IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kathleen R. Ames, : Petitioner : : v. : No. 1503 C.D. 2011 : Submitted: January 13, 2012 Unemployment Compensation : Board of Review, : Respondent : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: February 23, 2012 In this appeal, Kathleen R. Ames (Claimant), representing herself, petitions for review from an order of the Unemployment Compensation Board of Review (Board) that denied her claim for benefits under Section 402(e) of the Unemployment Compensation Law (Law) (related to willful misconduct). 1 Claimant contends the Board s findings are not supported by the evidence, and her actions did not constitute willful misconduct. Furthermore, Claimant argues she was denied due process at the referee s hearing. Upon review, we affirm. I. Background Claimant was a long term employee at the Brodhead Animal Hospital (Employer) as a full-time manager and technician. During Claimant s 802(e). 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
employment, Employer allowed its employees to purchase animal food, supplies, and medication at 20% over cost, and it provided free veterinary care for up to four of an employee s animals. In 2009, Dr. Bryn Van Way (Dr. Van Way) took over the management of Employer. At that time, Claimant and Dr. Van Way were friends; however, the relationship subsequently deteriorated. In January 2010, during an otherwise routine day, Dr. Van Way asked Claimant if she completed making her work schedule for the next month. In a loud and angry tone, Claimant responded she had not. Displeased with the answer, Dr. Van Way questioned Claimant about her completion of her various other work duties. Claimant continued to abrasively answer in the negative. The entire exchange occurred within 10 to 15 feet of a patient room where another employee was with clients. Approximately an hour later, Dr. Van Way approached Claimant with another question. At that time, Dr. Van Way noticed Claimant using her cell phone to make a personal call, and warned her not to do so at work. In response, Claimant became belligerent. Claimant picked up her purse and cell phone, and carried them to a co-worker. Claimant directed the co-worker to hold on to her belongings so she could not violate any rules. Additionally, Claimant alleged Dr. Van Way s questioning was proof that she was trying to make her quit. Two days later, Employer terminated Claimant s employment for her insubordinate behavior. After Claimant s termination, Employer examined its inventory, which Claimant previously maintained, and discovered several irregularities. Such 2
irregularities involved missing pet food and medication. Additionally, Employer noticed Claimant had a large number of irregular timecard punch-ins. Based on this inquiry, Employer believed Claimant committed several thefts during her employment. Subsequently, Claimant applied for unemployment benefits, which were initially denied. Thereafter, Claimant appealed, and a hearing ensued. At the referee s hearing, both parties were represented by counsel. Employer presented the testimony of Dr. Van Way and two other witnesses, and Claimant testified on her own behalf. Employer asserted Claimant should not be eligible for benefits because of her insubordinate behavior toward her supervisor and the after-discovered theft. In response, Claimant testified she was not hostile towards her supervisor; rather, it was Dr. Van Way who had been short and unprofessional with her. Moreover, Claimant explained that there were legitimate explanations for the inventory discrepancies. After the hearing, the referee determined Claimant s behavior constituted willful misconduct, and he affirmed the denial of benefits. Specifically, the referee concluded that Claimant s defiant and disrespectful yelling at Dr. Van Way, which could be heard by clients, was willful misconduct. Furthermore, the referee determined Claimant committed additional willful misconduct by making personal purchases on Employer s accounts without paying Employer, and excessively changing her timesheets. With regard to 3
improper purchases, the referee concluded the theft was limited to the missing dog food. Moreover, the referee concluded that the consideration of after-discovered evidence was appropriate in this case because Claimant concealed her actions during the course of her employment and because such behavior would have been cause for termination. Therefore, the referee determined Claimant s thefts were an additional ground for a finding of willful misconduct. Thus, the referee denied Claimant benefits. Claimant appealed. Upon review, the Board affirmed. After making its own findings, the Board determined Claimant s outburst in January 2011 constituted insubordination, and fell below the standard of behavior Employer had a right to expect of Claimant. Furthermore, as Employer s request about Claimant s performance of basic job duties was reasonable, Claimant lacked good cause for her conduct. Additionally, the Board determined Claimant engaged in willful misconduct based on her theft of Employer s de-wormer and flea medication. The Board noted that the record was unclear whether Claimant stole the pet food, but sufficient evidence established she stole the missing medications. The Board further determined that although Employer discovered the theft after it terminated Claimant s employment, it constituted grounds for denial of Claimant s benefits because Claimant concealed the behavior during her employment. Claimant petitions for review. 2 2 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. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc). Whether a claimant s conduct rises to the level of willful (Footnote continued on next page ) 4
II. Issues In her brief, Claimant argues the Board s determinations that she behaved insubordinately toward her supervisor, and stole from Employer are not supported by substantial evidence, and do not constitute willful misconduct. 3 Moreover, Claimant objects to the manner in which the referee conducted the initial hearing as a violation of due process. III. Analysis 1. Due Process Claimant argues that during the referee s hearing she was unfairly prevented from fully answering questions, while Employer s witnesses were permitted to testify uninterrupted. Claimant does not contend the referee erred in ruling on any particular evidence, nor does she cite to the record in support of her claims. Rather, Claimant essentially asserts dissatisfaction with her attorney s performance in presenting her case. However, to the extent it is raised, the right to effective assistance of counsel has never been extended beyond the criminal context in this state. See Wilkins v. Unemployment Comp. Bd. of Review, 502 A.2d 283 (Pa. Cmwlth. 1985). Therefore, such claim lacks merit here. Furthermore, it is evident the referee remained impartial in the production of (continued ) misconduct is a question of law fully reviewable on appeal. Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 550 Pa. 115, 703 A.2d 452 (1997). 3 In support of her argument, Claimant attaches 10 documents to her brief that were not previously submitted to the referee, and thus, were not properly before the Board on appeal. Therefore, we cannot consider these documents as part of our review. See Grever v. Unemployment Comp. Bd. of Review, 989 A.2d 400 (Pa. Cmwlth. 2010). 5
evidence, while ensuring the creation of a sufficient record. See Vann v. Unemployment Comp. Bd. of Review, 508 Pa. 139, 494 A.2d 1081 (1985). Thus, as Claimant s due process challenge lacks force, we address her remaining arguments. 2. Willful Misconduct Section 402(e) of the Law provides, [a]n employe shall be ineligible for compensation for any week [i]n which his unemployment is due to his discharge from work for willful misconduct connected with his work. 42 P.S. 802(e). Our Supreme Court defines willful misconduct as behavior that evidences a willful disregard of the employer s interest, a deliberate violation of the employer s work rules, or a disregard of the standards of behavior an employer can rightfully expect from its employees. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 341 (Pa. Cmwlth. 2008) (citing Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 550 Pa. 115, 703 A.2d 452 (1997)). A. Insubordinate Language Vulgar, abusive, or offensive language directed at a superior constitutes willful misconduct, unless the language was provoked or de minimis. Luketic v. Unemployment Comp. Bd. of Review, 386 A.2d 1045 (Pa. Cmwlth. 1978); Costa v. Unemployment Comp. Bd. of Review, 374 A.2d 1012 (Pa. Cmwlth. 1977). However, raising legitimate questions to an employer s actions is not willful misconduct, even where coupled with an employee s bad attitude. Luketic. Mere talking back to a supervisor is not willful misconduct. Dincher v. 6
Unemployment Comp. Bd. of Review, 502 A.2d 797, 800 (Pa. Cmwlth. 1986); Cundiff v. Unemployment Comp. Bd. of Review, 489 A.2d 948 (Pa. Cmwlth. 1985) (employee telling a supervisor to get off her back once was de minimis). Here, Claimant contends the record does not support the Board s determination that she engaged in willful misconduct during her confrontation with her supervisor. However, the Board s findings related to Claimant and Dr. Van Way s interactions are supported by substantial evidence. Bd. Op., Findings of Fact (F.F.) Nos. 6-12; Notes of Testimony (N.T.), 4/5/11, at 10-12, 43-44. Furthermore, Claimant s public animosity toward Dr. Van Way was in disregard of the standards of behavior Employer could rightfully expect from its employees. See Allen v. Unemployment Comp. Bd. of Review, 638 A.2d 448 (Pa. Cmwlth. 1994) (unprovoked animosity coupled with offensive language is willful misconduct). Although Employer did not contend Claimant s combativeness included the use of expletives, her behavior was nonetheless offensive, and it was not provoked or de minimis. See Strong v. Unemployment Comp. Bd. of Review, 459 A.2d 57 (Pa. Cmwlth. 1983) (defiantly debating with a supervisor over assignments is willful misconduct even if statements lack vulgarity). Claimant s hostile behavior directed at the managing veterinarian occurred within a small office in front of employees and within earshot of clients. N.T. at 10-12. Additionally, Claimant did not have a legitimate objection for Employer, but rather was purely combative and hostile in reaction to reasonable questions. Id.; see Strong (combativeness in front of other employees, if not legitimate, is willful 7
misconduct); cf. Cundiff (with no clients present a single rude remark was not willful misconduct). Therefore, we reject Claimant s argument. B. Theft Theft, as it is a willful disregard of the standards of behavior an employer can rightfully expect, constitutes willful misconduct. See Temple Univ. of the Cmwlth. Sys. of Higher Educ. v. Unemployment Comp. Bd. of Review, 565 Pa. 178, 772 A.2d 416 (2001). To prove a claimant s actions constituted theft, an employer may rely solely on circumstantial evidence. Ford v. Unemployment Comp. Bd. of Review, 504 A.2d 427 (Pa. Cmwlth. 1981). To disqualify an employee from benefits under Section 402(e) of the Law an employer must prove the employee engaged in willful misconduct, and the misconduct was the actual reason the employer terminated the employee s employment. PrimePay, LLC v. Unemployment Comp. Bd. of Review, 962 A.2d 684 (Pa. Cmwlth. 2008) (en banc). However, this Court, in Preservation Pennsylvania v. Unemployment Compensation Board of Review, 673 A.2d 1044 (Pa. Cmwlth. 1996), carved out an exception to the general rule. Thus, an employer may meet its burden by proving through after-discovered evidence that the employee engaged in willful misconduct, that he concealed such conduct, and that the employer would have terminated the employee had it known of the employee s actions during his employment. PrimePay, LLC. Here, Claimant contends the Board s finding that she committed and concealed thefts lacks record support. See F.F. Nos. 14-16. Contrary to 8
Claimant s assertions, however, substantial evidence supports the Board s findings. 4 It is undisputed Employer provided its employees with free veterinary care for up to four animals, and provided pet supplies, food and medication at 20% over cost. F.F. No. 2. In accordance with this arrangement, Dr. Van Way permitted Claimant to order horse de-wormer from a vendor. N.T. at 18. As proof of Claimant s order, Employer submitted the invoice into evidence. N.T. at 17. According to Dr. Van Way, after purchasing the medicine, Claimant should have submitted the invoice to Employer s accountant for it to be applied to her account. N.T. at 19. However, Dr. Van Way testified Claimant never submitted the invoice to the accountant. As a result, she received the de-wormer without paying for it. Id. Thus, substantial evidence supports the Board s finding that Claimant committed theft by purchasing horse de-wormer on Employer s account and not paying for it. See Ford. Additionally, substantial evidence supports the Board s determination that Claimant took 108 doses of flea medication from Employer without paying for them. On this issue, Dr. Van Way testified that during her employment Claimant was responsible for maintaining the inventory. N.T. at 28. However, upon examination of the inventory after Claimant s termination, Dr. Van Way 4 Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Brown v. Unemployment Comp. Bd. of Review, 854 A.2d 626 (Pa. Cmwlth. 2004). In determining whether substantial evidence exists, we view the record in the light most favorable to the party that prevailed below and give that party the benefit of all reasonable and logical inferences that can be drawn from the evidence. Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106 (Pa. Cmwlth. 2004). 9
discovered 109 doses of flea medication were missing. N.T. at 20. 5 Dr. Van Way testified that according to the computerized inventory history, Claimant previously adjusted the remaining doses from 108 to zero, without them being sold or returned to the vendor. Id. Furthermore, Dr. Van Way explained that Claimant had four animals that could use the missing medicine. Id. Other than Claimant s alleged theft, Dr. Van Way claimed she could not account for what happened to the missing flea medication. Id. In response to these allegations, Claimant did not present credible evidence in defense of her actions. Bd. Op. at 4; N.T. 50-53; See Bruce v. Unemployment Comp. Bd. of Review, 2 A.3d 667 (Pa. Cmwlth. 2010) (determinations of credibility and evidentiary weight fall within the province of the Board). Accordingly, when viewing the evidence in the light most favorable to Employer, the prevailing party before the fact-finder, substantial circumstantial evidence supports the Board s inference that Claimant committed the theft of the horse de-wormer and the 108 doses of flea medication. See Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106 (Pa. Cmwlth. 2004). Furthermore, Claimant concealed her thefts, and Employer did not know of them until it audited the inventory. See PrimePay, LLC. Therefore, as substantial evidence supports the Board s determination that Claimant committed willful misconduct, and concealed this misconduct during her employment, Claimant s argument is meritless. 5 Dr. Van Way testified to 109 doses of flea medication missing, however, only 108 doses are in dispute at this time. 10
Accordingly, we affirm. ROBERT SIMPSON, Judge 11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kathleen R. Ames, : Petitioner : : v. : No. 1503 C.D. 2011 : Unemployment Compensation : Board of Review, : Respondent : O R D E R AND NOW, this 23 rd day of February, 2012, the order of the Unemployment Compensation Board of Review is AFFIRMED. ROBERT SIMPSON, Judge