Opinion
No. 1060 C.D. 2011
05-10-2012
Stefano Kiniropoulos, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEADBETTER
Stefano Kiniropoulos petitions for review of the decision of the Unemployment Compensation Board of Review that denied him unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), 43 P.S. § 802(e) (pertaining to unemployment due to willful misconduct connected to work). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
Kiniropoulos worked for Northampton County as a Caseworker II in the Department of Human Services (employer) until May 26, 2010, when he took a medical leave of absence and thereafter went on a pre-scheduled vacation. While he was on medical leave, his supervisor assumed responsibility for Kiniropoulos's cases. The supervisor discovered discrepancies in Kiniropoulos's mileage reports, sign out sheets and time reports. Specifically, the Board found:
9. On January 8, 2010, the claimant's sign out sheet indicated that he was in the office that day, but he submitted a mileage sheet indicating that he was at the hospital in Paoli [Chester County] that day.Board's decision at 2. In addition, employer received complaints from foster families and children reporting that Kiniropoulos was not performing visits at the minimum required frequency of one per month. Id. at 1, finding of fact no. 5. On June 14, 2010, employer placed Kiniropoulos on unpaid suspension and initiated an investigation and, as of October 4, 2010, he remained on indefinite suspension. Id. at 2, finding of fact no. 16.
10. On January 18, 2010, the claimant submitted a mileage report indicating that he drove 51 miles to Macungie [Lehigh County]. January 18, 2010, [was] a county holiday and the claimant was not working that day.
11. On February 12, 2010, the claimant's sign out sheet listed a personal day, but he submitted a mileage sheet for travel to Stroudsburg [Monroe County] for that day.
12. On March 16, 2010, the claimant signed out indicating that he was going to Macungie, but submitted a mileage sheet indicating and charging the employer for mileage to Bayonne, New Jersey for that day.
13. From January of 2010 through April of 2010, the employer could verify only 2 days where the claimant's mileage report matched his sign out and time sheets and the client records.
Based on these facts, the Board reversed the referee, who had granted benefits after finding that Kiniropoulos did not falsify the documentation, much of which was filled in and maintained by other staff persons, and that Kiniropoulos reported his work activities and travel to the best of his ability. The Board, after finding that Kiniropoulos failed to visit foster families as required and falsified work documentation, denied benefits. The present appeal followed.
The Referee affirmed the determination of the Unemployment Compensation Service Center, which granted benefits. In pertinent part, the Referee opined:
In this case, the Referee recognizes conflicts in testimony between the claimant and the employer. Because much of the employer's relevant testimony is based on hearsay and circumstantial evidence that is credibly contradicted by the claimant, the Referee resolves relevant conflicts in favor of the claimant. The claimant did not willfully misreport or misrepresent his activities.
On appeal, Kiniropoulos contends, citing Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977), that "[b]ecause the referee's positive findings are amply supported by the record, they are binding on appeal." Petitioner's Brief at 9. Thus, he maintains that employer failed to establish willful misconduct. Kiniropoulos further argues that, even conceding that he may have made some errors in his documentation of his work activities, the evidence does not support a finding that his actions were any more than infrequent episodes of minor negligence that occurred too remotely in time to justify a denial of benefits on grounds of willful misconduct.
Taylor does not stand for the proposition asserted by Kiniropoulos. In Taylor, the Board adopted the referee's findings and our court, in deferring to the findings of the Board, referenced the referee's findings; in no manner did the court suggest any deviation from the very well established principal that the Board, not the referee, is the fact-finder. See First Fed. Sav. Bank v. Unemployment Comp. Bd. of Review, 957 A.2d 811, 815 (Pa. Cmwlth. 2008) (stating that the Board is the ultimate finder of fact and where the Board makes its own findings, it is the Board's not the referee's findings that may be subject to the court's review for substantial evidence). While our Supreme Court has ruled that the Board is not free to arbitrarily and capriciously disregard a referee's findings, when these are based on uncontradicted testimony without indicating its reasons for doing so, see Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982), that principle has not been so far extended as to require or even permit our court to examine the reasons for the Board's assessment of the credibility of conflicting testimony, see Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985); Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603 (Pa. Cmwlth. 2011). See, e.g., M.A. Bruder & Sons, Inc. v. Unemployment Comp. Bd. of Review, 603 A.2d 272 (Pa. Cmwlth. 1992).
In the present case, the referee received conflicting testimony and the Board, in its decision, makes perfectly clear that, unlike the referee, it chose to believe the testimony of employer's witnesses over that of Kiniropoulos. Our review is limited to determining whether the credited evidence provides substantial support for the Board's findings. See Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010). Further, the Board explained its reasons for its findings. It noted the testimony that Kiniropoulos failed to perform home visits with some foster families and children in conjunction with discrepancies on his time sheets, mileage sheets and sign-out sheets regarding his whereabouts and activities on certain days and times. This provides ample evidence to support the Board's findings that he failed to make home visits as required and he falsified work documents.
In his brief, Kiniropoulos contends that the Board was obliged to explicitly explain its grounds for rejecting the referee's conclusion that much of employer's evidence rested on unspecified hearsay. Kiniropoulos never made a hearsay objection at the hearing before the Referee and thus, cannot now complain about its admission into the record. See Virgo v. Workers' Comp. Appeal Bd. (County of Lehigh-Cedarbrook), 890 A.2d 13, 21 (Pa. Cmwlth. 2005); Schaal v. Unemployment Comp. Bd. of Review, 870 A.2d 952 (Pa. Cmwlth. 2004). Moreover and in any event, the Board's findings are adequately supported by non-hearsay evidence, specifically the testimony from a foster child and a foster parent regarding the infrequency of Kiniropoulos's visits with them and testimony from Gary Ruschman, the Director of Information Referral Emergency Services at Northampton County Human Services, regarding his personal review of the time, mileage and sign-out work sheets that Kiniropoulos was required to maintain in the course of his employment. --------
Willful misconduct has been defined to include a deliberate violation of an employer's work rules and a disregard for the standards of behavior that an employer can rightfully expect of its employees. Glenn v. Unemployment Comp. Bd. of Review, 928 A.2d 1169 (Pa. Cmwlth. 2007). After an employer meets its burden of proving willful misconduct, the burden shifts to the employee who must prove good cause for his actions, that is, that his conduct was reasonable or justified under the circumstances. Id. Kiniropoulos's failure to perform essential duties of the job and his falsification of work records, including mileage reimbursement records, constitutes willful misconduct justifying the denial of benefits. See Scott v. Unemployment Comp. Bd. of Review, 36 A.3d 643, 647 (Pa. Cmwlth. 2012) (unexcused failure to perform essential job duties may constitute willful misconduct); Downey v. Unemployment Comp. Bd. of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006) (employee dishonesty may constitute willful misconduct).
There is no merit in Kiniropoulos's assertion that the discrepancies in work documents generated several months before his termination are too remote in time to support a conclusion that his suspension was for willful misconduct. In support of this contention he cites Tundel v. Unemployment Compensation Board of Review, 404 A.2d 434 (Pa. Cmwlth. 1979), and Unemployment Compensation Board of Review v. Dravage, 353 A.2d 88, 89 n.2 (Pa. Cmwlth. 1976). These cases are not applicable to the present circumstances; in Tundel, employer delayed terminating employee for conduct known to have occurred 25 days earlier, and in Dravage, employer failed to produce evidence of specific wrongful acts by the employee. Here employer acted promptly after discovering the discrepancies in Kiniropoulos's work documentation and pointed to specific instances of falsification. The critical temporal relationship is that between employer's awareness of misconduct and any investigation and disciplinary action based on that misconduct. See Raimondi v. Unemployment Comp. Bd. of Review, 863 A.2d 1242 (Pa. Cmwlth. 2004); Bivins v. Unemployment Comp. Bd. of Review, 470 A.2d 662, 664 (Pa. Cmwlth. 1984). That relationship is adequately established in the present case.
Accordingly, we affirm the Board's order denying benefits.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 10th day of May, 2012, the order of the Unemployment Compensation Board of Review is hereby affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
Referee's decision at 2.