Opinion
No. 2059 C.D. 2012
05-23-2013
Justin D. Milewski, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Justin D. Milewski (Claimant) petitions, pro se, for review of the Decision and Order of the Unemployment Compensation Board of Review (Board), holding that he voluntarily quit his job without a necessitous and compelling reason and is ineligible for unemployment compensation benefits to the extent his part-time wages exceeded the partial benefit credit under Section 402(b) of the Unemployment Compensation Law (Law) and our decision in Unemployment Compensation Board of Review v. Fabric, 354 A.2d 905 (Pa. Cmwlth. 1976). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, § 402(b), as amended, 43 P.S. § 802(b). Section 402(b) provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." 43 P.S. § 802(b).
The facts, as found by the Board, are as follows:
1. The claimant was last employed as a part-time sales associate by JS Music Corporation from February 28, 2012, at a final rate of $8.25 per hour, and his last day of work was March 2, 2012.(Record Item (R. Item) 26, Board Decision and Order (Decision), Findings of Fact (Board F.F.) ¶¶1-8.)
2. On March 2, 2012, the claimant informed the district manager that he had previous management experience.
3. The district employer advised the claimant that he was hired as a sales associate and would have to "start from the bottom up."
4. The district manager informed the claimant that the employer never gives management positions to new hires.
5. The claimant informed the district manager that he had a pre-planned trip to Las Vegas and would work a few training shifts before he began his vacation.
6. Subsequently, the claimant did not report for work for his scheduled training shifts on March 4 and March 6, 2012, and did not contact the employer to report his absence.
7. The claimant made no contact with the employer after March 2, 2012.
8. The claimant voluntarily quit his employment through job abandonment.
Following Claimant's termination of employment from JS Music Corporation, d/b/a The Exchange (Employer), the Duquesne U.C. Service Center issued a Notice of Determination (Notice) informing Claimant that the benefits he had been receiving following a previous termination of employment would be reduced in the amount of Claimant's average weekly earnings at Employer. (R. Item 4, Notice at 1.) In accordance with the Fabric decision, 354 A.2d at 907, the reduction in Claimant's benefits would only be made to the extent that Claimant's part-time wages from Employer - which here were only $22 based on Claimant's single day of work at Employer - exceeded Claimant's partial benefit credit under the prior benefits grant. (R. Item 4, Notice at 1.)
An appeal hearing was held before a referee on June 7, 2012 (First Hearing) at which Claimant was absent but Richard Clayton, a traveling district manager at Employer, testified. (R. Item 11, Transcript of June 7, 2011 Hearing (First H.T.).) Clayton testified that Claimant was hired as a sales associate and told he would have to work his way up to management; that Claimant worked one shift on March 2, 2012; that he had two more planned shifts on March 4 and March 6, 2012 and he failed to appear for either shift; and that a manager called him several times regarding his missed shifts, but Claimant never contacted Employer after his first shift on March 2. (Id. at 4-5.)
When Claimant became aware that he missed the First Hearing, Claimant appealed to the Board on the grounds that the notice for the First Hearing was sent to the incorrect address. (R. Item 12, Petition for Appeal.) The Board remanded for a new hearing on the question of Claimant's non-appearance and to allow for additional testimony and the introduction of additional evidence on the merits, which the Board would consider if Claimant established he did not receive notice of the First Hearing. (R. Item 19, Board Hearing Order.)
The remand hearing was held on August 8, 2012 (Remand Hearing). (R. Item 23, Transcript of August 8, 2012 Hearing (Remand H.T.).) Claimant appeared and testified, and Joshua Clark, another traveling manager at Employer, also testified. Claimant testified that he had provided the Board with his updated address prior to the mailing of the Remand Hearing notice. (Id. at 7-9.) He further testified that he was told he had been hired by Employer as a manager, that he became ill with the flu after his first shift on March 2, 2012 and called out sick before his second shift on March 4 and that was told that he should not bother coming back to work if he failed to report for that shift. (Id. at 9-10.)
The Board issued its Decision on October 1, 2012 finding that Claimant's testimony regarding his non-appearance at the First Hearing was credible because the notice was sent to an incorrect address. (R. Item 26, Board F.F. ¶¶9-10.) As to the question of whether Claimant voluntarily quit, the Board "resolve[d] the conflicts in the testimony, in relevant part, in favor of the employer and [found] its testimony to be credible that the claimant abandoned his employment after March 2, 2012." (R. Item 26, Decision at 2.) The Board determined that Claimant had not established good cause for abandoning his employment. Because he voluntarily left part-time employment while already receiving unemployment benefits from a prior grant, the Board found Claimant ineligible to receive benefits under Section 402(b) of the Law "only to the extent that claimant's part-time wages exceeded the partial benefit credit" under the Fabric rule. (Id. at 3.)
On appeal to this Court, Claimant makes several due process arguments relating to the manner in which the First Hearing and Remand Hearing were conducted and Claimant's ability to adequately present his case to the Board. Claimant first argues that his due process rights were violated by the Board because he was unable to confront and cross examine Clayton, the Employer witness at the First Hearing, even though the Board excused Claimant's absence from the First Hearing because notice was sent to an incorrect address. (R. Item 26, Board F.F. ¶¶9-10.)
Our scope of review of the Board's decision is limited to determining whether an error of law was committed, constitutional rights were violated or necessary findings of facts were supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Frazier v. Unemployment Compensation Board of Review, 833 A.2d 1181, 1183 n.4 (Pa. Cmwlth. 2003) (en banc).
Claimant also cites the Confrontation Clause of the Sixth Amendment of the Constitution as grounds for this argument. The Sixth Amendment, by its own terms, is only applicable to criminal prosecutions and cannot stand as grounds for an appeal in a civil administrative matter. U.S. Const. amend. VI.
Due process rights must be afforded to litigants in administrative hearings, including unemployment compensation proceedings. Hall v. Unemployment Compensation Board of Review, 584 A.2d 1097, 1101 (Pa. Cmwlth. 1990). The most essential of these rights are reasonable notice, the opportunity to be heard at a full and fair hearing and the opportunity to cross examine adverse witnesses. McFadden v. Unemployment Compensation Board of Review, 806 A.2d 955, 958 (Pa. Cmwlth. 2002); see also Administrative Agency Law, 2 Pa. C.S. §§ 504, 505.
Though Claimant was excused from appearance at the First Hearing and the Board was correct to remand, Claimant is mistaken in asserting that the Remand Hearing would have to be conducted de novo and all testimony adduced at the First Hearing be ignored by the Board. Claimant was given adequate notice of the Remand Hearing and made aware of his right to bring witnesses on his behalf, cross examine adverse witnesses and subpoena witnesses or documents that would support his case. (R. Item 20, Notice of Remand Hearing.) Claimant had requested and received a transcript of the First Hearing and was thus aware that Clayton had testified on Employer's behalf at the First Hearing. (R. Item 14, Petition for Appeal; R. Item 16, Board's Response to Claimant's Request for Transcript; R. Item 23, Remand H.T. at 10.) Claimant could have subpoenaed Clayton or objected to Clayton's absence at the Remand Hearing, but did not do so. On these facts, we cannot find that Claimant was denied due process. See Stop-n-Go of Western Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 707 A.2d 560 (Pa. Cmwlth. 1998).
In Stop-n-Go, the employer failed to appear at an initial hearing in which the claimant testified. 707 A.2d at 561. At the remand hearing, the employer sent witnesses to present its case and claimant's attorney appeared, but claimant was not present. Id. On appeal to this Court from a grant of benefits by the Board, the employer argued that the Board improperly ordered a continued hearing instead of requiring a de novo hearing. Id. at 563-64. We affirmed the Board's decision, holding that a de novo hearing was not required on remand because the employer had the opportunity to present witnesses to support its case on the merits, object to evidence presented by the claimant at either the first or remand hearing and subpoena any adverse witness, including claimant, to testify at the remand hearing. Id. at 564.
Claimant also argues that the Board violated his due process rights by improperly relying on the hearsay testimony of Clark, the Employer witness at the Remand Hearing. Claimant asserts that Clark's testimony was hearsay because he did not have any personal knowledge of Claimant and Clark's testimony heavily referenced Clayton's testimony from the First Hearing.
Hearsay evidence, if not objected to upon its admission, may support the findings of an administrative tribunal when it is corroborated by other competent evidence on the record. McCann v. Unemployment Compensation Board of Review, 562 Pa. 393, 396 n. 2, 756 A.2d 1, 2 n.2 (2000); Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976). It is clear from the transcript that Clark did have limited direct knowledge of Claimant, and much of Clark's testimony relied on his reading of the transcript of the First Hearing and conversations with Clayton. Claimant, however, did not object to Clark's testimony as hearsay during the Remand Hearing.
Moreover, it is not clear that the Board relied upon Clark's testimony at all in the Decision. The Decision refers to the testimony of the "district manager," which could refer to either Clark or Clayton. Clayton's testimony alone provides substantial evidence upon which to base the Decision. As the ultimate finder-of-fact, the Board is the body charged with determining the weight of the evidence before it and the Board may reject or accept the testimony of any witness in whole or in part. McFadden, 806 A.2d at 958; Jordon v. Unemployment Compensation Board of Review, 684 A.2d 1096, 1098 n.2 (Pa. Cmwlth. 1996). We need not parse which witness's testimony the Board relied upon in the Decision as long as the Decision is supported by substantial evidence. We find, however, to the extent the Board may have relied on Clayton's hearsay testimony in the Decision, that testimony was sufficiently corroborated by Clark's testimony.
Claimant argues that his due process rights were also violated because he was not provided with documents submitted by Employer to the Board in the course of the proceedings below. A review of the certified record submitted by the Board in this matter shows that Employer filled out and returned two questionnaires to the Board and submitted one other document to the Board, a letter dated May 18, 2012. (R. Item 3, Form UC-767; R. Item 3, Employer Questionnaire; R. Item 7, Letter from Marina Shahinian, Employer V.P.) The referee introduced the three Employer documents as exhibits at the First Hearing, reintroduced them at the Remand Hearing and Claimant verified during the Remand Hearing that he had the opportunity to review these documents prior to that Hearing. (R. Item 11, First H.T. at 2, Exs. 4, 5, 7; R. Item 23, Remand H.T. at 2.) There is no indication that Employer submitted any additional documents to the Board during the course of the proceedings. Thus, we find Claimant's argument that he was denied access to Employer's submissions without merit.
Claimant's final due process argument is that the referee at his Remand Hearing was not a fair and impartial decision maker. He cites a brief conversation he overheard between the referee and Clark after the hearing had concluded as evidence of a pre-existing relationship between the two and bias by the referee against Claimant. (Claimant Brief at 23.) Our review of the record shows no apparent bias by the referee against Claimant or a pre-existing relationship between the referee and Clark. The referee conducted both of the hearings impartially, explained to Claimant his rights in detail and gave Claimant a full and complete opportunity to testify and cross examine opposing witnesses.
Claimant alleges that the referee said "I didn't think he would take things this far," to which Clark responded "Neither did I, no one ever does." (Claimant Brief at 23.) The referee then said "see you next time," they shook hands, smiled and exchanged a few more remarks. (Id.)
Claimant next argues that five of the Board's findings of fact were not supported by substantial evidence. Board findings of fact are conclusive, so long as they are supported by substantial evidence on the record. Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 599, 827 A.2d 422, 425 (2003). Substantial evidence is defined as relevant evidence upon which a reasonable mind might base a conclusion. Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 223 (Pa. Cmwlth. 2012). In evaluating whether a finding is supported by substantial evidence, we review the evidence in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can be reasonably drawn from the evidence. Id.
The five challenged findings of fact are:
1. The claimant was last employed as a part-time sales associate by JS Music Corporation from February 28, 2012, at a final rate of $8.25 per hour, and his last day of work was March 2, 2012.
3. The district employer advised the claimant that he was hired as a sales associate and would have to "start from the bottom up."
6. Subsequently, the claimant did not report for work for his scheduled training shifts on March 4 and March 6, 2012, and did not contact the employer to report his absence.
7. The claimant made no contact with the employer after March 2, 2012.
8. The claimant voluntarily quit his employment through job abandonment.
Claimant argues that, contrary to the Board's findings, he was not informed that he would have to "start from the bottom up" with Employer; that he did, in fact, contact Employer after his March 2 shift to explain that he was ill and would therefore have to miss his two scheduled shifts. (R. Item 26, Board F.F. ¶3, 6, 7.) Each of these challenged findings was based upon the Board weighing contradictory witness testimony, with the Board finding that the Employer witness testimony was credible and Claimant's testimony was not. (R. Item 26, Decision at 2.) The Board has sole discretion to make credibility determinations and resolve evidentiary conflicts, and these determinations are not subject to judicial review. Bell v. Unemployment Compensation Board of Review, 921 A.2d 23, 26 n.4 (Pa. Cmwlth. 2012).
Claimant also argues that the Board incorrectly found that his pay rate was $8.25 per hour when it was in fact $7.25 per hour. Board F.F. While it appears from the record that the Board erred in finding Claimant's pay rate was $7.25, this error does not impact the Board's ultimate legal determination regarding Claimant's eligibility for benefits. We will not upset the Board's Decision for such a de minimis error. --------
The remaining finding of fact that Claimant challenges is that he voluntarily quit his employment through job abandonment. (R. Item 26, Board F.F. ¶8.) This finding is essentially the Board's legal determination that he was ineligible for benefits under Section 402(b) of the Law because he voluntarily left his employment without a necessitous and compelling reason. 43 P.S. § 802(b). A determination as to whether a claimant voluntarily quits a job without a necessitous and compelling reason is a question of law subject to this Court's review. Middletown Township, 40 A.3d at 227. A claimant seeking benefits after voluntarily quitting a job bears the burden of demonstrating that there was a necessitous and compelling reason for doing so. Id. at 227-28.
Claimant does not argue that he had a necessitous and compelling reason for leaving his job; instead, he argues that he was terminated from employment absent any willful misconduct on his part. Thus, Claimant contends that his case should be analyzed under Section 402(e) of the Law. 43 P.S. § 802(e). In a Section 402(e) willful misconduct case the employer bears the burden of proving willful misconduct. County of Luzerne v. Unemployment Compensation Board of Review, 611 A.2d 1335, 1338 (Pa. Cmwlth. 1992).
When there exists a dispute as to whether the claimant was discharged or voluntarily quit, the Claimant bears the burden of proving the precise nature of the separation. Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 648 A.2d 124, 126 (Pa. Cmwlth. 1994). In making this determination, we must examine the totality of the circumstances. Monaco v. Unemployment Compensation Board of Review, 523 Pa. 41, 46, 565 A.2d 127, 129 (1989). A claimant must have a "conscious intention" to voluntarily terminate employment. 523 Pa. at 45, 565 A.2d at 129.
It is undisputed that Claimant worked a single shift for Employer on March 2, 2012 and did not report for his other two scheduled shifts on March 4 and March 6. (R. Item 26, Decision at 3.) The Board found credible the Employer testimony that Claimant made no contact with Employer after his first shift and failed to show up for the remaining shifts. (Id.) Claimant's testimony that he called out from work before the second shift due to illness and was told that he should not bother coming back if he did not work the scheduled shifts, on the other hand, was found not credible by the Board. (Id.) Claimant's failure to show up for his second and third shifts at Employer demonstrates a failure to "take any steps to preserve [his] employment relationship" and that he therefore voluntarily terminated his employment with Employer. Iaconelli v. Unemployment Compensation Board of Review, 892 A.2d 894, 897 (Pa. Cmwlth. 2006). Claimant did not carry his burden of showing that he was terminated by Employer and the Board's determination that Claimant voluntarily terminated his employment and was ineligible for benefits under Section 402(b) of the Law is therefore correct.
Claimant next argues that the Board erred by not reviewing printouts of an electronic version of his March 2012 telephone bill that he submitted with his brief for the Remand Hearing. (R. Item 18, Claimant's Remand Hearing Brief at 5-12.) Claimant maintains that the telephone bill, which he manually searched for each of the store telephone numbers on Employer's website, demonstrate that he never received a call from one of the Employer's stores during March 2012. The telephone bill, Claimant asserts, contradicts Clayton's testimony that an Employer manager called Claimant repeatedly after he missed the March 4 shift without explanation and stand in support of Claimant's testimony that he called out ahead of his March 4 shift to report his illness.
We review Claimant's contention that the Board disregarded the telephone bills under a capricious disregard standard. Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 203, 812 A.2d 478, 487 (2002). Capricious disregard may be found only when the Board deliberately ignores relevant, competent evidence that a reasonable person would find important. Porco v. Unemployment Compensation Board of Review, 828 A.2d 426, 429-30 (Pa. Cmwlth. 2003).
As discussed above, the Decision is supported by substantial evidence and the Board did not err in determining that Claimant voluntarily quit his job. The Board may have not considered the telephone bills for any number of reasons, chief among them that Claimant did not include the full listing of all telephone calls received in his submission to the Board. More to the point, though, the telephone bill was irrelevant to the Decision because the Board did not make a finding that Employer had called Claimant after he missed his March 4 shift; instead, the Board simply found not credible Claimant's testimony that he had called out before his scheduled March 4 shift and found that Claimant made no contact with Employer after his March 2 shift. (R. Item 26, Board F.F. ¶7; id., Decision at 3.) Thus, the Board could not have been in error in disregarding Claimant's telephone bill.
Finally, Claimant argues that the reduction in his benefits made as a result of the Decision was not in accordance with our decision in Fabric. Under Fabric, a claimant who voluntarily leaves a part-time job while already receiving benefits will have his or her benefits reduced by the amount of the part-time wages to the extent that those wages exceed the partial benefit credit from the prior benefits grant. 354 A.2d at 907. Claimant argues that, accepting arguendo that the Decision should stand, his benefits should have been reduced by $22 (his weekly part-time wage at Employer as determined in the Notice) to the extent that the part-time wages exceeded his partial benefit credit under Claimant's earlier benefit grant. Claimant contends that, instead of reducing his benefits by $22, the U.C. Service Center reduced his benefits to $22.
Claimant is correct in his understanding of the Fabric framework for reducing the benefits of a claimant who takes a part-time job while receiving benefits and then voluntarily leaves it. However, Claimant has not pointed to any error by the Board that we could overturn. The Board affirmed the referee's June 12, 2012 decision and denied Claimant's benefits to the extent of Fabric. (R. Item 26, Decision at 3.) The Board explained that a claimant who voluntarily quits part-time employment without a necessitous and compelling reason will only be found ineligible to receive benefits to the extent that the part-time wages exceeded the partial benefit credit. Id. Accordingly, we find that the Board accurately applied the Fabric decision in reducing Claimant's benefits.
For the foregoing reasons, we affirm the order of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 23rd day of May, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge
(R. Item 23, Board F.F. ¶¶1,3,6,7,8.)