stated that he was only three (3) minutes late on December 7, 2012. Nevertheless, the Board discredits [Claimant's] testimony because he did not provide any corroborating evidence to support his testimony and rebut [Employer's] credible evidence. He further did not provide any explanation or proof that he was absent without notifying [Employer] for good cause.
Based on this analysis, the Board concluded that Claimant was ineligible for benefits under section 402(e) of the Law:
. . . [T]he Board specifically credits [Employer's] credible and corroborated testimony and evidence and finds that [Claimant] engaged in willful misconduct because of his excessive and habitual tardiness and finds that [Claimant] did not offer any proof of good cause to justify it. Accordingly, unemployment compensation benefits must be denied.Id.
On appeal to this Court, Claimant does not challenge the Board's legal conclusion that he committed willful misconduct. Rather, Claimant contends that the Board abused its discretion in finding the testimony of Employer's witnesses credible and/or admissible.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Although willful misconduct is not defined by statute, our courts have described it 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 that 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. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). When a charge of willful misconduct is based on the violation of a work rule, the employer must prove the existence of the rule, the reasonableness of the rule, and the fact of its violation. Owens v. Unemployment Compensation Board of Review, 748 A.2d 794, 798 (Pa. Cmwlth. 2000).
In terms of tardiness, it is wellsettled that an employer has the right to expect that its employees will attend work when they are scheduled and that they will be on time; habitual tardiness is behavior that is "inimical to an employer's interest." Fritz v. Unemployment Compensation Board of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1982). "A conclusion that the employee has engaged in disqualifying willful misconduct is especially warranted in . . . cases where . . . the employee has been warned and/or reprimanded for prior similar conduct." Department of Transportation v. Unemployment Compensation Board of Review (Nelson), 479 A.2d 57, 58 (Pa. Cmwlth. 1984).
It is well-settled that in unemployment cases, the Board is the ultimate fact-finder, empowered to resolve conflicts in the evidence, assess the credibility of witnesses, and determine the weight to be accorded the evidence. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 439-40 (Pa. Cmwlth. 2010). In exercising its role as fact-finder, the Board is free to reject the testimony of any witness, including testimony that is uncontradicted. Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). The Board's findings are conclusive upon review where the record, taken as a whole, provides substantial evidence to support the findings. Oliver, 5 A.3d at 440. Substantial evidence is defined as "such relevant evidence which a reasonable mind would accept as adequate to support a conclusion." Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999).
Claimant first argues that the Board "failed to recognize" that Twigg "perjured himself." (Claimant's brief at 8.) For support, Claimant baldly cites pages 12 through 17 of the notes of testimony, but he does not explain when or how Twigg committed perjury. We conclude that Claimant's first argument is a challenge to the Board's authority over matters of witness credibility and evidentiary weight, and, accordingly, must fail. Oliver, 5 A.3d at 439-40.
To the extent that Twigg's testimony that Claimant was late for work on October 10, 2012, constitutes hearsay because this information was conveyed to him by his son, Shawn Twigg (see N.T. at 12, 17-18), Claimant did not lodge an objection during the hearing and does not specifically raise this issue in this appeal. Nonetheless, under Pennsylvania administrative law, a hearsay statement that is not objected to is still competent evidence and may form the basis for a finding of fact if it is corroborated by other competent evidence. Remaly v. Unemployment Compensation Board of Review, 423 A.2d 814, 816 (Pa. Cmwlth. 1980). "All that is necessary is that facts adding weight or confirming the hearsay be established by competent evidence." Socash v. Unemployment Compensation Board of Review, 451 A.2d 1051, 1053 (Pa. Cmwlth. 1982). Here, Twigg's hearsay statement was sufficiently corroborated by the testimony of Boggs, who stated that she was present in the office on October 10, 2012, and observed that Claimant did not report to work on time. (N.T. at 22.)
Claimant also contends that Twigg and May referenced documents during their testimony that were not submitted into evidence. Particularly, Claimant takes issue with Twigg's testimony that he obtained Claimant's cell phone number from his employment application, but Twigg did not produce or submit the application into evidence. (See N.T. at 34-35.) Claimant further alleges as error that May testified regarding his sign-in "timesheet" for October 10, 2012, but that the document was not included in the record. Claimant maintains that these witnesses' references to documentary evidence violated the regulation at 34 Pa. Code §101.131(h).
The pertinent portion of the notes of testimony read:
[May]: [Claimant's] start [time] was 6:00 in the morning.
[Referee]: Okay.
[May]: Okay. Shawn [Twigg] wouldn't have called [Claimant] at 6:19 if he had been here on time.
* * *
[Referee]: You said this was 10/10.
[May]: But [Claimant's] timesheet reflected 6:15 for his start time.
[Referee]: All right.
[May]: If [Claimant] would have gotten here at 6:20, I would've left his timesheet reflected on the 6:15 start time.
[Referee]: Well I don't have the timesheet in the record.
[May]: I understand.
[Referee]: Okay.
* * *
[May]: On 10/11 [Claimant's] start time was 6:00. [A co-worker] called [Claimant] at 4:57 a.m. [and] at 5:20 a.m. Shawn [Twigg] called him at 6:10 a.m. and [Claimant's] timesheet reflected 6:00 a.m.
[Referee]: Okay.
[May]: And Shawn [Twigg] would not have called [Claimant] had he been here on time.
The regulation at 34 Pa. Code §101.130 sets forth the procedure for receiving testimony from a witness by telephone. Section 101.130(e) requires that before a witness testifies from, or with the aid of a document, the party offering the testimony must have provided the document to the opposing party. Where a party fails to provide the document as required by section 101.130(e), the document "may not be admitted nor testimony given or taken from it unless consent has been requested from and given by all parties. Testimony taken or given in violation of this subsection will be excluded from consideration, as will the document." 34 Pa. Code §101.131(h).
In its brief, the Board concedes that the above testimonial references were technically in violation of the regulations but maintains that neither the testimony nor the referred-to documents were considered in rendering its findings of fact. The Board also argues that the alleged violations do not, as a matter of law, render the testimony of Employer's witnesses not credible.
First, we note that whether Claimant's home phone number was identified on his employment application is irrelevant. Claimant and Twigg both admitted that Twigg only called Claimant on his cell phone, (N.T. at 35), and Claimant's home phone number and employment application had no bearing on any of the Board's findings of fact or analysis of the evidence. Moreover, the portion of May's testimony concerning Claimant's sign-in "timesheet" is not the only evidence of record to support the Board's finding that Claimant arrived at work late on October 10, 2012. Boggs also testified that Claimant did not report to work on time on October 10, 2012. (N.T. at 22.) Further, there is a notation in Employer's business records that Claimant was late for work on October 10, 2012, (Record Item 2, #9), and May testified, without reference to the time that Claimant marked on his "timesheet," that Claimant was late for work on this day also. (N.T. at 39.) Given the additional evidence regarding Claimant's tardiness, we conclude that even if the Board erred in viewing the "timesheet" as admissible evidence, such error would be harmless. See Muehlieb v. Philadelphia, 574 A.2d 1208, 1212 (Pa. Cmwlth. 1990) (concluding that evidence admitted erroneously amounted to harmless error where it was cumulative of other properly admitted evidence), accord Carpenter Technology v. Workmen's Compensation Appeal Board (Wisniewski), 600 A.2d 694, 697 (Pa. Cmwlth. 1991).
Finally, Claimant argues that Employer presented "false evidence" because Twigg testified that he personally never gave Claimant a written warning and only issued him verbal ones, (N.T. at 9-10), and Employer introduced an unsigned written warning, dated October 3, 2012, explaining that Claimant will lose his job if he continues to be unpunctual. (N.T. at 6; Record Item 2, #8.)
Although Claimant's characterization of the evidence is correct, Claimant's argument merely demonstrates that the Board was presented with an apparent, yet reconcilable, conflict in the evidence for it is unknown who authored the written warning. It is well-settled that a conflict in the evidence is a matter for the Board, and the Board alone, to resolve, and that such a determination is not subject to appellate judicial review. Oliver, 5 A.3d at 440; Duquesne Light Co. v. Unemployment Compensation Board of Review, 648 A.2d 1318, 1320 (Pa. Cmwlth. 1994). Here, the Board credited Twigg's testimony that he provided Claimant with verbal warnings, but it did not address or make any findings concerning the October 3, 2012 written warning. Because the Board acted properly in resolving the apparent conflict in the evidence, Claimant's final assertion of error lacks merit.
In sum, we conclude that the Board's factual findings are supported by substantial evidence and, as such, are conclusive on appeal. Oliver, 5 A.3d at 440. Because Claimant has failed to undermine the Board's findings with his evidentiary and/or credibility arguments, and Claimant does not challenge the legal conclusion that the Board drew from these findings, we perceive no basis upon which to disturb the Board's order.
Pursuant to our case law, Claimant waived any argument concerning the Board's legal conclusion that he engaged in willful misconduct by failing to raise such an argument in his petition for review or appellate brief. Tyler v. Unemployment Compensation Board of Review, 591 A.2d 1164, 1168 (Pa. Cmwlth. 1991) (concluding that an issue is waived where a claimant appeals an issue but fails to address the issue in his appellate brief, and also where a claimant fails to include an issue in his petition for review, but nonetheless addresses the issue in his appellate brief). --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 13th day of March, 2014, the May 6, 2013 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
N.T. at 39.