Opinion
No. 1416 C.D. 2013
05-12-2014
Lanette Williams, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Lanette Williams (Claimant) petitions this Court for review of an order of the Unemployment Compensation Board of Review (Board) holding her ineligible to receive unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, § 402(e), as amended, 43 P.S. § 802(e). Section 402(e) provides that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work . . . ." 43 P.S. § 802(e).
Claimant was employed by HelpHOPELive (Employer) as an intake assistant from May 2006 through January 23, 2013. (Record Item (R. Item) 10, Referee's Decision and Order, Findings of Fact (F.F.) ¶1.) Claimant was paid on an hourly basis and her primary responsibility was answering the telephones. (R. Item 9, Hearing Transcript (H.T.) at 5, 10-11, 16, 23, 30, 33.) Between June 2012 and November 2012, several incidents occurred in which Claimant left work early without her supervisor's approval or reported for work before the scheduled start of her work day, and in November 2012, Employer suspended her for one day without pay for altering her work hours without approval. (R. Item 10, F.F. ¶¶3, 5, 10; R. Item 9, H.T. at 5, 11-15 & Employer Exs. 1, 2.)
Employer's office was closed on December 24, 2012, but Employer permitted hourly employees to work and be paid for that day with the requirement that they account for the work they performed. (R. Item 10, F.F. ¶13; R. Item 9, H.T. at 5, 16.) Employer specifically instructed Claimant and other hourly employees in advance that they must keep track of the hours they worked that day and the work they did. (R. Item 10, F.F. ¶13; R. Item 9, H.T. at 16 & Employer Ex. 3.) Claimant reported to Employer that she worked 7.5 hours on December 24, 2012, but refused to answer Employer's questions as to what work she had done that day. (R. Item 10, F.F. ¶¶15, 19; R. Item 9, H.T. at 5, 7-8, 16-17 & Employer Ex. 3.) Employer suspended Claimant for two days without pay for insubordination, and continued to request that she supply the information. (R. Item 10, F.F. ¶¶17-18 and Referee's Decision and Order at 2-3; R. Item 9, H.T. at 7-8, 16-18 & Employer Ex. 3.) Claimant responded argumentatively, but listed several tasks in general terms without the hours worked or the quantity of work. (R. Item 9, H.T. at 5, 17-18 & Employer Ex. 3.) On January 14, 2013, Employer advised Claimant that it believed, based on its records, that the tasks Claimant had listed amounted to no more than 4.5 hours of work and again requested that Claimant account for the full 7.5 hours that she claimed to have worked. (R. Item 10, F.F. ¶19; R. Item 9, H.T. at 5, 18 & Employer Ex. 3.) Claimant did not respond to this request, and Employer on January 23, 2013 discharged Claimant for insubordination for failing to respond to its requests that she account for the hours that she claimed to have worked on December 24, 2012. (R. Item 10, F.F. ¶¶19, 21 and Referee's Decision and Order at 3; R. Item 9, H.T. at 4-5, 9, 18.)
Claimant filed for unemployment benefits and the Unemployment Compensation Service Center found Claimant eligible. Employer appealed and the referee conducted a hearing at which Claimant, Employer's Executive Director, and Employer's Managing Director, Claimant's supervisor, testified, and emails between Claimant and Employer concerning the incidents in question and other documents from Claimant's employment file were introduced into evidence. The referee found that Claimant was discharged for her failure to respond to Employer's requests that she account for the time that she claimed to have worked on December 24, 2012 and concluded that this failure to respond to Employer's requests constituted willful misconduct. (R. Item 10, Referee's Decision and Order at 2-3.) The referee accordingly reversed the Service Center's determination and held that Claimant was ineligible for benefits. (Id. at 3.) Claimant appealed to the Board, and the Board on June 25, 2013 affirmed and adopted the referee's decision. Claimant timely filed a petition for review appealing the Board's order to this Court.
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). --------
In unemployment compensation cases, the burden of proving willful misconduct is on the employer. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 703 A.2d 452, 456 (Pa. 1997); Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012) (en banc). To prove willful misconduct, the employer must show: (1) wanton or willful disregard of the employer's interests, (2) deliberate violation of the employer's rules, (3) disregard of standards of behavior that an employer can rightfully expect from an employee, or (4) negligence that indicates an intentional disregard for the employer's interests or the employee's duties or obligations. Temple University v. Unemployment Compensation Board of Review, 772 A.2d 416, 418 (Pa. 2001); Caterpillar, Inc., 703 A.2d at 456; Grand Sport Auto Body, 55 A.3d at 190.
A claimant's refusal to comply with a reasonable request from her employer related to her work constitutes a disregard of standards of behavior that an employer can rightfully expect from an employee. ATM Corp. of America v. Unemployment Compensation Board of Review, 892 A.2d 859, 866 (Pa. Cmwlth. 2006). A refusal to provide work-related information requested by the employer constitutes willful misconduct unless the claimant shows good cause for her failure to provide the requested information. ATM Corp. of America, 892 A.2d at 866-68; Lausch v. Unemployment Compensation Board of Review, 679 A.2d 1385, 1392-93 (Pa. Cmwlth. 1996); Heins v. Unemployment Compensation Board of Review, 534 A.2d 592, 594-95 (Pa. Cmwlth. 1987); Korol v. Unemployment Compensation Board of Review, 384 A.2d 1377, 1378 (Pa. Cmwlth. 1978). The burden is on the claimant to demonstrate good cause for her conduct. Grand Sport Auto Body, 55 A.3d at 190; Heins, 534 A.2d at 594. Whether a claimant's actions constitute willful misconduct and whether the claimant has shown good cause for her actions are questions of law fully reviewable on appeal. Grand Sport Auto Body, 55 A.3d at 190; Lausch, 679 A.2d at 1391-92.
Here, Employer satisfied its burden of showing willful misconduct and Claimant did not demonstrate any good cause for her conduct. Claimant was told in advance that because the office was closed and she would not have her usual primary duty of answering the telephone, she would be required to report the tasks that she did in the hours that she worked on December 24, 2012. (R. Item 10, F.F. ¶13; R. Item 9, H.T. at 16 & Employer Ex. 3.) That requirement was plainly work-related and reasonable. Despite multiple requests from Employer, Claimant refused to provide any information concerning the work she did in the 7.5 hours that she reported working on December 24, 2012 and for which she had been paid. (R. Item 10, F.F. ¶¶15-17, 19; R. Item 9, H.T. at 5, 7-8, 16-18 & Employer Ex. 3.) After Employer suspended her for two days for this refusal, Claimant supplied only a general list of activities with no quantification of the amount of work performed or time spent on those tasks, and when Employer requested further information because it felt that those tasks could not account for more than 4.5 of the 7.5 hours that she claimed to have worked, Claimant refused to provide any further information. (R. Item 10, F.F. ¶¶16-19 and Referee's Decision and Order at 2-3; R. Item 9, H.T. at 5, 7-8, 17-18 & Employer Ex. 3.) Claimant did not give any reason at the hearing or to Employer for her refusal to comply with Employer's requests, other than assertions that she was under stress from problems with Employer's telephone system and that she found it insulting to be asked to account for the time that she claimed to have worked. (R. Item 9, H.T. at 29-32 & Employer Ex. 3.)
Claimant argues that the referee did not provide her a fair hearing. This argument is waived by Claimant's failure to raise any issue concerning the referee's hearing before the Board. Issues not raised before the Board are waived and cannot constitute a basis for reversal of the Board's order. Wing v. Unemployment Compensation Board of Review, 436 A.2d 179, 180-81 (Pa. 1981); Grever v. Unemployment Compensation Board of Review, 989 A.2d 400, 402-03 (Pa. Cmwlth. 2010); Merida v. Unemployment Compensation Board of Review, 543 A.2d 593, 596 (Pa. Cmwlth. 1988), app. dismissed, 570 A.2d 1320 (Pa. 1990). Although she was represented by counsel in her appeal to the Board, Claimant did not assert to the Board that there was any unfairness or inadequacy in the referee's hearing and argued only that she was discharged for complaining to Employer's board of directors and that her failure to provide the information requested by Employer was not willful misconduct. (R. Item 13, Claimant's Brief in Appeal to Board.)
Moreover, even if it were not waived, this argument is without merit. Where a party is not represented by counsel, the referee has the duty to "advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties." 34 Pa. Code § 101.21(a). That duty is satisfied and an unrepresented claimant has received a fair and adequate hearing where the referee informs the claimant of her right to counsel and of her right to offer witnesses and to cross-examine adverse witnesses, provides the claimant the opportunity to tell her story and present evidence, and asks the claimant and other witnesses questions adequate to develop the facts concerning the termination of the claimant's employment. Frimet v. Unemployment Compensation Board of Review, 78 A.3d 21, 24-25 (Pa. Cmwlth. 2013); Hackler v. Unemployment Compensation Board of Review, 24 A.3d 1112, 1115-19 (Pa. Cmwlth. 2011); Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1059-60 (Pa. Cmwlth. 2010), abrogated in part on another issue, Diehl v. Unemployment Compensation Board of Review, 57 A.3d 1209 (Pa. 2012). Here, the referee advised Claimant of her right to counsel, her right to testify, offer witnesses and present evidence and her right to cross-examine witnesses. (R. Item 9, H.T. at 2.) The referee also gave Claimant a full opportunity to testify, present evidence and ask questions of Employer's witnesses, and questioned both Claimant and Employer's witnesses at length concerning the reasons for and circumstances surrounding Claimant's discharge. (Id. at 4-5, 7-10, 16-20, 22-32, 35-40.) The referee therefore fully discharged his due process obligations and provided Claimant a fair hearing.
Claimant also argues that she was discharged for filing a discrimination complaint, not because she failed to provide information requested by Employer. This contention likewise fails. Where the Board's findings of fact are supported by substantial evidence, they are binding on this Court, even if there is other contrary evidence. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671-72 (Pa. Cmwlth. 2010); Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). The Board found that Claimant was discharged for her failure to respond to Employer's requests that she account for the time that she claimed to have worked. (R. Item 17, Board Order; R. Item 10, F.F. ¶¶13, 15-19, 21 and Referee's Decision and Order at 2-3.) Those findings are supported by substantial evidence. (R. Item 9, H.T. at 5, 16-18 & Employer Ex. 3.) Indeed, there was no evidence before the Board that Claimant had filed or made any complaint of discrimination. While there was evidence that Claimant communicated with Employer's board of directors, there was no evidence that she asserted any claim of discrimination in those communications. (R. Item 10, F.F. ¶20; R. Item 9, H.T. at 18-19, 29-31, 35 & Employer Ex. 3.)
Accordingly, we affirm the order of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 12th day of May, 2014, the order of the Unemployment Compensation Board of Review in this matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge