Opinion
No. 685 C.D. 2011
12-28-2011
Carmen D. McCain, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BUTLER
Carmen D. McCain (Claimant) petitions this Court for review of the March 9, 2011 order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of a Referee. Claimant presents two issues for this Court's review: (1) whether Claimant is ineligible for unemployment compensation (UC) benefits under Section 501(e) of the Unemployment Compensation Law (Law) as a result of failing to file a timely appeal, and (2) whether Claimant's discharge was due to willful misconduct. For the following reasons, we affirm the UCBR's order.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 821(e).
Claimant was hired as a part-time salesperson by Oteri Bakery (Employer) beginning January of 2010 and ending March 23, 2010. Employer has a specific rule prohibiting employees from making personal calls on company phones. Claimant made over 70 calls to a foreign country on Employer's phone during business hours. The calls were charged to Employer's account, totaling over $400.00. Claimant was discharged for violating Employer's rule regarding use of company phones.
Claimant applied for UC benefits. On September 28, 2010, the Erie UC Service Center mailed a determination denying UC benefits under Section 402(e) of the Law, 43 P.S. § 802(e). Claimant filed an appeal on October 14, 2010. A hearing was held before a Referee on November 11, 2010, at which Employer failed to appear due to car trouble. On November 15, 2010, the Referee dismissed Claimant's appeal as untimely pursuant to Section 501(e) of the Law. Claimant appealed to the UCBR. On December 30, 2010, the UCBR vacated the Referee's decision, and remanded the matter to the Referee to allow Employer to testify to its nonappearance at the first hearing and regarding the merits of the case. A hearing was held on January 26, 2011. On January 31, 2011, the Referee affirmed the decision of the UC Service Center. Claimant again appealed to the UCBR. On March 9, 2011, the UCBR affirmed the decision of the Referee. Claimant petitioned, pro se, for review by this Court.
The UC Service Center mailed two additional determinations on September 27, 2010, denying Emergency Unemployment Compensation (EUC) benefits under Section 4001 of the EUC Act of 2008, 26 U.S.C. § 3304 Note, and Federal Additional Compensation (FAC) benefits under Section 2002(f) of the of Division B, Title II (Assistance for Unemployed Workers and Struggling Families Act), of the American Recovery and Reinvestment Act of 2009, Public Law No. 111-5. Claimant is not appealing those determinations.
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 her ineligible for benefits under Section 501(e) of the Law. Initially, we recognize that Section 501(e) of the Law provides that any appeal must be filed with the UCBR within 15 days of the mailing date of the determination. However, Claimant was not denied benefits on the basis of the untimeliness of her appeal. Although the Referee originally dismissed Claimant's appeal on that basis, the UCBR remanded the matter for a hearing on the merits. Accordingly, this contention is moot.
Claimant next argues that the UCBR erred in finding that she was discharged for willful misconduct. Specifically, Claimant contends that she was not discharged but was on voluntary leave to get married.
This Court has defined the term 'willful misconduct' to mean:Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964 A.2d 970, 973-74 (Pa. Cmwlth. 2009) (quoting Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Comp. Bd. of Review, 309 A.2d 165, 168-69 (Pa. Cmwlth. 1973)). "The burden of proving willful misconduct rests with the employer." Geisinger, 964 A.2d at 974 (quoting Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008)). "If the employer seeks to satisfy its burden of proof by showing that a claimant violated the employer's work rule, the employer must also show that the rule existed and that the claimant violated that rule." Geisinger, 964 A.2d at 974.
(1) the wanton and wilful disregard of the employer's interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from his employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations.
While the record does show that Claimant was originally on voluntary leave for her wedding, the record also shows that while she was on leave, Employer received a phone bill indicating calls made by Claimant to her fiancé in Jamaica. Said phone calls were the reason for Claimant's discharge. Specifically, Carol Semak, the owner's assistant, testified that:
the policy is no personal phone calls on the telephone during work hours and [Claimant] was making phone calls to Jamaica on company time saying that she used a phone card, but when we called Verizon there was nothing here stating there were any phone cards used. They were all charged to the bakery. We didn't know this for 30 days afterwards and that's around the time [Claimant] had left to get married - to go down to get married, so when my sister got the bill, you know, she was terminated for making all these calls on company time . . . .Original Record, Item No. 34 at 5.
Ms. Semak's sister, Lisa Sephalia, is the owner of Oteri Bakery. --------
The UCBR is the ultimate fact finder and makes all credibility determinations. Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205 (Pa. Cmwlth. 2006). The UCBR is free to accept or reject the evidence presented. Van Duser v. Unemployment Comp. Bd. of Review, 642 A.2d 544 (Pa. Cmwlth. 1994). Clearly, the UCBR accepted the testimony of Ms. Semak, and rejected Claimant's testimony.
"Substantial evidence is defined as such relevant evidence which a reasonable mind would accept as adequate to support a conclusion." Bruce v. Unemployment Comp. Bd. of Review, 2 A.3d 667, 670 n.3 (Pa. Cmwlth. 2010) (quotation marks omitted). Clearly, it is reasonable for Employer to have a policy against the use of company phones for personal calls during work hours, and Claimant knew or should have known that she should not have been calling Jamaica on a company phone during work hours. Thus, given Ms. Semak's testimony, there is substantial evidence supporting the conclusion that Claimant engaged in willful misconduct.
For all of the above reasons, the UCBR's order is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge
ORDER
AND NOW, this 28th day of December, 2011, the March 9, 2011 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge