Opinion
No. 1115 C.D. 2012
05-21-2013
Orlando Cruz-Cartegena, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
This case was reassigned to the author on March 8, 2013.
In this appeal, Orlando Cruz-Cartegena (Claimant) asks whether the Unemployment Compensation Board of Review (Board) erred in denying him benefits under Section 402(e) of the Unemployment Compensation Law (Law) (willful misconduct). Essentially, Claimant asserts the Board erred in determining he committed willful misconduct where his former employer, Montgomery Chemicals (Employer), did not prove he violated its "return-to-work" policy following his positive drug test. Upon review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The Board adopted the following facts found by the referee. Claimant worked for Employer, a chemical manufacturer, as a full-time chemical operator from March 2010 until his last day of work on November 18, 2011.
In September 2011, Employer informed its employees, including Claimant, that it was reinstituting its "Drug and Alcohol Free Workplace Program" effective November 1, 2011, beginning with the drug testing of all employees. Referee's Op., 3/27/12, Finding of Fact (F.F.) No. 2.
Claimant tested positive for marijuana. He admitted to his immediate supervisor that he did not have a prescription for the drug, and he had, in fact, used marijuana before the testing. The supervisor instructed Claimant he would have to submit to a re-test on December 12, 2011.
Employer's policy provides for removal from work with an opportunity for reinstatement if: (1) an employee submits to and provides a negative drug or alcohol test prior to returning to the job; (2) participates in mandatory counseling and rehabilitation through the AlphaStaff Employee Assistance Program (EAP); and, (3) signs a "Last Chance Agreement." F.F. No. 6.
Employer suspended Claimant effective November 22, 2011 based on his failed drug test. On December 6, 2011, Claimant's immediate supervisor provided Claimant with a phone number and contact person for the EAP and instructed Claimant to contact the EAP.
Shortly thereafter, Claimant contacted the EAP, which assessed him as suitable for enrollment in the "Rehab After-Work Intensive Outpatient Treatment Program" (treatment program). F.F. No. 9. Claimant delayed beginning the treatment program because of a scheduled family trip through the Make-A-Wish Foundation for Claimant's child who was seriously ill.
Claimant subsequently began treatment through the EAP on January 3, 2012, and he attended three sessions. After attending these sessions, a representative from the treatment program informed Claimant he could not continue the program because he did not pay the required $20 per session fee.
On January 10, 2012, Claimant entered into an arrangement with the treatment program through which he would not have to pay the fees until after he returned to work following completion of the program.
The next day, on January 11, 2012, Claimant informed Employer's vice president of engineering that he was not permitted to return to the program because he could not pay for it. Claimant also asked the vice president of engineering if he could return to work without completing the program because the program was not suitable for him, but rather was directed toward drug addicts. Claimant never informed Employer that he entered into the deferred payment option or that he intended to return to the treatment program and complete it. Employer terminated Claimant's employment for failing to comply with the terms of its "return-to-work" policy.
Claimant applied for unemployment compensation (UC) benefits, which the local service center denied under Section 402(e). Claimant appealed; a hearing ensued before a referee.
At the hearing, Claimant appeared without counsel and testified on his own behalf. Employer presented the testimony of its vice president of engineering and Claimant's supervisor.
Ultimately, the referee also found Claimant ineligible for benefits under Section 402(e), stating (with emphasis added):
[E]mployer has presented competent and credible evidence establishing that it had a Drug and Alcohol-Free Workplace Policy (E-1) under which employees would be reinstated (E-3) subject to termination of employment for failure to participate in and abide by the terms and recommendations of their EAP (E-4, p. 3). The Referee finds [E]mployer's testimony credible that [C]laimant admitted to using drugs, which corroborates the test results (E-5). [C]laimant initially complied with the program (E-6). For whatever inexplicable reason, [C]laimant notified the employer that he could not return to the program, but never disclosed that he had, in fact, made arrangements for deferred payments so that he could return to the program and complete it. (C-1). Without concluding as such, it appeared as though [C]laimant was using the financial problem to bolster his argument to [E]mployer's Vice-President of Engineering that he should be permitted to return to work without having to complete the program. Regardless of the reason, because the information provided by [C]laimant reflected that he was not cooperating with the EAP program, [E]mployer discharged [C]laimant in accordance with its policy. While [C]laimant deserves much praise for having completed the program regardless of his separation from employment, it was [C]laimant's actions that brought about his final separation from employment with respect to the claim week at issue. ...Referee's Op. at 2.
On appeal, the Board, adopting and incorporating the referee's findings and conclusions, affirmed the referee's determination of ineligibility under Section 402(e). The Board further explained, as relevant (with emphasis added):
As the Referee did, the Board finds credible [E]mployer's testimony that, before January 12, 2012, [C]laimant never informed [E]mployer that he was permitted to continue participating in the rehabilitation program under a payment plan and that he planned to do so.Bd. Op., 5/18/12, at 1. Claimant petitions for review.
Further, contrary to [C]laimant's assertions on appeal, [E]mployer offered consistent testimony and evidence to establish that [C]laimant was suspended on November 22, 2011, for failing a drug test, and was subsequently discharged because [E]mployer believed that he failed to comply with the requirement to participate in a rehabilitation program. [C]laimant did not offer competent evidence or testimony to support [his] assertion that [E]mployer did not follow its drug and alcohol-free workplace policy when disciplining [C]laimant. ...
In UC proceedings, the Board is the fact-finder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Lee v. Unemployment Comp. Bd. of Review, 33 A.3d 717 (Pa. Cmwlth. 2011). In making these determinations, the Board may accept or reject the testimony of any witness, in whole or in part. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 2013). The Board's findings are conclusive and binding on appeal if the record, when viewed as a whole, contains substantial evidence to support those findings. Lee.
Further, it is irrelevant whether the record contains evidence that would support contrary findings. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). In determining whether substantial evidence exists, we view the record in the light most favorable to the party that prevailed before the Board, and give that party the benefit of all reasonable inferences that can be drawn from the evidence. Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603 (Pa. Cmwlth. 2011).
On appeal, Claimant asserts the Board erred in determining he committed willful misconduct. He argues Employer did not prove he violated its return-to-work policy because the evidence established he was still participating in the treatment program at the time of his discharge. Further, he never informed Employer that he would not complete the treatment program, nor did he refuse to attend the required sessions.
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. Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217 (Pa. Cmwlth. 2012).
In addition, Claimant emphasizes that he did, in fact, complete the treatment program after his termination from employment. Claimant further asserts Employer did not seek information from the EAP regarding Claimant's participation at the time it decided to terminate Claimant's employment despite the fact that Employer had prior contact with the EAP. Rather, Employer's vice president of engineering testified Employer made the decision to terminate Claimant's employment because Employer needed to "move on." Referee's Hearing, 3/14/12, Notes of Testimony (N.T.) at 14.
Moreover, Claimant maintains, his statements to Employer that he wished to return to work, that he did not believe he was a drug addict, that he was concerned about paying for the program and his request that Employer pay for the program, did not negate the fact that he followed Employer's policy and was compliant. Claimant asserts Employer's haste in terminating his employment without allowing him adequate time to complete the treatment program does not lead to a determination that he committed willful misconduct.
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). "Willful misconduct" is "behavior evidencing a wanton or willful disregard of the employer's interests; a deliberate violation of the employer's work rules; a disregard of standards of behavior the employer can rightfully expect from its employee; [or], negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations." Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008).
The employer bears the burden of proving a discharged employee committed willful misconduct. Scott v. Unemployment Comp. Bd. of Review, 36 A.3d 643 (Pa. Cmwlth. 2012). Whether a claimant's conduct rises to the level of willful misconduct is a question of law fully reviewable on appeal. Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 550 Pa. 115, 703 A.2d 452 (1997).
A violation of an employer's work rules and policies may constitute willful misconduct. Chapman. An employer must establish the existence of the work rule and its violation by the employee. Id. If the employer proves the existence of the rule, the reasonableness of the rule, and the fact of its violation, the burden of proof shifts to the employee to prove he had good cause for his actions. Id. The employee establishes good cause where his actions are justified or reasonable under the circumstances. Id.
Here, Employer's "Drug and Alcohol Policy" provides, in relevant part (with underlined emphasis added):
Return-to-Duty If you have tested positive and have been removed from your job duties, you must submit to and provide a negative drug and/or alcohol test result prior to returning to your job. In addition, as a condition of continued employment, you must agree to participate in mandatory counseling and rehabilitation through the AlphaStaff Employee Assistance Program. You will also be required to sign a 'Last Chance Agreement.' Failure to comply with the terms of this agreement will be considered grounds for immediate termination.
* * * *
The following will be considered grounds for immediate termination:
* * * *
c. Failing to consent to participate in and abide by the terms and recommendations of any Employee Assistance Program (EAP) or rehabilitation program if within the consequences of the policy. Failure to participate in and abide by the rehabilitation program includes but is not limited to failure to follow recommendations, if any, regarding behavior modification and abstinence and failure to be available for any prescribed continuing or follow-up sessions.Certified Record, Referee's Hearing, 3/14/12, Employer's Ex. 4 at 2, 4.
In determining Claimant violated Employer's policy, the Board made the following relevant findings, which are adequately supported by the record. After Claimant tested positive for marijuana, Claimant's immediate supervisor provided Claimant with the contact information for the EAP and instructed Claimant to contact the EAP. F.F. Nos. 3, 8; N.T. at 12, 30-31, 33. Claimant contacted the EAP and began the treatment program on January 3, 2012. F.F. No. 9, 11; N.T. at 37. He attended three sessions of the program. F.F. No. 11; N.T. at 38. After attending these sessions, a representative from the program approached Claimant because he failed to pay the $20 per session co-payments. F.F. No. 12; N.T. at 38-39.
On January 10, 2012, Claimant entered into an arrangement with the treatment program that allowed him to defer payment of the required co-payments until after he returned to work following completion of the program. F.F. No.13; N.T. at 39, Claimant's Ex. 1. The next day, January 11, 2012, Claimant spoke with Employer's vice president of engineering. On that date, Claimant informed Employer's vice president of engineering that he was not permitted to return to the treatment program because he was not paying the mandatory co-payments. F.F. No. 15; N.T. at 13, 27.
In addition, Claimant asked Employer's vice president for engineering if he could return to work without completing the treatment program because he felt it was not suitable for him, but rather was directed toward drug addicts. F.F. No. 16; N.T. at 14, 27, 50. Significantly, Claimant never informed Employer that he agreed to a deferred payment arrangement with the treatment program or that he intended to return to the program and complete it. F.F. No. 17; N.T. at 13, 28, 51. Employer terminated Claimant for failing to comply with the terms of the Return to Work Policy. F.F. No. 18; N.T. at 28, Service Center Ex. 14 (termination letter from Employer's vice president of engineering to Claimant, dated 1/12/12).
In making these findings, the referee and the Board chose to credit the testimony of Employer's witnesses over that presented by Claimant. Contrary to the repeated suggestions in Claimant's brief, we cannot, nor will we, disturb the Board's credibility determinations or its resolutions of conflicts in the evidence. Lee. Indeed, it is irrelevant whether the record contains evidence that would support contrary findings. Ductmate Indus.
Our review of the credited testimony reveals that, after attending three counseling sessions, Claimant informed Employer he would not be permitted to return to the treatment program because he could not pay the required co-payments. Claimant also indicated the treatment program was not suitable for him, but rather was directed toward drug addicts. Thus, Claimant led Employer to believe he would no longer participate in or continue with the sessions required by the EAP or the treatment program, including not making himself available for any prescribed continuing or follow-up sessions. By leading Employer to believe he no longer consented to participate in and abide by the terms of the EAP or the treatment program, including attending the required sessions, Claimant violated Employer's policy. Thus, we discern no error in the Board's determination that Claimant's violation of Employer's policy constituted willful misconduct.
Also, Claimant's argument that Employer's policy merely states a violation of the policy "may" result in discharge is contrary to the plain language of the policy. The policy states, "[f]ailing to consent to participate in and abide by the terms and recommendations of any [EAP] or rehabilitation program ... includ[ing] failure to be available for any prescribed continuing or follow-up sessions" " will be considered grounds for immediate termination ." Certified Record (C.R.), Referee's Hearing, 3/14/12, Employer's Ex. 4 at 4 (emphasis in original). Employer's policy further states "as a condition of continued employment, you must agree to participate in mandatory counseling and rehabilitation through AlphaStaff [EAP]." Id. at 2 (emphasis added).
Further, although Claimant argues Employer improperly terminated his employment because it did not wish to wait for him to complete the program, Employer's vice president of engineering testified Employer terminated Claimant's employment because "[Claimant] continued to try to get out of taking these classes ... and in our discussions on [January] 11th he had not reassured me that he was going to continue." N.T. at 28. Also, the termination letter Employer's vice president of engineering sent to Claimant states Employer terminated Claimant's employment based on his failure to fully cooperate with the terms and conditions of Employer's Drug Free Workplace Program. See Service Center Ex. 14.
In addition, there is no indication that Claimant had good cause for his actions. Claimant points to the fact that the required co-payments for the treatment program were a financial burden and that any inability to make those co-payments constituted a circumstance beyond his control. However, as set forth above, the program granted Claimant's request for deferred payment of the required co-payments until after Claimant completed the program and resumed working for Employer.
Claimant also asserts "there was no evidence in the form of a written policy, at the hearing, as to whether the employer or the employee was responsible to pay for the copays. The burden to prove a violatition [sic] of a work rule by not payting [sic] copays would be the employer's burden; and it did not prove the existence of such a work rule." Pet'r's Br. at 14-15. However, Claimant did not raise this issue in his appeal to the Board, see C.R. at Item # 15, 16. Therefore, it is waived. Lewis v. Unemployment Comp. Bd. of Review, 42 A.3d 375 (Pa. Cmwlth. 2012) (the claimant's failure to raise issues in appeal to Board results in waiver).
Further, contrary to Claimant's assertions, Employer was not obliged to undertake further investigation to verify Claimant was, in fact, completing the treatment program as required by Employer's policy. The fact that Claimant's communications with Employer offered no assurance of his intent to complete the treatment program provided a sufficient basis upon which Employer could conclude Claimant refused to adhere to the policy.
Finally, while Claimant successfully completed the treatment program after his termination from employment, Claimant never informed Employer of his intent to complete the program at any time prior to his termination. F.F. No. 17. Thus, the fact that Claimant ultimately completed the treatment program after his termination from employment, while laudable, does not alter the result here.
Based on the foregoing, we affirm the Board's order.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 21st day of May, 2013, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully dissent. I cannot agree with the majority's conclusion that Orlando Cruz-Cartegena's (Claimant) failure to effectively communicate his intent to remain in a drug rehabilitation program sponsored by Montgomery Chemicals (Employer) amounted to willful misconduct under section 402(e) of the Unemployment Compensation Law. Because the evidence established that Claimant was still participating in the program at the time of his discharge, I would reverse the order of the Unemployment Compensation Board of Review (Board).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). --------
Employer's return-to-work policy provides:
If you have tested positive and have been removed from your job duties, you must submit to and provide a negative drug and/or alcohol test result prior to returning to your job. In addition, as a condition of continued employment, you must agree to participate in mandatory counseling and rehabilitation through the AlphaStaff Employee Assistance Program. You will also be required to sign a "Last Chance Agreement." Failure to comply with the terms of this agreement will be considered grounds for immediate termination.(N.T., 3/14/12, Ex. E-4, at 2 (emphasis added).) The policy then sets forth the following grounds for termination of employment:
Failing to consent to participate in and abide by the terms and recommendations of any Employee Assistance Program (EAP) or rehabilitation program if within the consequences of the policy. Failure to participate in and abide by the rehabilitation program includes but is not limited to failure to follow recommendations, if any, regarding behavior modification and abstinence and failure to be available for any prescribed continuing or follow-up sessions.(Id., Ex. E-4, at 4 (emphasis added).)
In essence, Employer's policy requires that the employee agree to participate in the program and be available for any prescribed continuing or follow-up treatment. I cannot find support in the record for the Board's finding that Claimant failed to comply with these directives. To the contrary, the evidence credited by the Board demonstrated that Claimant did, in fact, comply with the terms of the policy. Specifically, the Board found that Claimant entered into a deferred-payment agreement with the program on January 10, 2012, and completed the program in March 2012. (Findings of Fact, Nos. 13-14; Board's Order at 1; N.T., 3/14/12, Exs. C-1 & C-3.) Notwithstanding Employer's belief that Claimant was non-compliant, these findings establish that Claimant was still participating in the program at the time of his discharge.
It is true that Claimant expressed concern to his supervisor, Larry Stewart, about whether the rehabilitation program was suitable for him and asked Stewart if Employer would pay the program fees because Claimant could not afford them. However, Employer offered no competent evidence that Claimant had actually abandoned the program at the time of his discharge. Stewart merely testified that he believed that Claimant was "try[ing] to get out of taking [the] classes or whatever they are." (N.T., 3/14/12, at 28.) Stewart also testified that he discharged Claimant "[b]ecause it had been almost two months since [Claimant] failed his drug test and we need[ed] to move on." (Id. at 14.) Even accepting the Board's credibility determinations, as we must, Stewart's testimony does not prove Claimant's non-compliance with Employer's policy, particularly in light of the Board's findings that Claimant had entered into a deferred-payment agreement and ultimately completed the program.
Furthermore, although not addressed by the majority, I believe that the Board's reliance on Bortz v. Unemployment Compensation Board of Review, 464 A.2d 609 (Pa. Cmwlth. 1983), is misplaced. (See Board's Br. at 12.) In Bortz, this court stated that an employee must notify his employer of his reason for non-compliance with a work rule, noting that "informative communication with the employer may be a factor in sustaining the employee's burden to establish good cause for a [rule] violation." 464 A.2d at 610. However, our court has applied the "informative communication" rule only when evaluating the employee's reason for non-compliance after the employer proves a work rule violation. See, e.g., Rebel v. Unemployment Compensation Board of Review, 692 A.2d 304, 307 (Pa. Cmwlth. 1997), aff'd, 555 Pa. 114, 723 A.2d 156 (1998); Klapec Trucking Company v. Unemployment Compensation Board of Review, 503 A.2d 1122, 1125 (Pa. Cmwlth. 1986). Here, I would conclude that Employer failed to meet its initial burden of proving Claimant's non-compliance with its policy, so the burden never shifted to Claimant to prove good cause. See Lewis v. Unemployment Compensation Board of Review, 42 A.3d 375, 377-78 (Pa. Cmwlth. 2012).
Because Employer failed to prove by substantial evidence that Claimant violated its return-to-work policy, I would reverse the Board's order.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge