Opinion
No. 1328 C.D. 2012
01-24-2013
Donald F. Sarracino, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Donald F. Sarracino (Claimant), pro se, petitions this Court for review of the Unemployment Compensation Board of Review's (UCBR) May 30, 2012 order affirming the Referee's decision denying Claimant unemployment compensation (UC) benefits. Claimant presents one issue for this Court's review: whether his employer, CVS (Employer), established that Claimant engaged in willful misconduct. We affirm.
Claimant worked full-time as a pharmacist for Employer from May 7, 2000 until September 12, 2011, earning $59.66 per hour. Employer's pharmacists are permitted to take a 15-minute break for every 4 hours worked. Employer's policies require pharmacists who are working alone in the store to remain in the store even while on breaks, so that they are available for consultations with customers and for emergencies. Employer's pharmacists may leave the pharmacy area during their break, but must roll down and lock the security shutters while they are gone. In the event a pharmacist must leave the store, he is required to activate the alarm system in the pharmacy area and lock the security shutters.
During the period between September 6, 2011 and September 12, 2011, Claimant was working the overnight shift from 9:00 p.m. until 9:00 a.m. He left the store during his shift on at least three evenings without setting the alarm. On September 19, 2011, when Claimant was scheduled to begin his next scheduled shift, Employer's pharmacy supervisor William Hanna (Hanna) advised him that his employment was being terminated for violating the aforementioned work rules.
Claimant filed an application for UC benefits. On December 15, 2011, the Allentown UC Service Center issued a determination finding Claimant ineligible for benefits under the Unemployment Compensation Law (Law) due to willful misconduct. Claimant appealed and, on February 3, 2012, a hearing was held before a Referee. On February 14, 2012, the Referee issued his decision finding Claimant ineligible for benefits due to willful misconduct. Claimant appealed to the UCBR. On May 30, 2012, the UCBR affirmed the Referee's decision, adopting and incorporating the Referee's findings and conclusions. Claimant appealed to this Court.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751-914.
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005). --------
Claimant contends that the UCBR erred when it concluded he engaged in willful misconduct. We disagree.
Section 402(e) of the Law[, 43 P.S. § 802(e),] provides that an employee is ineligible for unemployment compensation benefits when his unemployment is due to discharge from work for willful misconduct connected to his work. The employer bears the burden of proving willful misconduct in
an unemployment compensation case. Willful misconduct has been defined as (1) an act of wanton or willful disregard of the employer's interest; (2) a deliberate violation of the employer's rules; (3) a disregard of standards of behavior which the employer has a right to expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or a disregard of the employee's duties and obligations to the employer.Dep't of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747-48 n.4 (Pa. Cmwlth. 2000) (citation omitted). "When an employee is discharged for violating a work rule, the employer must prove the existence of the rule and the fact of its violation. The burden then shifts to the employee to prove that he or she had good cause for violating the rule." Lewis v. Unemployment Comp. Bd. of Review, 42 A.3d 375, 377 (Pa. Cmwlth. 2012).
At the hearing, Hanna described Employer's policies, and offered documents establishing that Claimant had reviewed Employer's Code of Conduct which requires employees to "[u]nderstand and follow the Code of Conduct and [Employer's] policies." Original Record (O.R.), Item 11, Exs. E-2, E-3. Employer further introduced its Policy No. ROPP-0041, entitled, "Daily Procedures," which requires that "if only one pharmacist is on duty [the pharmacist] should remain onsite and must be available for consultation and emergency situations if needed." O.R., Item 11, Ex. E-1, Section 10.1.4.2. Hanna also testified regarding Claimant's conduct, and provided security photographs establishing that Claimant had left the store during his shifts between September 6, 2011 and September 12, 2011. Hanna further testified that Claimant failed to activate the alarm when he left.
Claimant testified that he was not aware of the policy prohibiting pharmacists from leaving the store and, in fact, had been advised by Hanna years earlier that it was permissible for Claimant to leave the store during his breaks. Hanna, however, denied ever telling Claimant that it was permissible for him to leave the store during his breaks. Claimant also testified that he had taken such breaks for years and had never been disciplined for doing so.
This Court has stated:
In unemployment compensation proceedings, the [UCBR] is the ultimate factfinder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Findings made by the [UCBR] are conclusive and binding on appeal if the record, when examined as a whole, contains substantial evidence to support those findings.Kelly v. Unemployment Comp. Bd. of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). Here, the Referee and the UCBR deemed Claimant's testimony that he was unaware of Employer's pharmacist break procedures not credible. Based on the evidence, the Referee and the UCBR determined that Employer met its burden of proving that the work rules existed and Claimant violated them. Because Claimant failed to establish that he had good cause to violate Employer's work rule, the UCBR correctly concluded that Claimant engaged in willful misconduct. For all of the above reasons, the UCBR's decision is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 24th day of January, 2013, the Unemployment Compensation Board of Review's May 30, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge