Opinion
No. 1831 C.D. 2012
04-18-2013
The School District of Philadelphia, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
The School District of Philadelphia (Employer) petitions this Court for review of an order of the Unemployment Compensation Board of Review (Board) that held that Bruce M. Benson (Claimant) is not ineligible to receive unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, § 402(e), as amended, 43 P.S. § 802(e). Section 402(e) provides that an employee shall be ineligible for compensation for any week "[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).
Claimant was employed by Employer as a middle school Assistant Principal from February 6, 2003 through January 23, 2012. (Record Item (R. Item) 24, Board Decision and Order, Findings of Fact (Board F.F.) ¶1, Reproduced Record (R.R.) at 124a; R. Item 14, Hearing Transcript (H.T.) at 3-4, 7 & Ex. E-1, R.R. at 158a-159a, 162a, 242a.) In that nearly nine-year employment, Claimant's work was satisfactory and no claim of any misconduct was made against Claimant. (R. Item 14, H.T. at 13 & Employer Ex. 3, Ex. E-1, R.R. at 168a, 239a, 242a-244a.)
Before he was hired by Employer, Claimant had been a high school teacher in New Jersey. (R. Item 14, H.T. at 7-8, 19, R.R. at 162a-163a, 174a.) During that prior employment, Claimant was accused of touching a student in a sexual manner and was dismissed based on that accusation. (R. Item 24, Board F.F. ¶3, R.R. at 124a; R. Item 14, H.T. at 4, 7, 19, R.R. at 159a, 162a, 174a.) At the time Claimant was hired by Employer, those charges were in litigation and Claimant advised Employer of the accusation and litigation. (R. Item 14, H.T. at 7-11, 15, 18-20, R.R. at 162a-166a, 170a, 173a-175a.) Claimant was not arrested or convicted of any crime with respect to the incidents, and the Pennsylvania child abuse clearance when Employer hired Claimant showed no record of any indicated or founded report of child abuse. (R. Item 14, H.T. at 7, 11, 15, R.R. at 162a, 166a, 170a.) In 2006, after Claimant was working for Employer, the New Jersey Department of Education State Board of Examiners (the New Jersey Examiners) issued an Order (the New Jersey Revocation Order) revoking Claimant's New Jersey teaching certificate based on the 2000 accusation of inappropriate conduct in his New Jersey employment. (R. Item 24, Board F.F. ¶4, R.R. at 124a; R. Item 14, H.T. at 5-7 & Employer Ex. 1, R.R. at 160a-162a, 230a-236a.) Employer had no policy requiring employees to notify it of revocation of licenses in other states. (R. Item 14, H.T. at 4, 10, R.R. at 159a, 165a.)
In November 2011, Employer became aware of the 2006 revocation of the Claimant's New Jersey teaching certificate. (R. Item 24, Board F.F. ¶5, R.R. at 125a; R. Item 14, H.T. at 4-6, R.R. at 159a-161a.) Claimant was questioned by Employer, and denied the allegations of misconduct made against him in his New Jersey employment. (R. Item 24, Board F.F. ¶6, R.R. at 125a; R. Item 14, Employer Ex. 3, R.R. at 239a.) On February 7, 2012, Employer discharged Claimant because New Jersey had revoked his teaching certificate for inappropriate conduct with students. (R. Item 24, Board F.F. ¶¶7-8, R.R. at 125a; R. Item 14, H.T. at 4, 6-7 & Employer Ex. 3, R.R. at 159a, 161a-162a, 238a-241a.)
Claimant filed for unemployment benefits and the Unemployment Compensation Service Center found Claimant eligible because Employer had not shown that Claimant was discharged for willful misconduct. (R. Item 6, Service Center Notice of Determination, R.R. at 199a.) Employer appealed, and the Referee conducted a hearing at which Claimant and Employer's Unemployment Specialist testified.
At the hearing, Employer admitted that the revocation of Claimant's New Jersey teaching certificate itself was not a ground for discharge and that the sole reason for Claimant's discharge was the underlying conduct on which the revocation was based. (R. Item 14, H.T. at 4, R.R. at 159a.) Employer's witness had no knowledge of whether Claimant had committed the inappropriate conduct for which it discharged him. (R. Item 14, H.T. at 5, R.R. at 160a.) Claimant specifically denied that the inappropriate conduct had occurred. (R. Item 14, H.T. at 11, 20-21, R.R. at 166a, 175a-176a.) The only evidence that Claimant had inappropriately touched any student was the New Jersey Revocation Order. (R. Item 14, H.T. at 5-6 & Employer Ex. 1, R.R. at 160a-161a, 230a-236a.) Claimant's counsel did not object to the admission of the New Jersey Revocation Order. (R. Item 14, H.T. at 5-6, R.R. at 160a-161a.)
The New Jersey Revocation Order does not make any factual determinations as to whether the underlying conduct occurred. (R. Item 14, Employer Ex. 1, R.R. at 234a-235a.) It states that the New Jersey Examiners had no address for Claimant and were unsuccessful in notifying him of the proceeding. (R. Item 14, Employer Ex. 1, R.R. at 234a.) While the document recites the accusations and earlier ruling of an Administrative Law Judge (ALJ), the New Jersey Examiners "ORDERED that the charges ... are deemed admitted for the purpose of this proceeding" based on Claimant's failure to respond and addressed only whether the conduct that they had deemed admitted was grounds for revocation of Claimant's teaching certificate. (R. Item 14, Employer Ex. 1, R.R. at 234a-235a.) Employer did not introduce in evidence the ALJ decision or hearing transcript or any other administrative or court decision finding that Claimant committed the underlying conduct or setting forth any facts supporting the accusations of misconduct.
On June 13, 2012, the Referee issued a decision affirming the Service Center's determination. The Referee found that Employer had failed to present any non-hearsay evidence that Claimant had committed the misconduct for which he was discharged. (R. Item 15, Referee's Decision and Order at 2, R.R. at 79a.) The Referee, accordingly, held that Claimant was eligible for benefits because Employer had not met its burden of proving that Claimant had committed willful misconduct. (R. Item 15, Referee's Decision and Order at 2, R.R. at 79a.)
Employer appealed the Referee's decision to the Board. While that appeal was pending, in mid-July 2012, Employer received notification that Claimant had surrendered his Pennsylvania teaching certificate in a pending Pennsylvania Department of Education proceeding that had arisen out of the New Jersey Revocation Order. (R. Item 25, Employer Request for Reconsideration & Ex. 3 thereto, R.R. at 75a, 86a.) Although Employer knew of this information several weeks before it filed its brief in support of its appeal with the Board on August 10, 2012, Employer did not raise the surrender of Claimant's teaching certificate in that brief. (R. Item 23, Brief in Support of Employer's Appeal, R.R. at 134a-144a.)
The Board, on August 27, 2012, affirmed the Referee's decision granting benefits. (R. Item 24, Board Decision and Order, R.R. at 124a-127a.) The Board determined that Employer discharged Claimant solely because of the New Jersey findings that Claimant committed improper conduct with students. (R. Item 24, Board F.F. ¶8 & Decision and Order at 2, R.R. at 125a.) The Board found credible Claimant's testimony that he did not commit those acts. (R. Item 24, Board Decision and Order, R.R. at 126a.) The Board also held that the New Jersey Revocation Order was not competent evidence that Claimant had committed misconduct because it was hearsay and there was no evidence that corroborated its statements concerning Claimant's conduct. (R. Item 24, Board Decision and Order, R.R. at 126a.) Because Claimant's testimony denying the misconduct was credible and Employer introduced no evidence that Claimant committed the acts for which he was discharged other than the New Jersey Revocation Order, the Board found that Employer failed to satisfy its burden of proving that Claimant committed willful misconduct. (R. Item 24, Board Decision and Order, R.R. at 126a.)
On September 11, 2012, Employer filed a request for reconsideration with the Board, raising for the first time Claimant's surrender of his Pennsylvania teaching certificate and requesting that the record be reopened. (R. Item 25, Employer Request for Reconsideration, R.R. at 72a-76a.) On September 26, 2012, while its request for reconsideration was pending, Employer timely filed a petition for review appealing the Board's order to this Court. On October 15, 2012, the Board denied Employer's request for reconsideration. (R. Item 28, Board Denial of Reconsideration, R.R. at 4-1a.)
Our scope of review of the Board's decision is limited to determining whether errors of law were committed, constitutional rights or agency procedures were violated, and necessary findings of fact were supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 182 n.1, 772 A.2d 416, 418 n.1 (2001).
In unemployment compensation cases, the burden of proving willful misconduct is on the employer. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997); Lindsay v. Unemployment Compensation Board of Review, 789 A.2d 385, 389 (Pa. Cmwlth. 2001); Blue Mountain Area School District v. Unemployment Compensation Board of Review, 503 A.2d 1073, 1076 n.2 (Pa. Cmwlth. 1986). Willful misconduct is conduct by an employee that evidences wanton or willful disregard of the employer's interests, deliberate violation of the employer's rules, disregard of standards of behavior that an employer can rightfully expect from an employee, or negligence that indicates an intentional disregard for the employer's interests or the employee's duties or obligations. Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 182, 772 A.2d 416, 418 (2001); Caterpillar, Inc., 550 Pa. at 123, 703 A.2d at 456. Whether a claimant's actions constitute willful misconduct is a question of law. Temple University, 565 Pa. at 182 n.1, 772 A.2d at 418 n.1; Caterpillar, Inc., 550 Pa. at 123, 703 A.2d at 456; Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
There is no dispute here that inappropriate touching of students by a teacher would constitute willful misconduct and, if it had been proven, would disqualify Claimant from receiving benefits. While the accusations against Claimant related to a time period before he worked for Employer, pre-employment misconduct that is incompatible with a claimant's job responsibilities can bar benefits under both Section 402(e) and Section 3 of the Unemployment Compensation Law. Smith v. Unemployment Compensation Board of Review, 967 A.2d 1042, 1046-47 (Pa. Cmwlth. 2009); Adams v. Unemployment Compensation Board of Review, 397 A.2d 861 (Pa. Cmwlth. 1979).
Section 3 provides that the purpose of the Unemployment Compensation Law is to provide benefits to persons who become "unemployed through no fault of their own." 43 P.S. § 752.
The issue before us, however, is whether Employer satisfied its burden of proving that Claimant committed that misconduct. The Board found that it did not. The Board is the ultimate finder of fact and arbiter of witness credibility, and where its findings are supported by substantial evidence, they are conclusive. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671-72 (Pa. Cmwlth. 2010); Ductmate Industries, 949 A.2d at 342; Blue Mountain Area School District, 503 A.2d at 1075-76. The Board "is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded the evidence. It is irrelevant whether the record contains evidence to support findings other than those made by the [Board]; the critical inquiry is whether there is evidence to support the findings actually made." Ductmate Industries, 949 A.2d at 342 (citations omitted). The Board's determination here is supported by substantial evidence. Claimant denied that he had touched any student in any sexual way. (R. Item 14, H.T. at 11, 20-21, R.R. at 166a, 175a-176a.) The Board specifically found that testimony credible. (R. Item 24, Board Decision and Order, R.R. at 126a.)
Employer argues that the Board erred in holding that the New Jersey Revocation Order was not competent evidence of Claimant's conduct and disregarding that government decision in making its credibility determination and findings. Employer contends that the New Jersey Revocation Order was not hearsay under Section 6104 of the Judicial Code and that even if hearsay, it could be considered because Claimant did not object to its admission and it was allegedly corroborated by other evidence. We do not agree.
Contrary to Employer's assertion (Petitioner's Brief at 13), Section 6104 of the Judicial Code does not make every statement that appears anywhere in a government report admissible. This statutory hearsay exception has two provisions. Under Section 6104(a), properly authenticated government records "shall be admissible as evidence that the governmental action or inaction disclosed therein was in fact taken or omitted." 42 Pa. C.S. § 6104(a). Employer authenticated the New Jersey Revocation Order by an accompanying certification of the New Jersey Examiners, and Claimant did not dispute that the document was properly authenticated. The New Jersey Revocation Order was therefore admissible to prove that Claimant's New Jersey teaching license was revoked. 42 Pa. C.S. § 6104(a). However, this undisputed fact did not show any willful misconduct because Employer did not require Claimant to maintain his New Jersey license or report loss of out-of-state licenses, and Claimant was not discharged by Employer for the fact that the license was revoked. (R. Item 14, H.T. at 4, 10, R.R. at 159a, 165a.)
Section 6104(b) of the Judicial Code addresses whether facts set forth in an official record are admissible. Section 6104(b) provides that an authenticated official record "disclosing the existence or nonexistence of facts which have been recorded pursuant to an official duty or would have been so recorded had the facts existed shall be admissible as evidence of the existence or nonexistence of such facts, unless the sources of information or other circumstances indicate lack of trustworthiness." 42 Pa. C.S. § 6104(b) (emphasis added). Under Section 6104(b), an official record is admissible non-hearsay evidence of facts that were observed and recorded by the government official who created the record. D'Alessandro v. Pennsylvania State Police, 594 Pa. 500, 515-17, 937 A.2d 404, 413-15 (2007) (observations and statements reported by officer in his police report are admissible under 42 Pa. C.S. § 6104(b) to prove those facts). Findings of fact made in an authenticated government document are also admissible non-hearsay evidence under Section 6104(b) where the party against whom the findings are admitted had the opportunity to be heard in that government agency's proceeding. Shapiro v. State Board of Accountancy, 856 A.2d 864, 873-74 (Pa. Cmwlth. 2004) (findings in Pennsylvania Securities Commission's adjudication are admissible under 42 Pa. C.S. § 6104(b) to prove facts where parties against whom they were admitted had the opportunity to participate in that proceeding and consented to the making of those findings).
The statements in the New Jersey Revocation Order concerning Claimant's conduct do not meet these requirements. They are not facts recorded by the New Jersey Examiners from their own observation or investigation. Rather, they are recitations of the portions of other documents that were neither authenticated nor submitted by Employer in this proceeding. (R. Item 14, Employer Ex. 1, R.R. at 232a-234a.) The statements concerning Claimant's conduct are also not factual findings made by the New Jersey Examiners. The New Jersey Revocation Order did not itself make any findings that Claimant committed the acts, but instead assumed that the facts were undisputed and addressed only whether the conduct was grounds for license revocation. (R. Item 14, Employer Ex. 1, R.R. at 234a-236a.) The New Jersey Examiners deemed the facts admitted because Claimant had failed to respond and appear, but also noted that Claimant had not been successfully served with notice of the proceedings. (R. Item 14, Employer Ex. 1, R.R. at 234a-235a.) There was no showing that Claimant actually received notice of the proceeding in advance and intentionally failed to appear. The New Jersey Revocation Order shows that the attempts to notify Claimant were limited to New Jersey, and Claimant lived in Pennsylvania. (R. Item 14, H.T. at 1, 14 & Employer Ex. 1, R.R. at 156a, 169a, 234a.)
Questions of admissibility of evidence in an administrative proceeding are within the discretion of the administrative tribunal and are not to be disturbed on appeal absent a showing of abuse of discretion. D'Alessandro, 594 Pa. at 509, 937 A.2d at 409. Given the lack of connection between the factual statements and the government agency that created the document and the questions as to notice and opportunity to be heard that appear on the face of the document, we cannot say that the Board abused its discretion in concluding that the New Jersey Revocation Order was inadmissible under Section 6104(b) of the Judicial Code to show underlying facts concerning Claimant's conduct.
The fact that Claimant did not object to the admission of the New Jersey Revocation Order does not make it competent evidence that Claimant committed willful misconduct. It is well established that hearsay evidence admitted without objection may support a finding of fact only if it is corroborated by other competent evidence in the record. Vann v. Unemployment Compensation Board of Review, 508 Pa. 139, 150, 494 A.2d 1081, 1086 (1985); Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095, 1113 (Pa. Cmwlth. 2005), abrogated in part on other issue, Diehl v. Unemployment Compensation Board of Review, ___ Pa. ___, 57 A.3d 1209 (2012); Thompson v. Unemployment Compensation Board of Review, 723 A.2d 743, 745 (Pa. Cmwlth. 1999); Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976).
There was no evidence before the Board that corroborated the charges of misconduct in the New Jersey Revocation Order. Claimant denied that he had committed the misconduct. (R. Item 14, H.T. at 11, 20-21, R.R. at 166a, 175a-176a.) Contrary to Employer's assertions, there was also no evidence that Claimant concealed the allegations of misconduct from Employer. Claimant testified that he told Employer of the pending accusation when he was hired. (R. Item 14, H.T. at 7-9, 11, 15, 18-20, R.R. at 162a-164a, 166a, 170a, 173a-175a.) Employer introduced no evidence that Claimant did not fully and honestly respond to inquiries in the hiring process. (R. Item 14, H.T. at 17-20, R.R. at 172a-175a.) While Claimant did not report the revocation of his New Jersey license to Employer (R. Item 14, H.T. at 7, R.R. at 162a), that did not occur until 2006, years after he was hired, and Employer had no policy concerning loss of licensure in other states or reporting loss of out-of-state licenses. (R. Item 14, H.T. at 4, 10, 16, R.R. at 159a, 165a, 171a.)
Employer also argues that Claimant's post-discharge surrender of his Pennsylvania teaching certificate requires remand to the Board, contending that it allegedly corroborates the New Jersey Revocation Order's hearsay statements concerning Claimant's conduct and that it allegedly shows that Claimant removed himself from the workforce. (Petitioner's Brief at 17.) Employer, however, waived these arguments by its failure to timely raise them before the Board. While the surrender of the Pennsylvania teaching certificate occurred after the Referee's decision, Employer knew of this information while its appeal to the Board was pending and well before it filed its brief with the Board in that appeal. The document that Employer cites as the basis for this argument is dated July 12, 2012 and bears a stamp showing receipt by Employer on July 17, 2012. (R. Item 25, Employer Request for Reconsideration Ex. 3, R.R. at 86a.) If Employer felt that this new event should be considered as a ground for reversing the Referee's decision, it could and should have raised that issue when it filed its brief with the Board more than three weeks later, on August 10, 2012. Although it filed an 11-page brief with the Board detailing and arguing its claims of error, Employer chose not to raise the issue until after the Board decided its appeal.
Issues not raised at the earliest possible time during a unemployment compensation proceeding are waived. Wing v. Unemployment Compensation Board of Review, 496 Pa. 113, 117-18, 436 A.2d 179, 180-81 (1981); Grever v. Unemployment Compensation Board of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010); Dehus v. Unemployment Compensation Board of Review, 545 A.2d 434, 436-37 (Pa. Cmwlth. 1988).
[T]he administrative law tribunal must be given the opportunity to correct its errors as early as possible; diligent preparation and effective advocacy before the tribunal must be encouraged by requiring the parties to develop complete records and advance all legal theories; and the finality of the lower tribunals' determinations must not be eroded by treating each determination as part of a sequence of piecemeal adjudications.Wing, 496 Pa. at 117, 436 A.2d at 181. Because Employer failed to timely raise Claimant's surrender of his Pennsylvania teaching certificate before the Board despite the opportunity and ability to do so, its arguments that the case should be remanded for consideration of that evidence are waived and cannot constitute a basis for reversal of the Board's order. Wing, 496 Pa. at 117-18, 436 A.2d at 180-81; Grever, 989 A.2d at 402; Dehus, 545 A.2d at 436-37; Merida v. Unemployment Compensation Board of Review, 543 A.2d 593, 596 (Pa. Cmwlth. 1988), app. dismissed, 524 Pa. 249, 570 A.2d 1320 (1990).
While these arguments are waived, we note that there is no indication in this record that the surrender of the Pennsylvania teaching certificate was an admission of misconduct. The document on which Employer relies states only that the certificate was "surrendered in lieu of discipline." (R. Item 25, Employer Request for Reconsideration Ex. 3, R.R. at 86a.) Claimant had already been discharged by Employer and any surrender of a teaching certificate after such a discharge is classified as "surrendered in lieu of discipline." 22 Pa. Code § 237.10. Employer also provides no explanation or support for its contention that the surrender constitutes a withdrawal from the workforce. While a claimant must remain "able to work and available for suitable work" under Section 401(d)(1) of the Unemployment Compensation Law, 43 P.S. § 801(d)(1), "suitable work" is not limited to the particular type of job at which the claimant was previously employed. See Section 4(t), 43 P.S. § 753(t); Davy v. Unemployment Compensation Board of Review, 392 A.2d 330, 332 (Pa. Cmwlth. 1978). --------
For the foregoing reasons, we affirm the order of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 18th day of April, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge