Opinion
No. 1382 C.D. 2011
03-14-2012
Eliezer Bermudez, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Eliezer Bermudez (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The facts, as initially found by the referee and confirmed by the Board, are as follows:
1. The Claimant was last employed as a part-time Night Crew Manager with the Employer from May 5, 1997 until January 16, 2011 at the final rate of pay of $15.25 per hour; the Claimant's last day at work was January 13, 2011.
2. The Employer's policy states that falsifying information on timecards or falsification of company documents is cause of disciplinary action including termination and prosecution.
3. The Claimant was aware, or should have been aware, of the Employer's policy as he had acknowledged receiving the Associate Handbook which contains the policies.
4. A the end of each workweek, the Claimant has to verify that the time/hours submitted is correct with his thumbprint and swipe the card, and then the system asks for verification of the hours worked.
5. The Claimant is required to record his time on a daily basis on a time card sheet.
6. The Claimant has to travel to other stores.
7. On November 25, 2010, the Employer received an overtime report, which indicated that certain employees had excessive overtime.
8. The Claimant's Supervisor was number one on the overtime list and the Claimant was number 15 on the overtime list.
9. The Employer started an investigation of the employees mentioned on the overtime list.
10. On December 1, 2010, the Employer began an investigation of the hours that the Claimant actually worked.
11. The Employer installed a GPS tracking device without the knowledge of the Claimant and conducted a direct observation of the Claimant and the hours that he actually worked.
12. The Employer maintained the tracking from December 1, 2010 to January 1, 2011 and ascertained
that the Claimant was not submitting the actual hours worked by him.Referee's Decision, March 20, 2011, (Decision), Findings of Fact Nos. 1-16 at 1-2.
13. On December 4, 2010, the Claimant's hours were inflated by 15 to 25 hours.
14. The Employer ascertained that the Claimant was not submitting the actual hours that he had worked and resultantly the Employer had paid the Claimant for 2,036 hours to which he was not entitled.
15. On January 13, 2011, the Employer suspended the Claimant pending further investigation.
16. On January 16, 2011, the Employer discharged Claimant for falsification of his time cards.
This appears to be a typographical error. In the hearing Niclas DeAngelis (DeAngelis), regional loss prevention manager for Save-A-Lot (Employer), testified that the excess number of hours was 236. The referee is quoted as then stating 2036 hours though the preparer of the transcript inserted a "[sic]." Notes of Testimony, March 29, 2011, (N.T.) at 11.
The referee determined:
In the present case, the Claimant defended his actions by stating that he would submit the time cards to the Manager and the Manager would enter the hours worked in the computer. The Claimant further added that when he was not at the store he would just put down the hours that he thought that he had worked. The Claimant's testimony was neither credible nor convincing because the Claimant was required to follow the Employer's procedure for verification of the hours worked by him.
Here, based on the credible and competent testimony provided by the Employer's witness, the Loss Prevention Manager, the Referee finds that the Claimant deliberately
violated the Employer's policy by falsifying the time records and was paid for 2,036 [sic] hours for which he had not worked. Therefore, the Referee finds that the Claimant's conduct exhibited a disregard of the standards of behavior that an Employer has a right to expect of its employees. Moreover, the Claimant's conduct was inimical to the Employer and also not in the best interest of the Employer. As such, the Referee finds that the Claimant is ineligible for benefits under Section 402(e) of the Law.Decision at 2-3.
The Board affirmed.
Claimant contends that the Board erred when it determined that Claimant was ineligible for benefits on the basis that he committed willful misconduct because the determination that he committed fraud and theft was unsupported by substantial evidence.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an Employer's interest, deliberate violation of rules, disregard of standards of behavior which an Employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The Employer bears the burden of proving the existence of the work rule and its violation. Once the Employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
An affirmative falsification of time sheets in order to receive pay for hours not worked constitutes willful misconduct. Temple University of the Commonwealth System of Higher Education v. Unemployment Compensation Board of Review, 565 Pa. 178, 772 A.2d 416 (2001).
Claimant asserts that he never took part in any fraud and that Employer did not provide timecards, paystubs or video surveillance to prove that Claimant falsified records. Essentially, Claimant disagrees with the Board's findings Nos. 12-14 where the Board found that Claimant did not submit the actual hours worked by him and that he had been paid for hours where he did not work.
At the hearing before the referee, DeAngelis testified that he received a report generated by Employer which indicated that certain employees, including Claimant, received an excessive amount of overtime. Beginning on December 1, 2010, DeAngelis placed a "GPS" [global positioning system] on a company van that Claimant used. N.T. at 8. DeAngelis explained:
After each week submitted for time I would verify their number of hours worked against the actual time that I observed in person and against the GPS tracking device that was on the van and in fact after the first week of observation, which was [the] week ending 12/4/2010, I was able to see an inflation in both of the individuals' by anywhere from 15 to 20 hours of time worked.
. . . .
From December 1st to January 1st. I was able to say with 100% certainty against my direct observation and the GPS tracking device placed on the van that the two were not submitting hours actually worked but instead submitting time that they felt to be their shifts in their own minds. . . . . . .
When I spoke to Mr. Bernudez [sic] [Claimant] I did explain all of the facts of the case, my direct observation, time submitted . . . to not in fact be correct against what he had submitted. When I spoke to him he did admit to me that all the time that he was submitting going back to November was actually time that he believed to have worked but had no exact record and he does state on his statement that he would guess at the time being worked on a daily basis. So his format that he explained to me was that he would come in, look at a calendar for the week and guesstimate about how many hours he would work on a daily basis and on a weekly basis, and then submit that time to the store for which he submitted his time to that he was being paid out of.
. . . .
Time should be recorded on a daily basis where they would submit the time onto the time clock and then his direct supervisor would verify the time and then that
timecard would be turned into the store for it to be processed.N.T. at 8-9.
Another employee, Claimant's supervisor, was also suspected of falsifying his hours. --------
Claimant testified that he verified his hours as correct on his time card. N.T. at 16.
The Board credited the testimony of DeAngelis. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). DeAngelis's testimony supported the findings that Claimant falsified his time sheets and received more pay than he was entitled.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 14th day of March, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge