Opinion
No. 1641 C.D. 2013
06-04-2014
Nikesha Walker, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Nikesha Walker (Claimant) petitions, pro se, for review of an order of the Unemployment Compensation Board of Review (Board), in which the Board affirmed the determination made by a Referee that Claimant was ineligible for unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law) because she was discharged from her employment as a mail carrier at the United States Postal Service (Employer) for willful misconduct. For the reasons that follow, 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 or her unemployment is due to willful misconduct connected to his or her work.
Claimant filed her initial claim for unemployment compensation benefits on March 25, 2013. (Record Item (R. Item) 2, Internet Initial Claim.) On April 16, 2013, the Unemployment Compensation Service Center issued a determination finding Claimant ineligible for benefits under Section 402(e) of the Law due to willful misconduct. (R. Item 5, Notice of Determination.) Claimant appealed the determination and a hearing was held before the Referee on May 23, 2013. In a May 24, 2013 decision and order, the Referee affirmed the Service Center's determination that Claimant was ineligible for unemployment compensation under Section 402(e) and made the following findings of fact:
1. The Claimant was employed as a Mail Carrier from August 17, 2007 until March 16, 2013; at the time of separation the Claimant was working full time.
2. The Claimant's gross earnings for the year ending 2013 [were] approximately $71,000, including overtime.
3. The Employer has a Code of Ethical Conduct which provides in part that all employees must "give a full day's labor for a full day's pay; giving to the performance of duties earnest effort and best thought...seek to find and employ more efficient and economical ways of getting tasks accomplished."
4. The Employer also has policies on mail delivery which provides that: unless otherwise instructed by the Unit Manager, deliver all mail distributed to your route prior to the leaving time for that trip and complete delivery within scheduled time. It is your responsibility to inform management when this cannot be done.
5. The Employer has a policy concerning reporting requirements which provides in part, "it is your responsibility to verbally inform management when you
are of the opinion that you will be unable to case all mail distributed to the route, perform other required duties, and leave on schedule or when you will be unable to complete delivery of all mail...inform management of this well in advance of the scheduled leaving time and not later than immediately following the final receipt of mail. Management will instruct you what to do."(R. Item 10, Referee Opinion and Order, Findings of Fact (F.F.) ¶¶1-9.) Claimant appealed to the Board, and, on July 25, 2013, the Board issued an opinion and order affirming the Referee's decision and order. (R. Item 12, Board Opinion and Order.) In its opinion and order, the Board adopted and incorporated the Board's findings of fact and reasoning and made the following additional findings and conclusions:
6. The Claimant was or should have been aware of the Employer's Code of Conduct, Mail Delivery and Reporting Requirements.
7. The Claimant's work is subject to a contract between a labor union to which she is a member and the Employer; the contract governing the Claimant's work provides for mandatory overtime under [] certain limited circumstances.
8. On Wednesday, January 23, 2013 and Thursday, January 24, 2013, the Claimant was instructed to perform one hour of mandatory overtime. The Claimant performed one-half hour of the required overtime and, failed to complete the task assigned to her and returned undelivered mail to the Post Office on January 23, 2013 and January 24, 2013.
9. The Claimant was discharged for failure to complete her assigned tasks on January 23, 2013 and January 24, 2013.
The Unemployment Compensation Board of Review (Board), after considering the entire record in this matter, concludes that the determination made by the Referee is
proper under the Pennsylvania Unemployment Compensation Law (Law). The Board accepts as credible employer's testimony that claimant had worked a substantial amount of overtime to reach the amount of yearly salary she accrued. On the final day claimant was required to work mandatory overtime. Claimant knew or should have known that she could be required to work mandatory overtime. Claimant asserted she had to pick up her daughter. Unfortunately, claimant has failed to provide sufficient specificity on the need to pick up her daughter or the attempts she made to have someone else attend to the need. Lacking such testimony or evidence the Board is constrained to conclude that the claimant has failed to credibly establish good cause for refusing to work mandatory overtime.(Id.) Claimant petitioned this Court for review of the Board's decision and order.
Our scope of review of the Board's decision is limited to determining whether errors of law were committed, constitutional rights or agency procedures were violated, and necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Temple University v. Unemployment Compensation Board of Review, 772 A.2d 416, 418 n.1 (Pa. 2001).
On appeal, Claimant first argues that the Board's finding that Claimant was required to work mandatory overtime on January 23 and 24, 2013 was not supported by substantial evidence. The Board is the ultimate finder of fact and is empowered to make credibility determinations. Doyle v. Unemployment Compensation Board of Review, 58 A.3d 1288, 1291 n.4 (Pa. Cmwlth. 2013). In making credibility determinations, the Board may accept or reject the testimony of any witness in whole or in part. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383, 1388 (Pa. 1985); Doyle, 58 A.3d at 1291 n.4. When, taken as a whole, the Board's findings of fact are supported by substantial evidence, those findings are conclusive on appeal. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671 (Pa. Cmwlth. 2010). Substantial evidence is that evidence which a reasonable mind, without weighing the evidence or substituting its judgment for that of the fact finder, might accept as adequate to support the conclusion reached. Solar Innovations, Inc. v. Unemployment Compensation Board of Review, 38 A.3d 1051, 1055 n.4 (Pa. Cmwlth. 2012).
Claimant does not dispute that she was assigned, and failed to complete, one hour of overtime on January 23 and 24, 2013: Claimant testified that she completed only half of the assigned overtime on each of those days and that she returned to the post office with the undelivered mail and informed her supervisor that she did as much as possible but could not finish her assigned overtime. (R. Item 9, Hearing Transcript (H.T.) at 11-12.) Claimant further testified that her supervisor would not excuse her from her responsibilities when she told the supervisor that she could not complete the overtime. (Id. at 12-13.) Claimant argues instead that Employer did not comply with the procedure governing the assignment of mandatory overtime to mail carriers, which is outlined in a contract between Employer and Claimant's union, the National Association of Letter Carriers (NALC). The relevant provision in the NALC-Employer contract, Claimant maintains, required Employer to assign two hours of overtime per day to all mail carriers who had placed their name on the overtime desired list before assigning any overtime to mail carriers who had not placed their name on the list, such as Claimant.
In her brief, Claimant quotes from a section of the NALC-Employer contract; unfortunately, this document was not submitted into evidence at the hearing and is not otherwise a part of the certified record, so it may not be considered on appeal. Grever v. Unemployment Compensation Board of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010) ("[T]his court, when reviewing matters in its appellate capacity, is bound by the facts certified in the record on appeal."). In any event, Claimant's assertions regarding the overtime assignment procedure of the NALC-Employer contract are not inconsistent with the testimony at the hearing of Derrick Lewis, Manager of Customer Service at Employer. Lewis, whose testimony was found credible by the Board, stated that Claimant was not on the overtime desired list, but once Employer had exhausted overtime assignments to all of the mail carriers on the list, it could, pursuant to the contract, assign overtime to mail carriers who were not on the list in order of reverse seniority. (R. Item 9, H.T. at 18.) While Lewis was not her supervisor on January 23 and 24, 2013, he testified that Employer followed the proper procedure on those days in assigning mandatory overtime to Claimant, who was among the mail carriers with the least seniority, after exhausting overtime assignments to those on the overtime desired list. (Id.) Lewis further testified that Claimant was fully aware of the overtime policy in the contract, as she had worked a substantial amount of overtime in prior years. (Id. at 5, 18.) As noted by the Referee and adopted by the Board in its decision, Claimant did not provide any testimony or documentary evidence at the hearing to refute Lewis's testimony that she was aware of the overtime policy. (R. Item 10, Referee Opinion and Order, Reasoning at 2.)
Claimant in essence asks us to reweigh the evidence and find in her favor. However, questions of credibility and resolving conflicts in the evidence are matters for the Board beyond our scope of review on appeal. Peak, 501 A.2d at 1388; Fitzpatrick v. Unemployment Compensation Board of Review, 616 A.2d 110, 111 (Pa. Cmwlth. 1992). Because Lewis testified that Employer complied with the relevant contractual provisions governing the assignment of mandatory overtime to mail carriers on January 23 and 24, 2013 and because Claimant's own testimony supports that she was assigned one hour of mandatory overtime on those days and failed to complete the assignment, see Socash v. Unemployment Compensation Board of Review, 451 A.3d 1051, 1053 (Pa. Cmwlth. 1982) (holding that claimant's testimony is sufficient to corroborate hearsay testimony and satisfy employer's burden of proof), we conclude that there was substantial evidence to support the challenged findings.
Claimant next argues that, because she informed her supervisors that she could not complete the overtime assignment giving sufficient time to distribute her overtime mail to another carrier, her refusal to complete the overtime did not constitute willful misconduct rendering her ineligible for unemployment compensation benefits under Section 402(e) of the Law. Claimant, however, did not raise this issue in her petition for review of the Board's decision and order; in her petition, Claimant solely raised the issue of whether the overtime was assigned in compliance with the procedure outlined in the NALC-Employer contract and objected to the Board's finding of fact that she was required to work mandatory overtime. Issues not raised in a petition for review or fairly comprised therein are deemed waived on appeal. Pa. R.A.P. 1513(d); Maher v. Unemployment Compensation Board of Review, 983 A.2d 1264, 1266 (Pa. Cmwlth. 2009); Jimoh v. Unemployment Compensation Board of Review, 902 A.2d 608, 611 (Pa. Cmwlth. 2006). Claimant's argument that her actions did not constitute willful misconduct was not fairly comprised within the issue she raised in her petition for review and, instead, was raised for the first time in her brief; therefore, this issue is waived.
Even if this issue was properly before this Court, however, we would not disturb the conclusion of the Board that the termination of Claimant's employment was the result of willful misconduct. Whether a claimant's conduct rises to the level of willful misconduct is a question of law subject to this court's plenary review. Navickas v. Unemployment Compensation Board of Review, 787 A.2d 284, 288 (Pa. 2001). A determination of whether conduct amounts to willful misconduct requires an examination of the entire circumstances, including the reasons for the employee's noncompliance with the employer's rules. Grieb v. Unemployment Compensation Board of Review, 827 A.2d 422, 426 (Pa. 2003). The employer bears the initial burden in proving willful misconduct by the claimant. Navickas, 787 A.2d at 288. If the employer meets its burden, the burden then shifts to the claimant to show good cause as justification for the conduct considered willful. Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 719 (Pa. Cmwlth. 2013).
Claimant argues that she did not commit willful misconduct because she gave Employer notice early on each day that she would not be able to complete one hour of overtime and on one of the days in question, one supervisor told Claimant that she would be excused from performing the overtime but this instruction was countermanded by another supervisor. Claimant argues that she complied with Employer's policy to inform management when delivery of the mail cannot be completed and Employer's code of ethics which requires that employees give a "full day's labor for a full day's pay." (R. Item 9, H.T. Employer's Exhibit 1, 2; R. Item 10, Referee Opinion and Order, F.F. ¶¶3, 4.) This argument, however, ignores the clear evidence presented by Employer at the hearing, and corroborated by Claimant's own testimony, of a violation of the labor contract under which Claimant worked at Employer. As described above, there is substantial evidence to show that Claimant was aware of the mandatory overtime provision in the NALC-Employer contract, Claimant was assigned mandatory overtime and Claimant failed to complete the overtime even after being explicitly told that she would not be excused. "A finding that an employee failed to fulfill his duties under the terms of a collective bargaining agreement can support a conclusion that a claimant was dismissed because of willful misconduct." West Penn Power Co. v. Unemployment Compensation Board of Review, 436 A.2d 1045, 1048 (Pa. Cmwlth. 1981); see also Penflex, Inc. v. Bryson, 485 A.2d 359, 367 (Pa. 1984); Moran v. Unemployment Compensation Board of Review, 400 A.2d 257, 259 (Pa. Cmwlth. 1979). Even if Claimant received conflicting instruction from her supervisors as to whether she needed to perform the overtime, Claimant's testimony is clear that this related to only one of the two days at issue. (R. Item 9, H.T. at 11, 17.) Accordingly, we conclude that the Board properly determined that the Claimant's failure to complete the overtime assignments constituted willful misconduct.
Finally, Claimant argues that she had good cause to leave work without completing the assigned mandatory overtime mail delivery on the two days in question because she had to pick up her daughter from school. This argument also does not appear in Claimant's petition for review and is therefore waived. Maher, 983 A.2d at 1266; Jimoh, 902 A.2d at 611. Had Claimant preserved the issue of good cause, however, we would be constrained to agree with the Board's determination below that good cause was not shown.
A claimant may show good cause as a justification for the willful misconduct where her actions are justified or reasonable under the circumstances. Henderson, 77 A.3d at 719. The claimant bears the burden of demonstrating good cause. Id. Here, Claimant did not present any documents or other evidence at the hearing to substantiate her claim that she needed to pick up her daughter. Nor did Claimant explain during her testimony why it was necessary to leave work on January 23 and 24, 2013 to pick up her daughter when it had not been required on various other days when she had worked overtime. In the absence of any specific testimony or documentary evidence, the Board did not err in concluding that Claimant did not meet her burden in establishing good cause for not completing the mandatory overtime.
While Claimant did testify at the hearing that she wrote her supervisor a letter explaining why she could not complete her overtime and gave the letter to her union representative as support for a grievance, Claimant did not bring a copy of this letter to the hearing. (R. Item 9, H.T. at 13.) --------
The order of the Board is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge Judge Leavitt concurs in the result only. ORDER
AND NOW, this 4th day of June, 2014, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge