A.L. Craig v. UCBR ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ann L. Craig, :
: No. 1780 C.D. 2015
Petitioner : Submitted: March 18, 2016
:
v. :
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: May 20, 2016
Ann L. Craig (Claimant) petitions for review of the August 3, 2015, order
of the Unemployment Compensation Board of Review (UCBR) affirming the decision
of a referee to deny Claimant unemployment compensation (UC) benefits. The UCBR
determined that Claimant was ineligible for UC benefits because she was discharged
from work for willful misconduct under 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).
Section 402(e) of the Law provides that “[a]n employe shall be ineligible for compensation for any
week . . . [i]n which [her] unemployment is due to [her] discharge . . . from work for willful
misconduct connected with [her] work.” 43 P.S. §802(e).
Claimant worked full-time as a staff accountant for the Coalition to End
Childhood Lead Poisoning (Employer) from November 10, 2008, through March 4,
2015. (Findings of Fact, No. 1.) Employer’s financial internal controls policy (Controls
Policy) states that all disbursements must be made by check. (Id., No. 2.) Claimant
signed an acknowledgment of Employer’s Controls Policy. (Id., No. 3; N.T., 5/27/15, at
7; Employer’s Ex. 5.)
In January 2015, a check that Employer had mailed to its workers’
compensation (WC) insurance carrier was returned to Employer due to an incorrect
address. (Findings of Fact, No. 4.) Claimant then paid the WC insurance carrier by a
bank transfer over the telephone. (Id., No. 5.) Claimant did not discuss this matter with
Employer before making the bank transfer. (Id., No. 6.) Employer confronted Claimant
after Employer received a cancellation notice from its WC insurance carrier, and
Claimant admitted that she violated Employer’s Controls Policy. (Id., Nos. 7-8.) On
January 21, 2015, Ruth Ann Norton, Employer’s president and chief executive officer,
informed Claimant that her disbursement by telephone was a serious infraction to which
Employer was considering its response. (Id., No. 9.) On March 4, 2015, Employer
discharged Claimant for making a disbursement by telephone. (Id., No. 10.)
Claimant filed a claim for UC benefits, which the local service center
granted. Employer appealed to a referee, who held a telephone hearing on May 27,
2015. Claimant testified that when she received the returned check in January 2015, she
made the disbursement by telephone. (N.T., 5/27/15, at 41.) Claimant testified that she
did not believe she was violating Employer’s Controls Policy at the time she made the
disbursement. (Id. at 44.) Claimant testified that she did not consult anyone before
2
making the disbursement by telephone but informed Victor Arthur, Employer’s
comptroller, after the fact. (Id. at 46.) Claimant testified that she did not remember
why she did not consult anyone before making the disbursement. (Id. at 55.)
Norton testified on behalf of Employer. Norton testified that Employer’s
Controls Policy requires that disbursements be made by check. (Id. at 20; Employer’s
Ex. 4.) Norton testified that the purpose of this requirement is to enable Employer to
track disbursements and prevent unauthorized transactions. (N.T., 5/27/15, at 17.)
Norton testified that Employer does not permit its employees to make disbursements by
telephone. (Id. at 24-25.) Norton also testified that Claimant knew that Employer’s
Controls Policy prohibited disbursements by telephone. (Id. at 23-24.) Norton testified
that when she met with Claimant to discuss the disbursement, Claimant admitted that
her conduct violated Employer’s Controls Policy. (Id. at 14-15.) Finally, Norton
testified that she did not immediately discharge Claimant because she wanted to gather
information about Claimant’s violation and discuss the matter with Employer’s board of
directors and financial officers. (Id. at 18-19.)
Thomas Bellew also testified on Employer’s behalf. Bellew was
Employer’s chief financial officer from April 2014 through March 2015. (Id. at 30.)
Bellew testified that Claimant trained him on Employer’s Controls Policy when he was
first hired. (Id. at 30-31.) Bellew testified that Claimant’s disbursement by telephone
constituted an unauthorized bank transfer. (Id. at 32.) Bellew testified that in order to
make a bank transfer, the staff accountant must complete a transmittal approval form.
(Id.) Bellew testified that Employer does not permit bank transfers by telephone. (Id. at
3
36.) Bellew testified that “having a signed check is not the same as having approval to
make a bank transfer.” (Id.)
Arthur also testified on Employer’s behalf. Arthur testified that Employer
first learned of the disbursement at issue when he reviewed a cancellation notice from
Employer’s WC insurance carrier. (Id. at 49.) Arthur testified that he asked Claimant
about the disbursement and Claimant acknowledged that she made the disbursement by
telephone. (Id.)
The referee resolved all conflicts in the testimony in Employer’s favor.
(Ref.’s Decision at 2.) The referee determined that Employer’s Controls Policy
prohibited disbursements by telephone, Claimant was aware of the Controls Policy, and
Claimant breached the Controls Policy by making a disbursement by telephone. (Id.)
The referee found that Claimant did not inform Employer that she made a disbursement
by telephone until after Employer confronted her. (Id.) Additionally, the referee
credited Norton’s testimony that the delay in Claimant’s discharge was due to
Employer’s investigation of Claimant’s disbursement by telephone. (Id.) Claimant
appealed to the UCBR, which adopted the referee’s findings of fact and conclusions of
law and affirmed. Claimant now petitions this court for review of that decision.2
First, Claimant argues that the UCBR erred in determining that she
engaged in willful misconduct. We disagree.
2
Our review is limited to determining whether constitutional rights were violated, whether an
error of law was committed, or whether the findings of fact were unsupported by substantial evidence.
Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
4
“Willful misconduct” is defined as: (1) a wanton and willful disregard of
the employer’s interests; (2) a deliberate violation of the employer’s rules or policies;
(3) a disregard of the standards of behavior that an employer rightfully can expect from
its employees; or (4) negligence that manifests culpability, wrongful intent, evil design,
or an intentional and substantial disregard of the employer’s interests or the employee’s
duties and obligations. Oliver v. Unemployment Compensation Board of Review, 5
A.3d 432, 438 (Pa. Cmwlth. 2010) (en banc). When a claimant is discharged for
violating the employer’s policy, the employer bears the burden of proving the existence
of the policy, that the policy was reasonable, and that the claimant was aware of and
violated the policy. Rothstein v. Unemployment Compensation Board of Review, 114
A.3d 6, 9 (Pa. Cmwlth. 2015). If the employer satisfies its burden, the burden shifts to
the claimant to establish that she had good cause for violating the employer’s policy. Id.
“Good cause is demonstrated if the claimant’s conduct was justified or reasonable under
the circumstances.” Id.
Here, Employer’s Controls Policy states that disbursements must be made
by check. The UCBR credited Norton’s and Bellew’s testimony that disbursements by
telephone are not permitted under the specific language of the Controls Policy.
Claimant did not contradict Norton’s and Bellew’s testimony that Employer prohibits
disbursements by telephone because they would jeopardize the security and
accountability of Employer’s finances. Based on Claimant’s signed acknowledgement
and Norton’s and Bellew’s credited testimony, the UCBR found that Claimant was
aware of and had trained other employees in the Controls Policy. Finally, Claimant did
not contradict the credited testimony of Employer’s witnesses that Claimant admitted
5
that her disbursement by telephone violated the Controls Policy. Therefore, Employer
met its burden.
The burden then shifted to Claimant to establish good cause for violating
Employer’s Controls Policy. Claimant testified that she made the disbursement by
telephone in order to prevent Employer’s WC insurance coverage from being cancelled.
However, Claimant’s conduct was not reasonable under the circumstances because she
admitted that she failed to consult a supervisor before she made a disbursement that
violated Employer’s Controls Policy. At the hearing, Claimant could not explain why
she failed to take these precautions. Therefore, Claimant failed to establish good cause
for violating Employer’s Controls Policy.
Second, Claimant argues that the remoteness doctrine precludes a finding
of willful misconduct because of the delay in her discharge from employment. We
disagree.
The remoteness doctrine provides that “[a]n incident of willful misconduct
cannot be so temporally remote from the ultimate dismissal and still be the basis for a
denial of benefits.” Tundel v. Unemployment Compensation Board of Review, 404 A.2d
434, 436 (Pa. Cmwlth. 1979). However, the remoteness doctrine does not apply “where
the record establishes an explanation for the delay . . . and there is no action on the part
of the employer indicating that it condoned the claimant’s conduct.” Raimondi v.
Unemployment Compensation Board of Review, 863 A.2d 1242, 1247 (Pa. Cmwlth.
2004).
6
Here, Claimant made a disbursement by telephone in January 2015 and was
discharged for that conduct on March 4, 2015. The UCBR credited Norton’s testimony
that the delay was due to Employer’s investigation into Claimant’s conduct. Norton
explained that she needed to gather information about Claimant’s violation and discuss
the matter with Employer’s board of directors and financial officers. Claimant argues
that the referee and UCBR erred in crediting Norton’s testimony. However, the UCBR
is the ultimate factfinder and arbiter of witness credibility. Procito v. Unemployment
Compensation Board of Review, 945 A.2d 261, 262 n.1 (Pa. Cmwlth. 2008) (en banc).
Additionally, Claimant does not point to any instance where Employer indicated that it
condoned Claimant’s conduct. Therefore, the remoteness doctrine is inapplicable and
did not preclude the UCBR’s finding of willful misconduct.
Accordingly, we affirm.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ann L. Craig, :
: No. 1780 C.D. 2015
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 20th day of May, 2016, we hereby affirm the August 3,
2015, order of the Unemployment Compensation Board of Review.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge