Opinion
No. 645 C.D. 2013
11-01-2013
Shannon Suhr, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Shannon Suhr (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) that reversed the referee's determination and concluded that Claimant was ineligible for 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, were as follows:
1. The claimant was last employed as a sales representative by Tate-Jones, Inc. from June 28, 2010, until November 20, 2012, at a final rate of $18.00 per hour.
2. On November 16, 2012, the employer reiterated its policy prohibiting personal use of company computers.
3. The claimant was, or should have been, aware of the policy.Board Opinion, April 2, 2013, (Opinion), Finding of Fact Nos. 1-7 at 1-2.
4. On November 20, 2012, the claimant sent an email to a former employee stating, among other things, 'I was able to get the documents you requested. We can either meet up, I can drop them off one day after work, or I can scan and email them to you - your choice. Take this as a blessing to be out of this sh*t hold [sic]. Everything is so screwed up already- lol.'
5. The claimant admits to sending this email.
6. On November 20, 2012, the employer discharged the claimant for inappropriately using a work computer for personal use.
7. The employer did not discover the content of the documents mentioned in the email until after the claimant's discharge.
The Board determined:
Here, the Board finds credible the testimony of the employer's witnesses that the employer had a policy prohibiting the personal use of work computers. The employer credibly testified that the claimant was made aware of this policy on November 16, 2012. The claimant admitted to sending the email to a former employee from her work computer. While the Board has not considered the content of the documents discussed in the email because they were evidence acquired after the discharge and did not form the basis for the termination, the Board still finds that the claimant intentionally violated the employer's policy against personal use of computers, regardless of the content. The claimant has not shown good cause for her violations. The claimant's violation of the employer's policy amounted to willful misconduct under Section 402(e) of the Law, therefore, benefits are denied.Opinion at 2.
Essentially, Claimant contends that Tate-Jones, Inc. (Employer) did not have a policy regarding personal use of computers, that Employer provided no evidence of the policy, and that she believed employees were permitted to use Employer's computers for personal use.
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).
Initially, Claimant contends that Employer failed to prove that the personal use of company computers was prohibited because it failed to provide evidence of a written policy as well as a signed acknowledgement by Claimant that she was aware of the policy.
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).
Here, Justin Fruehauf (Fruehauf), manager of Employer, testified that Employer had a policy prohibiting personal use of Employer's computers and that this policy was emphasized to employees at a meeting on November 16, 2012, because Employer was moving to a new online system for taking orders. Notes of Testimony, January 14, 2013, (N.T.) at 5. Fruehauf testified that Claimant was present at the meeting and was informed that Employer had installed new monitoring software on the computers as part of the new policy. N.T. at 6.
Carmal Bynum (Bynum), an employee of Employer, testified that she was present at the meeting and that employees were told "that we were not to use the computers for personal reasons. They were to be used for work." N.T. at 9.
Claimant testified that she was never told that the computers were not to be used for personal use. N.T. at 9.
The Board explicitly found credible the testimony of Fruehauf and Bynum. In unemployment compensation proceedings, the Board is the ultimate fact-finding 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).
Claimant argues that the credibility determination is not determinative because Employer had to produce physical evidence of the policy. However, this Court has held that evidence in the form of testimony regarding a written company policy provides substantial evidence for the existence of that policy. Fera v. Unemployment Compensation Board of Review, 407 A.2d 942 (Pa. Cmwlth. 1979).
Employer established the existence of the rule. It is undisputed that Claimant sent the email to the former employee which was not part of her work duties. In fact, Fruehauf testified that anyone trying to contact the dismissed employee should contact him or his father, Welling Fruehauf. N.T. at 6. Claimant did not provide good cause for her actions. The Board did not err when it determined Claimant committed willful misconduct.
Claimant attaches to her brief a copy of a written Employer policy in an effort to show that the computer policy should have been written down and because Employer failed to produce evidence of a written policy, it failed to establish that the policy existed. Once again, Employer established the existence of the policy through the testimony of its witnesses. Claimant also argues that she used Employer's computers to perform personal tasks for Fruehauf and another employee. Claimant failed to raise this issue before the referee. An unemployment compensation claimant waives an issue by failing to preserve it before the referee. Watkins v. Unemployment Compensation Board of Review, 751 A.2d 1224 (Pa. Cmwlth. 2000). --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 1st day of November, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge