Opinion
No. 1205 C.D. 2013
01-23-2014
Patricia M. Stahl, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Patricia M. Stahl (Claimant), pro se, petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for unemployment compensation benefits. In doing so, the Board affirmed the decision of the Referee that Claimant was not eligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law), because she committed willful misconduct by misusing her employer's rewards program for her own financial gain. Specifically, Claimant used customer rewards cards that did not belong to her to make purchases. Claimant argues that she had permission to use the rewards cards and, further, other employees who redeemed rewards cards in this manner were not disciplined. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant part, as follows:
An employe shall be ineligible for compensation for any week -
43 P.S. §802(e).
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(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work...
Claimant has been employed by K-mart Corporation (Employer) since 1995 as a "pricing leader." Employer has a customer rewards program called "Shop Your Way," which gives members points at each purchase; these points can be used as credit towards a future purchase. The member rewards cards are non-transferable. In late 2012, Claimant made purchases by redeeming points from rewards cards that did not belong to her. On December 3, 2012, Employer fired Claimant for the stated reason that she had committed dishonesty and theft by violating Employer's policy on the Shop Your Way rewards program.
Claimant applied for unemployment benefits. The Allentown UC Service Center denied benefits, and Claimant appealed. A Referee held a hearing where both Claimant and Employer appeared and presented evidence.
Loss Prevention Manager, Brian Gross, testified about Employer's policy. Employees may participate in the Shop Your Way rewards program, but the employee may use only his own rewards card for his own purchases. For example, employees may not scan their own personal rewards cards when ringing up purchases for a customer who does not have a rewards card. Nor are employees permitted to give their personal rewards cards to family and friends to use for purchases. Employees undergo training on the rewards program policy, and Claimant completed her training on January 4, 2010. At the completion of training, Claimant signed her name after the following statement: "I understand that if I'm found abusing the system it will lead to disciplinary action up to and including my termination." Notes of Testimony, March 28, 2013, at 6 (N.T. ___).
Gross testified that after Hurricane Sandy, Employer gave all Shop Your Way members points with a value of $5 or $10 as a goodwill gesture. In November 2012, Employer discovered that Claimant had redeemed those balances from four different Shop Your Way rewards cards to make purchases for herself. When Gross interviewed Claimant on December 3, 2012, she informed him that one of the rewards cards belonged to her husband and another belonged to her aunt; she did not know the other card holders whose balances she redeemed. Claimant admitted her misconduct, which she attributed to her financial problems. Gross immediately fired Claimant for theft and dishonesty.
A second Loss Prevention Manager, Lance Hoffman, testified on behalf of Employer. Hoffman was brought into the case when the district manager told Hoffman that Claimant had been "flagged" in the system for making purchases on four different occasions using her employee discount card and other people's rewards cards. Hoffman investigated surveillance footage and an electronic journal and discovered that Claimant was alone when making all of the flagged purchases.
Claimant then testified. She stated: "I admit I was wrong for what I did, what I did for this and there's no excuses for it." N.T. 11. However, Claimant opined that because she had otherwise been a good employee, she should have been merely written up or suspended without pay.
Claimant testified that she had seen other employees giving their Shop Your Way rewards cards to their friends to use. Although she reported this conduct to her supervisor, nothing was done. With respect to her own purchases, Claimant stated that she had permission to use her family members' rewards cards. Claimant testified that her store manager had told employees to sign up all of their family members for rewards cards in order to meet the store's weekly quota for new rewards program members. The manager said that she did not care what the employees did with the cards after signing up their relatives; the store simply needed the members. As for the other two rewards cards she used, Claimant testified that she did not know the card owners or why she used those cards. Claimant concluded her testimony by reiterating, "I know I did wrong." N.T. 14.
Claimant presented testimony from her mother, Darlene Best, who also works for Employer. Best confirmed that the store manager told employees to sign up relatives for the rewards program, even if they were not present, and told employees "I don't care what you do with the cards." N.T. 14.
The Referee made the following findings. Employer has a policy regarding employee participation in the Shop Your Way rewards program, about which Claimant had completed training. Employer also has a policy calling for immediate termination from employment for theft and dishonesty. Although Claimant was aware of Employer's policies, she made multiple purchases by using rewards cards that did not belong to her; she admitted this conduct to Gross. The Referee concluded that Claimant engaged in willful misconduct. Accordingly, the Referee held that Claimant was ineligible for benefits under Section 402(e) of the Law. Claimant appealed. The Board adopted the Referee's findings of fact and conclusions of law and affirmed the Referee's decision. Claimant now petitions this Court for review.
In unemployment compensation appeals, our review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether errors of law were committed, or whether findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987). Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Korpics v. Unemployment Compensation Board of Review, 833 A.2d 1217, 1219 n.1 (Pa. Cmwlth. 2003).
On appeal, Claimant argues that the Board erred in concluding that she committed willful misconduct. First, Claimant contends that she had permission from her family members and her store manager to use the Shop Your Way rewards cards as she did. Second, Claimant argues that Employer did not fire other employees who have used other people's rewards cards or allowed their own rewards cards to be used by others.
We begin with a review of the law on willful misconduct. An employee who engages in willful misconduct is ineligible for unemployment compensation benefits under Section 402(e) of the Law. Although not statutorily defined, the courts have determined that willful misconduct includes: (1) wanton and willful disregard of the employer's interest; (2) deliberate violation of work rules; (3) 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). An employee's dishonesty or theft from an employer is disqualifying willful misconduct because it "is a wrongful act exhibiting disregard for the employer's interests." Downey v. Unemployment Compensation Board of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006).
The employer has the burden of proving willful misconduct on the part of a discharged employee. Pettyjohn v. Unemployment Compensation Board of Review, 863 A.2d 162, 164 (Pa. Cmwlth. 2004). Once the employer establishes a prima facie case of willful misconduct, the burden shifts to the claimant to prove that his actions were justified or reasonable under the circumstances. Downey v. Unemployment Compensation Board of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006). Whether a claimant's actions constitute willful misconduct, so as to disqualify him from receiving unemployment benefits, is a question of law that is fully reviewable by this Court. Lindsay v. Unemployment Compensation Board of Review, 789 A.2d 385, 389-90 (Pa. Cmwlth. 2001).
This case is factually similar to Taylor v. Unemployment Compensation Board of Review, 420 A.2d 1360 (Pa. Cmwlth. 1980). There, the employer had a policy of giving discounts to non-profit organizations. The claimant violated the policy by having her co-workers give her discounts and by giving her co-workers discounts. This Court held that the claimant's conduct rose to the level of willful misconduct because her "departure from store policy was inimical to the employer's interest and fell short of the standards the employer may rightfully expect of employees." Id. at 1361.
Here, the Board's findings, which Claimant does not specifically challenge, are supported by substantial evidence and, thus, are conclusive on appeal. Aversa v. Unemployment Compensation Board of Review, 52 A.3d 565, 569 n.4 (Pa. Cmwlth. 2012). The Board found that Employer's policy prohibited Claimant from using any Shop Your Way rewards cards except her own; Claimant had completed training on the rewards program; and Claimant admitted violating the policy, stating that she had "no excuses for it." N.T. 11. As in Taylor, Claimant's "departure from store policy was inimical to Employer's interest" because she received a discount on her purchases that she was not entitled to have. Taylor, 420 A.2d at 1361. This conduct constituted willful misconduct, disqualifying Claimant from receiving unemployment compensation benefits.
Claimant argues that her store manager instructed employees to sign up as many family members as possible for the rewards program and stated she did not care what the employees did with the cards. This argument does not constitute just cause for violating Employer's policy and is irrelevant. Even if Claimant understood her manager's directive to mean she could use the rewards cards of family members she enrolled, the fact remains that Claimant used the rewards cards of two people whom she did not know. Claimant does not assert that anyone working for Employer gave her permission to do so or that such conduct did not violate Employer's policy on use of the rewards program.
Claimant contends that one of the Shop Your Way rewards cards belonged to her husband, one belonged to her aunt, and the remaining two belonged to Claimant. We dismiss this allegation because it is directly contrary to the sworn testimony of both Brian Gross and Claimant herself that Claimant did not know who owned two of the rewards accounts that she used. --------
Claimant next argues that the Board erred by not considering the fact that Employer did not fire other employees who used other people's rewards cards or allowed their own rewards cards to be used by others. In effect, Claimant is arguing that she was subjected to disparate treatment because she was discharged while other employees who misused the rewards program were not. "[W]hen employees are subjected to differing standards of conduct, disqualification from the receipt of benefits under Section 402(e) of the Law is improper." Daniels v. Unemployment Compensation Board of Review, 755 A.2d 729, 732 (Pa. Cmwlth. 2000). The essence of disparate treatment is whether similarly situated individuals are treated differently based upon improper criteria. The Electric Material Company v. Unemployment Compensation Board of Review, 664 A.2d 1112, 1115 (Pa. Cmwlth. 1995). Other than general testimony that she had seen other employees give their rewards cards to their friends to use and had reported this conduct to her supervisor, Claimant presented no evidence that Employer was actually aware of these infractions. Further, Claimant did not testify that in these other instances the employee redeemed cash points from four different rewards cards, as Claimant did. Claimant's claim of disparate treatment must fail.
For these reasons, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge
ORDER
AND NOW, this 23rd day of January, 2014, the order of the Unemployment Compensation Board of Review dated May 13, 2013, in the above captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge