Opinion
No. 101 C.D. 2013
07-12-2013
Gregory S. Schlecker, 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 McCULLOUGH
Gregory S. Schlecker (Claimant) petitions, pro se, for review of the January 7, 2013 order of the Unemployment Compensation Board of Review (Board), which reversed a referee's determination and held that Claimant was ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law). 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 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.
Claimant worked for the Transportation Security Administration (Employer) as a full-time transportation security officer (TSO) from October 20, 2002, until June 15, 2012. As part of his employment, Claimant was required to pass the On Screen Alarm Resolution Protocol Mastery Assessment (test) annually to maintain his certification. In January 2012, during an investigation conducted by the Department of Homeland Security, Office of Inspector General, (DHS) Claimant admitted that, after failing the test twice in 2011, he paid Master Transportation Security Officer-Security Training Instructor Shannon Gilliam (STI Gilliam) $200 to take the test on his behalf. Following the investigation, Claimant was suspended and later discharged for inappropriate conduct. (Board's Findings of Fact Nos. 1-7, 11.)
The local service center determined that Claimant was ineligible for unemployment compensation benefits. Claimant filed an appeal, and a referee held a hearing. Richard Leith, Employer's Employee Relations Specialist, confirmed that Claimant worked as a full-time TSO and that TSOs are required to take computerized recertification testing annually. Leith said a DHS inspector initiated an investigation into this testing after a TSO claimed that a training instructor discussed taking tests for other TSOs in exchange for money. Leith stated that further investigation uncovered a ledger, kept by STI Gilliam, of individuals who paid STI Gilliam to take the test for them and that Claimant's name was on that list.
Leith explained that the test is taken on a computer, and cannot be tampered with, so there is no way to change the answers that are entered. He noted, however, that a training instructor could log into a person's account and answer the questions. According to Leith, the investigation revealed that STI Gilliam had logged into the accounts of the TSOs who paid him. Leith said that on January 19, 2012, Claimant gave a sworn statement to an investigator detailing his involvement with STI Gilliam. Based on the statement and further investigation, Claimant was subsequently placed on paid administrative leave on June 13, 2012. (Notes of Testimony (N.T.) at 1-7, 13.)
Claimant testified that, before 2011, he had passed his recertification tests honorably. Claimant stated that he studied hard and took the test himself twice in 2011, double-checking all of his answers the second time before submitting them. Claimant said that he was surprised when he failed the 2011 testing and he went to STI Gilliam to discuss his concerns. According to Claimant, he was not allowed to see the actual answers to the test he had allegedly failed. Claimant testified that STI Gilliam went over the questions with him and had Claimant answer some questions verbally; STI Gilliam told Claimant that his verbal answers were correct, but that Claimant had not entered those correct answers on the computerized test. Claimant believed that STI Gilliam modified the answers to cause people to fail the test. (Id. at 9-15.)
Claimant admitted that he accepted STI Gilliam's offer to take the test on Claimant's behalf in exchange for $200; however, Claimant maintained he did so only because STI Gilliam coerced him, using the fear of losing his job if he failed a third time. Claimant claimed the whole situation could have been avoided had Employer properly overseen the testing administrator. (Id.)
Following the hearing, the referee reversed the local service center's decision and found that Claimant was not disqualified from receiving benefits. The referee reasoned that, although paying STI Gilliam to take the test on Claimant's behalf could constitute willful misconduct, Claimant presented sufficient cause for his actions and thus was not disqualified under section 402(e) of the Law. Specifically, the referee relied on Claimant's circumstantial evidence that someone in authority manipulated the test results, causing Claimant to fail his test and suffer duress over the possibility of termination.
Employer appealed to the Board. The Board found that even if STI Gilliam had modified the test, Claimant's actions fell below the standard of behavior Employer had a right to expect from him. The Board further held that Claimant did not act reasonably, because he never reported his suspicions to upper management. Therefore, the Board reversed the referee's decision and held that Claimant was ineligible for benefits under section 402(e) of the Law.
On appeal to this Court, Claimant argues that the Board erred by concluding that Claimant was ineligible for benefits under section 402(e) of the Law. Claimant asserts that the Board erred in finding that Claimant's conduct fell below the standard of behavior Employer had a right to expect from him and that Claimant did not act reasonably. We disagree.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Pursuant to section 402(e) of the Law, an employee is not eligible for benefits if he is discharged from his employment for willful misconduct connected with his work. 43 P.S. §802(e). Whether an employee's actions constitute willful misconduct is a question of law subject to review by this Court. Noland v. Unemployment Compensation Board of Review, 425 A.2d 1203 (Pa. Cmwlth. 1981). While the Law does not define willful conduct, our courts have interpreted it as including: (1) the wanton or willful disregard of the employer's interests; (2) the deliberate violation of the employer's rules; (3) the disregard of the standards of behavior which an employer can rightfully expect from an employee; or (4) negligence demonstrating an intentional disregard of the employer's interest or the employee's duties and obligations to the employer. Kelly v. Unemployment Compensation Board of Review, 425 A.2d 1203 (Pa. Cmwlth. 1981). Willful misconduct may be found when an employee deliberately lies or misleads his employer as to matters directly affecting the employee's work. DeRiggi v. Unemployment Compensation Board of Review, 856 A.2d 253 (Pa. Cmwlth. 2004).
Claimant admitted that he engaged in fraudulent conduct directly related to his work, and, thus, Claimant was required to show that he had good cause for his actions. Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008). To demonstrate good cause, a claimant must establish that his conduct was justifiable or reasonable under the circumstances. Id. Claimant asserts he had good cause for paying STI Gilliam to take his test because STI Gilliam manipulated prior test results, causing Claimant to fail and thereby threatening Claimant's job. However, this Court has previously held that an employee's desire to protect his job does not constitute good cause for deceitful conduct. Melomed v. Unemployment Compensation Board of Review, 972 A.2d 593 (Pa. Cmwlth. 2009).
In Melomed, the claimant violated her employer's notarization policy and lied to cover up her action. The claimant later admitted to her misrepresentation, but claimed she lied because her manager instructed her to do so and she feared losing her job. The Board found the claimant's argument unpersuasive and held that she was ineligible for benefits under section 402(e) of the Law. We affirmed the Board's decision and held that the claimant's dishonesty constituted willful misconduct, despite the claimant's fear of losing her job or the instructions given by her manager. Id. at 595-96. "An employer must be able to expect an employee to be honest about the job that the employer is paying for." Id. at 596. See also Carlantonio v. Unemployment Compensation Board of Review, 512 A.2d 96 (Pa. Cmwlth. 1986) (holding that an employee's desire to protect herself and her co-worker from possible discharge did not remove the employee's obligation to tell her employer the truth).
We also note that an employee's subjective belief alone does not constitute good cause for actions that would otherwise disqualify a claimant from benefits. See Dougherty v. Unemployment Compensation Board of Review, 686 A.2d 53, 55 (Pa. Cmwlth. 1996) (holding that the claimant was ineligible for benefits under section 402(e) of the Law for refusing to work with certain patients where the claimant demonstrated only a subjective belief that those patients posed a special risk to him). Here, the Board found that Claimant could have spoken to management if he believed his test results were erroneous and that Claimant did not take that course of action. (Board's Findings of Fact Nos. 9-10.)
In unemployment compensation proceedings, the Board is the ultimate fact finder and has the power to determine the credibility of witnesses and resolve conflicts in the evidence. McIntyre v. Unemployment Compensation Board of Review, 687 A.2d 416, 418 (Pa. Cmwlth. 1997). The Board's findings are conclusive and binding on appeal if they are supported by substantial evidence. Id. --------
Moreover, in order to establish good cause for violating an employer's policy or rule, an employee must notify the employer concerning the nature of the cause. Bortz v. Unemployment Compensation Board of Review, 464 A.2d 609 (Pa. Cmwlth. 1983). The claimant in Bortz violated his employer's policy requiring the use of a helmet visor. Id. at 610. The referee found that the claimant was ineligible for benefits under section 402(e) because, although the claimant had requested permission from his employer to wear different equipment, he did not inform his employer of the specific problems with his current equipment. The Board affirmed. On appeal, this Court also affirmed, concluding that in order to establish good cause for violating a work rule, "the employee, where feasible, must notify his employer of the reason for refusing to comply with rules, unless the reason for noncompliance is self-evident, or unless the employer is independently aware of the circumstances warranting noncompliance." Id. at 610-11. We held in Bortz that the claimant's failure to justify his noncompliance with the employer's policy before his discharge constituted a failure to establish good cause. Id. at 611.
Because Claimant admittedly engaged in deceitful behavior and failed to demonstrate good cause for his conduct, the Board properly held that Claimant is ineligible for benefits under section 402(e) of the Law. Melomed; Dougherty; Bortz.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 12th day of July, 2013, the order of the Unemployment Compensation Board of Review, dated January 7, 2013, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge