Opinion
No. 2296 C.D. 2013
10-02-2014
Gregory Alan Nelson, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Gregory Alan Nelson (Claimant) petitions, pro se, for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his application for unemployment compensation benefits. In doing so, the Board affirmed the Referee's determination that Claimant was ineligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e), because he had falsified his time records. Finding no error by the Board, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant part, 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).
Claimant was employed fulltime by Lower Bucks Hospital (Employer) as a boiler room coordinator from August 28, 2000, until he was discharged on June 3, 2013. Employer's stated reason for Claimant's discharge was that he had falsified hours on his time card. Claimant applied for unemployment compensation benefits, which were denied by the UC Service Center. Claimant appealed, and a hearing was conducted by the Referee.
Patrick Bradley, Employer's Director of Facilities, testified that, based upon an anonymous tip, he started investigating Claimant's time keeping. Bradley first noticed a discrepancy on May 27, 2013. According to Claimant's time card, he was clocked in the entire day. However, when Bradley reviewed Employer's security footage from that day, he observed Claimant arrive at work, leave the premises several minutes later, then return to the premises eight hours later before he left for the day. In short, Claimant was not on Employer's premises for most of the hours for which he was clocked in.
Bradley testified about a second instance of inaccurate time reporting a few days later on June 2, 2013. On that day, after Claimant arrived to work and clocked in, his wife picked him up and they drove away together. Claimant returned to work several hours later. After Claimant's wife dropped him off, Claimant clocked out for the day and left the premises in his own car. Bradley testified that Claimant did not provide a reason for the way he recorded his time on May 27 but claimed that he left to attend a funeral on June 2.
Bradley testified that he was familiar with Claimant's wife and her car.
Claimant testified that he had to frequently take time off of work for medical appointments related to a work injury. Because it was difficult for him to work the standard 80 hours in a two-week pay period, his required hours were reduced to 70 hours for every two-week pay period. Claimant testified that if his hours for a pay period fell below 70, Employer would cover the shortfall with vacation time. Employer also allowed Claimant to work a floating schedule to accommodate his various medical appointments.
Claimant did not dispute Bradley's testimony about the security footage on May 27 and June 2, 2013. Claimant explained that a few days prior to May 27th he reported for work but forgot to clock in. Claimant clocked in on May 27th to make up for that unreported time. Claimant testified that this practice was common among Employer's employees. Claimant testified that he left work on June 2, 2013, to attend a funeral, which resulted in the discrepancy in his time record for that day. Claimant conceded that he did not have permission to leave for the funeral and acknowledged that Bradley had previously informed him of the importance of accurate time keeping.
The Referee discredited Claimant's explanations for inaccurately reporting his time, including his claim that other employees acted similarly. The Referee held that Claimant's conduct violated the standards of behavior that an employer has a right to expect from its employees. Accordingly, the Referee held that Claimant committed disqualifying willful misconduct.
On review, the Board adopted the Referee's findings of fact and conclusions and added an additional finding: "On or around June 3, 2013, the employer discharged the claimant for falsifying hours." Board Adjudication at 1. The Board discredited Claimant's testimony that he believed his actions were permissible, noting that Claimant admitted at the hearing that he did not have permission to inaccurately report his time on the days in question. Claimant now petitions for this Court's review.
On appeal, Claimant raises several issues, which we summarize as follows. First, Claimant argues that the Board erred in determining that he committed willful misconduct because it failed to consider certain evidence, which resulted in confusion over the sequence of events. Second, Claimant contends he had good cause for his actions, namely that it was permissible for him to leave work while he was clocked in. Third, Claimant contends that he was deprived of due process because he did not receive a full and fair hearing before the Referee.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial competent evidence. Seton Company v. Unemployment Compensation Board of Review, 663 A.2d 296, 298 n.2 (Pa. Cmwlth. 1995).
We begin with a review of the law on willful misconduct. An employee who engages in willful misconduct is ineligible for unemployment compensation benefits under Section 402(e) of the Law, 43 P.S. §402(e). The employer has the burden of proving willful misconduct on the part of a discharged employee. Pettyjohn v. Unemployment Compensation Board of Review, 863 A.2d 162, 164 (Pa. Cmwlth. 2004). Whether an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Compensation Board of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981). Willful misconduct has been judicially defined as conduct that evidences:
(1) the wanton and willful 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 interest or the employee's duties and obligations.Id. (citation omitted). Clocking in a time card for hours not worked constitutes willful misconduct. Schafer v. Unemployment Compensation Board of Review, 378 A.2d 1044, 1046 (Pa. Cmwlth. 1977).
In all unemployment compensation cases, the Board is the ultimate fact finder and has exclusive power to resolve conflicts in the evidence and to decide witness credibility and the weight to be accorded the evidence. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). 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 substantial evidence to support the findings actually made. Id. If so, the Board's findings are conclusive and cannot be disturbed on appeal. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Philadelphia Gas Works v. Unemployment Compensation Board of Review, 654 A.2d 153, 157 (Pa. Cmwlth. 1995). On review, this Court must examine the evidence in the light most favorable to the prevailing party, and give that party the benefit of all inferences that can be logically and reasonably drawn from the testimony. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011).
Claimant first argues that the Board erred because it did not consider certain evidence, namely, Employer's incident logs, security reports and time clock records. Claimant asserts that this evidence would have supported his testimony. We disagree.
Bradley testified at length about Employer's security footage for May 27 and June 2, 2013. This testimony included Bradley's comparison of the security footage to the contents of the incident logs, security reports and Claimant's time clock records. Bradley testified that, based upon all of this evidence, Claimant falsified his time records for the two days in question. The Board credited Bradley's testimony. We discern no reason why the Board's consideration of the underlying documentary evidence may have changed the outcome. Moreover, Claimant does not dispute that he left Employer's premises after he clocked in on May 27th and June 2nd. Claimant conceded that he did not report his absences to the manager and did not have permission to inaccurately report work hours. The Board did not err in determining that Claimant's actions constituted misconduct.
Claimant next argues that he had good cause for his conduct. Claimant contends that he was allowed to work a floating schedule to accommodate medical appointments for treatment for his work injury. Claimant asserted that he adjusted his hours on May 27 to make up for unreported time, a practice Claimant believed was permissible and common among his coworkers. Claimant testified that he adjusted his hours on June 2 because he had to attend a funeral.
The Board discredited Claimant's testimony that he believed his actions were permissible based upon his admission that Bradley had previously informed him of the importance of accurately reporting the time that he worked. As the final arbiter of witness credibility, the Board is free to accept or reject the testimony of any witness in whole or in part. McFadden v. Unemployment Compensation Board of Review, 806 A.2d 955, 958 (Pa. Cmwlth. 2002). Accordingly, this Court will not revisit the Board's rejection of Claimant's testimony as not credible. Furthermore, Claimant offered no evidence to support his claim that other employees routinely falsified their time records. In summary, Claimant failed to establish good cause for his misconduct.
Finally, Claimant argues that the Referee failed to afford him due process. Claimant contends that he did not receive a full and fair hearing because he did not have the opportunity to review all the evidence prior to the hearing, i.e., the recordings from Employer's security cameras which formed the basis of Bradley's testimony. Claimant also contends that the Referee should have sequestered Employer's witnesses.
While the Board is correct that Claimant did not raise his due process claims in his petition for review to this Court, we construe pro se filings liberally and will address Claimant's due process claims. Smithley v. Unemployment Compensation Board of Review, 8 A.3d 1027, 1029 n.6 (Pa. Cmwlth. 2010).
The essential elements of due process in an administrative proceeding are notice and an opportunity to be heard. Id. Although an unrepresented claimant is entitled to assistance by the referee in the development of his case, the referee should not assume the role of a claimant's advocate. Id. A referee must advise an unrepresented claimant that he has the right to an attorney, to offer witnesses and to cross-examine adverse witnesses. Ehmann v. Unemployment Compensation Board of Review, 483 A.2d 587, 589 (Pa. Cmwlth. 1984). Additionally, the formal rules of evidence, such as the right to pre-hearing discovery, do not apply in unemployment compensation proceedings, which are "by design, brief and informal in nature." Harkness v. Unemployment Compensation Board of Review, 920 A.2d 162, 168 (Pa. 2007).
Here, the Notice of Hearing that was sent to Claimant informed him of his right to review the file prior to the hearing. Claimant chose not to avail himself of that right, so that part of his due process claim must fail. Claimant's contention that the Referee erred by not sequestering Employer's witnesses also lacks merit. To begin, Claimant did not request sequestration of these witnesses at the hearing. Moreover, there is nothing in the record to suggest that Claimant was prejudiced by Employer's witnesses being present for each other's testimony. See Hussar v. Unemployment Compensation Board of Review, 432 A.2d 643, 645 (Pa. Cmwlth. 1981) (requiring a party challenging the denial of a sequestration request to demonstrate violation of fundamental right to a fair hearing). Here, the Referee warned all of the participants at the beginning of the hearing that "[w]itnesses may never direct each other's testimony." Notes of Testimony, August 13, 2013, at 3. We conclude that Claimant received a full and fair hearing that satisfied his right to due process.
We note that the Referee advised Claimant of his rights at the beginning of the hearing, including his right to be represented by an attorney or a non-legal advisor of his choosing, or to represent himself; his right to present evidence and testimony, including that of any witnesses; and his right to cross-examine the other party. Notes of Testimony, August 14, 2013, at 1. Claimant fully participated in the hearing, including testifying on his own behalf and cross-examining Employer's witnesses with the assistance of the Referee. --------
For all of the foregoing reasons, we affirm the Board's denial of benefits.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 2nd day of October, 2014, the order of the Unemployment Compensation Board of Review, dated November 5, 2013, is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge