Opinion
No. 47 C.D. 2014
09-11-2014
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Margaret E. McAllister (Claimant) petitions for review of an Order of the Unemployment Compensation (UC) Board of Review (Board) denying her claim for UC benefits pursuant to Section 402(e) of the UC Law (Law). On appeal, Claimant argues that the Board's denial was improper because the Board erred in finding that: (1) Claimant was required to work five hours per day on any day that she elected to work; (2) Claimant was paid for hours she did not work on two dates in question; and (3) Claimant's failure to log in and out of her place of work was a deliberate attempt to falsify her time record rather than just a negligent mistake. Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) provides that "[a]n employe shall be ineligible for compensation for any week . . . [i]n 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." Id.
I. BACKGROUND
Claimant was employed by Dickey, McCamey & Chilcote, P.C. (Employer) as a paralegal until May 24, 2013. (Board Decision, Findings of Fact (FOF) ¶ 1.) Employer maintains a policy requiring non-exempt employees to utilize a hand scanner to record all hours worked (Policy). (FOF ¶ 2.) The Policy requires employees to scan in when arriving at work, when departing work, and when taking lunch or other breaks. (FOF ¶ 2.) "Employees who fail to scan in and record their hours worked may be subject to disciplinary action up to and including termination." (FOF ¶ 2.)
Claimant was terminated on May 24, 2013, for failure to comply with Employer's Policy. (Notice of Determination, R. Item 3.) Claimant applied for UC benefits. Because Claimant was not warned by Employer before termination, the UC Service Center found Claimant eligible for UC benefits even though she violated Employer's rule. (Notice of Determination, R. Item 3.) Employer appealed the UC Service Center's Notice of Determination, and the matter was assigned to a Referee for a hearing. At the hearing, Employer's Director of Human Resources (Director), Employer's Office Manager (Manager), and Claimant testified. Based on the evidence presented at the hearing, the Referee reversed the UC Service Center's determination and found Claimant ineligible for UC benefits under Section 402(e) of the Law. Claimant appealed the Referee's Decision to the Board.
A. The Board's Decision and Order
Upon review, the Board made its own findings of fact as follows:
1. The claimant was last employed as a paralegal by [Employer] for over twenty-two years and her last day of work was May 24, 2013.
2. The employer has a policy, of which the claimant was aware, providing that non-exempt employees are required to utilize the hand scanner to record all hours worked and must scan in when arriving at work, when departing work, and taking lunch breaks or any other breaks. Employees who fail to scan in and record their hours worked may be subject to disciplinary action up to and including termination.
3. The claimant provides care for her parents, both of whom are quite elderly and in varying states of infirmity and illness.
4. The employer provided the claimant with a flexible work schedule with the provision that she work at least 37.5 hours per week and at least five hours on any day that she elected to work.
5. Employees can gain access to the employer's facility after hours by swiping their card.
6. If the claimant was coming in to make up hours after 6:00 p.m., she would park on the street and enter the building by swiping her card.
7. The claimant was never granted permission to work from home.
8. The claimant, however, secured access to the "Citrix" system, which is used, in part, for individuals who are working from home, which is something that the employer permits in certain circumstances if an individual is working in excess of 37.5 hours per week.
9. On May 21, 2013, the claimant left the parking garage utilized by the employer around 11:30 a.m. to take her parents to critical dental appointments and was gone for some hours.
10. The employer's hand scan records indicated that the claimant scanned in at 9:34 a.m. and scanned out [at] 2:40 p.m. on May 21, 2013.
11. The claimant did not scan out when she left to take her parents to the dental appointments, nor did she scan back in when she returned from the appointments.
12. The claimant's swipe card records do not show that the claimant came back in after hours to make up for the time she was at the appointments with her parents.
13. The claimant did not work at least five hours on May 21, 2013, as per her agreement with the employer.
14. On May 22, 2013, the office manager mentioned in a casual conversation to the director of human resources that she had seen the claimant departing around 11:30 a.m. on May 21, 2013.
15. The director of human resources commenced an investigation into the claimant's timesheets. The director of human resources concluded from her investigation that there were multiple incidences over a recent six-week period in which the time the claimant reflected she worked did not comport with records accessible by the employer, including garage records.
16. On May 23, 2013, the claimant's timesheet indicates that she swiped her card at 7:34 a.m. and scanned out at 7:36 p.m.
17. That day, the director of human resources sent an email message to the claimant at 9:30 a.m. asking her to meet when she came in.
18. The director of human resources looked for the claimant in her office at 9:00 a.m., 1:00 p.m. and 4:00 p.m., but could not locate the claimant.
19. The employer's card swipe records indicate that the claimant gained access to the building after hours, at 6:32 p.m.(FOF ¶¶ 1-25.)
20. At 7:21 p.m. that day, the claimant sent a message to the director of human resources, stating, "Patty, I apologize. I did not see your email when I arrived this morning. I got involved with some real estate work when I arrived and did not review emails. I will come see you Friday morning."
21. On May 24, 2013, the director of human resources met with the claimant and advised [her] that she had reason to believe that the claimant's timesheets had been falsified and thereafter terminated her employment.
22. The claimant responded by saying "she did what she had to do" and that she "did not intend for this to happen."
23. The employer responded that the claimant's actions were considered to be fraud.
24. After the claimant had been discharged, the claimant's counsel, who is her spouse, contacted the director of human resources, stating that if the claimant's actions had cost the firm any money, he would reimburse it.
25. The director of human resources replied, "other than paying for wages for time not worked, I do not believe there is anything else and the firm is not pursuing anything else."
Based on its findings, the Board concluded that Claimant did not scan in or out when she left the office on May 21, 2013, to take her parents to dental appointments and, therefore, did not work the required five hours on May 21st. (Board Decision at 4.) The Board also determined that Claimant was not credible when she stated that she came back to work on May 21st to make up hours and "worked a lot." (Board Decision at 5.) Thus, the Board concluded that Claimant received compensation for hours she did not actually work on May 21st. (Board Decision at 5.)
In addition, the Board concluded that Claimant was not in her office for most of the day on May 23, 2013, and that Claimant failed to scan in or scan out when she left the office that day. (Board Decision at 5.) The Board decided that Claimant was not credible when she stated that she was involved with real estate work and took her parents to dental appointments on May 23rd. (Board Decision at 5.) The Board concluded that Claimant did not work the required five hours and received compensation for hours she did not work on May 23rd. (Board Decision at 5.)
The Board determined that Claimant's failure to record her time not only resulted in the Claimant receiving compensation for time not worked, but indicated a pattern of behavior in violation of Employer's Policy. (Board Decision at 6.) The Board determined that Claimant's conduct was also "against the standards of behavior the employer had the right to expect of" Claimant. (Board Decision at 6.) The Board concluded that Claimant's contention that she merely forgot to scan in or out was not credible and that Claimant's failure to properly record her time on May 21st and May 23rd was a deliberate violation of Employer's policies. (Board Decision at 5.) Further, the Board determined that Employer was permitted to terminate Claimant for violating the Policy. (Board Decision at 5.) Finally, despite being sympathetic to Claimant's need to care for her parents, the Board ruled that Claimant did not have good cause for violating Employer's Policy and was ineligible for benefits. (Board Decision at 6.)
II. DISCUSSION
Claimant now petitions this Court for review of the Board's Order. In support of her appeal, Claimant raises several issues.
Our review of the Board's decision "is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated." Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).
By notice filed with this Court, Employer has intervened in this matter.
A. Claimant's Five-Hour Per Day Work Requirement
Claimant first argues that the Board's finding of fact 4, that the Claimant was required by Employer to work five hours per day, is not supported by substantial evidence. Claimant contends that there is no evidence in the record from which a reasonable mind could conclude that Claimant had an obligation to work at least five hours per day and that Claimant's only requirement was to work a minimum of 37.5 hours per week.
Claimant points out that she testified during the Referee's hearing regarding the number of hours she was required to work and argues that her testimony fails to establish a five-hour per day requirement. In particular, when Claimant was asked on direct examination if she had a minimum daily hour requirement, she responded by testifying that "[y]ou work a minimum of five hours . . . ." (Hr'g Tr. at 28.) In response to counsel's question regarding what happens if she did not work five hours per day, Claimant explained that "[y]ou're docked time." (Hr'g Tr. at 28.) Claimant contends that her use of the indefinite pronoun "you," on direct examination, creates ambiguity in the record for the five-hour daily requirement. Claimant also argues that Director's failure to mention the five-hour per day requirement on direct examination, when asked about Claimant's work requirements during the Referee's hearing, weighs against the Board having substantial evidence to support its finding of fact. (Hr'g Tr. at 6.)
The Board's findings of fact must be supported by "[s]ubstantial evidence [which] is defined as 'such relevant evidence which a reasonable mind would accept as adequate to support a conclusion.'" Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 335 (Pa. Cmwlth. 2006) (quoting Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999)). "The Board's findings are conclusive on appeal so long as the record, when viewed in its entirety, contains substantial evidence to support the findings." Western & Southern Life Insurance Co., 913 A.2d at 335. This Court is bound "to examine the testimony in the light most favorable to the party in whose favor the Board has found, giving that party the benefit of all inferences that can logically and reasonably be drawn from the testimony" to determine if substantial evidence exists for the Board's findings. United States Banknote Co. v. Unemployment Compensation Board of Review, 575 A.2d 673, 674 (Pa. Cmwlth. 1990). Moreover, "even if there is contrary evidence of record, the Board's findings of fact are binding upon the Court where supported by substantial evidence." Borough of Coaldale v. Unemployment Compensation Board of Review, 745 A.2d 728, 731 (Pa. Cmwlth. 2000).
Here, the Board's finding that Claimant was required to work five hours per day is supported by substantial evidence. Even though Director did not mention the five-hour minimum requirement on direct examination, reasonable minds could accept Claimant's testimony as adequate to support the Board's finding that Claimant was required to work five hours per day. (Hr'g Tr. at 6.) In particular, when Claimant was asked about her work requirements on direct examination, Claimant described the five-hour work requirement. (Hr'g Tr. at 28.) Because Claimant's counsel asked Claimant to describe her own work requirements, it was reasonable for the Board to find that Claimant was, in fact, describing her work requirements. Thus, based on Claimant's testimony, the Board could reasonably determine that Claimant was required to work five hours per day. Accordingly, we conclude there is substantial evidence in the record to support the Board's finding of fact 4.
Claimant argues that if we determine that Claimant was required to work five hours per day, then the matter should be remanded to give Claimant an opportunity to make a full record on the five-hour question. Claimant supports this contention by arguing that the five-hour question was not part of Employer's claim before the Referee, that Claimant was not put on notice that the five-hour question was at issue, and that the Referee did not base his decision to deny benefits on any number of hours worked in a given day. We do not find Claimant's argument persuasive as it is the Board, not the Referee, who is the "ultimate fact-finding body" in unemployment compensation cases. Metropolitan Edison Co. v. Unemployment Compensation Board of Review, 606 A.2d 955, 957 (Pa. Cmwlth. 1992). Therefore, as the ultimate fact-finder, the Board was free to accept Claimant's admission to having a five-hour per day work requirement and make a subsequent finding of fact thereto. Keystone Coca-Cola Bottling Corp. v. Unemployment Compensation Board of Review, 693 A.2d 637, 642 (Pa. Cmwlth. 1997).
B. Claimant Paid for Hours When She did not Work
Claimant next argues that the Board's conclusion that Claimant was paid for hours she did not work should be reversed because this conclusion was inferred from the Board's finding that Claimant was required to work five hours per day. Claimant argues that the Board erred in finding that she was paid for hours she did not work on May 21, 2013, and May 23, 2013, by assuming that she was required to work five hours each day. (Board Decision at 5.) As already discussed above, there was substantial evidence in the record for the Board to find that Claimant was required to work five hours per day. Therefore, it was also reasonable for the Board to conclude that Claimant was paid for hours she did not actually work on May 21st and May 23rd after finding that Claimant did not work the required five hours on each of those days. (Board Decision at 5.)
C. The Board's Credibility Determinations
Next, Claimant disputes the credibility determinations made by the Board in dismissing evidence adduced by Claimant. First, Claimant asserts that the Board's conclusion that Claimant was being paid for hours she did not work introduced an otherwise nonexistent motive for Claimant to be untruthful. Second, Claimant asserts that the Board was manifestly confused about the record of events for May 21st and May 23rd. Claimant argues that the Board mistakenly concluded that Claimant testified to bringing her parents to dental appointments on both May 21, 2013, and May 23, 2013, and that Claimant testified to working late to make up hours on May 21, 2013, which contradicts the timesheet records. By confusing when Claimant took her parents to the dental appointments and worked late, Claimant contends that the Board erroneously found that Claimant misrepresented her whereabouts on May 23rd and was, therefore, not credible. Third, Claimant contends that the Board erred in concluding that Claimant misrepresented her whereabouts in her email sent on May 23, 2013, by not telling Director that she had been out of the office on May 23, 2013. Claimant argues that these errors were material and asserts that the Board's confusion of the record caused it to determine that Claimant was not credible, which resulted in an unfair ruling denying Claimant's UC benefits.
In UC cases, the Board is the ultimate finder of fact and questions regarding the weight of the evidence are solely within its province. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 815 (Pa. Cmwlth. 2008). That Claimant might view the testimony differently from the Board does not create grounds for reversal if the Board's findings are supported by substantial evidence. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1109 (Pa. Cmwlth. 1994). "However, '[a]lthough the weight to be given the evidence and the credibility to be afforded the witnesses are within the province of the Board as finder of fact . . . such a body is not free to ignore the overwhelming evidence in favor of a contrary result not supported by the evidence."' First Federal Savings Bank, 957 A.2d at 815 (quoting Borello v. Unemployment Compensation Board of Review, 417 A.2d 205, 211 (Pa. 1980)).
It does appear that the Board confused the timing of events on May 21, 2013, and May 23, 2013. For example, the Board mistakenly stated that Claimant testified to taking her parents to the dental appointment on May 21, 2013, when Claimant actually testified to taking her parents to the dental appointment on May 23, 2013. (Hr'g Tr. at 27.) The Board also mistakenly stated that Claimant testified that she returned to work to make up hours on May 21, 2013, when, in fact, Claimant testified that she returned to the office on May 23, 2013, in order to make up time. (Hr'g Tr. at 30.)
Despite the Board's apparent confusion about the events of May 21st and May 23rd, there is still substantial evidence in the record for the Board to reach the same finding regarding Claimant's absence from the office on May 21, 2013; i.e., that Claimant did not work the full five hours on that day. (FOF ¶ 13.) Manager testified that Claimant left work on May 21, 2013, at 11:30 a.m. and Claimant stipulated to this fact on the record. (Hr'g Tr. at 20.) Because there is substantial evidence for the Board's finding of fact 13, that the Claimant did not work the full five hours on May 21, 2013, the Board's confusion as to the date that Claimant left work to take her parents to the dentist is immaterial.
Moreover, the Board's confusion of the dates does not invalidate its credibility determinations. As the fact finder, the Board was free to weigh the evidence as it saw fit and to accept or reject Claimant's testimony. First Federal Savings Bank, 957 A.2d at 815. Accordingly, we do not find Claimant's argument persuasive that the Board's confusion of the record caused it to determine that Claimant was not credible.
D. Claimant Deliberately Violated Employer's Policies
Finally, Claimant argues that the record merely establishes that Claimant acted negligently rather than willfully as required by Section 402(e) of the Law. Claimant testified that she simply forgot to scan in or out because she was distracted from taking care of her parents. (Hr'g Tr. at 24, 31.) Claimant contends that the Board dismissed Claimant's proffered explanation and found that Claimant deliberately violated Employer's Policy after unfairly determining that her testimony was not credible. Claimant also argues that she was led to believe by Employer that she would not be disciplined for failing to scan in or out.
Section 402(e) of the Law provides that "[a]n employe shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." 43 P.S. § 802(e) (emphasis added). While the Law does not define "willful misconduct," this Court has defined it as:
(1) a wanton or willful disregard for an employer's interests; (2) a deliberate violation of an employer's rules; (3) a disregard for 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.Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010) (emphasis added). When the discharge is based on a rule violation, the employer must prove the existence of the rule and the rule's violation. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). The employer must also establish that the claimant was aware of the work rule. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671 (Pa. Cmwlth. 2010). The claimant's actions must be intentional and deliberate. Grieb v. Unemployment Compensation Board of Review, 827 A.2d 422, 426 (Pa. 2003).
The General Assembly and our Supreme Court have indicated that willful misconduct requires a certain state of mind. See 43 P.S. § 802(e) (disqualifying employees who commit willful misconduct). The state of mind necessary for a determination of whether a rule violation constitutes willful misconduct is whether the violation was deliberate, Philadelphia Parking Authority, 1 A.3d at 968, and intentional, Grieb, 827 A.2d at 426. Requiring an employer to show that its employee deliberately or intentionally violated a work rule before the employee is found ineligible for UC benefits is consistent with the Law's remedial purpose, which mandates that the "'disqualification provisions, such as Section 402(e), should be narrowly construed and a claimant must not be denied compensation unless he is unequivocally excluded by the plain language of these provisions.'" Diehl v. Unemployment Compensation Board of Review, 57 A.3d 1209, 1217 (Pa. 2012) (quoting Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984)).
If the employer satisfies its burden, the burden shifts to the claimant to show that he or she had good cause for the conduct. McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). "A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances." Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). A determination of willful misconduct requires a consideration of "all of the circumstances, including the reasons for the [claimant's] noncompliance with the employer's directives." Rebel v. Unemployment Compensation Board of Review, 723 A.2d 156, 158 (Pa. 1998). Whether a claimant's actions constituted willful misconduct is a question of law subject to de novo review. Docherty, 898 A.2d at 1209. Moreover, whether a claimant had good cause is also a question of law that should be viewed in the light of all the attendant circumstances. Id. at 1208.
Based on these principles, we are mindful that our inquiry in these cases is comprised of two questions—first, did the employer establish that the claimant intentionally and deliberately violated a known work rule, and, if so, second, did the claimant establish that he or she had good cause for doing so? In answering these questions, we are cognizant that this inquiry involves questions of law subject to our de novo review. Id. at 1208-09. We begin with the question of whether Employer satisfied its burden of proof.
Here, Employer established the existence of the Policy. (Hr'g Tr. at 4-6.) Further, Employer established that Claimant was aware of its Policy. Claimant signed an acknowledgement form and admitted in her testimony that she was aware of the Policy and knew she remained subject to the Policy in spite of her flexible time schedule. (Hr'g Tr. at 4, 31; Employer's Ex. 1, R. Item 12.) While Claimant admits that she likely violated Employer's Policy, she argues that the violation was not deliberate, but merely negligent. (Hr'g Tr. at 24.) However, the evidence in the record regarding Claimant's activities on May 21, 2013, and May 23, 2013, supports the Board's determination that Claimant's actions indicate a pattern of behavior that was deliberate and intentional.
On May 21, 2013, Claimant scanned in at 9:34 a.m. and scanned out at 2:40 p.m. (Hr'g Tr. at 7, 10; Employer Ex. 3, R. Item 12.) It is undisputed, however, that Claimant left the office during the day on May 21, 2013, at 11:30 a.m., without either scanning out when she left or scanning back in when she returned to the office. (Hr'g Tr. at 7, 20; Employer Ex. 3.) Similarly, on May 23, 2013, Claimant scanned in at 7:34 a.m. and scanned out at 7:36 p.m., but did not scan in or out when she left for several hours during the day. (Hr'g Tr. at 8, 10; Employer Ex. 3.) Claimant was found missing from her office at 9:00 a.m., 1:00 p.m. and 4:00 p.m., and Claimant herself admitted to being absent from the office for at least 4 ½ hours on May 23, 2013. (Hr'g Tr. at 8, 30.) Moreover, the swipe card records, which are different from the hand scan records, show that Claimant did not return to the office on May 23rd until 6:32 p.m. (Hr'g Tr. at 10-11; Employer Ex. 5, R. Item 12.) In addition, in Claimant's reply email, sent at 7:21 p.m., she failed to explain that she was out of the office for most of the day on May 23rd. (Employer's Ex. 6, R. Item 12.) Claimant's statement that she was involved with real estate matters when she received Director's email is not supported by the timeline of events, which suggests she was out of the office at the time the email was received on the morning of May 23rd. Therefore, like May 21, 2013, Claimant's activities on May 23, 2013, exhibit a pattern of deliberately scanning in at the beginning of the day, leaving for several hours without scanning in and out, and returning at the very end of the day to scan out.
Accordingly, the Board did not err by concluding that Claimant deliberately violated Employer's Policy.
Claimant argues that she had good cause for violating Employer's Policy because she was led to believe that Employer condoned her activities. Claimant states that she had previously forgotten to scan in or out at least ten times over the course of 20 years and had not been disciplined. (Hr'g Tr. at 28.) However, there is no evidence to support Claimant's contention that Employer permitted or condoned a deliberate pattern of failing to scan in or out during the course of a day. Therefore, Claimant did not have good cause for deliberately violating Employer's Policy.
Like the Board, we are sympathetic to Claimant's situation regarding her parents; however, Claimant did not present any evidence that she explored other alternatives or approached Employer in an effort to further accommodate her obligation and duty to care for her elderly parents. --------
III. CONCLUSION
For the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, September 11, 2014, the Order of the Unemployment Compensation Board of Review, entered in the above-captioned matter, is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge