Opinion
No. 1276 C.D. 2014
02-20-2015
Gary M. Susko, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Gary Susko (Claimant) petitions, pro se, for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his claim for unemployment compensation benefits. In doing so, the Board affirmed the decision of the Referee that Claimant was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) by reason of his willful misconduct. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant part, that:
An employe 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 as a full time sales associate by Reyer's Shoe Store (Employer) from July 1998 until he was discharged on February 25, 2014. The stated reason for Claimant's discharge was his discussion of a commission dispute on the sales floor two days earlier. Claimant applied for unemployment benefits, which were denied by the Indiana UC Service Center. Claimant appealed, and a hearing was held by the Referee on April 14, 2014. Claimant, represented by counsel, testified on his own behalf. Vincent Cardamon, Employer's store manager, testified on behalf of Employer.
Cardamon testified about the procedures for completing a sale. The sales associate who retrieves shoes from the stock room receives the commission for the sale. To ensure the correct commission attribution, the sales associate places a white sticker on the shoe box identifying himself as responsible for the sale. The associate must also ensure the shoes in the box are correctly priced and "mated," i.e., the same size. When the cashier completes the purchase, the commission is awarded to the sales associate whose sticker is on the box.
Cardamon testified that Employer has a policy prohibiting employees from discussing commissions on the sales floor. All disagreements about commissions must be brought to a supervisor in the supervisor's office, outside the presence of customers. According to Cardamon, this policy was announced in January 2014 during a meeting attended by Employer's sales force, including Claimant. Cardamon testified that to avoid commission disputes, Employer will often award commissions to two or more sales associates if they have participated equally in the sale.
Claimant testified about the incident on February 23, 2014, for which he was discharged. Claimant retrieved a box of shoes from the stock room at the request of a customer. Before he placed his sticker on the box, Claimant received a phone call and left the customer on the sales floor. When Claimant returned to the sales floor, he saw that the customer was at the cash register purchasing the shoes Claimant had retrieved. Claimant approached the customer and saw another employee's identification sticker on the shoe box. Claimant reached into the customer's bag, removed the box, sought out his coworker on the sales floor and questioned him about why Claimant's sticker was not on the box. Claimant's coworker agreed that Claimant should receive the commission for the sale. Claimant returned to the cash register and apologized to the customer. Employer discharged Claimant two days later.
Claimant explained that he acted as he did to avoid the discipline that would be imposed had the shoes not been mated correctly. On cross-examination, however, Claimant conceded that if another employee's sticker was on the box he could not be held accountable. Claimant further testified that he did not remember meeting with Cardamon in January 2014 about Employer's prohibition on discussing commissions on the sales floor.
The Referee affirmed the UC Service Center's denial of benefits on grounds of willful misconduct. The Referee found that, although "[t]here was conflicting testimony regarding whether [Cardamon] and [C]laimant had a meeting in January 2014 regarding discussing commissions with other associates on the sales floor," all credibility determinations were resolved in Employer's favor. Referee's Decision and Order at 2. The Referee concluded that Claimant exhibited a disregard of Employer's interests and the standards of behavior that Employer had the right to expect of its employees. On review, the Board adopted the Referee's findings and conclusions and affirmed the Referee's decision. Claimant then petitioned for this Court's review.
Claimant is no longer represented by counsel and is proceeding pro se in his appeal.
On appeal, Claimant argues that substantial evidence does not support the Board's finding of fact that Employer informed Claimant in January 2014 that employees were prohibited from discussing commissions on the sales floor. Claimant also contends that he had good cause for his actions. For these reasons, Claimant contends that the Board erred in holding that he committed disqualifying willful misconduct.
Our scope of review is to determine whether the Board's findings of fact are supported by substantial evidence, the claimant's constitutional rights were violated, or an error of law was committed. Ellis v. Unemployment Compensation Board of Review, 59 A.3d 1159, 1162 n.2 (Pa. Cmwlth. 2013). --------
Whether an employee's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Willful misconduct has been defined as
(a) wanton or willful disregard for an employer's interests; (b) deliberate violation of an employer's rules; (c) disregard for standards of behavior which an employer can rightfully expect of an employee; or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Grieb v. Unemployment Compensation Board of Review, 827 A.2d 422, 425 (Pa. 2003) (quoting Navickas v. Unemployment Compensation Review Board, 787 A.2d 284, 288 (Pa. 2001)). When an employee is terminated for willful misconduct involving the violation of an employer's rules, the employer bears the burden of proving both the existence of the work rule and the violation of that work rule. Ductmate, 949 A.2d at 342.
If supported by substantial evidence, the Board's findings of fact are conclusive on appeal. Id. "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." Id. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Criswell v. Unemployment Compensation Board of Review, 393 A.2d 1071, 1072 (Pa. Cmwlth. 1978).
Here, Claimant argues that the record does not support the Board's finding that Claimant learned in January 2014 that employees were not permitted to discuss commissions on the sales floor. In support, Claimant relies upon his own testimony. However, the Board credited Cardamon's testimony that the meeting did occur. It is well settled that the Board is the final arbiter of credibility determinations. Ductmate Industries, 949 A.2d at 342. Because Cardamon's testimony supports the finding that the meeting occurred, Claimant's contrary version of the facts is irrelevant.
Claimant also argues that he had good cause for his actions because he was trying to comply with Employer's policy that the shoes in a customer's box must be correctly mated and priced. However, it is undisputed that Claimant removed the shoe box from the customer's bag to confront his coworker, not to inspect the shoes.
In summary, Employer established by substantial evidence that Claimant violated Employer's directive to its sales associates that they not discuss commissions on the sales floor. By involving a customer in his disagreement with a coworker over a commission, Claimant created the exact situation Employer hoped to avoid by implementing the policy. Claimant also failed to prove he had good cause for his actions.
For these reasons, we affirm the Board's adjudication.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 20th day of February, 2015, the order of the Unemployment Compensation Board of Review, dated July 2, 2014, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge