K.L. Quiambao v. UCBR ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kathiren L. Quiambao, :
Petitioner :
:
v. : No. 1247 C.D. 2015
: Submitted: January 29, 2016
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: March 23, 2016
Kathiren L. Quiambao (Claimant) petitions this Court for review of an
order of the Unemployment Compensation Board of Review (Board), denying
Claimant unemployment compensation benefits under Section 402(e) of the
Unemployment Compensation Law (Law).1 For the reasons discussed below, we
affirm.
The facts as found by the Board are as follows:
1. The claimant was employed by
Santander/Sovereign Bank [(Employer)] as a teller
at the rate of $11.22 per hour which began
October 31, 2012 and last worked on
February 2, 2015.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
2. The employer’s code of conduct states in relevant
part: “All records should accurately reflect
transactions in a timely manner. Incorrect o[r]
misleading entries shall be corrected immediately.
Falsification of records or transactions shall be
grounds for termination.”
3. The claimant was aware of this provision.
4. The employer’s handbook states that fraud,
dishonesty or theft, including falsification of bank
or employment records may result in immediate
discharge.
5. This provision also prohibits “the disregard or
violation of any transaction restriction or
procedures.”
6. The claimant was aware of these provisions.
7. At the end of the day tellers must settle their
drawers.
8. This involves actually counting the money in one’s
drawer and transferring the information on a
“money movement document” that is imputed into
the employer’s system.
9. The employer also has a similar procedure to
settling the vault as it also involves the actual
counting of money in the vault before placing that
information on the Money Movement Document.
10. When an employee signs a Money Movement
Document they are verifying that the amounts
listed are the correct amounts.
11. On January 8, 2015, the vault settlement was under
dual control of the claimant and the head teller.
12. This means that each were required to count the
cash in the vault to verify the information placed
on the Money Movement Document.
13. Both the head teller and the claimant signed the
completed Money Movement Document for the
vault at the end of the day.
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14. The claimant then imputed the information from
the Money Movement Document into the
employer’s system.
15. The employer subsequently discovered that the
vault settlement was $500.00 off.
16. The employer conducted an investigation during
which the claimant admitted that she never
counted the money in the vault and she just relied
upon the numbers put on the Money Movement
Document for the vault by the head teller.
17. The employer also learned that the head teller
never counted the money in the vault as well.
18. Because the claimant deliberately signed the
Money Movement Document without counting the
money in the vault, the employer considered the
claimant’s actions to be a form of dishonesty.
19. The claimant alleges in her testimony that she did
not count the money in the vault because the head
teller had already completed the Money Movement
Document, and she told the claimant to just sign it.
20. The claimant never made such an assertion when
the employer was conducting its investigation.
21. The employer discharged both the claimant and the
head teller for dishonesty.
(Certified Record (C.R.), Item No. 11 at 1-3.)
The Board concluded that Claimant was ineligible for benefits:
Based upon the above Findings [of Fact], which are
supported by the employer’s credible testimony, the
Board concludes that the claimant’s deliberate policy
violations rise to the level of willful misconduct. The
claimant was aware of the employer’s prohibition against
dishonesty and she knew that she was required to
actually count the cash when settling the vault on
January 8, 2015. She also knew that when she signed the
Money Movement Document on January 8, 2015, she
was verifying that the amounts listed were the correct
amounts. The claimant deliberately violated employer
policy when she signed the Money Movement Document
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without ever counting the money in the vault and simply
relied upon the numbers put on the document by the head
teller. The Board does not find credible the claimant’s
assertion that the head teller told her to do so and that
she was only following orders. Therefore, the claimant is
ineligible for benefits under Section 402(e) of the Law.
(C.R., Item No. 11 at 3 (emphasis added).)
On appeal to this Court,2 Claimant, appearing pro se, argues that the
Board’s findings are not supported by substantial evidence and that the Board erred
as a matter of law in concluding that her actions constituted willful misconduct.
Substantial evidence is defined as relevant evidence upon which a
reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of
Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is
substantial evidence to support the Board’s findings, this Court must examine the
testimony in the light most favorable to the prevailing party, giving that party the
benefit of any inferences that can logically and reasonably be drawn from the
evidence. Id. A determination as to whether substantial evidence exists to support
a finding of fact can only be made upon examination of the record as a whole.
Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The
Board’s findings of fact are conclusive on appeal only so long as the record, taken
as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson,
485 A.2d 359, 365 (Pa. 1984). “The fact that [a party] may have produced
witnesses who gave a different version of the events, or that [the party] might view
2
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
4
the testimony differently than the Board is not grounds for reversal if substantial
evidence supports the Board’s findings.” Tapco, Inc. v. Unemployment Comp. Bd.
of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if
evidence exists in the record that could support a contrary conclusion, it does not
follow that the findings of fact are not supported by substantial evidence. Johnson
v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
The Board, as the finder of fact, is empowered to resolve conflicts in the evidence
and make credibility determinations, and we may not disturb those resolutions on
appeal. See Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388
(Pa. 1985) (“Questions of credibility and the resolution of evidentiary conflicts are
within the sound discretion of the Board, and are not subject to re-evaluation on
judicial review.”).
Claimant does not identify specific Findings of Fact as unsupported
by substantial evidence. Claimant states that “her Supervisor, who instructed her
to sign the Document and miscounted the figures, was neither terminated nor
disciplined in any way.” (Claimant’s Br. at 13.) This appears to be a challenge to
Finding of Fact No. 21, which states that Employer discharged the head teller as
well as Claimant. This finding is clearly supported by substantial evidence,
however, because Employer’s branch manager testified that the head teller was
discharged. (C.R., Item No. 8 at 11.) Furthermore, the Board explicitly credited
Employer’s testimony, thus resolving any evidentiary conflicts in Employer’s
favor. (C.R., Item No. 11 at 3.) Next, Claimant essentially argues that the Board’s
findings are not supported by substantial evidence because the Board did not credit
her testimony that she was only following orders when she failed to count the
money in the vault prior to signing off on the Money Movement Document.
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Credibility determinations, however, are within the sole province of the Board and
are not subject to re-evaluation by this Court. See Peak, 501 A.2d at 1388. We
conclude, therefore, that the Board’s Findings of Fact are supported by substantial
evidence.3
Claimant argues that the Board erred in concluding that her behavior
constituted willful misconduct. Whether or not an employee’s actions amount to
willful misconduct is a question of law subject to review by this Court. Nolan v.
Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
Section 402(e) of the Law provides, in part, that an employee shall be ineligible for
compensation for any week in which “his unemployment is due to his discharge or
temporary suspension from work for willful misconduct connected with his work.”
The employer bears the burden of proving that the claimant’s unemployment is due
to the claimant’s willful misconduct. Walsh v. Unemployment Comp. Bd. of
Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term “willful misconduct” is
not defined by statute. The courts, however, have defined “willful misconduct” as:
(a) wanton or willful disregard for an employer’s
interests; (b) deliberate violation of an employer’s rule;
(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 Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003).
Where a claimant is discharged for a work rule violation, the employer bears the
3
To the extent Claimant may have attempted to challenge other findings, we have
reviewed the record and conclude that there is ample evidence to support the Board’s Findings of
Fact.
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burden of proving the existence of the work rule, and that the claimant violated the
rule. Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 703 A.2d 452, 456
(Pa. 1997). The burden then shifts to the claimant to show that she had good cause
for violating the rule. ATM Corp. of Am. v. Unemployment Comp. Bd. of Review,
892 A.2d 859, 865 (Pa. Cmwlth. 2006).
Here, Claimant does not dispute that she violated Employer’s policy
requiring her to count the cash in the vault before signing off on the Money
Movement Document. Instead, Claimant argues that her violation of the policy
does not rise to the level of willful misconduct for three reasons: (1) the failure to
follow Employer’s policy was an isolated incident; (2) she was not willfully
attempting to commit misconduct; and (3) her behavior was justified because she
was simply following her supervisor’s instructions.
Although Claimant is correct in her assertion that a single instance of
misconduct does not always rise to the level of willful misconduct, “[t]his Court
has stated several times before that a single dereliction of duty may constitute
willful misconduct, where such conduct is more than of a minor, casual or
insignificant nature, and where, as here, there is a knowing violation of an
[e]mployer’s instructions.” Maikits v. Unemployment Comp. Bd. of Review,
456 A.2d 1157, 1159 (Pa. Cmwlth. 1983). We do not view Claimant’s failure to
verify the amount of money in Employer’s vault as minor, casual, or insignificant
in nature, and Claimant offers no argument as to why her violation should be
viewed as such. As to Claimant’s second assertion, we note that an intent to
commit misconduct is unnecessary; it is sufficient that Claimant deliberately
violated Employer’s policy. See Grieb, 827 A.2d at 425 (defining willful
misconduct as a “deliberate violation of an employer’s rule”). Lastly, as to
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Claimant’s argument that her violation of Employer’s policy was justified because
she was following her supervisor’s instructions, we note that the Board explicitly
rejected Claimant’s testimony on this issue, finding that “[C]laimant’s assertion
that the head teller told her to do so and that she was only following orders” was
not credible. (C.R., Item No. 11 at 3). As noted above, credibility determinations
are within the sole province of the Board and are not subject to re-evaluation by
this Court. See Peak, 501 A.2d at 1388. Because the Board rejected Claimant’s
testimony as not credible, there is no evidence in the record on which we could
base a conclusion that Claimant’s actions were justified. We, therefore, reject
Claimant’s argument that her actions did not rise to the level of misconduct.
For the reasons discussed above, the order of the Board is affirmed.
P. KEVIN BROBSON, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kathiren L. Quiambao, :
Petitioner :
:
v. : No. 1247 C.D. 2015
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 23rd day of March, 2016, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.
P. KEVIN BROBSON, Judge