Opinion
No. 1231 C.D. 2011
02-24-2012
Jay M. McDonough, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Jay M. McDonough (Claimant), pro se, petitions for review of the April 25, 2011 decision of the Unemployment Compensation Board of Review (Board). The Unemployment Compensation Service Center (Service Center) initially determined that Claimant was eligible for benefits, but the Referee reversed following a hearing. The Referee found that Claimant is ineligible under section 402(e) of the Unemployment Compensation Law (Law) for reasons which constitute willful misconduct. The Board affirmed the Referee. We affirm the Board for the below reasons.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
The facts as found by the Referee are that Claimant was employed at Kramer Sales (Employer), as a sales representative, for a period of approximately five months, until he was terminated on July 7, 2010. (R. Item 9, Referee's Decision, February 1, 2011, Findings of Fact (F.F.) ¶1.) Prior to starting the job, Claimant indicated that he was familiar with a computer program called "Sales Force" which was to be used as a tool to list Claimant's sales contacts, meetings, and activities, and keep Employer apprised of Claimant's activities during the week; Employer informed Claimant that the Sales Force program was, at present, a "blank slate," and Claimant would be responsible for enlarging it. (F.F. ¶2.) Claimant failed to list information in Sales Force on a consistent basis. Claimant may have had difficulty using the program; nevertheless, there was much information requested by Employer that he could have been entering into Sales Force. (F.F. ¶4.) Claimant was also required to keep in contact with Employer on a regular basis, but he did not do so. Employer spoke more than once with Claimant about his lack of communication. (F.F. ¶3.) In March, 2010, Employer instructed Claimant to call certain individuals at least three times a week, and Claimant failed to do so, up until the date of his employment termination. (F.F. ¶5.)
On the Friday prior to Claimant's employment termination, Employer received word that a client was attempting, unsuccessfully, to contact Claimant regarding a problem with a certain sales transaction; Employer became involved, contacted the client and solved the problem. (F.F. ¶6.) When Claimant called Employer later that day, he indicated to Employer that he had solved the problem, when in fact he had not. Employer considered this action to be "the final straw," and Employer made the decision to terminate Claimant's employment. (F.F. ¶7.) The Referee found that it did not appear from the record that Claimant was always working to the very best of his ability. (F.F. ¶8.)
The Referee concluded, and the Board affirmed, that the totality of the circumstances demonstrate that Claimant acted in a manner which was in disregard of the standards of behavior which an employer should reasonably expect; that there were no good cause reasons in the record for such conduct; and that the Employer had met its burden in proving willful misconduct. (R. Item 9, Referee's Decision at 2.) Claimant appealed.
Our review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether an error of law was committed, or whether the factual findings are supported by substantial evidence. 2 Pa.C.S. § 704; Nolan v. Unemployment Comp. Bd. of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002). 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." Centennial Sch. Dist. v. Dep't of Educ., 503 A.2d 1090, 1093 n.1 (Pa. Cmwlth. 1986), aff'd, 517 Pa. 540, 539 A.2d 785 (1988).
Section 402(e) of the Law provides that a claimant shall be ineligible for benefits for a period "[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). Willful misconduct has been held to comprehend (1) an act of wanton or willful disregard of the employer's interest, (2) a deliberate violation of the employer's rules, (3) a disregard of standards of behavior which the employer has a right to expect of an employee; or (4) negligence indicting an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631, 632 (1976). The employer bears the burden of proving willful misconduct. County of Luzerne v. Unemployment Compensation Board of Review, 611 A. 2d 1335 (Pa. Cmwlth. 1992). Once the employer makes out a prima facie case of willful misconduct, the burden shifts to the claimant to prove that his actions did not constitute willful misconduct under the facts or that he had a good cause for his behavior. Estate of Fells by Boulding v. Unemployment Compensation Board of Review, 635 A.2d 666 (Pa. Cmwlth. 1993), petition for allowance of appeal denied, 538 Pa. 651, 647 A.2d 905 (1994). Good cause is established "where the action of the employee is justified or reasonable under the circumstances." Frumento, 351 A.2d at 634.
On appeal, Claimant contends, first, that because the Employer checked the "no" box on the Employer Questionnaire form, in answer to the questions, "7. Can you show that the claimant was not working to the best of his/her ability;" "8. Was the claimant warned about the poor work performance;" and "9. Was there any misconduct involved in the claimant's unsatisfactory work performance," the Board is precluded from a finding of willful misconduct, and Claimant's due process rights were violated when evidence of such willful misconduct was raised for the first time at the Referee hearing. (Claimant's Brief at 12; R. Item 3, Employer Separation Information.) Claimant cites as authority Sterling v. Unemployment Compensation Board of Review, 474 A.2d 389 (Pa. Cmwlth. 1984). In Sterling, a Notice of Determination was sent to the claimant, stating a specific act alleged to have been made in violation of company policy. The referee subsequently affirmed the determination, finding the claimant to have been in violation of additional, specific charges not delineated in the Notice of Determination. We found clear prejudice to the claimant, and remanded to the Board. Id. at 391.
The constitutional guarantee of due process of law is equally applicable to administrative proceedings as it is to judicial proceedings. McClelland v. State Civil Service Commission, 322 A.2d 133, 135 (Pa. Cmwlth. 1974). The essential elements of due process require that notice be given and that the notice "contain a sufficient listing and explanation of any charges so that the individual can know against what charges he must defend himself if he can." Jacobs v. Department of Public Welfare, 377 A.2d 1289, 1290-91 (Pa. Cmwlth. 1977).
The Employer's responses to the Employer Questionnaire were taken over the telephone. The form indicates that Claimant was discharged for "unsatisfactory work performance," and further indicates "not performing up to standards. Had customer complaints." (R. Item 3.) At the Referee hearing, the Employer representative who spoke to the Service Center representative testified regarding the oral interview. He stated that "what I said to the woman on the phone is that yes, we had given a number of verbal warnings and I'm not sure if there was any paperwork or email trail because you know, obviously she had called and I was just talking there off of the cuff in my office. So - and then no was marked but that was not the answer to her question when I spoke to her." (R. Item 8, Transcript of Testimony (Telephone) before the Referee (T.T.) at 5.) --------
Sub judice, we find no violation of Claimant's due process rights. The Notice of Hearing, mailed December 27, 2010, fifteen days prior to the Referee's hearing, indicates that the specific issue to be considered is whether Claimant's unemployment was due to "discharge or temporary suspension from work for willful misconduct connected with employment." (R. Item 7, Notice of Hearing, at 1.) Employer's Petition for Appeal from the November 5, 2010 Determination enumerates verbal and written warnings to Claimant regarding Claimant's failure to communicate, and refers to "numerous complaints from customers and factories...for lack of follow-up to phone calls and messages." (R. Item 5, Employer's Petition for Appeal from Determination, at 2.) Employer's Petition for Appeal also attached an email message from Employer to Claimant outlining a continuing concern regarding Claimant's failure to communicate, and questioning the number of Claimant's Sales Force entries. (R. Item 5, at 5).
Claimant was apprised of Employer's willful misconduct defense, and was specifically apprised that Employer contended that he had been warned concerning his poor work performance prior to the Referee hearing, and therefore had notice of what to expect there. In Simmons v. Unemployment Compensation Board of Review, 565 A.2d 829, 831-32 (Pa. Cmwlth. 1989), aff'd, 528 Pa. 590, 599 A.2d 646 (1991), a case in which the employer failed to present any evidence before the Service Center, this Court held that when the Service Center provides the claimant with a Notice of Hearing which states that the specific issue to be considered at the referee hearing is whether the claimant's unemployment was due to discharge from work for willful misconduct, the claimant has been apprised of the employer's defense and, therefore, there is no unfair surprise.
Claimant further avers that he was given no warning that his work performance was at issue, and the Board's decision was not supported by substantial evidence. He contends that he was working to the best of his ability, and submits that the Employer's testimony is false, fabricated after the fact to prevent him from obtaining benefits. Claimant admitted that he failed to call certain clients three times each week, as he had been instructed to do. However, when questioned by Employer about a conversation between them regarding communication, he could not remember what had been said:
Employer: Do you remember our conversation when I pulled you aside at the ASSE show?
Claimant: Yes, you told me that I needed to really stress sales force.
Employer: Did I ask you about communication again?
Claimant: I don't know. I don't remember.
Employer: Did I specifically tell you that you had no more chances, that you've used up all of the good will that we've had for you and we can't cover -basically we can't cover for you anymore?
Claimant: No, I don't remember that.
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Employer: So did you call Dan three times a week like we asked you to?(R.Item 8, Referee's Hearing, Transcript of Testimony (T.T.) at 35.)
Claimant: I don't remember calling Dan three times a week, no.
Here, the Referee accepted Employer's testimony that despite repeated verbal and written warnings, Claimant consistently failed to communicate, both with Employer and with the clients and potential clients with whom Claimant was working. Claimant failed to establish a good cause reason why he did not telephone identified clients three times a week per instructions, and he could not explain his failure to make sufficient entries into the Sales Force program. Claimant simply denied that his work performance was poor. Claimant's failure to communicate culminated in an incident in which Employer was required to intervene in order to assure that a critical shipment would go out. Claimant disputed Employer's account of the incident. The Referee, whose findings and conclusions were adopted by the Board in their entirety, found Employer's testimony to be credible regarding the events, and we cannot overturn that credibility determination on appeal. Stringent v. Unemployment Comp. Bd. of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997). Accordingly, we affirm the Board's decision.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 24th day of February, 2012, the order of the Unemployment Compensation Board of Review in the above-matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge