Opinion
No. 1088 C.D. 2012
12-21-2012
Donald T. Rush, 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 Donald T. Rush (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed a Referee's determination that Claimant was ineligible for unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law), based on willful misconduct. 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(e).
Claimant filed for unemployment compensation benefits after being discharged from employment with Woods Edge Associates LP (Employer) on May 10, 2011. The Allentown UC Service Center (Service Center) issued a determination finding Claimant eligible for unemployment compensation benefits. (Reproduced Record (R.R.) at r75.) Employer appealed the Service Center's determination, and a Referee conducted an evidentiary hearing in which Claimant did not participate. Following the hearing, the Referee issued a decision, wherein the Referee reversed the Service Center's determination and found Claimant to be ineligible for unemployment compensation benefits under Section 402(e) of the Law. (Id. at r72-r74.)
Claimant appealed the Referee's decision to the Board, which remanded the case to the Referee to act as Hearing Officer for the Board. (C.R., Item No. 14.) The Board ordered the remand hearing for the purpose of receiving testimony and evidence regarding Claimant's reason for his non-appearance at the initial hearing. (Id.) The Board permitted the parties to offer new or additional testimony and evidence on the merits, which the Board would consider if it found that Claimant had proper cause for his non-appearance at the initial hearing. (Id.)
Following the remand hearing, the Board affirmed the Referee's decision and denied Claimant unemployment compensation benefits. (R.R. at r69.) In doing so, the Board issued its own findings of fact and conclusions of law. The Board made the following findings of fact:
1. For the purposes of this appeal, the claimant was last employed by Woods Edge Associates [LP] as an on-site manager from September 20, 2010, until May 10, 2011, and worked at least forty hours per week in addition to being on call every other week.
2. The claimant was paid . . . $2,600 per month, received free rent valued at $790.00 per month, and was permitted to use the company vehicle during working hours for company business only.
3. The claimant was aware, or should have been aware, of the employer's work rule prohibiting the use of alcohol while on duty and providing that a single violation will result in termination.
4. For the purposes of this rule, the employer considers an employee to be "on duty" when he is representing the employer's company or has any potential actions with clients, such as during on-call time.
5. When the employer's proper[t]y manager informed the claimant of this rule during the claimant's pre-employment interview, the claimant indicated that he would not have a problem complying with this rule because he was unable to consume alcohol while taking certain prescription medications.
6. The claimant was on call for May 4 and May 5, 2011.
7. During the evening of May 4, 2011, and into the early morning hours of May 5, 2011, the claimant was attending to a water seepage problem in his own apartment.
8. At approximately 6:00 a.m., on May 5, 2011, the claimant responded to a call from another tenant about a water tank that malfunctioned in her apartment.
9. Later on May 5, 2011, the claimant left the employer's property to purchase additional hot water tanks.
10. The claimant was still on duty when he drove a company vehicle to pick up the water tanks.
11. When the claimant returned to the employer's property, one of the employer's property managers, Susan Coburn-Barndt, believed that she detected an odor of alcohol on the claimant's breath.
12. The claimant admitted to Ms. Coburn-Barndt that he had been drinking because he was upset about being pulled over and detained by police while picking up the water tanks.(Id. at r66-r68.)
13. The claimant had not asked the employer if he could be taken "off the clock" before he left to purchase the water tanks, and if he had made such a request, the employer would not have permitted the claimant to use the company car and credit card to make the purchases.
14. The claimant returned to his work duties after having the conversation with Ms. Coburn-Barndt.
15. Because Ms. Coburn-Barndt did not have the authority to discharge an employee, she contacted another property manager, Fernando Cabrera, who interviewed the claimant regarding the incident.
16.On May 10, 2011, the claimant admitted to Mr. Cabrera that he drank a beer at lunch on or around May 5, 2011.
17.The employer discharged the claimant on May 10, 2011, for consuming alcohol while he was on call on May 5, 2011, in violation of the employer's policy.
The Board determined that Claimant had good cause for his non-appearance at the initial hearing, and, therefore, it addressed the merits of Claimant's appeal. The Board determined that Claimant was discharged for consuming alcohol while he was on call on May 5, 2011, in violation of Employer's policy. (Id. at r68.) The Board resolved all relevant conflicts in testimony in favor of Employer, whose witnesses credibly established that Claimant was aware of Employer's policy prohibiting the consumption of alcohol during on-call hours. (Id. at r69.) The Board also determined that Claimant admitted to both property managers that he drank a beer during lunch while he was using a company vehicle to purchase water tanks for Employer's housing units. (Id.) The Board further determined that Employer's witnesses credibly testified that Claimant was considered to be on call during this errand and that he never asked to be taken "off the clock" before he left to purchase the water tanks. (Id.) The Board also determined that, if Claimant had made such a request, Employer would not have permitted Claimant to use the company vehicle and credit card to make the purchase. (Id.) The Board, therefore, concluded that Employer satisfied its burden under Section 402(e) of the Law. (Id.)
The Board also concluded that Claimant failed to demonstrate good cause for violating Employer's alcohol policy, which policy the Board concluded was reasonable. (Id.) The Board explained that, in light of Employer's witnesses' credible testimony, the Board did not find credible Claimant's testimony that his day was finished and that he was not on call when he consumed alcohol at lunch on May 5, 2011. (Id.) Furthermore, the Board concluded that Claimant's explanation that he was upset about being detained by police did not qualify as proper cause for violating Employer's alcohol policy. (Id.) Thus, the Board concluded that Claimant was ineligible for benefits under Section 402(e) of the Law. (Id.)
On appeal, Claimant essentially argues that the Board erred in concluding that Claimant's actions constituted willful misconduct. Section 402(e) of the Law provides, in part, that an employee 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." Whether an employee's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). The burden of establishing willful misconduct is on the employer. Id. at 368-69.
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. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
Claimant also raises a challenge to the Referee's and Board's decision based on Pennsylvania's best evidence rule, Pa. R.E. 1002. Testimony from the initial hearing and the remand hearing indicated that, in addition to filing an unemployment compensation claim in Pennsylvania as a result of his discharge from employment, Claimant filed an unemployment compensation claim in New Jersey. (R.R. at r6, r15-r17, r60-r63.) Neither the hearing transcript nor the decision from the New Jersey claim was properly admitted into the record. Consequently, Claimant argues that the Referee and the Board erred to the extent that they relied on this evidence in rendering their decisions. We reject Claimant's challenge for several reasons. First, Claimant did not raise this argument below or in his petition for review and, therefore, this issue is waived. Dep't of Corrections v. Workers' Compensation Appeal Bd. (Anderson), 765 A.2d 410, 413 n.6 (Pa. Cmwlth. 2000) ("The law is well settled that issues not raised below or in a petition for review are waived and will not be addressed by this Court."). Second, the best evidence rule "is a technical rule of evidence not generally applicable to administrative hearings." DiLucente Corp. v. Pa. Prevailing Wage Appeals Bd., 692 A.2d 295, 298 (Pa. Cmwlth. 1997). Finally, Claimant does not identify specific instances in the record where the Referee or the Board relied on this evidence, and we have no reason to reject the Board's argument that, because the evidence was not properly admitted into the record, the Board based its decision solely on the hearing testimony and other competent evidence of record. See also Nelson v. State Bd. of Veterinary Med., 938 A.2d 1163, 1171 (Pa. Cmwlth. 2007) (providing that "[a] document needs only to be produced where the contents of a writing are at issue" and that "[t]he best evidence rule does not apply where the matter to be proved exists independently of the writing.").
Additionally, Claimant does not challenge any of the Board's findings of fact. The findings, therefore, are conclusive and binding on this Court upon review. Salamak v. Unemployment Comp. Bd. of Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985).
The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
(a) wanton or willful disregard for an employer's interests; (b) deliberate violation of an employer's rules; (c) disregard for standards of behavior which an employer can rightfully expect of an employee; or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). Where an employer seeks to prove willful misconduct by showing that the claimant violated the employer's rules or policies, the employer must demonstrate (1) the existence of the rule or policy and (2) that the claimant violated it. Walsh, 943 A.2d at 369. Moreover, the employer must establish that the claimant's actions were intentional or deliberate. Tongel v. Unemployment Comp. Bd. of Review, 501 A.2d 716, 717 (Pa. Cmwlth. 1985). Notwithstanding, there should be no finding of willful misconduct where the claimant can show good cause for the violation—i.e., "that the actions which resulted in the discharge were justifiable and reasonable under the circumstances." Walsh, 943 A.2d at 369.
The Board determined that Claimant was discharged for consuming alcohol while Claimant was on call on May 5, 2011, in violation of Employer's policy. (R.R. at r68.) The Board also found that Claimant was or should have been aware of Employer's rule prohibiting the consumption of alcohol while on duty and providing that a single violation will result in termination. (Id. at r66-r68, Finding of Fact (F.F.) no. 3.) Claimant does not dispute on appeal that Employer has such a rule, that Claimant was aware of the rule, or that Claimant violated the rule. Thus, we must consider whether Claimant's violation of Employer's rule was deliberate or intentional.
Claimant argues that because he had gone more than twenty-four (24) hours without sleep and had worked not less than sixteen (16) hours with little or no break, he reasonably believed that he was not on duty when he consumed the alcohol, and, therefore, he did not deliberately violate Employer's policy. The Board found that Claimant was on call and on duty May 4, 2011, and May 5, 2011. (Id., F.F. no. 6.) The Board further found that, on May 5, 2011, Claimant left Employer's property to purchase hot water tanks, without asking Employer if he could be taken "off the clock" before he left. (Id., F.F. nos. 9, 13.) The Board also found that Claimant used Employer's company vehicle and credit card to purchase the water tanks. (Id., F.F. nos. 10, 13.) Moreover, the Board found that, upon returning from purchasing the water tanks, Claimant admitted to Ms. Coburn-Barndt that he had been drinking and subsequently returned to his work duties. (Id., F.F. nos. 11-12, 14.) Given these findings, we reject Claimant's argument that he did not deliberately violate Employer's rule because he reasonably believed that he was off duty at the time he consumed the alcohol. Thus, the Board did not err in determining that Employer met its burden under Section 402(e) of the Law.
The Board found that, for purposes of Employer's rule, Employer considers an employee to be "on duty" during on-call time. (R.R. at r66-r68, F.F. no. 4.)
Claimant also contends that he credibly testified that he never intended to violate Employer's policy. 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 (1985). Here, in light of Employer's credible testimony, the Board did not find credible Claimant's testimony that his day was finished and that he was not on call when he consumed alcohol at lunch on May 5, 2011. (R.R. at r69.) Questions of credibility are not subject to re-evaluation on judicial review. Peak, 509 Pa. at 276-77, 501 A.2d at 1388.
The burden then shifted to Claimant to prove that he had good cause for his actions. We reject Claimant's arguments to the extent that they pertain to the issue of whether Claimant had good cause for violating Employer's work rule. Although Claimant argues that he reasonably believed that he was not on duty because he had worked several hours without a break, the Board's findings as discussed above establish that Claimant's consumption of alcohol with his lunch was not "justifiable and reasonable under the circumstances." Furthermore, as previously stated, the Board discredited Claimant's testimony that his day was finished and that he was not on call at the time he consumed the alcohol. Claimant offers no other argument on appeal to this Court indicating that he had good cause for violating Employer's work rule. The Board, therefore, did not err in concluding that Claimant's actions constituted willful misconduct.
The Board found that "[C]laimant admitted to Ms. Coburn-Barndt that he had been drinking because he was upset about being pulled over and detained by police while picking up the water tanks." (R.R. at r66-r68, F.F. no. 12.) The Board concluded that this explanation did not qualify as proper cause for violating Employer's alcohol policy. (R.R. at r69.) Claimant did not present any argument regarding this explanation for his actions on appeal, and, therefore, we do not address this earlier proffered justification of Claimant's actions. --------
Accordingly, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 21st day of December, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge