Opinion
No. 641 C.D. 2012
11-16-2012
Joselyn M. Sexton, 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 COHN JUBELIRER
Joselyn M. Sexton (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that held, in relevant part, that Claimant was ineligible for unemployment compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), 43 P.S. § 802(e). The Board determined that Claimant committed willful misconduct when she lied to Goodwill Industries (Employer) about the reason she could not attend a meeting, thereby violating Employer's Code of Ethics. On appeal, Claimant argues that: there was insufficient evidence to support the Board's finding that Claimant lied to Employer on April 14, 2011; due to her mental state at the time she was dishonest, she did not willfully violate Employer's Code of Ethics; and she had good cause for being dishonest about the reason she could not attend the meeting with Employer. Because the Board did not err in finding that Claimant willfully violated Employer's work rule against dishonesty and did not establish good cause for that dishonesty, we are constrained to affirm the Board's Order.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
The Board also determined that Claimant was ineligible for benefits pursuant to Section 401(d)(1) of the Law, 43 P.S. § 801(d)(1), because it found that she was not able and available for work. Claimant has not appealed that determination. Thus, even were we to conclude that the Board erred in disqualifying Claimant under Section 402(e) of the Law, Claimant remains ineligible for benefits under Section 401(d)(1). However, because a disqualification based on Section 401(d)(1) is a week-to-week determination, Frey v. Unemployment Compensation Board of Review, 451 A.2d 563, 564 (Pa. Cmwlth. 1982), we must resolve the willful misconduct issue.
Claimant worked as a Manager of Employer's Photo Licensing Contracts, managing approximately forty employees. Claimant's last day of work was April 13, 2011. After attempting to schedule several meetings, which Claimant cancelled, with Claimant to review her files in preparation of her annual performance review, Employer scheduled a meeting for April 14, 2011. On the evening of April 13th, Claimant and her husband had an argument, and she began drinking alcohol. Claimant sent Employer an email on the morning of April 14th stating that she would be unable to attend the meeting because she had to go to Employer's Chambersburg facility to address a staff coverage issue. At some point on April 14th, Claimant attempted to commit suicide. She called her primary care physician and stayed on the phone with him until an ambulance arrived to take her to the hospital for treatment. A member of Claimant's family called Employer's Senior Vice President of Business Development (Vice President) on April 14th to report that Claimant was in the hospital. On April 17th, Claimant informed Vice President that she was in the hospital because she had been drinking and she had lied about the staff coverage issue in Chambersburg on April 14th because of her drinking. Claimant also indicated that she had no intention of meeting with Employer or reporting to Chambersburg on April 14th. Claimant informed Vice President that she would be released from the hospital that day. Vice President allowed Claimant to take Monday, April 18th off. (Board's Findings of Fact (FOF) ¶¶ 1-13.)
Claimant was scheduled to meet with her supervisor and a human resources representative on Tuesday, April 19th. Claimant previously had scheduled herself to work at Employer's Harrisburg office on April 19th. Claimant neither appeared at the meeting nor at the Harrisburg office. Claimant and her husband had another argument on April 18th. When she awoke on April 19th, she was in a treatment facility and had been involuntarily hospitalized for alcoholism, depression, and anxiety. Claimant's husband contacted Vice President to advise her that Claimant was again hospitalized. Claimant left the treatment facility against medical advice on April 21st. (Referee Hr'g Tr. at 21, August 31, 2011.) By letter dated April 20, 2011, Employer fired Claimant for lying to Vice President on April 14th, in violation of the Code of Ethics, and for failing to report to work on April 19th. (Board's FOF ¶¶ 14-19.)
Claimant applied for UC benefits and the Lancaster UC Service Center denied the application because it concluded that Claimant did not provide sufficient evidence to establish that she had good cause for her actions. Claimant appealed, and the matter was assigned to a UC Referee (Referee) for a hearing. Hearings ensued, at which Employer presented the testimony of Vice President and another employee, and Claimant offered her own testimony and the testimony of her daughter (Daughter) and Daughter's Roommate. Vice President testified about the April 14th email, her subsequent conversations with Claimant and Claimant's family, and Claimant not reporting to work or a scheduled meeting on April 19th. Claimant stated that she had been dishonest with Employer on April 12th, not on April 14th, when she told Vice President that she could not attend a scheduled meeting on April 12th because of staff coverage issues. (Referee Hr'g Tr. at 18, 21-22, August 31, 2011.) However, Claimant testified that she contacted Vice President later on April 12th of her own accord, told Vice President that she had lied about her reason for not attending the meeting, and sent Vice President an email to that effect. (Referee Hr'g Tr. at 17-18, 21-22.) Claimant initially denied having sent the email on April 14th, but subsequently agreed that it was possible that she had done so. (Referee Hr'g Tr. at 22-23.)
Although Claimant received notice of the first hearing before the Referee, the Referee was unable to contact her via telephone. The Referee held the hearing without Claimant and, based on the testimony of Vice President and the other employee, issued a decision denying UC benefits. Claimant appealed and requested the matter be remanded for another hearing because she attempted to contact the Referee's office numerous times on the hearing date, contacted her phone company to ensure that the Referee's phone call would not be blocked, and did not receive a phone call even though she was waiting by the phone. The Board remanded for another hearing for evidence on why Claimant was unavailable for the first hearing and on the merits. Claimant and Daughter testified regarding the merits of Claimant's discharge, but did not testify about the reason for Claimant's non-appearance at the first hearing. The Board directed the Referee to hold a second remand hearing at which only evidence of the reasons for Claimant's non-appearance at the first hearing would be accepted. Claimant, Daughter, and Daughter's Roommate explained why the Referee was unable to reach Claimant, (Referee Hr'g Tr. at 7-9, November 28, 2011), which the Board concluded was good cause for missing the first hearing, and addressed the merits of Claimant's appeal.
The Board credited Employer's testimony and evidence that Employer's Code of Ethic's prohibited dishonesty, that Claimant was aware of this policy, and that Claimant lied in her April 14th email when she indicated that she could not make her scheduled meeting with Vice President because of coverage issues at one of Employer's offices when this was not the reason for Claimant missing the meeting. This dishonesty, according to the Board, constituted willful misconduct. The Board concluded that Claimant's attempts to justify her dishonesty were not supported by "sufficient competent, credible evidence or testimony to establish that her alcoholism and other health issues rendered her unable to control her behavior and caused her to lie to [E]mployer regarding her inability to attend the meeting on April 14, 2011." (Board Op. at 5.) The Board indicated that, although Claimant's health issues and family problems were unfortunate, they did not constitute good cause for Claimant's lying to Employer and, therefore, Claimant was ineligible for UC benefits pursuant to Section 402(e) of the Law. (Board Op. at 3-5.) Claimant now petitions this Court for review.
The Board noted that Claimant failed to report to either of her work obligations on April 19th, i.e., her meeting with her supervisor and her scheduled shift at Employer's office in Harrisburg. However, the Board concluded that Claimant's hospitalization as of that date justified her failure to report to work or to the meeting and, therefore, that conduct was not disqualifying under Section 402(e) of the Law. (Board Op. at 5.)
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
Claimant first argues that there was insufficient evidence to support the Board's finding that Claimant lied to Employer in the email sent on April 14th. Claimant contends that, although Employer insinuated during the hearing that it had the email Claimant sent Vice President on April 14th and offered Vice President's testimony as to the content of that email, Employer never produced the actual email. Therefore, according to Claimant, the Board's findings regarding the email are not supported by substantial evidence.
Claimant essentially argues that Employer violated the best evidence rule when it did not present the actual April 14th email. Rule 1002 of the Pennsylvania Rules of Evidence provides that "[t]o prove the content of a writing, recording, or photograph, the original . . . is required, except as otherwise provided in these rules, by other rules prescribed by the Supreme Court, or by statute." Pa. R.E. 1002. This Court previously has declined to apply the best evidence rule in UC proceedings because the party asserting the rule did not object to the admission of the alternative evidence during the hearing. German v. Unemployment Compensation Board of Review, 489 A.2d 308, 309 (Pa. Cmwlth. 1985); Fera v. Unemployment Compensation Board of Review, 407 A.2d 942, 944 (Pa. Cmwlth. 1979). The same can be said here. There is no indication in any of the hearing transcripts that Claimant objected to Vice President's testimony regarding the contents of the April 14th email. Moreover, this Court has subsequently held that the best evidence rule "is a technical rule of evidence not generally applicable to administrative hearings." DiLucente Corporation v. Pennsylvania Prevailing Wage Appeals Board, 692 A.2d 295, 298 (Pa. Cmwlth. 1997). See also Section 505 of the Administrative Agency Law, 2 Pa. C.S. § 505 (specifically stating "Commonwealth agencies shall not be bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonably probative value may be received.") For these reasons, the fact that Employer did not present the actual April 14th email during the hearings is not grounds for reversal.
Prior to the first remand hearing, Claimant received a copy of the transcript from the June 17th hearing and Vice President was available for cross-examination during the first remand hearing. (Referee Hr'g Tr. at 9, August 31, 2011.) Thus, Claimant could have objected to Vice President's testimony during the first remand hearing. --------
Claimant also argues that Vice President's testimony regarding the contents of the April 14th email is not substantial evidence because Claimant testified that any dishonesty occurred on April 12th, not on April 14th, and that she voluntarily admitted such dishonesty to Vice President on that same day. Here, Vice President described the contents of the April 14th email, which stated that Claimant could not attend the meeting scheduled on that day because she had to resolve coverage issues at one of Employer's offices. (Referee Hr'g Tr. at 6, June 17, 2011.) However, Claimant acknowledged that this was not the true reason she did not attend the meeting and that it was possible that she sent an email on April 14th. (Referee Hr'g Tr. at 16-17, 22, August 31, 2011.) Although Claimant relies on her own testimony, the Board credited Vice President's testimony.
The Board is the ultimate finder of fact in UC cases and questions regarding the weight of the evidence and witness credibility are solely within its province. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 815 (Pa. Cmwlth. 2008). That a claimant might believe a different version of the events took place does not create grounds for reversal if the Board's findings are supported by substantial evidence. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). "Substantial evidence is defined as such relevant evidence which a reasonable mind might accept as adequate to support a conclusion." Philadelphia Gas Works v. Unemployment Compensation Board of Review, 654 A.2d 153, 157 (Pa. Cmwlth. 1995). Vice President's credited testimony, as well as Claimant's admissions, is evidence that "a reasonable mind might accept as adequate to support," id., the Board's finding that Claimant was not honest in her email explaining why she could not attend the April 14th meeting.
Claimant next asserts that she did not willfully or deliberately violate Employer's Code of Ethics. Claimant maintains that, in the midst of her emotional and alcoholic state on April 14th, she did not have the mental capacity to deliberately violate the Code of Ethics, was unable to understand her actions, and could not have had the conscious intent to deceive Employer.
Section 402(e) of the Law provides, in pertinent part, that "[a]n employe shall be ineligible for compensation for any week . . . [i]n which [her] unemployment is due to [her] discharge or temporary suspension from work for willful misconduct connected with [her] work." 43 P.S. § 802(e). While the Law does not define "willful misconduct," our courts have defined it as:
(1) a wanton or willful disregard for an employer's interests; (2) a deliberate violation of an employer's rules; (3) a disregard for standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). When a claimant is terminated for a work rule violation, the employer has the burden to establish that the rule existed, the claimant knew of the rule, and the claimant violated the rule. Id. If the employer satisfies its burden, the burden shifts to the employee to show that he or she had good cause for his or her conduct. McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). Whether an employee's actions constitute willful misconduct is a question of law subject to this Court's review and must be determined based on a consideration of all of the circumstances. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006).
Claimant does not dispute that Employer's Code of Ethics prohibits dishonesty; rather, she argues that, due to her mental state on April 14th, she could not have willfully violated Employer's policy. However, Claimant did not testify that her mental state caused her to be dishonest with Employer in the April 14th email. She testified that she was "a mess" and that she could not recall sending the email. (Referee Hr'g Tr. at 18, 22, August 31, 2011.) Although Claimant's current argument could be implied from her testimony, the Board did not credit that testimony, finding that Claimant failed "to establish that her alcoholism and other related health issues rendered her unable to control her behavior and caused her to lie to Employer." (Board Op. at 5.) While we empathize with Claimant and her difficulties, we cannot revisit the Board's credibility determinations. First Federal Savings Bank, 957 A.2d at 815.
Finally, Claimant argues that, under the totality of the circumstances, she had good cause for being dishonest with Employer. Claimant asserts that she was uncomfortable telling Vice President about her personal problems, did not want to relive the recent traumatic events and, therefore, made up the story about a coverage issue preventing her from meeting with Vice President.
"A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances." Docherty, 898 A.2d at 1209. Although we acknowledge Claimant's discomfort with sharing such personal information with a supervisor and her desire not to relive traumatic events, there is no indication why Claimant could not have informed Vice President that she had a family or medical emergency that prevented her from attending the meeting. Doing so would not have revealed any details or required Claimant to relive the events, and would have been a truthful explanation for her non-attendance. Rather, Claimant sent an email giving a reason that she knew was not true. We conclude that, under these circumstances, Claimant's actions were not reasonable or justified; therefore, she did not satisfy her burden of showing she had good cause for violating Employer's rule against dishonesty.
Accordingly, we are constrained to affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 16, 2012, the Order of the Unemployment Compensation Board of Review entered in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge