Opinion
No. 2016 C.D. 2011
08-10-2012
Gilbert Rodriguez, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Gilbert Rodriguez (Claimant), pro se, petitions for review of an Order of the Unemployment Compensation Board of Review (Board) affirming the Decision and Order of the Unemployment Compensation Referee (Referee) finding Claimant ineligible for unemployment compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). Claimant argues that the Board erred in concluding that his alleged violation of the newspaper return reporting policies implemented by Philadelphia Newspapers, LLC (Employer) constituted willful misconduct. Upon review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to his discharge . . . from work for willful misconduct connected with his work . . . ." Id.
After being discharged by Employer, Claimant applied for UC benefits on March 25, 2011. The Philadelphia Service Center determined Claimant to be ineligible for UC benefits. (Notice of Determination at 1, R. Item 4). Claimant appealed, and a hearing was held before the Referee on May 13, 2011, at which Claimant and Employer's witness, Jim DePasquale, Director of Single Copy Sales, testified. The Referee made the following findings:
1. The claimant worked for Philadelphia Newspapers, LLC from June 1986 until March 22, 2011. The claimant was last employed as a full-time Route Sales Representative earning $24.16 per hour.
2. The claimant's job was to service numerous newspaper customers of the employer, by driving his daily route, delivering newspapers to customers, and picking up any returns that the customers might have.
3. The employer had policies regarding the reporting of returned newspapers of which the claimant was or should have been aware.
4. In January and February 2011, the employer noticed various discrepancies with the claimant's reporting of returned newspapers and discussed these concerns with the claimant.
5. The claimant was warned on January 25, 2011 about submitting incorrect return information on his paperwork, and was also warned that further return reporting issues could result in discipline up to and including termination.
6. On February 24 and February 25, 2011, the claimant submitted incorrect return information to the employer.
7. The claimant submitted the incorrect return information because he was attempting to conceal extra newspapers that he discovered in his truck upon returning from his route.(Referee's Findings of Fact (FOF) ¶¶ 1-8.) Based on these findings, the Referee affirmed the Service Center's determination that Claimant was discharged for reasons that constitute willful misconduct. The Referee could not conclude that Claimant falsified the return documentation in order to steal from the Employer, as Employer contended, instead finding Claimant credible that "he was merely hiding the newspapers in his return documentation in order to avoid possibly getting in trouble with his employer." (Referee's Decision/Order at 2). However, the Referee did conclude that Claimant "knowingly falsified his return documentation on the days in question," which was a knowing violation of the Employer's policies. The Referee further found that Claimant's explanation for his actions did not constitute good cause. Claimant appealed to the Board. Adopting the Referee's findings of fact and conclusions of law, the Board affirmed. The Board concluded that Claimant was properly discharged for violating Employer's newspaper return reporting policies and that Claimant failed to demonstrate good cause for his conduct. (Board's Decision/Order at 1.) Claimant now appeals to this Court.
8. The employer terminated the claimant on March 22, 2011 for violating its return reporting policies.
This Court's review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether an error of law was committed, or whether the factual findings are supported by substantial evidence. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002).
On appeal, Claimant argues that he did not intentionally, willfully, or wantonly violate Employer's newspaper return reporting policies by concealing information, committing fraud, or behaving in a manner detrimental to Employer's interests. Claimant contends that it was a common practice for all employees to end a route each day with extra newspapers, and this was not considered a violation of Employer's policies.
Whether the actions of an employee constitute willful misconduct is a question of law that is subject to our review. Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 599, 827 A.2d 422, 425 (2003). In UC proceedings, the employer bears the burden of proving willful misconduct. Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). Although the Law does not define the term "willful misconduct," the courts have defined it as a wanton or willful disregard for an employer's interests; a deliberate violation of an employer's rules; a disregard for standards of behavior which an employer can rightfully expect of an employee; or negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997). Where the employee is discharged for violation of an employer's policy, the employer must show that the employee violated the policy, was aware of it, and his actions were intentional or deliberate. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). Once an employer has established that a claimant has violated a reasonable policy, the burden then shifts to the claimant to prove that he or she had good cause for violating the policy in question. Frigm v. Unemployment Compensation Board of Review, 642 A.2d 629, 632 (Pa. Cmwlth. 1994).
Here, the Board found that Claimant was aware of Employer's policies providing that he would be charged for all newspapers taken out for delivery from Employer's facility, and further understood that he would receive credit when he returned unsold newspapers when he reported those returns accurately. (FOF ¶ 3; Referee's Hr'g Tr. at 37-38.) The Board further found that Claimant admitted that he did not follow Employer's newspaper return reporting policies when documenting his returns. (Board Order at 1.) While crediting Claimant's testimony that he did not intend to steal from Employer or benefit financially from the falsification of the newspaper returns, the Board found that Claimant failed to demonstrate good cause for violating Employer's policies. (Board Order at 1.) The Board determined that a "desire to avoid possible disciplinary action does not constitute good cause." (Board Decision/Order at 1.) The Board's Decision is supported by substantial evidence.
In the "Statement of Questions Involved" portion of his brief, Claimant asserts that Employer failed to provide Claimant with updated, written policies after Employer changed ownership. However, Claimant does not develop this argument and did acknowledge that he was aware of Employer's newspaper return reporting policies. (Referee's Hr'g Tr. at 37-38.)
Substantial evidence is such evidence which "a reasonable mind, without weighing the evidence or substituting its judgment for that of the fact finder, might accept as adequate to support the conclusion reached." Centennial School District v. Department of Education, 503 A.2d 1090, 1093 n.1 (Pa. Cmwlth. 1986). The Board is the ultimate finder of facts and is entitled to make its own determinations as to the credibility of witnesses and evidentiary weight. Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008).
Mr. DePasquale testified that Claimant could not document or explain to Employer why he had extra newspapers on his truck on February 24-25, 2011. Mr. DePasquale further testified that, in an attempt to track down how the discrepancies on Claimant's newspaper returns had occurred, Employer obtained the actual, physical receipts that Claimant left with the retail stores. Mr. DePasquale then reviewed specific instances of Claimant's reported newspaper returns showing the number of newspapers Claimant had delivered to and picked up from the stores, and compared those to Claimant's actual receipts. The actual receipts, in certain instances, showed that Claimant had delivered a greater number of newspapers than he reported on his returns and, in one instance, showed that Claimant had, in fact, picked up zero newspapers when his reports showed newspapers were returned. Claimant not only admitted that he had the extra newspapers in dispute, but stated that he did not know how he obtained them. In attempting to explain these discrepancies Claimant testified that, if he had to tell his supervisor that he had extra newspapers, he would have been asked why he had not "pushed out papers" at the end of the route and would have been "written up for it." (Referee's Hr'g Tr. at 19-20, 34, 36.)
Based on the foregoing, there is substantial evidence to support the Board's findings that Claimant knew that if he had extra copies of the current day's edition upon return from his route, he would be charged for those extras unless he sold them to his customers or notified a supervisor that he had received the additional copies by mistake. However, Claimant did neither. Rather, Claimant inaccurately reported his newspaper returns, which violated Employer's newspaper return reporting policies in an effort to avoid possible disciplinary action. This does not constitute good cause for violating Employer's newspaper return reporting polices. See Suchter v. Unemployment Compensation Board of Review, 405 A.2d 1075, 1076 (Pa. Cmwlth. 1979) (holding that an employee's knowing misrepresentation about his work because of a desire to avoid a conflict with his employer did not justify his willful misconduct). Despite the Claimant's contention that this violation may have been minimal, "[t]he de minimis argument has no place in cases involving [a] deliberate violation of [an] employer's rules." General Electric Company v. Unemployment Compensation Board of Review, 411 A.2d 578, 580 (Pa. Cmwlth. 1980).
By way of example, Mr. DePasquale testified that Claimant received credit for 28 newspaper returns for the invoice submitted on February 24, 2011. (Referee's Hr'g Tr. at 13-14.) However, Mr. DePasquale stated that the actual receipts and the reported returns did not support a credit for 28 newspaper returns and, thus, concluded that Claimant falsified his returns rather than explain how he received the extra newspapers,. (Referee's Hr'g Tr. at 14-15.)
Accordingly, the Board's Order is affirmed.
Claimant also argues that there is no evidence clearly linking the alleged act of stealing and any alleged false documentation. We need not address this argument because the Board determined that the Referee properly found Claimant's testimony credible that he did not intend to steal from Employer. (Board Order at 1.) --------
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RENÉE COHN JUBELIRER, Judge ORDER
NOW, August 10, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
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RENÉE COHN JUBELIRER, Judge