Opinion
No. 1662 C.D. 2012
04-04-2013
Daniel Tocatlian, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Daniel Tocatlian (Claimant) petitions, pro se, for review of the August 20, 2012 order of the Unemployment Compensation Board of Review (Board) affirming the decision of a referee and holding that Claimant is 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 benefits for any week in which his unemployment is due to his discharge from work for willful misconduct connected with his work.
Claimant was last employed as an Assistant Engineer 3 with The Boeing Company (Employer). Employer has a policy governing the use of company resources. In relevant part, the policy states that an employee's personal use of company resources should not negatively affect the employee's work or Employer's business. The policy further provides that an employee's use of company resources should not compromise Employer's security or integrity nor embarrass Employer. (Findings of Fact Nos. 6, 8.)
Employer received an anonymous phone call from an employee in its Ethics Department who stated that Claimant spent 90 percent of his time at work on personal phone calls. Employer began an investigation of Claimant on February 14, 2012, which included an interview with Claimant by Robert Fasold, Employer's corporate investigator. The investigation revealed that Claimant used Employer's equipment both on and off the worksite. During the interview, Claimant admitted that he spent approximately one hour per day on personal phone calls and 44 minutes per day searching non-work-related websites. Upon further investigation of the websites accessed by Claimant, Fasold discovered that Claimant viewed pornographic and adult swinger websites. Employer discharged Claimant for violating Employer's policy concerning personal use of company resources. (Findings of Fact Nos. 2-5, 7, 9.)
Fasold testified that he only had access to Claimant's work phone records and not Claimant's personal cell phone records. (Notes of Testimony (N.T.) at 6-7.)
Claimant subsequently filed a claim for benefits with the local service center. The local service center determined that Claimant was unaware that he violated a work rule, and, thus, found him eligible for benefits under section 402(e) of the Law. (Certified Record (C.R.) Item No. 6.)
Employer appealed and a referee held a hearing on June 14, 2012. Claimant testified that he had approved leave time under the Family and Medical Leave Act to take care of his ailing father and mother, which allowed him to attend to personal matters while at work. (Notes of Testimony (N.T.) at 13, 16-18.) Even though Claimant admitted that he spent time on personal phone calls and Internet searches during work hours, he testified that Employer's PRO-31 flextime policy permitted him to work extra hours to recompense his lost time. (C.R. Item No. 11, Employer's exhibit 1; N.T. at 13-17, 19-21.) Claimant further testified that Fasold told him that he should still retain his job even if he signed the written statement, which summarized Fasold's findings, admitting his phone and Internet usage. (N.T. at 14-15.) Claimant also testified that Employer did not follow its Employee Corrective Action Process, because Employer's Employee Corrective Action Process Requirements matrix (Matrix) stated that Claimant should be either verbally warned or suspended for a week for his personal use of company resources. (N.T. at 15.)
Fasold testified that he commenced his investigation of Claimant based on an allegation that Claimant spent 90 percent of his day on personal phone calls. (N.T. at 4.) Fasold further stated that Claimant signed a written summary report of Fasold's investigation, after Claimant had a chance to review and correct it, admitting the estimated time that Claimant spent on the phone and Internet for non-work-related purposes. (N.T. at 4-5.) Fasold also testified that Claimant accessed "questionable sites," which included a human sexuality forum and a search on Google that gave Claimant access to swinger clubs, on his company laptop computer after work hours. (N.T. at 7-8.)
The referee found that Claimant breached the standard of behavior Employer has a right to expect from its employees and concluded that Claimant's actions constituted willful misconduct. By decision and order dated June 15, 2012, the referee reversed the local service center's determination. Claimant appealed to the Board. By order dated August 20, 2012, the Board affirmed the referee's decision. The Board adopted the referee's findings and conclusions and specifically discredited Claimant's testimony that he worked a flextime schedule that allowed for his personal use of Employer's phone and time on the Internet. The Board concluded that Claimant deliberately violated Employer's policies and therefore was ineligible for benefits under section 402(e) of the Law.
On appeal to this Court, Claimant argues that the Board erred in concluding that his actions amounted to willful misconduct because he did not deliberately violate Employer's work policies.
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.
Initially we note that, although the Law does not define the term willful misconduct, our courts have defined it as including: (1) the wanton and willful disregard of the employer's interests; (2) the deliberate violation of 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. Where, as here, a claimant is discharged for violating a work rule, the employer must establish both the existence of a reasonable rule and its violation. Id. at 522. Whether an employee's conduct constitutes willful misconduct is a question of law subject to this Court's review. Id. at 521.
Claimant first argues that Employer did not prove that his actions during work hours constituted willful misconduct because Claimant followed a flextime schedule pursuant to Employer's policy. Claimant contends that he would have subpoenaed his timecard records from Employer if he had known that Employer would not present his manager as a witness. However, Claimant did not subpoena his timecard records or request permission to supplement the record. Claimant also failed to ask the referee for a continuance to obtain the timecard records. Moreover, 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, 501 A.2d 1383 (1985). The Board expressly discredited Claimant's testimony that he was using a flextime schedule .
34 Pa. Code §101.23 allows the referee to grant a continuance for proper cause.
Claimant further contends that Employer engaged in retaliatory discharge because Claimant complained to Employer that he had not received his expected job placement with Employer based on his gender and race under Title VII of the Civil Rights Act of 1964 and that he needed more challenging work. (C.R. Item No. 4; Claimant's brief at 10-11.) However, the Board discredited Claimant's assertions and found that Employer commenced the investigation because of an anonymous phone call informing Employer that Claimant spent 90 percent of his workday on personal phone calls. (Finding of Fact No. 2.) Fasold's testimony supports the Board's finding. (N.T. at 4.)
42 U.S.C. §§2000e-2000e-17.
Claimant, who was employed by Employer for six years, completed a two-year rotational program with Employer that ended in June 2011. (C.R. Item No. 11, Employer's exhibit 1.) Claimant contends that he was not placed in an appropriate, permanent position with Employer. (Claimant's brief at 10.) However, Claimant admitted in the signed, written statement from Fasold's investigation that he received one evaluation stating that he did not meet expectations during his time in the two-year rotational program. (C.R. Item No. 11, Employer's exhibit 1.)
Finally, Claimant alleges disparate treatment by Employer, i.e., that other employees were not discharged for inappropriate use of Employer's resources. However, Claimant failed to present any evidence before the referee supporting this allegation.
Claimant cites codes 1C and 2E of the Matrix to show that he should have received either a verbal warning or time off from work for his violations of Employer's policies. (Claimant's brief at 10.) Claimant also cites a case where Employer's employee violated Employer's policy concerning personal use of company resources but only received a written warning instead of being discharged. (Claimant's brief at 12.) However, these two codes and this case are not part of the certified record and can only be found in Claimant's brief to this Court. Evidence that is not in the certified record may not be reviewed on appeal. Croft v. Unemployment Compensation Board of Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995). --------
In sum, Employer established that it has specific policies regarding personal use of company property. Claimant's personal use of Employer's property directly contravened Employer's policies with which Claimant concedes he was aware. (N.T. at 12, 19.) Claimant also admitted in a signed written statement during Fasold's investigation that using Employer's computer to view pornographic and adult swinger websites while at home after work hours was "inappropriate." (C.R. Item No. 11, Employer's exhibit 1.) Hence, the record demonstrates that Claimant violated Employer's policy governing employees' use of company resources and failed to meet the standard of behavior that an employer has a right to expect from an employee. Burchell v. Unemployment Compensation Board of Review, 848 A.2d 1082, 1086 (Pa. Cmwlth. 2004) (affirming denial of benefits under section 402(e) because employee's download of pornographic material to the employer's computer violated employer's policy and constituted a disregard of the standard of behavior the employer had a right to expect from the employee). Thus, the Board did not err in concluding that Claimant's actions rose to the level of willful misconduct.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 4th day of April, 2013, the order of the Unemployment Compensation Board of Review, dated August 20, 2012, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge