Opinion
No. 737 C.D. 2012
04-26-2013
James S. Patrick, Jr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
James S. Patrick, Jr. (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 found by the Board, are as follows:
1. The claimant was last employed as a full-time bartender by the Philadelphia Cricket Club, from April 3, 2003, until August 8, 2011, at a rate of $12.00 an hour plus gratuities.
2. The employer's food and beverage management was taken over by a new manager in March of 2011.
3. The manager explained to the staff what was expected of them in the performance of their work at the Philadelphia Cricket Club.
4. Employees were placed on notice that their work performance had to meet with the requirements of management, and if they did not, progressive discipline would ensue which would ultimately result in the loss of employment.
5. The claimant was, or should have been, aware of the management's procedure.
6. On multiple occasions, the manager told the claimant that his work performance was substandard and that he needed to improve.
7. The claimant acknowledged that he understood what the manager was requesting, and acknowledged that his work performance should be better.
8. The claimant received multiple warnings concerning his performance.
9. The claimant knew, or should have known, that his job was in jeopardy.
10. On August 11, 2011, the claimant was asked by an assistant manager to go out to the squash court bar to replace the refreshments there.
11. The claimant was told by the manager to disregard that request and stay at the bar.
12. The claimant went to the squash courts.
13. The claimant was missing for over a half hour at the bar, and during that time customers were not being served.
14. The manager found the claimant looking at the plaques by the squash courts.Board Decision, February 16, 2012, (Decision), Finding of Fact Nos. 1-15 at 1-2.
15. The claimant was discharged from employment for his failure to follow the employer's directive.
The Board determined:
On appeal to the Board, the claimant argues that he was not given the opportunity to question the employer witnesses during the hearing which affected the Referee's decision. However, the Board finds that the claimant understood that he had the opportunity to question the employer witnesses but did not make an attempt to question either witness during testimony.Decision at 2-3. (emphasis added).
. . . .
The employer's manager credibly testified that the claimant was not performing to standards. The employer's manager credibly testified that the claimant was, or should have been, aware that his write-ups for poor performance could lead to termination if he did not improve. Further, the employer's manager credibly testified that the claimant failed to follow his directive of staying in the bar and instead went to the squash court. The employer's manager testified that while the claimant was at the squash court, multiple customers were not served. The employer's manager testified that he found the claimant reading plaques at the squash court thirty minutes later.
The claimant testified that he was at the squash court because he believed a co-worker to be covering the bar. The claimant testified that he was following the directive of another co-worker; however, the claimant testified that he reported to the manager.
Accordingly, the Board determines that the claimant's behavior leading to his discharge rose to the level of willful misconduct.
Claimant contends that he was deprived of his right to due process because the referee provided Philadelphia Cricket Club (Employer) with direction and the opportunity to question Claimant but did not offer Claimant the same assistance. Claimant contends that because he appeared pro se, he was effectively denied the opportunity to question Employer's witness as the referee transitioned quickly into the next phase. Claimant also argues that the evidence supporting the decision was flawed.
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 essential findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Essentially, Claimant contends that because the referee did not provide him with the opportunity to cross-examine Employer's witnesses, he failed to provide evidence which would have made it clear to the referee that he did not commit willful misconduct.
Due process must be afforded in all administrative agency hearings. Knox v. Unemployment Compensation Board of Review, 317 A.2d 60 (Pa. Cmwlth. 1974). The right to cross-examine a witness is an important component of due process. Goldberg v. Kelly, 397 U.S. 254 (1970).
The Board's regulation, 34 Pa. Code §101.21(a), provides:
In a hearing the tribunal may examine the parties and their witnesses. Where a party is not represented by counsel the tribunal before whom the hearing is being held should 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.
In Katz v. Unemployment Compensation Board of Review, 430 A.2d 354 (Pa. Cmwlth. 1981), this Court held that a referee had a duty to notify an uncounseled Claimant of his right to have counsel, to cross-examine adverse witnesses, and to offer witnesses in his behalf.
At the hearing, the referee informed Claimant, "You have the right to be represented here by an attorney or other counsel, the right to bring witnesses, subpoena witnesses, cross-examine adverse witnesses and provide testimony and other evidence in your own behalf. Did you read the notice, Mr. Patrick?" Notes of Testimony, November 23, 2011, (N.T.) at 2. Claimant responded that he did and that he was aware of his rights. N.T. at 2.
Soon after that exchange with Claimant, the referee reiterated Claimant's right to cross-examine adverse witnesses: "At the conclusion of each of their respective testimonies, Mr. Patrick, the Claimant, may cross examine that witness, which is to say you can ask them questions about any of the oral testimony they provided or any of the physical evidence they might offer." N.T. at 2.
From a review of the hearing transcript, the referee fulfilled his duties as required by the regulation with respect to providing assistance to Claimant. Claimant had the opportunity but made no attempt to conduct cross-examination. While it is true that the referee did not specifically ask Claimant if he wished to cross-examine the witness at the conclusion of each witness's testimony, Claimant made no attempt, at any time before the hearing concluded to cross-examine any witnesses.
When Employer completed its testimony, the referee then asked Claimant, "Mr. Patrick, were you dismissed from your job?" Notes of Testimony, November 23, 2011, at 16.
Also, Claimant requested reconsideration by the Board. Under the Board's regulation, 34 Pa.Code §101.111(a), any party "may request the Board to reconsider its decision and if allowed, to grant further opportunity to do the following: (1) Offer additional evidence at another hearing. (2) Submit written or oral argument. (3) Request the Board to reconsider the previously established record of evidence."
In Walsh v. Unemployment Compensation Board of Review, 329 A.2d 523 (Pa. Cmwlth. 1974), this Court explained that the failure to request a remand for an additional hearing in a motion for reconsideration results in a waiver of the issue:
We should and will not, except in extraordinary circumstances not here present, reverse an administrative agency's decision and remand for further hearing, on the ground of the asserted inadequacy of the record, where the means provided for obtaining the same relief from the agency are not employed. Furthermore, we can presently conceive of no circumstances in which we should
remand, absent an application to the agency, where we are not told what evidence should be, but is not, included in the record. We believe that adherence to such principles of review promote the orderly, expeditious, economical and equitable disposition of administrative agency cases, which in numbers of matters appealed and of serious questions presented for review, are increasing at a rate which do not permit review at a higher level of what, upon proper application, might have been corrected below.Walsh, 329 A.2d at 527.
In the present controversy, Claimant requested reconsideration. However, Claimant, while stating that he believed two findings of fact were in error, did not request a remand for further hearing in his motion for reconsideration. In the motion Claimant stated:
Prior to, and during the incident at hand, I suffered a severe bout of depression. I was given leave thru [sic] the Federal Work Leave Program, and was paid by my Employer during this leave of absence which lasted three months. I remained on medication up to and shortly after my firing. Consequently, I lost my Health Insurance. Now without Health Insurance and no income, I can not [sic] afford to continue my treatment. If ever there was 'good cause' for Reconsideration, this is it.Reconsideration Request, March 1, 2012, at 1.
Because Claimant did not request a remand for a new hearing in his reconsideration request, this Court is unable to grant such a request. Walsh.
Claimant argues that he had no control over the final incident which resulted in his termination because there were other people involved, specifically the restaurant manager, Rita Cimino (Cimino), and another bartender, Gerald Nelson (Nelson). Claimant argues that he was blamed for the incompetence and rule breaking of Cimino and Nelson.
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 employee's deliberate refusal to comply with his employer's request can constitute willful misconduct, assuming the request was reasonable. Blue v. Unemployment Compensation Board of Review, 616 A.2d 84 (Pa. Cmwlth. 1992). If an employee has good cause for his failure to comply with a reasonable request, then the refusal does not constitute willful misconduct. Frumento v. Unemployment Compensation Board of Review, 351 A.2d 631 (Pa. Cmwlth. 1976).
Here, Claimant was terminated based upon the credited testimony that he failed to follow Employer's directive to stay at the bar and not go to the squash courts. Ryan Kenny (Kenny), general manager of Employer, testified that he directed Claimant to disregard a directive from the assistant manager to go to the squash courts and directed him to go back to the bar. Kenny testified that Claimant went to the squash courts anyway. Kenny found Claimant reviewing plaques on a wall by the squash courts. N.T. at 11-12.
Claimant admitted that Kenny suggested that he not go to the squash court and return to the bar. Claimant further admitted that he went to the squash court anyway. He also admitted that when Kenny found him he was looking at plaques or "pictures". N.T. at 18-19. When asked by the referee what assignment he was performing, Claimant replied, "I don't recall what it was." N.T. at 19. He said that Nelson, a fellow bartender, told him it would be okay to go to the squash court to do that assignment rather than waiting to the next day because the bar was empty at the time. N.T. at 19.
The Board credited Kenny's testimony. In unemployment compensation proceedings, the Board is the ultimate factfinding 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).
Employer established that Claimant was given a reasonable directive by his supervisor and did not follow it. Claimant disregarded the directive because Nelson, a co-worker, told him he was not needed at the bar right then. The Board determined that Claimant did not establish cause for ignoring his supervisor's directive. This Court finds no error.
Accordingly, this Court must affirm.
/s/_________
BERNARD L. McGINLEY, Judge Judge Brobson concurs in the result only. ORDER
AND NOW, this 26th day of April, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE COHN JUBELIRER
Because I do not believe the Referee in this case satisfied the requirements of the Board's regulation at 34 Pa. Code § 101.21(a) or due process, I respectfully dissent from the majority opinion. Section 101.21(a) provides that "[w]here a party is not represented by counsel the tribunal before whom the hearing is being held should 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) (emphasis added). This Court has held that, pursuant to Section 101.21(a), a referee "has a responsibility . . . to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed." Bennett v. Unemployment Compensation Board of Review, 445 A.2d 258, 259 (Pa. Cmwlth. 1982).
Here, the Referee properly informed Claimant of his rights at the beginning of the hearing, including his right to cross-examine Employer's witnesses. However, the Referee did not thereafter offer Claimant a meaningful opportunity for cross-examination, despite offering such an opportunity to Employer. At the conclusion of the testimony of Employer's witness, rather than giving Claimant an opportunity to cross-examine, the Referee immediately began questioning Claimant himself:
R No. Are you finished?
EW2 I would like to bring up a signed copy of acknowledgement of the handbook.
R I think Mr. Patrick will stipulate that he was in receipt of and had read the handbook.
C Yes, sir.
R Not necessary. Anything else?
EW2 Just in relation to that wanting to bring up that he was aware that he may be disciplined for not following . . .
R Probably . . .
EW2 . . . procedures.
R . . . in the handbook.
EW2 Yes.
R Mr. Patrick, were you dismissed from your job?
C Yes, I was.
R Mr. Kenny dismissed you. Is that right?
C That's correct.
R He had advised you repeatedly between March and August that your job performance was not up to his standards.
C That's not true.
. . . .
R So everything this fellow has told me about the informal but proper meeting between the two of you on March the 11th and subsequent encounters and so forth, they never happened?(Hr'g Tr. at 16.) In contrast, the Referee invited Employer's representative to cross-examine Claimant. (Hr'g Tr. at 22.) Upon review of the transcript, I believe that the Referee, in the course of understandably attempting to conduct the hearing in an efficient and expeditious manner, did not give this unrepresented Claimant an opportunity to cross-examine Employer's witnesses. Therefore, I believe the hearing violated Section 101.21(a) and the requirements of due process, and a remand is required to correct these violations.
The majority essentially holds that Claimant waived any possibility of a remand by failing to request a remand in his request to the Board for reconsideration. I note that neither party raised nor argued the issue of waiver before this Court; therefore, I do not believe it would be appropriate to dispose of the due process issue on this basis. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 440 (Pa. Cmwlth. 2010) ("This Court does not raise non-jurisdictional issues sua sponte."). Moreover, even if the waiver issue had been raised in this appeal and was properly before this Court, I do not believe that Claimant waived his right to request a remand from the Board.
The Board does note in its brief that Claimant's request for reconsideration did not request a rehearing; however, it does so in the context of arguing that its misdirection of the reconsideration request and resulting failure to consider the request, discussed below, was harmless error. (Board's Br. at 8 n.2.) The Board does not argue that, because Claimant did not request a rehearing in his request for reconsideration, this Court may not now grant such relief.
Claimant properly raised in his appeal to the Board from the Referee's decision the issue that he "was not given an opportunity to question the opponent during the hearing." (Further Appeal, December 14, 2011, R. Item 12.) Under the circumstances of this case, it would have been futile for Claimant to request a rehearing from the Board in his request for reconsideration because the Board never considered this request. See St. Barnabas, Inc. v. Unemployment Compensation Board of Review, 525 A.2d 885, 887 (Pa. Cmwlth. 1987) ("this Court has never required a claimant to perform a futile act"). The Board failed to consider Claimant's request for reconsideration, instead mistakenly construing it as an attempt to appeal to this Court. (Letter from Unemployment Compensation Appeals System Administrator to Claimant (March 6, 2012) ("The attached documents are being returned to you as they were sent to the UC Board of Review to file a Commonwealth Court appeal").) However, Claimant's request for reconsideration was explicitly not an appeal to this Court, as is evidenced by his statement: "I prefer not to Appeal the Decision to the Commonwealth Court;" and the subject line of the letter: "Reconsideration Request." (Letter from Claimant to Board (March 1, 2012).) The Board admits in its brief that it misdirected Claimant's request for reconsideration. (Board's Br. at 8 n.2.) Because I do not believe the issue of whether Claimant waived his opportunity to seek a rehearing is properly before this Court, and because Claimant did argue to the Board that he did not have an opportunity to cross-examine Employer's witnesses, I would not hold that Claimant waived this argument by failing to raise it in a request for reconsideration which the Board did not, in fact, consider.
Because the Board did not properly consider Claimant's request for reconsideration but, instead, returned it to him, this letter and Claimant's request for reconsideration to the Board are not included in the original record. They may be found as attachments to Claimant's original pro se letter to this Court, docketed on March 19, 2012. --------
For these reasons, I would vacate the Board's Order and remand this matter to the Board to give Claimant an opportunity to cross-examine Employer's witnesses.
/s/ _________
RENÉE COHN JUBELIRER, Judge Judge Leavitt joins in this dissenting opinion.