Opinion
No. 1667 C.D. 2014
07-15-2015
Jeremy J. Cumberledge, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Jeremy J. Cumberledge (Claimant) petitions this Court for review of the Unemployment Compensation (UC) Board of Review's (UCBR) August 29, 2014 order affirming the Referee's decision finding Claimant ineligible for UC benefits under Section 402(e) of the UC Law (Law). Claimant presents three issues for this Court's review: (1) whether Plum Borough (Employer) met its burden of proving Claimant committed willful misconduct; (2) whether the UCBR erred in relying on Employer's witnesses' testimony; and (3) whether the UCBR erred in refusing to remand the case for additional testimony. After review, we affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e) (relating to discharge for willful misconduct).
Claimant was last employed by Employer's Police Department as a full-time patrolman from January 14, 2007 through January 11, 2014. On or about January 9, 2014, it was discovered that Claimant had access to the Police Chief's computer files. An investigation revealed that Claimant regularly accessed computer data from other computer network terminals, through his work station computer terminal during work hours. It was detected that Claimant accessed medical documents and financial information, including user names and passwords to banking files. Claimant regularly deleted his browsing history after engaging in such activities. Claimant also accessed the Police Chief's and other individuals' personal profiles and other documents from the computer data. Claimant had no work-related reasons for accessing these files.
On January 10 and 11, 2014, Claimant was videotaped accessing computer files from the Police Chief's documents' folder. During that time frame, Claimant also accessed network profiles of other users. Employer has not implemented or enforced a computer usage policy for several years. Employer filed criminal charges against Claimant for unlawful computer use. On March 12, 2014, Employer discharged Claimant for unauthorized computer access, neglect of duty and theft of time, among several other charges as listed in a Statement of Charges.
A magistrate judge dismissed the charges on June 11, 2014.
Claimant applied for UC benefits. On April 2, 2014, the Duquesne UC Service Center determined that Claimant was ineligible for UC benefits under Section 402(e) of the Law. Claimant appealed and a Referee hearing was held. On June 18, 2014, the Referee affirmed the UC Service Center's determination. Employer appealed to the UCBR which adopted and incorporated the Referee's findings of fact and conclusions of law, and affirmed the Referee's decision. Claimant appealed to this Court.
The first half of the hearing took place on April 29, 2014. Due to the Referee's scheduling issues, the hearing was completed on June 17, 2014.
"Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704." Turgeon v. Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).
Claimant first argues that Employer failed to meet its burden of proving Claimant's conduct constituted willful misconduct. Specifically, Claimant contends that because Employer did not prove that Claimant knowingly violated a work rule or policy, it could not prove willful misconduct. We disagree.
Section 402(e) of the Law provides that an employee is ineligible for unemployment compensation benefits when his unemployment is due to discharge from work for willful misconduct connected to his work. The employer bears the burden of proving willful misconduct in an unemployment compensation case. Willful misconduct has been defined as (1) an act of wanton or willful disregard of the employer's interest; (2) a deliberate violation of the employer's rules; (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 a disregard of the employee's duties and obligations to the employer.Dep't of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747-48 n.4 (Pa. Cmwlth. 2000) (citation omitted). "When an employee is discharged for violating a work rule, the employer must prove the existence of the rule and the fact of its violation." Lewis v. Unemployment Comp. Bd. of Review, 42 A.3d 375, 377 (Pa. Cmwlth. 2012). However, it is well-settled law that "a disregard of the standard of behavior which the employer had a right to expect of [an employee], . . . [can be] willful misconduct, apart from whether or not . . . that [employee] violated work rules . . . ." Lee v. Temple Univ. (Personnel), 363 A.2d 890, 892 (Pa. Cmwlth. 1976).
In the instant case, Claimant was discharged for accessing personal and private computer files, including those of his immediate supervisor, the Police Chief, without express permission and for no legitimate, work-related purpose. The UCBR expressly concluded that "[C]laimant's actions fell below the acceptable standards of behavior that an employer has the right to expect of an employee and are disqualifying." Referee Dec. at 2. Thus, Employer was not required to prove that Claimant knowingly violated a work rule or policy.
The law is well established that:
[T]he [UCBR] is the ultimate fact-finder in unemployment compensation matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded the evidence. It is irrelevant whether the record contains evidence to support findings other than those made by the fact-finder; the critical inquiry is whether there is evidence to support the findings actually made. Where substantial evidence supports the [UCBR's] findings, they are conclusive on appeal.Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citations omitted). This Court has explained:
Substantial evidence is relevant evidence upon which a reasonable mind could base a conclusion. In deciding whether there is substantial evidence to support the [UCBR'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 which can logically and reasonably be drawn from the evidence.Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth. 1999).
Here, Employer's IT Director Jason Muggli (Muggli) testified at the April 29, 2014 Referee hearing that he reconfigured the squad room camera and enabled monitoring and auditing on the computer system to track Claimant's actions on his computer. As a result, he recorded a real time report of Claimant's computer activities on January 10 and 11, 2014. Said report evidenced Claimant accessing the network profiles of Lieutenant Jeff Armstrong (Employer's current Police Chief), Patrolman Zabinski and Employer's former Police Chief Frank Monaco, as well as a Borough Council Member, Borough Manager Mike Thomas (Thomas), and Bureau Administrator Cumberland. See Notes of Testimony (N.T.), April 29, 2014, Ex. 13. In addition, Muggli testified that he reviewed Claimant's browsing history beginning January 2010. Said history revealed that Claimant had accessed a confidential Attorney General investigation, as well as a file related to a Borough employee's employment termination. See N.T., April 29, 2014, Ex. 12. Finally, Muggli presented a document showing Claimant's access of the Civil Service Commission's Elimination from Civil Service Consideration and Medical Certification Sick Leave Usage, i.e., confidential information regarding other employees' medical conditions. See N.T., April 29, 2014, Ex. 14.
A review of the record did not reveal Officer Zabinski's or Administrator Cumberland's first names. --------
Also at the April 29, 2014 Referee hearing, Thomas testified that on January 11, 2014, after being advised that Employer had evidence of Claimant's unauthorized access to computer files on the Employer's system, Claimant admitted accessing files he was not authorized to access. See N.T., April 29, 2014 at 8. Because Employer has a right to expect that its employees will not use their work computers to access the personal files on the network of the Police Chief and other officers and Borough employees, Claimant's conduct rose to the level of willful misconduct. Accordingly, the evidence supported the UCBR's conclusion that Employer met its burden of proving Claimant's conduct constituted willful misconduct.
Claimant next argues that the UCBR erred in relying on Employer's witnesses' testimony. Specifically, Claimant contends that because Muggli agreed on cross-examination that the vast majority of Claimant's activity was nothing more than browsing and navigating, rather than opening files, Claimant's conduct did not rise to the level of willful misconduct. We disagree. When Claimant's lawyer asked Muggli on cross-examination: "Isn't it true that the vast majority of your entries [in Borough Exhibit 13] indicate he wasn't on it long enough to do anything other than press through it, the entries?" Muggli replied: "I'm not sure what you mean. I mean he physically opened the files." N.T., June 17, 2014 at 6-7. Muggli expressly testified on cross-examination that Claimant opened Armstrong's "2014 in-service training, individual meeting agenda, staff meeting investigations, amplified search document[;]" Armstrong's "salary comparison document[;]" "[f]our different files" belonging "to the Borough Administration department in regards to some employee matter[;]" and a "purchasing card recon [sic] form and the amplified church overtime document." N.T. June 17, 2014 at 10, 12, 13, 14. Following re-direct and re-cross, the following exchange occurred on re-direct:
EL [Employer's Lawyer] Borough Exhibit 13 [-] is that a comprehensive list of the whole time [Claimant] has been employed or is that a snapshot of his activities on a particular day?Id. at 27. It was within the UCBR's province to find this testimony credible and accord it whatever weight it deemed appropriate. See Ductmate Indus. Accordingly, the UCBR did not err in relying on Employer's witnesses' testimony.
EW1 [Muggli] So 13 is the bigger packet is [sic] just a real time view of those two days in question, the 10th and the 11th.
EL And Borough Exhibit 12 are those documents that he actually opened?
EW1 That's correct. This is a list of all Microsoft Office documents I was able to look back to 2011, 2010. [sic] But this is a historical list of all documents that I was able to find on backup.
Lastly, Claimant argues that the UCBR erred in refusing to remand the case for the purpose of having Claimant and a police officer who was subpoenaed, but did not appear, testify. Specifically, Claimant contends that because the UCBR can enforce the subpoena and Claimant is no longer under the threat of charges filed against him, the case should have been remanded so they could have both testified.
It is well-established that "[t]he UCBR has discretion to decide whether to grant a request for remand." Lopresti v. Unemployment Comp. Bd. of Review, 55 A.3d 561, 563 n.3 (Pa. Cmwlth. 2012). Here, Claimant sought the remand for the sole purpose of presenting testimony to establish there was no work "rule or violation of a rule to be attributable to his conduct in this matter." Claimant Br. at 16. However, the UCBR did not find that Claimant's violation of a work rule constituted willful misconduct, but rather, that his conduct fell below the acceptable standards of behavior that an employer has the right to expect of an employee. Accordingly, "[i]n denying Claimant's request for remand, the UCBR did not abuse its discretion." Lopresti, 55 A.3d at 563 n.3.
For all of the above reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 15th day of July, 2015, the Unemployment Compensation Board of Review's August 29, 2014 order is affirmed.
/s/_________
ANNE E. COVEY, Judge