Opinion
No. 597 C.D. 2013
01-06-2014
Jeffrey L. Hehnly, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Jeffrey L. Hehnly (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the Referee's denial of unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law) because Claimant engaged in willful misconduct by violating without good cause the policy of B & G Glass (Employer) that prohibits its employees from engaging in any glass-related work for others or in using its tools without permission. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides, in relevant part:
An employe shall be ineligible for compensation for any week -
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(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act.
Although the Law does not define the term "willful misconduct," the courts have defined it as:
(1) wanton or willful disregard for an employer's interests; (2) deliberate violation of an employer's rules; (3) a disregard for the standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.
Claimant worked as an automobile glass glazer from November 22, 1998, to October 23, 2012. Claimant was aware of Employer's policy requiring employees to disclose actual or potential conflicts to Employer and which prohibits employees from engaging in any glass or glass-related work for themselves or others without Employer's preapproval. Claimant was also aware that Employer's policy prohibits employees from using Employer-owned equipment, tools or materials without prior written approval. On one occasion in the past, Employer gave Claimant verbal permission to use its company tools. On September 22, 2010, Employer issued Claimant a warning that he was not permitted to work for its competitors, vendors or himself and that future instances of doing outside work could result in termination. On October, 20, 2012, Claimant took Employer's tools and went to a junkyard to remove a window for someone who worked at a dealership. Employer discharged Claimant for using its tools without permission and for engaging in outside work.
Claimant filed a claim for benefits with the UC Service Center which granted benefits, finding that Claimant had good cause for violating Employer's policy because "he had borrowed the tool in the past and did not think that it was going to be a problem to do it again." (Reproduced Record (R.R.) at 1a). Employer appealed and before the Referee, Donald Moll (Moll), Employer's President, testified that Claimant was terminated for doing outside work and for using company tools without permission on October 20, 2012, in violation of Employer's policy. He stated that Claimant was warned about doing outside work in September 2010 and was told that another violation could result in termination. He testified that Claimant's activity was reported to him and that on October 23, 2012, Claimant admitted to his awareness of the policy and to taking a company tool without permission and removing glass at the junkyard. Moll stated that Claimant had once before received verbal permission, several months earlier, to use Employer's tools outside of his employment.
During Moll's testimony, Claimant's counsel attempted to cross-examine him regarding Claimant's problems performing work after he had contracted carpal tunnel syndrome. (R.R. at 16a). The Referee stated that Moll had not testified to that at all and Claimant's counsel mentioned that that was part of Claimant's Questionnaire and that Claimant believed that that was one of the reasons why he was terminated. (Id.) The Referee stated that he may or may not allow that testimony later, but that Employer had not given any testimony to that effect so he didn't permit counsel to cross-examine Moll on that issue. Claimant's counsel stated that that was all of the questions he had for Moll for now, subject to recall during his case-in-chief. (Id.).
Eugene LaFollette (LaFollette), Employer's IT Administrator, testified that he saw Claimant walking into the junkyard on October 20, 2012, carrying an equalizer tool and a bottle of water and walking out of the junkyard carrying the tool and a piece of glass. He stated that Claimant stopped him and asked him what he was doing there and he replied that it was none of Claimant's business. LaFollette testified that he called the Supervisor, David Gray (Gray), who told LaFollette that he did not give Claimant permission to use the tools. LaFollette stated that he also called Moll and told him what he had seen.
Claimant testified that he was at the junkyard to help a friend that works at an auto dealership who needed a window out of a car and who didn't want to cut it out himself because he was afraid that he would break it. Claimant stated that he wasn't paid for this work. Claimant also testified that he had borrowed Employer's tools with permission up to 12 times previously and that he had returned the tools to work. He stated that he had never received written permission to use the tools and that he usually asked Gray and that Gray always said yes. Claimant acknowledged his awareness of Employer's policy and that he admitted to its violation. (R.R. at 25a). He stated that he didn't ask his supervisor for permission to take the tool because he had always said yes before. (Id. at 25a-26a). He stated that he didn't remember Employer's written warning and that he was never told that he would be fired for borrowing a tool to do work for someone else.
Claimant testified that he had carpal tunnel surgery a little over a year earlier and that he presumed that Employer wasn't happy with the timeliness of his work. (R.R. at 25a). When the Referee directly asked Claimant if he wanted to be a bit more specific regarding his carpal tunnel surgery, Claimant replied, "I don't really see why we should even talk about it truthfully." (Id. at 26a). When the Referee asked counsel if he had anything else from Claimant at the end of his testimony, counsel replied, "No. Just a closing, that's it." (Id. at 28a).
The Referee reversed the UC Service Center's determination, finding that Claimant was ineligible for benefits under Section 402(e) and Claimant appealed to the Board requesting a remand because Employer's reason for termination was a pretext and the real reason was his carpal tunnel syndrome; the Referee failed to consider Claimant's carpal tunnel syndrome in disposing of the appeal; and that a new Referee should hear the remand based on the prior Referee's bias.
The Board affirmed the Referee's decision, explaining:
Here, the employer credibly established that the claimant was aware of its policies. Moreover, the claimant admitted he did not request permission to use the employer's tools and he also admitted that he was doing outside work. Regarding the claimant's use of the tools, the claimant testified that he had previously received verbal permission to use the employer's tools on "three to twelve occasions." The employer, on the other hand, testified that it only gave the claimant verbal permission to use its tools on one occasion. The Board resolves the conflicts in favor of the employer and finds the employer credible. The claimant also testified that other employees used tools for outside work and that he had used the employer's tools on prior occasions with only verbal permission. The Board does not find the claimant credible, and the Board concludes that the claimant provided insufficient credible evidence to show that the employer inconsistently enforced its policies or that the employer condoned the claimant's conduct. The claimant also failed to offer sufficient credible evidence showing that the employer's discharge was related to the claimant's carpal tunnel syndrome. Accordingly, the claimant did not show good cause for his conduct. The claimant's conduct violated the employer's policies and was contrary to the standards of behavior an employer has the right to expect.
[T]he Board also concludes that the claimant's failure to notify his employer of his outside glass work also rises to the level of willful misconduct.
In his request for a remand, the claimant's counsel alleges that the Referee was hostile to claimant's counsel when he attempted to elicit testimony about the claimant's carpal tunnel syndrome. The claimant's counsel also asserts that the Referee was clearly biased in favor of the employer. Notably, the claimant's counsel does not assert that the Referee precluded the claimant from testifying about the carpal tunnel syndrome. Based
on the record before the Board, the claimant had an opportunity to testify and the Referee did not act improperly. Accordingly, the Board denies the claimant's request for a remand.(Board 3/14/13 Decision at 2-3). Claimant then filed this appeal.
Our review of the Board's decision 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. Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 222 n.8 (Pa. Cmwlth. 2012).
Claimant contends that the Referee erred in only focusing on the work rule violation and whether he had just cause to violate the work rule against using employer's tools without permission because he had done so many times in the past with Employer's knowledge. What that argument ignores is that the Board did not find Claimant's testimony that he was allowed to borrow tools without permission, the only evidence supporting that argument, credible. Because the Board is the ultimate finder of credibility and may either accept or reject a witness' testimony, it was not an error for the Board to find that Claimant did not meet his burden of establishing that he did not have just cause not to follow Employer's policy.
The Board is the ultimate finder of fact in unemployment compensation proceedings. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 277, 501 A.2d 1383, 1389 (1985); Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207, 208 (Pa. Cmwlth. 1988). Issues of credibility are for the Board, which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Id. Findings of fact are conclusive on appeal if the record contains substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The fact that a witness has presented a version of the facts different from that accepted by the Board is not a basis for reversal if substantial evidence supports the Board's findings. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). "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." Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citation omitted). As the burdened party with respect to establishing good cause, Claimant had to meet both his burden of production and his burden of persuasion. See Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987).
Claimant also contends that the Referee erred in refusing to allow in evidence or consider the evidence that Claimant's termination for the policy violation was pre-textual because he was really terminated due to his carpal tunnel syndrome. During the Referee's hearing, Claimant's counsel was properly precluded from cross-examining Moll regarding Claimant's carpal tunnel syndrome because the issue was not yet in evidence, and Claimant's counsel stated that he was finished questioning Moll at that time, subject to recall during his case-in-chief. (R.R. at 16a). During his case-in-chief, Claimant testified regarding his carpal tunnel syndrome and questioned its relevance himself stating, "I really don't see why we should even talk about it." (Id. at 26a). Claimant's counsel did not seek to question Moll or any other Employer witness regarding Claimant's carpal tunnel syndrome during his case-in-chief. (Id. at 28a). In addition, at the conclusion of the hearing, the Referee asked Claimant's counsel if he had anything to add and counsel replied, "No. I believe just I think the testimony that I think there's a pre-textual reason for this termination in terms of my client having carpal tunnel is in the record." (Id. at 31a). Clearly, Claimant was provided ample opportunity to present evidence on this issue at the Referee's hearing.
In addition, as set forth above, the Board considered Claimant's carpal tunnel syndrome in disposing of his appeal and determined that he did not sustain his burden of proving just cause for his admitted violation of Employer's known policy because he "failed to offer sufficient credible evidence showing that the employer's discharge was related to [his] carpal tunnel syndrome." (Board 3/14/13 Decision at 3). Because the Board considered the evidence that Claimant did present on his carpal tunnel syndrome, any purported error by the Referee in refusing to consider this evidence is irrelevant and, on appeal, we will not reconsider the Board's determinations regarding its credibility or weight.
Accordingly, the order of the Board is affirmed.
In September 2013, the Board filed an Application for Summary Relief alleging that its order should be affirmed because Claimant's challenge to the Referee's refusal to give weight to his testimony regarding his carpal tunnel syndrome is without merit and that there are no material issues of fact for this Court to decide. However, based upon the foregoing disposition of this appeal, the Application for Summary Relief is dismissed as moot. --------
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 6th day of January, 2014, the order of the Unemployment Compensation Board of Review dated March 14, 2013, at No. B-549197, is affirmed. The Unemployment Compensation Board of Review's Application for Summary Relief is dismissed as moot.
/s/_________
DAN PELLEGRINI, President Judge
Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). Where a claimant is discharged for a work rule violation, the employer has the burden to show that the claimant was aware that the work rule existed and that the claimant violated the rule. Id. If the employer satisfies its burden, the burden shifts to the employee to show that he or she had good cause for his or her conduct. Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012). A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances. Id. Whether an employee's actions constitute willful misconduct is a question of law subject to de novo review and must be determined based on a consideration of all of the circumstances. Id.