Opinion
No. 2518 C.D. 2011
10-10-2012
Deborah J. Kelly, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Deborah J. Kelly, (Claimant), representing herself, petitions for review from an order of the Unemployment Compensation Board of Review (Board) that denied her benefits under Section 402(e) of the Unemployment Compensation Law (Law) (willful misconduct) for violating a work rule by falsifying her timesheets. Specifically, Claimant asserts she did not commit willful misconduct, and her employer, ALS Custom Cleaning (Employer), treated her in a disparate manner compared to other employees. Upon review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
For approximately eight years, Claimant worked for Employer as a supervisor and general laborer. During that time, Employer maintained a policy prohibiting employees from falsifying timesheets. According to that policy, the falsification of timesheets was grounds for immediate dismissal. In August 2011, Employer terminated Claimant's employment for violating that policy.
Thereafter, Claimant applied for benefits, which were initially denied. Claimant appealed, and a hearing ensued before a referee. At the hearing, Employer presented the testimony of its owner, Amy Lyttle (Owner), and Claimant testified on her own behalf. Both parties proceeded without the aid of counsel.
Specifically, Owner testified Employer maintained a policy prohibiting employees from misreporting their hours. According to Owner, Claimant received and signed off on this policy when Employer hired her.
Owner testified that in July 2011, Employer issued a letter to its employees informing them it had information indicating that some employees were falsifying their timesheets. The letter offered the employees an opportunity to confess their violations with the possibility that they may retain their jobs. As a result, Claimant came forward and confessed to falsely reporting her times by a few minutes on multiple occasions. After Claimant confessed, Employer deferred discipline pending further investigation.
Owner further testified that during the following month, she determined Claimant greatly underreported the amount of falsified time. Additionally, she discovered Claimant continued to falsify her timesheets after confessing. As a result, Employer terminated Claimant's employment.
In response, Claimant agreed she confessed to violating Employer's policy. Furthermore, Claimant conceded that following her confession, she continued to falsify her timesheets. Additionally, Claimant admitted that she knew another employee was also falsifying time, but she did not report her despite being her supervisor. Claimant's only justification was that at the time she recently suffered a death in her family and was not herself.
Claimant's main contention was that her termination of employment was unfair because she had a strong work record, completed all of her assigned work, and other employees who were caught falsifying their times were not dismissed. Specifically, Claimant asserted her dismissal was unfair because she came forward and confessed when others did not, and Employer terminated her employment and not the other employees' employment.
Particularly, Claimant testified that employees named Shannon and Katie were both caught falsifying their times and were not forthright about their violations. Furthermore, Claimant asserted that other unnamed employees were likewise guilty. She testified these other employees generally had much less experience than Claimant, and they had terrible work records. Thus, Claimant asserted Employer should have terminated their employment first. Claimant conceded the other employees were not supervisors.
As to the other employees, Owner testified Employer terminated Katie's employment based on similar circumstances as Claimant. Furthermore, according to Owner, when she initially confronted Shannon about the discrepancies, Shannon "came into the meeting with the attitude of trying to do whatever could do to correct the situation." Notes of Testimony, 9/15/11, at 10. Thus, based on her attitude, Shannon received only a reprimand.
The referee determined Employer maintained a policy requiring employees submit accurate timesheets, Claimant was aware of the policy and confessed to violating it. As such, the referee concluded Claimant engaged in willful misconduct.
In addition, the referee determined Employer did not improperly treat Claimant more harshly on improper grounds because, unlike the other employees, Claimant was a supervisor. In doing so, the referee acknowledged that Employer entrusted Claimant to enforce policies she admitted to violating. Moreover, Claimant did not fully disclose the magnitude of her falsifications and continued to make false reports after her confession. Thus, the referee denied Claimant benefits, and she appealed.
Thereafter, the Board adopted and incorporated the referee's findings and conclusions and affirmed. Specifically, the Board reasoned Employer credibly established Claimant violated the time reporting policy. Furthermore, Claimant did not establish that any of the other guilty employees who were disciplined differently were similarly situated to her. Specifically, the other employees were not supervisors like Claimant. Moreover, Claimant did not testify that any of the other employees partially disclosed their falsifications or continued to falsify their records after confessing. Claimant now petitions for review.
On appeal, Claimant contends her conduct does not amount to willful misconduct in light of her years of unblemished service to Employer. Furthermore, Claimant argues Employer treated her disparately by terminating her employment because Employer did not dismiss the other guilty employees, who did not come forward and confess, but only reprimanded them.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Hall v. Unemployment Comp. Bd. of Review, 42 A.3d 1204 (Pa. Cmwlth. 2012). --------
Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge ... from work for willful misconduct connected with his work ...." 43 P.S. §802(e). An employee's violation of her employer's work rules may constitute willful misconduct. Daniels v. Unemployment Comp. Bd. of Review, 755 A.2d 397 (Pa. Cmwlth. 2000). In order for an employer to establish an employee's willful misconduct for a work rule violation, the employer must prove the existence of the rule, its reasonableness, and the fact of its violation. Williams v. Unemployment Comp. Bd. of Review, 926 A.2d 568 (Pa. Cmwlth. 2007).
An employee may not be disqualified from receiving benefits where the employer subjected her to a different standard of behavior than other similarly situated employees based on improper grounds. Daniels (citing Woodson v. Unemployment Comp. Bd. of Review, 461 Pa. 439, 336 A.2d 867 (1975) (distinction based on race)). As a remedy, a claimant who engaged in willful misconduct may assert her employer's actions constituted disparate treatment as an affirmative defense. Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964 A.2d 970 (Pa. Cmwlth. 2009) (en banc).
In order to establish a disparate treatment defense, a claimant must show "(1) the employer discharged claimant, but did not discharge other employees who engaged in similar conduct; (2) the claimant was similarly situated to the other employees who were not discharged; and (3) the employer discharged the claimant based on upon an improper criterion." Id. at 974. "The essence of disparate treatment is that similarly situated people are treated differently, based upon an improper criterion." Am. Racing Equip., Inc. v. Unemployment Comp. Bd. of Review, 601 A.2d 480, 482 (Pa. Cmwlth. 1991). The mere fact one employee is dismissed and another of equal guilt is not is insufficient to prove disparate treatment. Bays v. Unemployment Comp. Bd. of Review, 437 A.2d 72 (Pa. Cmwlth. 1981).
Here, Claimant concedes she violated Employer's policy requiring accurate time reporting and does not present grounds that she had good cause. See Richardson v. Unemployment Comp. Bd. of Review, 427 A.2d 734 (Pa. Cmwlth. 1981) (an unblemished employment record does not preclude a denial of benefits for one act of willful misconduct). Therefore, the Board did not err in determining Claimant engaged in willful misconduct.
As to her disparate treatment argument, Claimant did not establish she was similarly situated to the other employees who were not discharged, or that her treatment was based on an improper criterion. Specifically, unlike the other employees who falsified their timesheets, Claimant was a supervisor, who Employer entrusted to enforce the policies she violated. This is a proper basis for distinguishing between Claimant and the other employees. See Rebel v. Unemployment Comp. Bd. of Review, 692 A.2d 304 (Pa. Cmwlth. 1997) (managers are not similarly situated to non-managerial employees); Am. Racing Equip. (no disparate treatment where an employer terminated a supervisor but not two other employees for same conduct).
Furthermore, Claimant presented no evidence that the other employees continued to falsify their timesheets for a month after confessing to violating Employer's time keeping policy. See Geisinger Health Plan (severity of like-misconduct is proper grounds for distinguishing between employees). Therefore, Claimant did not establish she was similarly situated to the other policy-breaking employees, or that Employer discharged her based on an improper criterion. See id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)) (a claimant bears the initial burden to show the adverse treatment was based on improper grounds). Thus, her argument is meritless.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 10th day of October, 2012, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge