Opinion
No. 1765 C.D. 2013
04-30-2014
Donald M. Wilshire, 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 JUDGE SIMPSON
Donald M. Wilshire (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) that denied his claim for unemployment compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law) (relating to willful misconduct). The Board determined Claimant was ineligible for benefits because he violated Employer's sexual harassment policy. Claimant asserts he did not violate the policy, and the Board's findings are not supported by substantial, competent evidence. Upon review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
I. Background
Claimant worked as a full-time general manager for Wenventure, Inc., "Wendy's" (Employer) since 1997. Employer maintains a policy prohibiting all types of harassment, including sexual harassment (Policy). Under the Policy, discipline depends on the circumstances, and may include discharge without prior warning. Bd. Op., 8/27/13, Finding of Fact (F.F.) No. 2. Claimant was aware of the Policy, and was charged with its enforcement.
Employer received a complaint of sexual harassment from a female co-worker of Claimant (Co-worker). During Employer's investigation, District Manager Jack Smicklo (Manager) reviewed the text messages Claimant sent to Co-worker and agreed they were sexual in nature (Texting Incident). When Manager confronted Claimant about the Texting Incident, at first Claimant denied sending any text messages. After Manager advised that he viewed surveillance video showing Claimant sent the text messages, Claimant admitted he sent them.
At that time, Employer asked Claimant whether he ever made sexual comments or touched co-workers. Initially, Claimant denied any physical contact. However, Claimant later admitted he patted a co-worker's backside to say "nice job" and put his hands on co-workers' backs when talking to them. Certified Record (C.R.) Item No. 4 (Recorded Interview). When Manager questioned him about his inappropriate comments and touching of co-workers, Claimant explained that "he had done that for nine years and he didn't see anything wrong with that" and "that was the person he was." Referee's Hr'g, Notes of Testimony (N.T.), 3/28/13, at 9.
Less than two weeks after the Texting Incident, Claimant poked Co-worker during an argument. Both Co-worker and Claimant reported the incident to Manager (Physical Incident). Based on these incidents, Manager confronted Claimant about his Policy violations. Claimant resigned in lieu of discharge.
Where a claimant resigns in order to avoid imminent and certain termination, the claimant's separation will be treated as a discharge for willful misconduct. Pa. Liquor Control Bd. v. Unemployment Comp. Bd. of Review, 648 A.2d 124 (Pa. Cmwlth. 1994). Claimant does not challenge the involuntary nature of his separation here.
Claimant applied for UC benefits, which the local service center denied. Claimant appealed to a referee.
The referee held two hearings where only Claimant was represented by counsel. Employer did not have counsel present at either hearing. During the first hearing, two witnesses for Employer, Manager and Director of Operations Joseph Hundley (Director) testified. Based on time constraints, Claimant did not have the opportunity to testify at the first hearing. Therefore, the referee advised she would continue the hearing to complete testimony.
By letter, Claimant's counsel objected to the holding of a second hearing because Employer and Claimant rested, rendering rebuttal evidence unnecessary. He claimed attending another hearing would impose a hardship on Claimant. Counsel also represented Employer failed to meet its burden of proof as to willful misconduct. Nonetheless, the referee scheduled a second hearing.
Without waiving his objection, prior to the continued hearing, Claimant's counsel requested a copy of the transcript of the first hearing, and a subpoena for the surveillance video and any other records related to the case. The following day, the referee issued the subpoena. Claimant never served it.
At the hearing, Claimant's counsel reasserted his objection to the hearing. However, Employer stated it did not rest, and it should be permitted to question Claimant. The referee agreed.
Claimant testified he did not recall harassing Co-worker or sending her any text messages. Regarding touching his employees, Claimant testified he sometimes touched his employees because he talks with his hands. He also stated Manager was aware that Claimant touches employees, and he made a joke about "hey little girl, would you like some candy" in Manager's presence and no one complained at the time. N.T., 4/24/13, at 8. He claimed he did not violate the Policy because he did not ask for sexual favors or make any employment decisions based on sex. He testified he worked with women his whole life, and "I know as well as I do [sic] they like to joke sexually." Id. at 8-9. He admitted that touching employees is "[p]robably not a good idea. It's probably unprofessional looking back on it now." Id. at 10.
Based on the evidence received during two hearings, the referee affirmed the local service center, determining Claimant committed willful misconduct. Claimant appealed to the Board.
After making its own findings, the Board concluded Claimant committed willful misconduct in that he harassed Co-worker, on more than one occasion, in violation of the Policy. F.F. Nos. 8, 11, 18 and 19. Specifically, the Board found Claimant admitted to inappropriately touching co-workers, including touching a co-worker's butt. F.F. Nos. 9-12. In addition, the Board found that Claimant "resigned in lieu of being discharged for violations of [Employer's] harassment policy." F.F. No. 19.
Claimant now petitions for review.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 2013). --------
II. Discussion
Claimant argues there is no competent evidence supporting the findings of willful misconduct, as Manager's testimony regarding the incidents is hearsay when Co-worker did not appear. Claimant also contests the referee's authority to conduct a second hearing to record his testimony. Substantively, he maintains he did not commit willful misconduct. Further, regardless of the evidence of misconduct, Claimant contends Employer should have warned him prior to discharge. Lastly, he asserts Employer unequally enforced its Policy.
First, we address Claimant's procedural challenges regarding the evidence and the conduct of the hearing by the referee.
A. Evidence
Claimant argues Employer did not submit competent evidence because it did not present the surveillance video or Co-worker's testimony. He also claims the testimony as to the Texting Incident was not sufficient to show willful misconduct. Claimant further asserts Manager's testimony regarding the surveillance video constitutes hearsay, and is not the best evidence that he sent the text messages or touched other employees. In addition, Claimant contends the evidence submitted at the continued hearing was improper because the referee closed the record at the conclusion of the first hearing.
It is well-established that Commonwealth agencies are not bound by the technical rules of evidence during agency hearings. 2 Pa. C.S. §505. Further, the presiding officer of a tribunal has discretion regarding the conduct of the hearing, including the admission of evidence. 34 Pa. Code §101.21.
1. Best Evidence Rule
Claimant argues the best evidence rule applies, thus requiring admission of the surveillance video showing his conduct, and Co-worker's testimony regarding the text messages. Specifically, Claimant urges Employer's witnesses' testimony regarding the Texting and Physical Incidents must be rejected because neither Manager nor Director observed the incidents at the time they occurred.
Rule 1002 of the Pennsylvania Rules of Evidence, commonly referred to as the "Best Evidence Rule" provides that, "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise required in these rules ...." Pa. R.E. 1002. Thus, the rule applies based on the source of the content on another medium, and does not apply to witness testimony, such as that of Co-worker. Commonwealth v. Lewis, 623 A.2d 355 (Pa. Super. 1993) (best evidence rule applies to content of documents); Commonwealth v. Krukoff, 302 A.2d 388 (Pa. Super. 1973) (same; testimony by affiant is not inadmissible under best evidence rule, citing Commonwealth ex rel. Park v. Joyce, 316 Pa. 434, 175 A. 422 (1934)).
Additionally, this Court previously determined that the best evidence rule "is a technical rule of evidence not generally applicable to administrative proceedings." DiLucente Corp. v. Pa. Prevailing Wage Appeals Bd., 692 A.2d 295, 298 (Pa. Cmwlth. 1997). Moreover, the best evidence rule does not apply to unemployment compensation cases. See Fera v. Unemployment Comp. Bd. of Review, 407 A.2d 942 (Pa. Cmwlth. 1979) (rejecting claimant's best evidence argument). Therefore, the surveillance video and Co-worker's testimony are not required by the best evidence rule in this case.
2. Hearsay
Claimant also argues the Board erred in relying on hearsay evidence that was admitted into the record over his objection. Specifically, he asserts testimony regarding Manager's review of the text messages and the surveillance video is hearsay.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Commonwealth v. Puksar, 559 Pa. 358, 740 A.2d 219 (1999). Nevertheless, a party admission is admissible as an exception to the hearsay rule and may be used as competent evidence. Pa. R.E. 803(25); Robinson v. Unemployment Comp. Bd. of Review, 546 A.2d 750 (Pa. Cmwlth. 1988).
Claimant's hearsay objection to Manager's testimony regarding his viewing of the video lacks merit. Manager's testimony does not contain hearsay. He merely described Claimant's conduct that he observed on a videotape. Pa. R.E. 801(a)(2); Davis v. Civil Serv. Comm'n of Phila., 820 A.2d 874 (Pa. Cmwlth. 2003) (describing conduct observed on a videotape does not constitute hearsay); see Bryan v. Unemployment Comp. Bd. of Review, (Pa. Cmwlth., No. 1981 C.D. 2011, filed June 6, 2012) (unreported), 2012 WL 8700026. Accordingly, the Board did not err in relying on Manager's testimony regarding the surveillance video.
Further, our careful review of the hearing transcripts shows that, due to Claimant's objections, there is no testimony regarding Co-worker's statements about the Texting Incident. Also, there is no record evidence reflecting the content of the text messages. Claimant's counsel effectively precluded any such testimony through his objections.
Consequently, there is little evidence regarding the substance of the text messages. Manager testified that he observed Claimant sending the text messages on the video, and Claimant admitted sending them, after initially denying it. Unlike the Physical Incident, there are no Claimant admissions to connect the sending of the texts to an act of sexual harassment. As there is no record of what the text messages said, the Board had only Manager's testimony that they were sexual in nature.
Based on Manager's testimony, the Board made a finding that "[Employer] considered [the text messages] a violation of the sexual harassment policy." F.F. No. 8. When Manager asked Claimant whether he made any sexual comments or touched his employees, Claimant initially denied such actions. Yet, Claimant then recanted, and advised Manager he did not see anything wrong with his conduct as no one complained about it for nine years. N.T., 3/28/13, at 9.
Because the text messages were not admitted into the record, the text messages are not a proper basis for finding Claimant violated the Policy. Despite our agreement with Claimant on this point, we may consider any competent evidence of Employer's investigation into Claimant's conduct.
Claimant's counsel also objected to Manager's testimony regarding Employer's investigation of the incidents. However, such testimony does not constitute hearsay because the statements to which Manager testified were Claimant's admissions. Robinson; Kilpatrick v. Unemployment Comp. Bd. of Review, 429 A.2d 133 (Pa. Cmwlth. 1981). Claimant's admissions during the investigation, particularly regarding his physical contact with co-workers, and his altercation with Co-worker less than two weeks after the Texting Incident, are competent evidence. Id. Such competent evidence is capable of supporting the Board's findings.
3. Claimant's Testimony at Second Hearing
Claimant also argues the referee erred in conducting a second hearing when Claimant rested, and objected to continuing the hearing for the purpose of recording his testimony.
Claimant's testimony was relevant evidence. The referee had the authority to continue the hearing in order to receive Claimant's testimony, subject to cross-examination. The General Rules of Administrative Practice and Procedure (GRAPP), Title 1 Pa. Code, Part II, Chapters 31-35, apply when agencies hold a hearing, unless the agency adopts alternate procedures. Here, GRAPP permits broad discretion to a hearing officer in "recessing, reconvening, and adjournment" of a hearing. 1 Pa. Code §31.1. The UC regulations do not preclude this discretion. 1 Pa. Code §101.22 (regarding continuing a hearing).
The rule that governs hearing practice in UC proceedings provides "the tribunal may examine the parties and their witnesses." 34 Pa. Code §101.21. "It is proper for the referee to ask questions of a claimant during an unemployment appeal hearing in order to develop the facts when, as here, the questions asked were pertinent and relevant to claimant's case." Unangst v. Unemployment Comp. Bd. of Review, 690 A.2d 1305, 1308 (Pa. Cmwlth. 1997). In addition, the referee has discretion regarding the order of evidence and testimony. Id.
The record is clear that Claimant's counsel originally intended Claimant to testify at the hearing, and indeed, asked that the hearing be extended for 10 minutes on the date of the first hearing to allow his testimony. Although the referee stated at the close of the first hearing, that "I'm going to close the record," N.T., 3/28/13, at 22, the record does not show that Employer rested. Further, at the second hearing, Employer advised it planned to call Claimant as a witness. N.T., 4/24/13, at 3-4.
In addition, despite objecting to the second hearing, Claimant's counsel took a number of affirmative steps consistent with waiving an objection to the continuation of the hearing. First, Claimant and his counsel appeared at the continued hearing. Second, Claimant's counsel allowed his client to testify at the continued hearing. Third, Claimant's counsel requested a subpoena for records and the surveillance video in preparation for the second hearing. For reasons that are not clear on this record, Claimant did not serve this subpoena. Lastly, Claimant and his counsel participated in the second hearing, calling Employer's witnesses in an attempt to show unequal enforcement of the Policy.
Notably, Claimant identifies no prejudice to the parties resulting from the referee's decision to proceed with a second hearing to complete the testimony. Therefore, under the circumstances here, the referee did not abuse her discretion by holding a second hearing. Accordingly, the testimony elicited during the continued hearing is properly of record.
Next, we evaluate whether the competent evidence is sufficient to support the Board's conclusion that Claimant committed willful misconduct by violating the Policy.
B. Willful Misconduct
Willful misconduct is defined by the courts as: (1) wanton and willful disregard of an employer's interests; (2) deliberate violation of rules; (3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or, (4) negligence showing an intentional disregard of the employer's interests or the employee's duties and obligations. Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 827 A.2d 422 (2002). The employer bears the initial burden of establishing a claimant engaged in willful misconduct. Id.
The issue of whether Claimant's conduct constituted willful misconduct is a question of law fully reviewable by this Court. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).
1. Policy
Where, as here, the determination of willful misconduct is based on the violation of a work rule, an employer must establish the existence of the rule, the reasonableness of the rule, the claimant's knowledge of the rule, and its violation. Ductmate. If the employer does so, the burden shifts to the claimant to show good cause for the rule violation. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158 (Pa. Cmwlth. 2012).
Here, the Policy prohibited sexual harassment, defined in pertinent part as:
[u]nwelcome sexual advances, requests for sexual favors, and other physical, verbal, or visual conduct because of or on the basis of sex constitute sexual harassment when ... such conduct
has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.Referee's Hr'g, 3/28/13, at Ex. 2 (emphasis added). Significantly, the Policy permits termination for one violation, without previous warnings. It states "[i]n some cases immediate termination may be appropriate." Id.
Here, the record supports the existence of the Policy, and Claimant's awareness of it. During the first hearing, Claimant admitted he signed the Policy. N.T., 3/28/13, at 17. Therefore, Employer established the necessary predicate for discharge based on a rule violation.
2. Alleged Harassment Incidents
Claimant asserts substantial evidence does not support the Board's findings or its conclusion that he violated the Policy.
We note the Board's findings of fact "are conclusive on appeal as long as they are supported by substantial evidence" in the record. Phila. Gas Works v. Unemployment Comp. Bd. of Review, 654 A.2d 153, 157 (Pa. Cmwlth. 1995). Substantial evidence is evidence which a reasonable mind would accept as adequate to support a conclusion. Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558 (Pa. Cmwlth. 2012). In making this determination, we "must view the record in a light most favorable to the party which prevailed before the Board, giving that party the benefit of all logical and reasonable inferences deducible from the evidence." Stringent v. Unemployment Comp. Bd. of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997).
Further, the Board is the final fact-finder, and arbiter of credibility. Ductmate. This Court does not revisit credibility determinations. Id.
Here, the Board determined Claimant violated the Policy based on Employer's investigation into the Texting and Physical Incidents. In reaching its conclusion, the Board credited Employer's witnesses' testimony regarding their investigation of Claimant's conduct, and that Claimant's conduct violated the Policy. F.F. Nos. 6, 7, 8. It also relied on Claimant's admissions that he had physical contact with employees. F.F. Nos. 10, 11. The record also shows Claimant and Co-worker had a physical altercation shortly after Employer investigated Co-worker's harassment complaint. F.F. Nos. 16-18. These findings are supported by the record. N.T., 3/28/13, at 6-10; C.R., Item No. 4.
Manager testified that he personally reviewed the text messages that gave rise to the Texting Incident. From his review, Manager concluded the text messages violated the Policy because they were of a sexual nature. Unfortunately, there is no other record evidence regarding the content of the text messages.
Because there is no evidence of their content, Employer's testimony regarding his perception of the text messages is not competent evidence of sexual harassment. Even though we do not base our decision on the text messages, the record contains sufficient competent evidence of Claimant's inappropriate conduct.
In Claimant's recorded interview, admitted without objection, he stated "[s]upposedly, I texted someone and supposedly I made sexual contact and I touched their butt." C.R., Item No. 4 (admitted at N.T., 3/28/13, at 3-4). In his testimony, Claimant also admitted he touched and joked sexually with female co-workers, and conceded that it may have been unprofessional. N.T., 4/24/13, at 8-10.
When confronted with his physical contact with co-workers, Claimant stated: "I don't think it was inappropriate. I did pat somebody on the butt to say 'nice job' or something to that effect." C.R., Item No. 4. He further stated "[i]t doesn't say anywhere in the [Policy] that you can't pat somebody on the butt to say 'nice job.'" Id.
Reviewing the competent evidence, including Claimant's admissions in his recorded interview, and during the second hearing, in the light most favorable to Employer, we discern no error below. See Johnson v. Unemployment Comp. Bd. of Review, 744 A.2d 817 (Pa. Cmwlth. 2000); Holmes v. Unemployment Comp. Bd. of Review, (Pa. Cmwlth., No. 2414 C.D. 2010, filed August 23, 2011) (unreported) 2011 WL 10876618 (upholding Board's determination that claimant committed willful misconduct by violating sexual harassment policy).
In addition, Claimant did not establish good cause for his violations. He contends Employer unfairly enforced the Policy because it permitted another manager to date a subordinate manager. We disagree that the conduct is equivalent, necessitating the same response. Johnson (claimant challenged discharge for policy violation based on unequal enforcement, asserting other employees' discussions of a sexual nature went unpunished; holding no disparate treatment when comparing explicit emails to discussions of a sexual nature, as the conduct is dissimilar).
III. Conclusion
Claimant's admissions and Manager's testimony about Employer's investigation of the incidents underlying Claimant's separation constitute sufficient evidence to support the Board's findings. These findings adequately support the Board's determination that Claimant committed sexual harassment in violation of the Policy.
Accordingly, the Board's order is affirmed.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 30th day of April, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge