IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Summit Physician Services, : Petitioner : : No. 342 C.D v. : : Submitted: August 22, 2014 Unemployment Compensation : Board of Review, : Respondent : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: September 26, 2014 Summit Physician Services (Employer) petitions for review of the February 7, 2014 order of the Unemployment Compensation Board of Review (Board), which held that Danielle M. Shirley (Claimant) is not ineligible for unemployment compensation benefits pursuant to section 402(e) of the Unemployment Compensation Law (Law). 1 We affirm. 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. 802(e). Pursuant to section 402(e) of the Law, a claimant is ineligible for compensation for any week in which her unemployment is due to willful misconduct connected to her work. Willful misconduct includes behavior evidencing a wanton or willful disregard for an employer s interest; a deliberate violation of an employer s rules; a disregard for the standards of behavior that an employer can rightfully expect of an employee; or negligence indicating an intentional disregard of the employer s interest or the employee s duties or obligations. Beverly Enterprises, Inc. v. Unemployment Compensation Board of Review, 702 A.2d 1148 (Pa. Cmwlth. 1997).

2 Claimant worked for Employer as a full-time billing specialist until July 16, 2013, and her final rate of pay was $12.61 per hour. (Finding of Fact No. 1.) Claimant was aware of Employer s policy prohibiting direct or indirect use or misuse of company resources and that a violation of that policy may result in discharge. (Finding of Fact No. 2.) Employer has an account with Direct TV for which it is automatically billed on a company credit card. (Finding of Fact No. 3.) While reviewing a credit card statement, Samuel Shatzer (Shatzer), Employer s vice president of information systems, discovered an unauthorized transaction with Direct TV for $ (Finding of Fact No. 4.) Shatzer conducted an investigation and learned that Direct TV service for Claimant s home was being billed to Employer s credit card. (Finding of Fact No. 5.) Claimant did not have access to Employer s credit card or its account information at any time during her employment. (Finding of Fact No. 6.) During that timeframe, the credit card was maintained by Shatzer and in his possession. (Finding of Fact No. 7.) Claimant did not know Shatzer and is not connected with his department in any way. (Finding of Fact No. 8.) On July 16, 2013, Employer suspended Claimant for improper use of the company credit card. (Finding of Fact No. 9.) On July 19, 2013, Employer discharged Claimant for misuse of company resources, specifically, for using the company credit card to pay her personal Direct TV bill. (Finding of Fact No. 10.) Claimant has always maintained that her personal Direct TV service was linked to Employer s credit card in error. (Finding of Fact No. 11.) The local service center determined that Claimant was ineligible for benefits under section 402(e) of the Law. (Reproduced Record (R.R.) at 100a.) 2

3 Claimant appealed, and the case was assigned to a referee for a hearing. (R.R. at 81a.) Shatzer testified that his was the only name on Employer s credit card. (R.R. at 8a.) Shatzer stated that he discovered an unauthorized charge of $ from Direct TV and challenged the validity of the transaction. (R.R. at 8a-9a.) Shatzer testified that Employer received a Chargeback Adjustment Reversal Request from Direct TV on June 10, 2013, which listed the company s credit card number but also listed Claimant as the cardholder. (R.R. at 9a-10a, 65a-66a.) On crossexamination, Shatzer testified that he was unable to learn from Direct TV s representatives how Employer s credit card became linked to Claimant s personal account. (R.R. at 12a.) Jordan Statler (Statler), Employer s human resources generalist, testified that during a meeting, Claimant was unable to provide a plausible explanation as to how her personal Direct TV account was billed to Employer s credit card. (R.R. at 14a.) Statler stated that Employer suspended Claimant on July 16, 2013, and ultimately decided to terminate her employment on July 19, During crossexamination, Statler testified that although Employer determined that Claimant misused company property, there was not enough information to show how Claimant had obtained the company s credit card account information. (R.R. at 14a.) Claimant testified that she did not have access to Employer s credit card and did not use it. (R.R. at 15a.) Further, Claimant testified that, prior to July 16, 2013, she was not aware that Employer used Direct TV s service. Claimant added that her work telephone number was on her personal Direct TV account as a secondary telephone number. (R.R. at 15a.) During cross-examination, Claimant acknowledged that her cellular telephone number was listed on the Chargeback 3

4 Adjustment Reversal Request that Employer received from Direct TV. (R.R. at 17a, 65a.) Claimant testified that she contacted Direct TV on March 12, 2013, because she was not receiving bills for her monthly service in the mail. (R.R. at 18a.) Claimant stated that between March 2013 and June 4, 2013, she called Direct TV on multiple occasions to make payments on her account but was told that her account had a zero balance. (R.R. at 18a.) Claimant further testified that although she informed Direct TV s representatives that she had not been making payments on her account, they would not provide her information regarding how the payments were made. (R.R. at 18a.) Claimant testified that she was unaware that her personal account was linked to Employer s credit card until July 16, (R.R. at 19a.) Claimant added that she has refused to make a payment to Direct TV since March 2013, due to these errors and its inability to explain how her personal account was linked to Employer s credit card. (R.R. at 19a.) Finding Claimant s testimony that she was having billing difficulties with Direct TV credible, the referee found that Claimant did not intentionally cause the incident that resulted in her discharge. The referee reversed the service center s determination and held that Claimant was not ineligible for benefits under section 402(e) of the Law. (R.R. at 23a-24a.) Employer appealed to the Board, which issued the findings summarized above and affirmed the referee s decision. The Board noted that it did not question Employer s decision to discharge Claimant. However, the Board concluded that Employer failed to meet its burden of proving willful misconduct due to the lack of evidence of any intentional wrongdoing on Claimant s part. (R.R. at 105a-06a.) 4

5 On appeal to this Court, 2 Employer contends that the Board erred in concluding that Claimant was not ineligible for benefits under section 402(e) of the Law. Employer asserts that the record contains substantial evidence reflecting that Claimant misused company resources and that her actions amount to willful misconduct. Where an employer alleges willful misconduct based on a violation of the employer s work rule, the employer has the burden of proving the existence of a reasonable work rule and the fact of its violation. Teasley v. Unemployment Compensation Board of Review, 431 A.2d 1155, 1157 (Pa. Cmwlth. 1981). Once the employer satisfies its initial burden, the burden shifts to the claimant to prove good cause for her conduct. Id. Here, Employer established that it has a rule prohibiting direct or indirect misuse of company resources and property, which includes the company credit card. Employer contends that it also demonstrated Claimant s violation of the rule by evidence that the company credit card was linked to Claimant s personal Direct TV account. Employer maintains that Claimant must have accessed the card s information and authorized this connection in order for the billing to have occurred. Further, Employer notes that even purely circumstantial evidence of theft may support a finding of willful misconduct. Ford v. Unemployment Compensation Board of Review, 504 A.2d 427, 428 (Pa. Cmwlth. 1986). Although we have held that circumstantial evidence, if substantial, is sufficient to support a finding of willful misconduct, evidence is substantial only where it so preponderates in favor of the 2 Our scope of review is limited to determining whether constitutional rights have been violated, whether errors of law were committed, or whether findings of fact are supported by substantial evidence. Schneider v. Unemployment Compensation Board of Review, 12 A.3d 754, 756 n.1 (Pa. Cmwlth. 2010). 5

6 conclusion that it outweighs, in the fact finder's mind, [3] any inconsistent evidence and reasonable inferences drawn therefrom. Lombardo v. Unemployment Compensation Board of Review, 523 A.2d 1214, 1215 (Pa. Cmwlth. 1987) (citing Wysocki v. Unemployment Compensation Board of Review, 487 A.2d 71, (Pa. Cmwlth. 1985)). In Lombardo, the claimant was discharged for allegedly falsifying company records after his employer s investigation revealed inventory shortages before and after the claimant s deliveries to customers. 523 A.2d at We concluded that although the employer s investigation suggested that the claimant was responsible, this evidence did not definitively confirm the claimant s culpability and it was equally likely that misconduct by others resulted in the shortages. Id. at Therefore, we held that there was insufficient evidence to support a finding of willful misconduct on the claimant s part. Id. Here, the Board found that Claimant did not have access to Employer s credit card during the relevant timeframe, and that finding is supported by Claimant s testimony. Employer contends that the Board erred by emphasizing Claimant s lack of physical access to the company credit card because Claimant could have accessed the card s information through alternative means. However, it is well settled that questions of evidentiary weight are within the exclusive province of the Board. Elser v. Unemployment Compensation Board of Review, 967 A.2d 1064 (Pa. Cmwlth. 2009). Moreover, such speculation is not evidence, and, in fact, Employer did not present any evidence to establish that Claimant had access to the company s credit 3 In unemployment compensation cases, the Board is the ultimate finder of fact, empowered to resolve all questions of witness credibility and evidentiary weight. Elser v. Unemployment Compensation Board of Review, 967 A.2d 1064, 1069 n.8 (Pa. Cmwlth. 2009). 6

7 card information. Thus, as in Lombardo, the record does not conclusively establish that Claimant engaged in misconduct. Employer also asserts that Claimant s testimony lacks credibility, noting that Claimant did not produce any documentation from Direct TV containing her work telephone number to support her assertions. However, while the Board did not specifically credit Claimant s testimony, the initial burden of proof was on Employer to establish the existence of a work rule and the fact of Claimant s violation. Since Employer did not meet that initial burden, the burden never shifted to Claimant to present testimony or other evidence in rebuttal. Consequently, the credibility of Claimant s testimony is of no significance. Because Employer failed to prove that Claimant committed willful misconduct, the Board properly held that Claimant is not ineligible for benefits pursuant to section 402(e) of the Law. Lombardo. Accordingly, we affirm the Board s order. PATRICIA A. McCULLOUGH, Judge 7

8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Summit Physician Services, : Petitioner : : No. 342 C.D v. : : Unemployment Compensation : Board of Review, : Respondent : ORDER AND NOW, this 26 th day of September, 2014, the order of the Unemployment Compensation Board of Review, dated February 7, 2014, is affirmed. PATRICIA A. McCULLOUGH, Judge