Opinion
No. 1069 C.D. 2013
01-29-2014
PPL Wilkes-Barre S.C., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
PPL Wilkes-Barre S.C. (Employer) petitions for review of the June 13, 2013 order of the Unemployment Compensation Board of Review (Board), which reversed a referee's determination and held that Scott A. Bisco (Claimant) was not ineligible for benefits pursuant to section 402(e) of the Unemployment Compensation Law (Law). We reverse.
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 benefits for any week in which his unemployment is due to his discharge from work for willful misconduct connected with his work.
Employer most recently employed Claimant as an electrical helper until his last day of work on December 10, 2012. Claimant previously held a customer service representative position with Employer, in which he took inbound calls from customers and helped them with various tasks such as payments. Employer has a policy that prohibits employees from performing any type of work on accounts of their relatives or personal acquaintances. (Board's Findings of Fact Nos. 1-3.) In its union contract, Employer defines "relative" to include "wife, father, mother, stepfather, stepmother, mother-in-law, father-in-law, brother, sister, son, daughter, stepchild, grandmother, grandfather, granddaughter, grandson, legal guardian, or spouse's legal guardian or domestic partner." (Board's Finding of Fact No. 4; see R.R. at 43a.) Claimant was aware of this policy. (Board's Finding of Fact No. 5.)
Employer's policy states as follows:
Employee shall not perform any corrections or money-related transactions on their own accounts, or on the accounts of their relatives or personal acquaintances. Transactions on these accounts must be channeled to a supervisor for re-assignment to an employee whose objectivity could not be questioned on the basis of a personal relationship to the customer.(Reproduced Record (R.R.) at 18a.)
In 2008 Claimant divorced from his wife and subsequently went through a legal battle to obtain custody of his children. After his divorce through 2011, Claimant performed transactions on the account of his former mother-in-law and former father-in-law. Employer became aware of the transactions in December 2012. Employer conducted an investigation and discovered that Claimant had accessed the account sixteen times between 2008 and 2011. Employer discharged Claimant from his employment for allegedly performing work on the account of a relative. (Board's Findings of Fact Nos. 6-7, 9-11.)
Claimant applied for unemployment compensation, and on January 28, 2013, the local service center determined that Claimant was not ineligible for benefits pursuant to section 402(e) of the Law. Employer appealed, and a referee held a hearing on March 11, 2013.
Mark Hoffman (Hoffman), Employer's spokesperson, testified as follows:
[Referee]: So we're concerned with the discharge. Mr. Hoffman, would you like to provide testimony regarding the Claimant's separation?
[Hoffman]: Yes. [Claimant] was, again, terminated for willful misconduct on an account.
[Referee]: Okay. Would you like to tell me anything about that?
[Hoffman]: Sure. As a customer service representative, representatives are required to sign a standard of integrity form indicating they will not work on an account of a relative, an acquaintance, make any kind of corrections, money-related transactions on any account associated to, again, a direct relative or direct acquaintance of an employee. And [Claimant] took numerous attempts and steps to make those transactions.
[Referee]: Anything else?
[Hoffman]: That's basically the reason of the termination.
[Referee]: Okay. When did you -- when did this incident occur?
[Hoffman]: It happened numerous times from back in 2008 up through 2011.
[Referee]: And when did you become aware of it?
[Hoffman]: We were made aware -- I don't know the exact date, but within days of being made aware we took immediate action and had corporate auditing to [sic] a review of the steps that were taken.(R.R. at 34a-35a).
On cross-examination, Hoffman testified as follows:
[Claimant]: Under which of the standards of integrity, family member or acquaintance, was the determination made?(R.R. at 36a.)
[Hoffman]: I can answer [Claimant]? The standards of integrity form that you signed related to relatives or personal acquaintances.
[Referee]: Okay. Is your question for him, in regards to the incident that they're accusing you of, are they saying that they violated for -- to accessing acquaintance or relatives account?
[Claimant]: Correct, that's what I'm asking.
* * *
[Referee]: Mr. Hoffman, do you know if the account that he supposedly accessed was a relative or an acquaintance, that's what he's asking you.
[Hoffman]: I'm going to say relative.
[Claimant]: That answered my question.
Subsequently, Hoffman responded to questions from the referee as follows:
[Referee]: So Mr. Hoffman, you're indicating that he violated -- he was discharged for violating standards of integrity . . .
[Hoffman]: Um-hum.
[Referee]: . . . is that the correct -- is that -- and that's like a policy there, that you're not allowed to work on accounts of relatives or acquaintances. Okay. And you're saying that he acknowledged that -- he was made aware of that policy?
[Hoffman]: He was made aware when he started employment and it was reviewed annually.
* * *
[Referee]: Mr. Hoffman, does the policy -- this -- what is it, the integrity -- standards . . .
[Hoffman]: Standards of . . .
[Referee]: . . . of integrity, does it -- or does -- anywhere does it define what the acquaintance -- did it have anything about ex in-laws or anything on there?
[Hoffman]: It -- basically again, it states relatives or personal acquaintances.
[Referee]: Okay.
[Hoffman]: Ex in-laws . . .
[Referee]: And does PPL give any type of direction in the union book, is that what that was, the union?
[Hoffman]: Um-hum.
[Referee]: It says, you know, defines what a relative is. Does it give a definition as to what they consider acquaintance?
[Hoffman]: I don't believe it gets down to that [inaudible] of a level.
[Referee]: Okay.
[Hoffman]: Uncomfortable saying that an ex in-law would qualify for acquaintance or [inaudible]. I apologize if I used the relative -- one or the other -- my opinion directly does relate to the . . .(R.R. at 37a, 48a.)
[Referee]: To the policy?
[Hoffman]: Either relative or acquaintance.
[Referee]: Or acquaintance. Okay.
[Hoffman]: And I . . .
[Referee]: So you see it as dealing with these individuals. They're either -- you could see them classified as a relative or an acquaintance, is that what you're saying?
[Hoffman]: However you want to classify an ex relative, yes.
[Referee]: But I'm asking you as far as . . .
[Hoffman]: Yes.
[Referee]: That's your definition?
[Hoffman]: [Inaudible].
[Referee]: Okay.
Claimant testified that he made normal transactions on the account of his former in-laws. He stated that he did not consider them to be relatives, because Article VIII, section 2 of Employer's union contract does not include former in-laws in its definition of immediate family members. Claimant also testified that he received thirteen calls from his former in-laws regarding their account from 2008 to 2011, whereas he would receive four to five calls per day from some of Employer's customers. Claimant stated that he lived at the address listed on his former in-laws' account prior to 2008 and after that he only saw his former in-laws when they were in court and never spoke to them. He stated that he only speaks to his ex-wife when there is a significant problem with their children. Claimant explained that he won primary custody of the children in October 2012 and that his former in-laws subsequently informed Employer that Claimant accessed their account. (R.R. at 42a-44a, 47a.)
On cross-examination, Claimant acknowledged signing Employer's policy in 2008. He also acknowledged that his ex-wife still lived at the address listed on his former in-laws' account. Claimant stated that, from 2008 to 2011, he spoke on the phone with both of his former in-laws, and may have spoken to his ex-wife, concerning the account. Claimant explained that he removed a late payment charge from his former in-laws' account but that he did so in accordance with Employer's policies. He also stated that he did not perceive his former in-laws as personal acquaintances because they were not close, personal friends of his. Claimant testified that he knew as much information about them as many of his repeat callers. (R.R. at 44a, 46a.)
By decision and order dated March 11, 2013, the referee determined that, although Claimant's former in-laws were not considered relatives under Employer's policy, he still had interactions with them, even if they were not friendly. The referee noted that Claimant's children resided at the home of Claimant's former in-laws, who are their grandparents. Moreover, Claimant had ongoing legal issues involving his ex-wife. The referee concluded that Claimant's relationship with his former in-laws is sufficiently personal in nature that performing transactions on their account is a violation of Employer's policy. The referee concluded that Claimant's actions constituted willful misconduct under section 402(e) of the Law, rendering Claimant ineligible for benefits.
Claimant appealed to the Board, which found that Employer credibly established it has a policy prohibiting its employees from performing any type of work on the accounts of relatives or personal acquaintances and that Claimant was aware of the policy. Citing Hoffman's testimony, the Board specifically found that Employer discharged Claimant from his employment because he worked on the account of his relatives. The Board stated that the definition of a "relative" found in Employer's union contract did not include former in-laws. The Board concluded that because Employer specifically discharged Claimant for working on the account of a relative, Employer failed to establish that Claimant violated its policy. Thus, the Board stated that it was constrained to hold that Claimant is not ineligible for benefits under section 402(e) of the Law and reversed the referee's decision.
On appeal to this Court, Employer argues that the Board's findings of fact and its determination that Claimant is not ineligible for benefits under section 402(e) of the Law are not supported by substantial evidence. We agree.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
In unemployment cases, the Board is the ultimate fact-finder, empowered to make all determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 270, 501 A.2d 1382, 1385 (1985). The Board's findings are conclusive and binding on appeal where the record contains substantial evidence to support them. Brannigan v. Unemployment Compensation Board of Review, 887 A.2d 841, 843 (Pa. Cmwlth. 2005). To determine if there is substantial evidence to support the Board's decision, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of all reasonable inferences that can be logically and reasonably drawn therefrom. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977).
Although the Law does not define the term willful misconduct, our courts have defined it as including: (1) the wanton or willful disregard of the employer's interests; (2) a deliberate violation of the employer's rules; (3) the disregard of standards of behavior which an employer can rightfully expect from its employee; or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). The burden of proving willful misconduct rests with the employer. Id. Whether an employee's conduct constitutes willful misconduct is a question of law subject to this Court's review. Id.
An employer seeking to prove willful misconduct based on a violation of a work policy must establish the existence of a reasonable work policy and its violation by the employee. Id. at 522. The employer must also establish that the claimant's actions were intentional or deliberate. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). Once the employer meets its burden, the burden of proof shifts to the employee to prove that he had good cause for his actions. Guthrie, 738 A.2d at 522. The employee establishes good cause where his actions are justified or reasonable under the circumstances. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006).
Employer argues that the Board erred in determining that Claimant is not ineligible for benefits under section 402(e) of the Law. Specifically, Employer challenges the Board's finding that "[Employer] discharged [Claimant] for allegedly performing work on the account of a relative." (Board's Finding of Fact No. 11.) We agree that the record does not support the Board's finding that Claimant was fired specifically for accessing the account of a relative. Indeed, Hoffman stated on three separate occasions that Claimant was discharged from his employment for violating Employer's policy. (R.R. at 37a, 44a-45a, 48a.) Moreover, Employer's investigative report regarding Claimant's actions states, in pertinent part, as follows:
The evidence indicates that [Claimant] violated the Standards of Integrity by:
(R.R. at 16a.)• Accessing and modifying a relative's and/or personal acquaintance's account.
• Recording false or misleading information in [Employer's] records.
• Establishing payment agreements with a relative and/or acquaintance in order to reduce and/or delay payments.
• Improperly waiving a late fee and performing money-related transactions.
• At times, not being forthright in connection with the investigation.
• Suspending charges to prevent the account from accruing late fees.
• Not channeling the calls of relatives and/or acquaintances to a Supervisor so they could reassign the call to another [customer service representative].
Employer's human resources representative also discussed the reason for Claimant's discharge from his employment in an internal e-mail as follows:
[Employer's] investigation discovered that [Claimant] violated [Employer's] Standards of Integrity and [Employer's] Corporate Code of Conduct by exhibiting a pattern of not only accessing [his former in-laws' account] but also taking action on [his former in-laws' account] 16 times over a period of time starting in April 2010 and continuing until May of 2011. The majority of the actions taken by [Claimant] stopped collection activity on the account from occurring.(R.R. at 22a.) --------
Although, when asked by the referee to classify Claimant's former in-laws as either personal acquaintances or relatives, Hoffman answered, "I'm going to say relative[,]" (R.R. at 36a), Hoffman also testified by way of clarification as follows:
[Referee]: So Mr. Hoffman, you're indicating that he violated -- he was discharged for violating standards of integrity . . .
[Hoffman]: Um-hum.
[Referee]: . . . is that the correct -- is that -- and that's like a policy there, that you're not allowed to work on accounts of relatives or acquaintances. Okay. And you're saying that he acknowledged that -- he was made aware of that policy?
[Hoffman]: He was made aware when he started employment and it was reviewed annually.
* * *
[Hoffman]: Uncomfortable saying that an ex in-law would qualify for acquaintance or [inaudible]. I apologize if I
used the relative -- one or the other -- my opinion directly does relate to the . . .(R.R. at 37a, 48a.)
[Referee]: To the policy?
[Hoffman]: Either relative or acquaintance.
[Referee]: Or acquaintance. Okay.
[Hoffman]: And I . . .
[Referee]: So you see it as dealing with these individuals. They're either -- you could see them classified as a relative or an acquaintance, is that what you're saying?
[Hoffman]: However you want to classify an ex relative, yes.
[Referee]: But I'm asking you as far as . . .
[Hoffman]: Yes.
[Referee]: That's your definition?
[Hoffman]: [Inaudible].
[Referee]: Okay.
Clearly, Hoffman's statements do not contradict this testimony concerning the reason for Claimant's discharge. Through credible testimony and documentary evidence, Employer established that its policy prohibited employees from accessing accounts of relatives or acquaintances, that Claimant was aware of its policy, and that Claimant accessed the account of persons known to him. As the referee observed, Claimant's relationship with his former in-laws is personal in nature, as his children have resided with them and his ex-wife continues to live at their house. Although Claimant does not consider his former in-laws to be close, personal friends, the record establishes that they are acquaintances as that term is commonly defined as follows: "a person whom one knows but who is not a particularly close friend." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 10 (10th ed. 2011). Therefore, Claimant violated Employer's policy by accessing his former in-laws' account because under Employer's policy they were relatives or personal acquaintances. Because the Board's finding that Claimant was discharged from his employment solely for accessing the account of a relative is not supported by substantial evidence, Brannigan, the Board erred in determining that Claimant is not ineligible for benefits under section 402(e) of the Law.
Accordingly, we reverse.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 29th day of January, 2014, the June 13, 2013 order of the Unemployment Compensation Board of Review is reversed.
/s/_________
PATRICIA A. McCULLOUGH, Judge