Opinion
No. 1642 C.D. 2012
06-25-2013
Eric Z. Santee-Gillespie, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant Eric Z. Santee-Gillespie petitions pro se for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of a referee and denied him unemployment compensation benefits, concluding that his actions constituted willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law). In addition, the Board determined that Claimant had a fault overpayment of $1725, subject to recoupment under Section 804(a) of the Law, and, accordingly, imposed seventeen penalty weeks under Section 801(b) of the Law. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
43 P.S. § 874(a).
43 P.S. § 871(b).
Because Claimant has not raised any issues concerning either the overpayment or the penalty weeks, he has waived those issues on appeal. Tyler v. Unemployment Comp. Bd. of Review, 591 A.2d 1164, 1167-68 (Pa. Cmwlth. 1991).
The facts as found by the Board are as follows. Claimant worked as a part-time sales associate for Employer AutoZoners, LLC, from August 2010 to November 2011, at an hourly wage of $8.75. The store manager advised the district manager that Claimant was suspected of giving away Employer's property in violation of its policy prohibiting unauthorized removal of property without payment. Claimant knew or should have known of this policy. Employer held an approximately one-hour meeting to discuss the accusation with Claimant. The store manager, the district manager and the loss prevention supervisor also attended the meeting. Claimant admitted to removing Employer's property, without permission or payment, and signed a statement to that effect. Accordingly, Employer discharged Claimant for violating its policy.
In November 2011, Claimant applied for unemployment compensation on the Internet. He indicated that Employer discharged him for lack of work, rather than for theft. In January 2012, Claimant "completed a questionnaire and checked as the reason for discharge 'Other' and 'Unknown' rather than 'Dishonesty,' but discussed allegations of giving away merchandise." Board's Finding of Fact No. 8. Over fifteen weeks, Claimant received unemployment compensation in the amount of $1725. The Department of Labor and Industry (Department) issued three determinations: 1) a denial of unemployment compensation; 2) an imposition of a fault overpayment in the amount of $1725; and 3) an imposition of seventeen penalty weeks.
Claimant appealed and the referee held a hearing at which Claimant, his mother and a witness for Employer appeared and testified. The referee affirmed the Department's determinations and Claimant appealed to the Board. Rejecting Claimant's attempt to augment the record with extra-record evidence, the Board affirmed the referee's decision. Claimant's timely petition for review to this Court followed.
Claimant's mother provided this Court with a power-of-attorney and filed the petition for review pursuant to that document. In addition, we note that what appears to be Claimant's signature appears on the petition for review.
Section 402(e) of the Law provides, in pertinent 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 . . . ." The term "willful misconduct" has been defined to include: (1) the deliberate violation of work rules; and (2) the disregard of standards of behavior which an employer can rightfully expect of its employee. Glatfelter Barber Shop v. Unemployment Comp. Bd. of Review, 957 A.2d 786, 792 (Pa. Cmwlth. 2008).
The employer bears the initial burden of proving that the claimant engaged in willful misconduct. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1162 (Pa. Cmwlth. 2012). If the willful misconduct charge is based upon a violation of a work rule, the employer must prove the existence of the rule and its deliberate violation. Id. at 1162. Once the employer establishes a prima facie case of willful misconduct, the burden generally shifts to the claimant to demonstrate good cause for his conduct. Id. In cases of employee theft, however, "such conduct constitutes willful misconduct as a matter of law and is not subject to the rationale of good cause." Temple Univ. v. Unemployment Comp. Bd. of Review, 565 Pa. 178, 183, 772 A.2d 416, 418 (2001).
In the present case, it is undisputed that Employer has a policy prohibiting the unauthorized removal of its property without payment. Certified Record (C.R.), Item No. 2, Employer's Separation Information at 6. Employer established through documentary evidence that Claimant knew or should have known of this policy. In addition, Employer submitted Claimant's signed statement that he had taken property, valued at approximately $15, without payment. Id. at 8-11. Claimant argues on appeal, however, that both the referee and the Board erred in refusing to consider the mitigating circumstances of his Asperger's Syndrome that allegedly led to his so-called coerced confession at the meeting. He contends that such evidence would have established a wrongful termination and rendered him eligible for benefits. He, therefore, urges this Court to reverse the Board's order.
In the statement, Claimant admitted to taking candy, soda, wax and wax applicator pads.
Claimant appears to be challenging the Board's Finding of Fact No. 5, that he "admitted to removing the employer's property without permission or payment." In rendering that fact-finding, the Board noted its consideration of Claimant's written statement admitting the theft and his subsequent denials in the separation paperwork and at the hearing before the referee. C.R., Item No. 9, Referee's April 18, 2012 Hearing, Notes of Testimony (N.T.) at 8 and 10. In addition, it noted its consideration of Claimant's responses to his mother's questions regarding the meeting:
Because Claimant has not challenged the remaining fact-findings, they are binding on appeal. Owens v. Unemployment Comp. Bd. of Review, 748 A.2d 794, 797 (Pa. Cmwlth. 2000).
Q. Okay. Did you feel like you were pressured or coerced in anyway [sic]?Id . at 9.
A. I felt like they were questioning me, like interrogating me. So I was a little scared. I didn't know what was going on.
Q. And the reason being?
A. Because from what I—what it sounded like, I was losing my job because I knew that Doug Hailey was the Loss Prevention Supervisor.
In weighing the evidence against Claimant, the Board reasoned as follows:
Given two competing explanations—that the claimant gave away property and was truthful when he confessed or that the claimant never gave away property and then lied when he confessed—the Board finds more likely that the claimant knowingly and truthfully confessed.Board's Decision at 3. In addition, the Board noted that it was Claimant's mother, not Claimant, who argued that Employer coerced him into signing a confession. Finally, it noted that Claimant "never attempted to discuss his medical condition as a mitigating factor affecting his ability to distinguish honesty from dishonesty." Id.
In Claimant's written statement admitting the theft, he indicated that Employer offered him a break during the interview, that loss prevention personnel treated him fairly during the interview and that Employer made no threats or promises to him. C.R., Item No. 2 at 2-3. --------
Credibility and evidentiary weight are determined by the Board, and its findings of fact are conclusive on appeal when the record, in its entirety, contains substantial evidence supporting those findings. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010). Here, the Board weighed conflicting evidence and accepted as credible Claimant's initial statement admitting to the theft. We cannot overturn that credibility determination on appeal. Fitizpatrick v. Unemployment Comp. Bd. of Appeal, 616 A.2d 110, 111 (Pa. Cmwlth. 1992). It is well established that even a single proven incident of employee theft is sufficient to constitute disqualifying willful misconduct. Anderson v. Unemployment Comp. Bd. of Review, 426 A.2d 253, 254 (Pa. Cmwlth. 1981). Accordingly, Employer having sustained its burden to establish willful misconduct, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 25th day of June, 2013, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge