Opinion
No. 420 C.D. 2012
11-28-2012
Robert J. Richards, Jr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Robert J. Richards, Jr. (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed with modification a Referee's decision, thereby denying Claimant benefits under Section 402(b) of the Unemployment Compensation Law (Law). The Board also determined that Claimant received a fault overpayment subject to recoupment under Section 804(a) of the Law, and it accordingly assessed penalty weeks under Section 801(b) of the Law. For the reasons set forth below, we affirm the Board's order.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) of the Law provides that an employee is ineligible for benefits when he voluntarily terminates his employment without cause of a necessitous and compelling nature.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 874(a).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 871(b).
Claimant was employed by Galino Construction (Employer) as a full-time carpenter from approximately August 2010 to August 8, 2011. (Certified Record (C.R.), Item No. 10.) After a meeting with Employer's owner, Robert Galino (Galino), and Claimant's supervisor, Jeremy Hartle (Hartle), on August 8, 2011, at which Galino told Claimant to take time off due to his concerns about Claimant's alcohol consumption, Claimant never returned to work. (Id.; C.R., Item No. 9 at 2, 18, 39.) Claimant filed for unemployment compensation benefits, and on October 3, 2011, the Duquesne UC Service Center (Service Center) issued three notices of determination to Claimant. In the first determination, the Service Center noted that there was a conflict regarding whether Claimant voluntarily quit under Section 402(b) of the Law or was discharged from employment under Section 402(e) of the Law, but it ultimately determined that Claimant voluntarily quit employment and denied Claimant benefits under Section 402(b) of the Law, beginning with compensable week ending August 13, 2011. (C.R., Item No. 5.) The second determination indicated that, pursuant to Section 804(a) of the Law, Claimant received a fault overpayment in the amount of $2,842 for the weeks ending August 13, 2011, to September 24, 2011, because Claimant misrepresented the circumstances of his separation from work. (Id.) The third determination assessed nine (9) penalty weeks of unemployment compensation benefits against Claimant pursuant to Section 801(b) of the Law. (Id.) Claimant appealed these determinations, and a hearing was held before a Referee.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) provides, in part, that an employee shall be ineligible for compensation for any week "in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work."
Following the hearing, the Referee issued a decision in which she reversed the Service Center's eligibility determination with regard to the week ending August 13, 2011, finding Claimant eligible for benefits under Section 402(e) of the Law. (C.R., Item No. 10.) The Referee affirmed the Service Center's eligibility determination for the weeks ending August 20, 2011, to September 24, 2011, denying benefits under Section 402(b) of the Law. (Id.) The Referee then ordered the overpayment and penalty determinations to be affirmed as modified, establishing a fault overpayment of $2,436 to be recouped under Section 804(a) of the Law and assessing seven (7) penalty weeks under Section 801(b) of the Law. (Id.) In issuing her decision, the Referee made the following findings of fact:
1. The claimant worked full-time for Galino Construction as a [c]arpenter from approximately August 2010 until August 8, 2011.
2. The claimant was on probation for a conviction for driving under the influence and was not permitted to consume alcohol.
3. The claimant continued to drink alcohol on a regular basis.
4. The claimant's off the job consumption resulted in an inappropriate presence while at work, absenteeism, and poor work performance.
5. During the month of July 2011 the employer verbally warned the claimant on three different occasions regarding the [e]ffects his drinking was having on his work and that the behavior was unacceptable.
6. Each time, the claimant admitted the drinking was a problem and agreed that he should stop.
7. On August 1, 2011, the claimant was suspended for a week due to exuding a strong smell of alcohol on the worksite.
8. On August 8, 2011, the claimant returned to work.
9. At approximately 3 pm that day, the employer explained to the claimant that his excessive drinking had been seriously affecting his work and the claimant needed to get help.
10. The employer instructed the claimant to take the rest of the week off so that he could contact his parole officer and request help regarding the alcoholism.
11. The claimant expressed his concern that he would get in trouble while drinking while on parole and the possible cost of a rehabilitation program.
12. The claimant then agreed to seek assistance from a church or other free organization.
13. At the end of the meeting, the employer handed the claimant a store bought drug test and requested to determine if the claimant was also on drugs.
14. The employer does not have an established drug/alcohol policy.
15. The test is designed to detect the presence of certain drugs and not for the testing of alcohol.(Id.)
16. The claimant was suspended due to past problems involving alcoholism in order to allow the claimant to seek treatment.
17. The employer instructed the claimant to contact [it] by the end of the week to apprise [it] of his progress[] in seeking treatment.
18. The claimant decided he did not need alcohol counseling and did not seek any counseling that week.
19. The claimant did not report to work on August 15, 2011 and did not make any further contact with the employer.
20. The claimant voluntarily quit because he did not want to comply with the employer's demand to seek treatment for alcoholism.
21. The claimant filed an application for unemployment compensation benefits effective July 31, 2011.
22. The claimant filed for and received benefits for the weeks ending August 13, 2011 through September 24, 2011 in the amount of $406.00 each week, which totaled $2,842.00.
23. When filing for the week ending August 13, 2011, the claimant did not report his wages from August 8, 2011 and reported his separation as lack of work.
The Referee determined that, during the week ending August 13, 2011, it was undisputed that Claimant was involuntarily separated from employment to allow sufficient time for him to seek counseling for alcoholism. (Id.) The Referee stated that Claimant was suspended the prior week for this same issue, and Claimant did not make any other infractions on the day he returned to work. (Id.) The Referee, therefore, found Claimant to be eligible for benefits under Section 402(e) of the Law for the week ending August 13, 2011. (Id.)
The Referee then addressed Claimant's eligibility for the weeks ending August 20, 2011, to September 24, 2011. (Id.) The Referee noted that during this time, the circumstances involving Claimant's separation had changed. (Id.) Although Claimant contended that Employer never called him back to work, the Referee found credible Employer's witness's testimony that Claimant was instructed to take only one week off to seek counseling for his alcoholism. (Id.) The Referee noted that Claimant did not report to work on August 15, 2011, and did not make any further contact with Employer. (Id.) The Referee, therefore, concluded that Claimant abandoned his employment and that his eligibility would be determined under the voluntary leave provisions of Section 402(b). (Id.)
At the hearing, Claimant requested that the Referee consider Claimant's eligibility for benefits under Section 402(e.1) of the Law, since Employer administered a drug test to Claimant on August 8, 2011. See Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, added by Section 3 of the Act of December 9, 2002, P.L. 1330, 43 P.S. § 802(e.1) (discussing eligibility for benefits as it relates to compliance with employer's drug testing policies). The Referee stated in her decision that, because she found it credible that Employer administered the drug test more for informational purposes rather than for disciplinary purposes, she would not consider Section 401(e.1) of the Law in determining Claimant's eligibility for benefits. (C.R., Item No. 10.)
The Referee then determined that Claimant quit his employment because he did not want to comply with Employer's request to seek counseling. (Id.) The Referee reasoned that Employer's request was reasonable, considering that Claimant had past work issues resulting from his consumption of alcohol and that he was not permitted to drink alcohol while on parole. (Id.) The Referee also noted that Claimant acknowledged to Employer several times that he would stop drinking so that there would be no further work issues. (Id.) The Referee concluded that Claimant had not met his burden to prove that his reasons for leaving work were necessitous and compelling. (Id.) Thus, the Referee denied Claimant benefits for the weeks ending August 20, 2011, through September 24, 2011, under Section 402(b) of the Law. (Id.)
Next, the Referee addressed whether the Service Center's overpayment determination and assessment of penalty weeks were proper. The Referee noted that, because she determined Claimant to be eligible for the week ending August 13, 2011, Claimant was not overpaid benefits for that week. (Id.) The Referee stated that the Service Center should, however, review the claim record to ensure that Claimant served a valid waiting week prior to submitting payment. (Id.) The Referee then determined that Claimant received benefits for the weeks ending August 20, 2011, through September 24, 2011, to which he was not entitled. (Id.) The Referee reasoned that Claimant was aware that his separation was not due to lack of work. (Id.) The Referee did not find credible that Claimant was unaware of when he was required to return to work. (Id.) Thus, the Referee concluded that, inasmuch as Claimant knowingly provided false information to the unemployment compensation authorities, Claimant received a fault overpayment in the amount of $2,436 that was recoverable under Section 804(a) of the Law. (Id.) Finally, the Referee imposed seven (7) penalty weeks against Claimant under Section 801(b) of the Law. (Id.)
In her decision, the Referee actually stated that Claimant received benefits for the weeks ending August 13, 2011, through September 24, 2011, to which he was not entitled. (C.R., Item No. 10.) Given the Referee's earlier determination that Claimant was eligible for benefits for the week ending August 13, 2011, her conclusion that benefits were denied for the weeks ending August 20, 2011, to September 24, 2011, and her decision to reduce the overpayment amount, we conclude that the Referee misstated the date, and that the correct date is August 20, 2011.
Claimant appealed the Referee's decision to the Board, which affirmed with modification. In doing so, the Board adopted and incorporated the Referee's findings of fact and conclusions of law. (C.R., Item No. 18.) The Board noted that in a companion appeal, Claimant was found to be ineligible for benefits under Section 402(e) of the Law. (Id.) As a result, the Board determined that the week ending August 13, 2011, was a waiting week, rather than a compensable week, and, thus, the Board reinstated the original fault overpayment amount of $2,842 because Claimant remained overpaid for that week. (Id.) Claimant now petitions this Court for review.
Claimant also filed a request for reconsideration with the Board. (C.R., Item No. 19.) The Board failed to make a timely ruling, thereby denying the request by operation of law. (C.R., Item No. 20.)
On appeal, Claimant argues that there is not substantial evidence of record to support finding of fact number 20, which provides that "[C]laimant voluntarily quit because he did not want to comply with . . . [E]mployer's demand to seek treatment for alcoholism." (Finding of Fact (F.F.) no. 20.) Claimant also argues that the Board erred in concluding that he was ineligible for benefits pursuant to Section 402(b) of the Law because he did not voluntarily quit his employment. Furthermore, Claimant argues that the Referee erred in rendering an eligibility determination for the weeks ending August 20, 2011, to September 24, 2011. Finally, Claimant argues that the Board erred in concluding that Claimant received a fault overpayment and in assessing penalty weeks against Claimant.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.
We will first address Claimant's argument that finding of fact number 20, which states that "[C]laimant voluntarily quit because he did not want to comply with . . . [E]mployer's demand to seek treatment for alcoholism," is not supported by substantial evidence. Claimant essentially argues that substantial evidence exists to support contrary findings to establish that he was discharged from employment. Claimant also challenges the credibility of Galino's testimony. In an unemployment case, it is well-settled that the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (Pa. Cmwlth. 1985). Questions of credibility are not subject to re-evaluation on judicial review. Id. at 276-77, 501 A.2d at 1388. The Board is also empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). Here, the Board, in adopting the Referee's findings of fact and conclusions of law, found credible Employer's witness's testimony that Claimant was instructed to take only one week off to seek counseling. The fact that Claimant may view the evidence differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings. See Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994).
Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal so long as the record taken as a whole contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984).
In this case, Galino testified several times that he never discharged Claimant from employment; rather, he instructed Claimant to take the week off from work and to show up the following Monday. (C.R., Item No. 9 at 17-18, 23-26, 41, 44.) Galino also testified that the purpose of giving Claimant this time off was to allow Claimant time to seek help for his alcoholism, which was affecting his performance at work, and to speak with his parole officer. (Id. at 16-18, 20, 21, 23, 25.) Moreover, Galino testified that he spoke with Claimant on August 11, 2011, and at that time, Claimant told him that he did contact his parole officer, but did not speak to her about getting help for his alcoholism because he did not need it. (Id. at 20.) Claimant also testified that he did not go to his parole officer to ask about getting help for his alcoholism because, as he had told Galino, he did not have a problem with alcohol. (Id. at 37.) Furthermore, Galino testified that, during the conversation on August 11, 2011, Claimant stated that he would check into ways to get free counseling, and Galino asked Claimant to keep him updated on the situation. (Id. at 21.) Galino also testified that Claimant never returned to work after leaving on August 8, 2011, and that Galino never heard anything regarding Claimant after their conversation on August 11, 2011, until Galino received Claimant's unemployment compensation paperwork. (Id. at 20-21.) Hartle also testified at the hearing that Galino told Claimant to take the week off. (Id. at 39.) Although Claimant gave conflicting testimony at the hearing with regard to how much time he was supposed to take off, he did testify that "[he thought Galino] told [him] to take the week off." (Id. at 28.) No evidence of record indicates that Employer prohibited Claimant from coming back to work unless Claimant sought treatment for alcoholism, as Claimant argues. Thus, the testimony of record provides substantial evidence to support finding of fact number 20.
We next address Claimant's argument that the Board erred in concluding that Claimant was ineligible for benefits pursuant to Section 402(b) of the Law because he did not voluntarily quit his employment. Whether a claimant's separation from employment is the result of a voluntary action or a discharge is a question of law subject to review by this Court and must be determined from a totality of the facts surrounding the cessation of employment. Key v. Unemployment Comp. Bd. of Review, 687 A.2d 409, 412 (Pa. Cmwlth. 1996). A claimant seeking unemployment compensation benefits bears the burden of establishing that his separation from employment was involuntary. Spadaro v. Unemployment Comp. Bd. of Review, 850 A.2d 855, 859 (Pa. Cmwlth. 2004). Where an employee, without action by the employer, leaves or quits work, the employee's action is considered voluntary under the law. Roberts v. Unemployment Comp. Bd. of Review, 432 A.2d 646, 648 (Pa. Cmwlth. 1981).
In this case, the Board found that on August 8, 2011, Galino told Claimant to take the rest of the week off to contact his parole officer and request help regarding his alcoholism. (F.F. nos. 8-10.) Galino instructed Claimant to contact him by the end of the week to update him on Claimant's progress. (F.F. no. 17.) Claimant decided that he did not need counseling and did not report to work the following week. (F.F. nos. 18-19.) Moreover, he did not make any further contact with Employer after failing to return to work. (F.F. no. 19.) As discussed above, the Board found that Claimant voluntarily quit his employment because he did not want to comply with Employer's request to get counseling for his alcoholism, (F.F. no. 20.), and this finding was supported by substantial evidence. Thus, the facts surrounding Claimant's separation support the conclusion that the Board did not err in determining that Claimant voluntarily quit his employment.
Under Section 402(b) of the Law, a claimant who voluntarily quits his employment may still be eligible for unemployment compensation benefits if he voluntary quit for cause of a necessitous and compelling nature. Because Claimant fails to make any argument in this regard, we will not address his eligibility for benefits on this basis.
Next, Claimant argues that the Referee erred in rendering an eligibility determination for the weeks of August 20, 2011, to September 24, 2011. Claimant contends that the Service Center did not address his eligibility for benefits for these weeks in its eligibility determination and that he was not provided proper notice that these weeks would be addressed by the Referee. Claimant further argues that he never agreed to consideration of this issue and that he was substantially prejudiced by the decision because he was not afforded a meaningful opportunity to present testimony or offer evidence with respect to these weeks.
In issuing her decision, the Referee stated that she was restricted from ruling on any weeks not specifically addressed by the Service Center, and that the Service Center did not address the weeks of August 20, 2011, to September 24, 2011, in its eligibility decision. (C.R., Item No. 10.) She continued, however, by stating that because the Service Center did rule on these weeks in its fault overpayment determination, it was appropriate for her to consider Claimant's eligibility for these weeks in the interest of expediting the adjudication of the matter. (Id.) It appears from this discussion that the Referee believed that the Service Center ruled only on Claimant's eligibility for the week ending August 13, 2011. Upon close examination of the Service Center's notice of determination, however, we conclude that the Referee misunderstood the timeframe upon which the Department of Labor and Industry (Department) ruled on Claimant's eligibility. The Department's notice of determination stated that Claimant was ineligible for benefits "beginning with compensable week ending" August 13, 2011. (C.R., Item No. 5.) Because the Department actually determined that Claimant was ineligible for benefits from the week ending August 13, 2011, onward, the Referee did have the authority to consider Claimant's eligibility for the weeks ending August 20, 2011, to September 24, 2011, based on the Department's eligibility determination alone. Thus, the Referee did not err in addressing Claimant's eligibility for benefits for those weeks.
In support of their arguments on this issue, Claimant and the Board cite 34 Pa. Code § 101.87 and 34 Pa. Code § 101.107, respectively. These sections dictate the issues that a referee and the Board may address on appeal when those issues were not raised or ruled upon in the proceedings below. As a consequence of our conclusion that the Department did rule on Claimant's eligibility for the weeks of August 20, 2011, to September 24, 2011, these regulations are inapplicable to this matter.
Finally, we will address Claimant's argument that the Board erred in assessing a fault overpayment under Section 804(a) of the Law and penalty weeks against Claimant under Section 801(b) of the Law. Section 804(a) of the Law provides that if a person receives unemployment compensation benefits by reason of his fault, he will be responsible for repaying the amount received in error plus interest. "The word 'fault' within the meaning of Section 804(a) [of the Law] connotes an act to which blame, censure, impropriety, shortcoming or culpability attaches." Amspacher v. Unemployment Comp. Bd. of Review, 479 A.2d 688, 691 (Pa. Cmwlth. 1984). "Conduct that is designed improperly and intentionally to mislead the unemployment compensation authorities is sufficient to establish a fault overpayment." Kelly v. Unemployment Comp. Bd. of Review, 840 A.2d 469, 473 (Pa. Cmwlth. 2004). For example, an intentional misstatement on an application for benefits can support a finding of fault under Section 804(a). Matvey v. Unemployment Comp. Bd. of Review, 531 A.2d 840, 844 (Pa. Cmwlth. 1987). In order to find fault, the referee or Board must make some findings with regard to a claimant's state of mind. Kelly, 840 A.2d at 473.
Section 801(b) of the Law provides, in relevant part:
Whoever makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any compensation or other payment under this act or under an employment security law of any other state or of the Federal Government or of a foreign government, may be disqualified in addition to such week or weeks of improper payments for a penalty period of two weeks and for not more than one additional week for each such week of improper payment.43 P.S. § 871(b).
Claimant essentially argues that the Board, in adopting the Referee's findings of fact and conclusions of law, erred in concluding that Claimant knowingly provided false information to the unemployment compensation authorities. Claimant contends that Galino's testimony that Employer "had just finished a big commercial job," (C.R., Item No. 10 at 21), shows that there was an actual lack of work available to Claimant when he filed for unemployment compensation benefits. In assessing a fault overpayment and penalty weeks against Claimant, the Board found that Claimant "reported his separation as lack of work." (F.F. no. 23.) The Board, however, also incorporated the Referee's determinations that Claimant was aware that his separation was not due to lack of work and that she did not find credible that Claimant was unaware of when he was required to return to work. Furthermore, Galino's testimony that Employer "had just finished a big commercial job" is insufficient to prove that Employer did not have work for Claimant to perform. Based on the Board's determinations, we conclude that the requisite showing of culpability is present here, as Claimant intentionally told the unemployment compensation authorities that his separation was due to lack of work when he knew that was not the case. Thus, the Board's assessments of the fault overpayment and penalty weeks were appropriate.
Claimant also contends that the Board improperly based the assessments of fault overpayment and penalty weeks on the erroneous conclusion that Claimant voluntarily quit his employment. As stated above, the Board did not err in concluding that Claimant voluntarily quit his employment and, consequently, did not improperly assess the fault overpayment and penalty weeks on this basis. --------
Accordingly, the order of the Board is affirmed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 28th day of November, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge