Opinion
No. 2103 C.D. 2012
07-03-2013
Bryan N. Kubic, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Bryan N. Kubic (Claimant) petitions this Court for review of the Unemployment Compensation Board of Review's (UCBR) October 17, 2012 order affirming the Referee's decision denying Claimant unemployment compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law). Essentially, the issues before this Court are: 1) whether Claimant is ineligible for UC benefits under Section 402(e) of the Law for willful misconduct; 2) whether the Referee committed erroneous evidentiary rulings; and 3) whether the Referee's findings of fact are supported by substantial evidence. We affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant's employment as a full-time Corrections Officer 3 at the Pennsylvania Department of Corrections (Employer) commenced in November 1996, and ended on December 1, 2011. In accordance with federal law, Employer offers paid military leave to employees who serve in the military for a certain number of days per year. Employer's military leave program compensates a portion of employee wages during the leave period while the military also pays a portion of the employee's wages. Reproduced Record (R.R.) at 212a. Employer's Code of Ethics expressly prohibits misrepresentation or falsification on documents submitted in support of military leave. R.R. at 191a. Code of Ethics violations are cause for disciplinary action up to and including immediate employment termination. R.R. at 207a. Claimant was or should have been aware of Employer's Code of Ethics.
Pursuant to Employer's military leave policy, Claimant requested and was granted military leave numerous times throughout his employment. On July 15, 2011, Stephen Allen (Allen), Employer's Criminal Investigator at that time, conducted an interview with Claimant regarding Claimant's paid military leave and informed him of discrepancies discovered between the dates Claimant was compensated for military leave by Employer, and dates the military paid Claimant. Specifically, Allen identified fourteen days which was subsequently changed to twelve days where Claimant took paid military leave and was compensated by the Employer, but was not paid by the military. Employer suspended Claimant from his employment without pay on August 16, 2011, pending further investigation. R.R. at 232a. On August 16, 2011, Claimant was arraigned on criminal charges based on the above allegations. On December 1, 2011, Employer discharged Claimant from his employment for using Employer's paid military leave for other than military service.
Claimant applied for UC benefits. On November 1, 2011, the UC Service Center determined that Claimant was ineligible for UC benefits under Section 402(e) of the Law. Claimant appealed and, on January 25, 2012, a Referee held a hearing. On February 15, 2012, the Referee affirmed the UC Service Center's determination. Claimant appealed to the UCBR. The UCBR remanded the case to a Referee for a second hearing. Following the second hearing, the UCBR affirmed the Referee's decision denying Claimant UC benefits. Claimant appealed to this Court.
The purpose of the remand was to submit into evidence the results of the criminal charges against the Claimant. Those charges were nolle prossed.
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005).
Claimant first argues that the UCBR erred in finding him ineligible for UC benefits under Section 402(e) of the Law. Specifically, Claimant contends that he did not commit willful misconduct.
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 n.4 (Pa. Cmwlth. 2000) (citation omitted). "In the case of a work rule violation, the employer must establish the existence of the rule, the reasonableness of the rule and its violation." Lindsay v. Unemployment Comp. Bd. of Review, 789 A.2d 385, 389 (Pa. Cmwlth. 2001). "In an unemployment compensation case, the UCBR is the ultimate fact finder and is empowered to make credibility determinations. Questions of credibility and the resolution of evidentiary conflicts are within the discretion of the UCBR and are not subject to re-evaluation on judicial review." Bell v. Unemployment Comp. Bd. of Review, 921 A.2d 23, 26 n.4 (Pa. Cmwlth. 2007) (citation omitted).
Here, John Biondo (Biondo), Employer's Human Resource Analyst and Chairperson of the pre-disciplinary conference panel (Panel), testified before the Referee that Employer has a Code of Ethics which contains a policy against misrepresenting facts on submitted reports, and failure to comply with this policy can result in immediate termination. R.R. at 74a. Biondo further testified that Claimant was given a copy of the handbook containing said Code of Ethics when he was hired and Claimant signed a receipt confirming he received the handbook. R.R. at 73a. Biondo stated that, following a pre-disciplinary conference, Claimant was given an opportunity to provide witnesses and documentation to demonstrate he did not misrepresent facts on his submitted reports for said military leave. R.R. at 71a. Biondo also related that the Panel required Claimant to furnish documents other than what Claimant had initially provided in support of his military leave requests. Id. The Panel specifically requested, "hard documentation from military orders or some kind of hard military document that would say what kind of military duty he was performing on those days." Id. According to Biondo's testimony, Claimant communicated that he had appropriate documentation validating his military leave and would provide it to the Panel. Id. However, after being granted several time extensions, Claimant failed to furnish the Panel the requested documentation. Id. The Panel, in assessing the allegations against Claimant, relied on a variety of items, including Claimant's comprehensive leave history from Employer, military payroll records, and a communication from the Staff Administrator for the Army Reserve unit where Claimant was stationed that if no military pay was issued, then no military duty was performed on the date in question. R.R. at 51a, 141a, 145a. Biondo attested that based on Employer's investigation and Claimant's failure to proffer the requested evidence, the Panel determined that the charges alleged against Claimant had been substantiated. R.R. at 72a.
The Referee credited Employer's testimony that Claimant received Employer's handbook containing the relevant Code of Ethics and had signed the acknowledgment confirming receipt of the handbook. He concluded that after an investigation into Claimant's military leave, Employer identified ten dates unaccounted for where Claimant received compensation from Employer but received no military pay, thus, evidencing that he performed no military duty. Therefore, the record evidence establishes that Employer had a reasonable workplace policy, Claimant was aware of said policy, and Claimant violated said policy when he took military leave, but performed no military service.
Once the Employer demonstrates that there is a reasonable workplace policy and Claimant violated said policy, the burden shifts to Claimant to prove his conduct is justified under the circumstances. Connelly v. Unemployment Comp. Bd. of Review, 450 A.2d 245 (Pa. Cmwlth. 1982). Claimant here did not appear at either Referee hearing nor did any witnesses appear on his behalf. The only evidence Claimant's counsel sought to admit in support of Claimant's claim was an affidavit and a letter that were allowed for the limited purpose of showing the Panel considered them as part of its investigation, but were excluded for the purpose of proving the truth of the documents' contents because they were found to be hearsay. Although Claimant argues that the Referee erred in this evidentiary ruling, for the reasons set forth below we disagree. Thus, Claimant presented no evidence to show that his actions were justified. Accordingly, the UCBR properly concluded that Claimant committed willful misconduct and was ineligible for benefits under Section 402(e) of the Law.
Claimant further contends that the Referee erroneously excluded his legitimate evidence from the record as hearsay. Specifically, Claimant asserts that Major Peter Kelly's Affidavit (Affidavit) and Lieutenant Colonel Scott Giacobbi's Letter (Letter) should have been admitted into evidence for two different purposes: one, to establish the dates he performed military duties and second, to show that he complied with the Employer's request for documentation that supported his use of military leave.
"It has long been established in this Commonwealth that hearsay evidence, properly objected to, is not competent evidence to support a finding of the [UCBR], whether or not corroborated by other evidence." Myers v. Unemployment Comp. Bd. of Review, 533 Pa. 373, 377, 625 A.2d 622, 625 (1993). "Hearsay is defined as a 'statement, other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted.'" Pa. R. E. 801(c). Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1164 (Pa. Cmwlth. 2012). Although evidentiary standards used in administrative hearings are relaxed, "in the administrative forum there has not been an abandonment of all rules of evidence." A.Y. v. Dep't of Pub. Welfare, Allegheny Cnty. & Youth Services, 537 Pa. 116, 121, 641 A.2d 1148, 1151 (1994). Moreover, it is well settled that "questions concerning the admission or exclusion of evidence are matters within the lower tribunal's discretion and will not be disturbed absent an abuse of discretion." Capital BlueCross v. Pa. Ins. Dep't, 937 A.2d 552, 580 (Pa. Cmwlth. 2007). See also Haines v. Workmen's Comp. Appeals Bd. (Clearfield Cnty.), 606 A.2d 571 (Pa. Cmwlth. 1992).
Claimant's counsel presented the Affidavit and Letter to support Claimant's position that he performed military duties during his military leave. The Employer objected to their admission on the grounds of hearsay. The Referee sustained the Employer's objection and the documents were admitted into the record for the limited purpose of showing they were part of a packet the Panel reviewed during the investigation, but precluded their admission for proving the truth of the matter asserted therein. The authors of the Affidavit and the Letter were not present at the hearing for questioning nor was there any way to verify the authenticity of these documents. Accordingly, the Referee properly sustained the hearsay objection and allowed the documents into the record for the limited purpose of establishing that they were included in a packet Employer reviewed as part of its investigation. See Yost.
The Affidavit contains no official notary stamp or notary signature on the document and therefore is defective. See Bolus v. Saunders, 833 A.2d 266 (Pa. Cmwlth. 2003). --------
Claimant next asserts that the Referee's findings of fact 10, 12 and 13 are not supported by substantial record evidence. Those findings read as follows:
10. The claimant failed to provide documentation and refused to sign an authorization for investigation into the dates of his [medical] examinations.R.R. at 244a.
. . . .
12. The claimant failed to provide any documentation of his VA [medical] appointments.
13. The claimant provided hearsay testimony regarding the alleged authorization to substitute VA [medical] appointments for required drills.
[I]t is well settled that the [UCBR] is the ultimate finder of fact in unemployment compensation proceedings. Thus, issues of credibility are for the [UCBR] which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings.Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011) (citations omitted). "Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion." Middletown Twp. v. Unemployment Comp. Bd. of Review, 40 A.3d 217, 223 (Pa. Cmwlth. 2012).
Here, Allen testified that when Claimant was asked to sign a waiver authorizing release of the dates and times of his medical appointments during his alleged military leave, pertinent information that would validate the use of Claimant's military leave, Claimant responded: "he didn't want [Employer] to have his medical records." R.R. at 30a. Biondo also testified that "[Claimant] said he would have documents to . . . show that he was performing military duty or was at VA medical appointments" and even though "[Claimant] said he would provide them to myself and Ms. Mattas[,]" after multiple time extensions, he failed to do so. Id.
Claimant maintains that the Letter and Affidavit he sought to admit, but which the Referee excluded was for the purpose of establishing that he "had cooperated with requests for documentation and that the DOC had received documents from [Claimant]." Claimant's Br. at 27. Even if the Referee had admitted these documents they failed to support Claimant's position that he properly used paid military leave or that he was authorized to, and in fact did, substitute VA appointments for required drills on specified dates. The Affidavit contains no specific dates for which military duty was performed. R.R. at 2a. Instead, the Affidavit only describes various military duties Claimant performed during his military leave where he kept his own time. Moreover, the Affidavit advocates for Claimant primarily on the quantity and quality of his work instead of concrete knowledge of Claimant's duties during his military leave. The Letter states Claimant performed military duty on various dates. R.R. at 1a. However, it corroborates only two of the twelve dates in question. Even if both documents were admitted into the record in their entirety, there remain ten dates uncorroborated. Both documents lack the specificity the Panel requested and cannot substantiate Claimant's position. Thus, even if the documents had been admitted in their entirety, they would not have changed the outcome of this case.
The Referee found Employer's testimony to be credible and the UCBR adopted and incorporated the Referee's findings of fact and legal conclusions. Thus, the Employer's credible testimony establishes that findings of fact 10, 12 and 13 are based on substantial record evidence. Accordingly, Claimant's assertion lacks merit.
For the aforementioned reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 3rd day of July, 2013, the Unemployment Compensation Board of Review's October 17, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge