Opinion
No. 492 C.D. 2014
10-29-2014
Parvez I. Gill, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Parvez I. Gill (Claimant) appeals from the February 28, 2014 order of the Unemployment Compensation Board of Review (Board), which held that Claimant was ineligible for benefits pursuant to 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 a claimant is ineligible for compensation for any week in which his unemployment is due to willful misconduct connected to his work. Although the Law does not define "willful misconduct," our courts have defined the term as including: behavior evidencing a wanton or willful disregard for an employer's interest; a deliberate violation of an employer's rules; a disregard for the standards of behavior that an employer can rightfully expect of an employee; or negligence indicating an intentional disregard of the employer's interest or the employee's duties or obligations. Beverly Enterprises, Inc. v. Unemployment Compensation Board of Review, 702 A.2d 1148, 1151 n.2 (Pa. Cmwlth. 1997).
Claimant began working for US Airways (Employer) as a Customer Assistance Representative in October 2002, and he last worked on May 29, 2013. On June 15, 2013, Employer discharged Claimant for violating its drug and alcohol policy. The local job center determined that Claimant was not ineligible for benefits under section 402(e) of the Law, and Employer appealed.
A referee conducted a hearing on November 1, 2013. Employer introduced copies of its professional conduct and drug and alcohol policies, as well as an acknowledgement form signed by Claimant, into evidence. Joan Wing (Wing), Employer's shift manager, testified that Employer's professional conduct policy prohibits employees from violating Employer's drug and alcohol policy, which in turn prohibits employees from consuming alcohol, entering a bar, or possessing alcohol at the airport while on duty. Both policies provide that a violation may result in discipline up to and including termination of employment. Wing added that at the time of his discharge, Claimant was subject to a last chance agreement, which provided that Claimant could be immediately discharged for violating any of Employer's rules. (Reproduced Record (R.R.) at 68a-69a.)
Wing testified that on May 29, 2013, Cibo's Bar and Restaurant was having a celebration and had set up a sample beverage table outside its premises in terminal A. (R.R. at 70a.) During her testimony, Wing played a surveillance video, which was entered into evidence without objection. (R.R. at 72a, 74a.) According to Wing's narration, the video depicts Claimant taking a sip from a sample beverage cup, walking away from the table, finishing the drink, and then disposing of the cup. (R.R. at 72a.) Wing added that although the video surveillance does not positively show that alcohol was in the cup Claimant drank from, Claimant conceded that the cup contained alcohol during the course of Employer's investigation. (R.R. at 76a-77a.)
Wing noted that a photograph taken on May 29, 2013, illustrates that the sample table contained bottles of beer in addition to the cups. Wing also noted that Cibo's Bar and Restaurant is clearly recognizable as a bar. During cross-examination, Wing acknowledged that the sample cups, including the one Claimant drank from, were unmarked. (R.R. at 76a-83a.)
Claimant stated that he requested a non-alcoholic, sweet beverage from the person working at the sample table. Claimant testified that he disposed of the cup after he took a sip and realized that the sample cup contained an alcoholic drink. Claimant said that he did not see beer bottles on the table or any signs indicating that the sample cups contained alcohol. Claimant also testified that he took a breathalyzer test as part of Employer's investigation, which returned a .000 result. (R.R. at 84a-89a.)
The referee replayed Employer's surveillance video during Claimant's testimony and asked Claimant additional questions. Although the referee indicated that the video showed Claimant raising the sample cup twice as if to drink from it, Claimant insisted that he only took one sip. (R.R. at 90a-94a.)
The referee found that Employer has a drug and alcohol policy which provides that a violation may result in discharge and that Claimant was or should have been aware of the policy. The referee found that the sample table contained clearly marked bottles of beer and clear cups containing drinks. The referee further found that the video surveillance showed Claimant drinking and consuming the beverage prior to disposing of the cup. The referee credited Wing's testimony and rejected Claimant's testimony as not credible because it directly conflicted with the surveillance video. Accordingly, the referee reversed the service center's determination and held that Claimant was ineligible for benefits under section 402(e) of the Law.
Claimant appealed to the Board, arguing that he mistakenly had only one sip of alcohol before disposing of the cup and that his breathalyzer test immediately following the incident returned a negative result. By decision and order dated February 28, 2014, the Board affirmed the referee's decision and adopted the referee's findings of fact and legal conclusions. In addition, the Board specifically discredited Claimant's contention that he was unaware that the sample cup contained alcohol. The Board also observed that Claimant was discharged for drinking alcohol while in uniform and on duty, in violation of Employer's policy, and therefore, his blood alcohol content was irrelevant.
On appeal to this Court, Claimant argues that Employer did not meet its burden of proving willful misconduct because Claimant's violation of Employer's policy was unintentional.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether the necessary findings of fact are supported by substantial evidence. Adams v. Unemployment Compensation Board of Review, 56 A.3d 76, 78 n.3 (Pa. Cmwlth. 2012).
Whether a claimant's actions rise to the level of willful misconduct is a question of law subject to our review. Tongel v. Unemployment Compensation Board of Review, 501 A.2d 716, 717 (Pa. Cmwlth. 1985). An employer alleging willful misconduct based on a violation of the employer's work rule bears the burden of proving the existence of a reasonable work rule and the fact of its violation. Teasley v. Unemployment Compensation Board of Review, 431 A.2d 1155, 1157 (Pa. Cmwlth. 1981). Once the employer satisfies its initial burden, the burden shifts to the claimant to prove good cause for his conduct. Id.
Here, Employer established that it has a policy prohibiting employees from possessing or drinking alcohol while on duty and that the violation of its policy can result in disciplinary action up to and including termination. Claimant contends that while he was aware of this policy, Employer did not show that his actions constituted a deliberate violation. Claimant asserts that his consumption of alcohol at work was not intentional.
This Court has previously held that an employee's inadvertent violation of an employer's rule is not necessarily willful misconduct. Pennsylvania National Insurance Company v. Unemployment Compensation Board of Review, 531 A.2d 832, 834 (Pa. Cmwlth. 1987). In this case, however, the evidence of record establishes that the sample table was located in front of a bar-restaurant during an ongoing celebration; the bottles of beer on the table were clearly marked; and Claimant consumed the contents of the cup before disposing of it. In addition, the Board specifically rejected Claimant's testimony that he was unaware the sample cup contained alcohol. Although the contents of the drink cannot be verified by the video, Claimant does not dispute that the cup contained an alcoholic beverage. Moreover, in an unemployment proceeding, a finding of willful misconduct can be reasonably inferred from circumstantial evidence. Ruiz v. Unemployment Compensation Board of Review, 887 A.2d 804, 808 (Pa. Cmwlth. 2005).
In unemployment compensation proceedings, the Board is the ultimate factfinder, with exclusive authority over determinations of witness credibility and evidentiary weight. Mathis v. Unemployment Compensation Board of Review, 64 A.3d 293, 299 (Pa. Cmwlth. 2013). --------
In Ruiz, the claimant was discharged for violating the employer's policy prohibiting the use or possession of illegal drugs at the workplace. Two of the claimant's supervisors testified that, on the day in question, they observed the claimant move his car to the far end of the company parking lot during his break. The supervisors stated that the claimant was the only person in the car at the time and that when they approached his vehicle, they noticed smoke coming from inside and the pungent odor of burning marijuana. Both supervisors said that they saw something flicked out of the car window, and one retrieved a smoldering butt of a marijuana cigarette from the ground outside the car. The claimant in Ruiz asserted that his supervisors had fabricated their testimony in retaliation for a grievance he had filed and that he customarily went to his car during his break and smoked a cigarette. The referee found that the employer failed to prove that the claimant possessed and used marijuana at the workplace in violation of the employer's policy. The Board reversed, concluding that there was sufficient direct and circumstantial evidence to establish that the claimant possessed and used illegal drugs on the employer's property. On appeal, we affirmed the Board's decision, specifically noting that circumstantial evidence, if substantial, is sufficient to support a finding of willful misconduct. Id. at 808.
As in Ruiz, we conclude that the evidence of record, both direct and circumstantial, is sufficient to support the Board's findings and its conclusion that Claimant's conduct constituted a deliberate violation of Employer's policy.
Claimant also argues that there was insufficient first-hand testimony or evidence to support a finding of willful misconduct. Wing did not have first-hand knowledge of the incident, but she offered competent testimony concerning her own observations of the video; the referee viewed the video during the hearing; and the video itself was not hearsay because it is non-assertive conduct. See Pa.R.E. 801(a); Yost v. Unemployment Compensation Board of Review, 42 A.3d 1158, 1164 n.6 (Pa. Cmwlth. 2012). And while Claimant correctly notes that both the referee and Wing had difficulty identifying the contents of the cup from the video, Claimant acknowledged that the cup contained an alcoholic beverage. Claimant admitted that his conduct violated Employer's policy, and the Board, after rejecting Claimant's testimony, properly relied on circumstantial evidence to determine that his actions were not inadvertent. Ruiz.
Finally, Claimant contends that the last chance agreement does not apply in the present case because it contains an Arizona forum-selection clause. Although the referee referenced the last chance agreement, the referee specifically found that Claimant was discharged for violating Employer's drug and alcohol policy, which provides that drinking alcohol while on duty may result in discharge. Therefore, we conclude that the applicability of the last chance agreement was not material to the Board's determination and is not relevant to our appellate review.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 29th day of October, 2014, the order of the Unemployment Compensation Board of Review, dated February 28, 2014, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge