Opinion
No. 603 C.D. 2014
01-06-2015
Ervin A. Dwight, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Ervin A. Dwight (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board reversed an Unemployment Compensation Referee's (Referee) decision, which granted Claimant unemployment compensation benefits. For the reasons set forth below, we affirm the Board's order.
Claimant filed for unemployment compensation benefits after Station Management Consultants, Inc. (Employer) terminated his employment. The Altoona UC Service Center (Service Center) issued a determination granting Claimant benefits because "[t]here was insufficient information provided to show that the Claimant committed a dishonest act." (Certified Record (C.R.), Item No. 4 at 1.) Employer appealed the Service Center's determination, and a Referee conducted an evidentiary hearing.
At the hearing before the Referee, Claimant testified that he was working on July 11, 2013, when a customer came into the gas station and asked to put $20 on a pump. The customer went to the wrong pump, and by the time the mistake was discovered another customer had pumped the gas. The customer demanded a refund, which Claimant provided. To cover the shortage in his drawer, Claimant used $10 from his own pocket and fabricated the return of an item that was never purchased. Claimant testified that he did so because he felt threatened by the customer.
Following the hearing, the Referee issued a decision affirming the Service Center's determination and granting Claimant benefits. (C.R., Item No. 9 at 2.) The Referee reasoned that while Claimant did not deny violating Employer's policy, he did so because he felt threatened. (Id.) Additionally, he attempted to contact Employer to explain the situation, but was unable to. (Id.) She concluded that "[b]ecause there is no evidence the claimant stole any cash or store products, a finding of willful misconduct cannot be held on claimant's part, therefore claimant is eligible for benefits." (Id.)
Employer appealed to the Board, which reversed the Referee's decision and denied Claimant benefits. Contrary to the Referee, the Board found that Claimant's actions constituted willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Law), and that Claimant did not have good cause for engaging in the actions which led to the termination of his employment. The Board made the following findings of fact:
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
1. The claimant was employed by Station Management Consulting as a part-time cashier at a rate of $7.50 per hour that began April 13, 2013 and last worked on July 25, 2013.
2. The employer maintains a policy in its employee handbook that prohibits the falsification of the employer's records, theft or dishonesty.
3. The claimant was aware of the policy, as evidenced by his signed receipt of the handbook.
4. On or about July 11, 2013, a customer came in the store and gave the claimant $20 and told him that he was on pump 2.
5. The claimant registered the gas to pump 2 and shortly thereafter, the customer came back into the store informing the claimant that he was not able to get any gas.
6. The claimant asked the customer to point out at which pump his vehicle was located when it was discerned he was at pump 12 and not pump 2.
7. The employer checked and found that someone had already pumped gas at pump 2 and as a result no refund could be given to the customer.
8. The claimant attempted to call the manager to resolve the matter after the customer became hostile demanding a refund of $20 or provided gas.
9. The claimant could not reach the manager.
10. To avoid having his drawer not balance, which would have resulted in a "write up," the claimant took $10 out of his pocket, and scanned an electronic cigarette, valued at $9.99, which he then processed as a return, so that his register would be over by $20, thereby allowing the claimant to give the customer $20 in gas on the correct pump.
11. The employer was doing an audit of the store receipts and saw a $9.99 refund and looked at the video
surveillance tapes during which the claimant's activities were observed.(C.R., Item No. 11 at 1-2.)
12. The employer's policy provides that an overage or shortage in excess of $2 is cause for a written warning and must be properly reported.
13. When confronted, the claimant admitted that he had falsified inventory when he removed an item from inventory and processed it as a return.
14. The claimant's action in processing a false return was in violation of the employer's policy.
The Board, in concluding that Claimant's actions constituted willful misconduct, reasoned:
Here, the employer bore, and carried, the burden of establishing a policy, of which the claimant was aware, but nevertheless violated. The testimony in this regard is unrefuted. The Board credits the claimant's own admission that in response to a customer's error, he scanned an item out of the employer's inventory and processed a fake return to create an overage in his drawer so that he could give the customer $20 in gas. The Board further credits the claimant's testimony that he did not call the employer's attention to the actions he took to address the customer's mistake. The employer has met its burden of proving a violation of its policies which does rise to the level of willful misconduct such that the burden shifts to the claimant to establish either that the rule was unreasonable, or that he had good cause for its violation.
In this regard, no testimony or evidence was presented to support a finding that the employer's policy was unreasonable, and indeed, the Board finds and concludes that the employer's policy against falsification of its records was entirely reasonable. Further, although the claimant attempts to establish that he had good cause for his conduct, the Board discredits his testimony that he was fearful of the customer who paid $20 on the wrong pump and wanted his gas. Even if that were true, the
claimant admits that he did not provide a reasonable explanation as to why he did not explain the situation to the employer, even after the fact. The Board therefore finds and concludes that the claimant did not have a reasonable justification for falsifying the employer's records by processing a fake return of merchandise, and thus, he is not entitled to unemployment compensation benefits under Section 402(e) of the Law.(Id. at 3.) Claimant now petitions this Court for review.
On appeal, Claimant argues that the Board erred in concluding that he did not have good cause for violating Employer's policy concerning the falsification of records. Section 402(e) of the Law provides, in part, 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." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
Specifically, Claimant argues that he "did have a necessitous and compelling reason for making the decision to repay the disgruntal [sic] customer." (Pet'r's Br. at 7 (emphasis added).) Claimant, however, did not voluntarily terminate his employment, thus the 'necessitous and compelling reason' analysis is inappropriate. See Section 402(b) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b) (providing that claimant is ineligible for benefits for "voluntarily leaving work without cause of a necessitous and compelling nature.") Instead, it appears that Claimant is arguing that he had good cause for his decision to repay the customer despite his awareness of Employer's policy concerning the falsification of records. Thus, we will address Claimant's argument as it relates to good cause, not cause of a necessitous and compelling nature.
(a) wanton or willful disregard for an employer's interests; (b) deliberate violation of an employer's rules; (c) disregard for standards of behavior which an employer can rightfully expect of an employee; or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003). An employer, seeking to prove willful misconduct by showing that the claimant violated the employer's rules or policies, must prove the existence of the rule or policy, and that the claimant violated it. Walsh, 943 A.2d at 369. Once an employer, however, has met its burden, the burden then shifts to the claimant to show good cause as justification for the conduct considered willful. McKeesport Hosp. v. Unemployment Comp. Bd. of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
We conclude that the Board did not err in concluding that Claimant failed to establish good cause for his violations of Employer's policy relating to the falsification of records. To prove good cause, a claimant must demonstrate that his actions were justifiable and reasonable under the circumstances. Kelly v. Unemployment Comp. Bd. of Review, 747 A.2d 436, 439 (Pa. Cmwlth. 2000). Claimant contends that he felt threatened by the angry customer and that his fear constituted good cause for the violation of Employer's policies. The Board, however, specifically discredited Claimant's testimony that he was fearful of the customer. (C.R., Item No. 11 at 3.) Even if the Board had credited Claimant's testimony that he was fearful, the Board found that Claimant completed the false return to avoid the written warning that would result from a shortage in excess of two dollars. (Id. at 2.) Claimant's fear of discipline does not justify the falsification of records in violation of Employer's policy. See, e.g., Glenn v. Unemployment Comp. Bd. of Review, 928 A.2d 1169, 1172-73 (Pa. Cmwlth. 2007) (holding that claimant's fear of punishment was not good cause for her dishonesty). Thus, we conclude that the Board did not err in determining that Claimant did not have good cause for his violation of Employer's policy concerning the falsification of company records. Thus, Claimant's actions constituted willful misconduct, and he is, therefore, ineligible for benefits pursuant to Section 402(e) of the Law.
Claimant is essentially asking that we revisit the Board's credibility determinations. This we are unable to do. In an unemployment case, it is well-settled that the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1386 (Pa. 1985). Questions of credibility are not subject to re-evaluation on judicial review. Id. at 1388. Accordingly, we will not revisit the Board's determination that Claimant's testimony in this regard was not credible. --------
Accordingly, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 6th day of January, 2015, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge