D. Pchelkin v. UCBR ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Denis Pchelkin, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1523 C.D. 2018
Respondent : Submitted: September 13, 2019
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: December 13, 2019
Denis Pchelkin (Claimant) petitions for review of the October 25, 2018
order of the Unemployment Compensation Board of Review (Board) affirming the
decision of the referee to deny Claimant unemployment compensation benefits
(benefits) under Section 402(e) of the Unemployment Compensation Law (Law),1
which provides that a claimant shall be ineligible for benefits in any week in which
his unemployment is due to willful misconduct connected with his work. Upon
review, we affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e).
Claimant worked full-time as a field consultant trainee for 7-Eleven,
Inc. (Employer) from July 31, 2017 through February 21, 2018. Certified Record
(C.R.), C.R., Board’s Decision & Order at 1, Finding of Fact (F.F.) 1. Claimant
served as a store manager and was in training to become a district manager. Board’s
F.F. 2. Employer has a policy prohibiting non-employees from working at
Employer’s worksites, due to wage and hour, safety and liability concerns. Board’s
F.F. 3; see also Employer’s Policy at 2, Reproduced Record (R.R.) at 37a.2 Claimant
was or should have been aware of this policy. Board’s F.F. 5. Employer discovered
through reports from associates and a field consultant, who was Claimant’s mentor,
that Claimant permitted a non-employee, his girlfriend, to work in the store. Board’s
F.F. 6; Referee’s F.F .4, R.R. at 31a. Employer confirmed these reports by remotely
reviewing in-store camera footage and sending officials to the store. Board’s F.F. 7.
Claimant’s girlfriend was resetting shelves, discussing ways to improve the store
with Claimant and spent between two and four hours at Claimant’s store. Board’s
F.F. 8.3 Claimant was assigned different areas of the store to manage and re-
categorize, and Claimant’s girlfriend was observed with papers in her hands, doing
“shelving” and other tasks in several areas of the store. Board’s F.F. 9. Employer
discharged Claimant for violating its policy by allowing his girlfriend to work in the
store. Board’s F.F. 10.
Claimant thereafter applied for and was denied benefits by the Indiana
Unemployment Compensation Service Center (UC Service Center) pursuant to
2
Employer’s “Non-Store Employee Information and Acknowledgement” provides, in a
section titled “Employee Safety,” that “[o]nly authorized, on-duty employees are permitted to
perform any work in or around the store.” Employer’s Policy at 2, R.R. at 37a.
3
Claimant testified that there were two occasions when his girlfriend ‘waited’ in the
store—once for about two hours, and another time for around four hours. See Hearing, 5/24/18,
Transcript of Testimony (T.T.) at 26, R.R. at 27a.
2
Section 402(e) of the Law, 43 P.S. § 802(e). UC Service Center Determination at 1,
R.R. at 38a.
Claimant appealed to a referee, who conducted a hearing at which
Claimant, Employer’s human resource business partner, Employer’s market
manager and Employer’s tax consultant representative appeared. Hearing, 5/24/18,
Transcript of Testimony (T.T.) at 1-2, R.R. at 1a-2a. The referee affirmed the UC
Service Center’s determination, finding that Employer met its burden of proving that
Claimant was discharged for willful misconduct in connection with his work
pursuant to Section 402(e) of the Law, 43 P.S. § 802(e). Referee’s Decision & Order
at 3, R.R. at 32a. Claimant then appealed to the Board, which affirmed the referee’s
denial of benefits. C.R., Board’s Decision & Order at 3. The Board found that
Claimant committed willful misconduct by violating Employer’s work rule, thereby
precluding eligibility for benefits under Section 402(e) of the Law. Id. at 2-3.
Before this Court,4 Claimant contends that violating an employer’s
work policy does not constitute willful misconduct when the employer previously
tolerated the same violation of its work policy. Claimant’s Brief at 22 (citing Penn
Photomounts, Inc. v. Unemployment Comp. Bd. of Review, 417 A.2d 1311, 1314-15
(Pa. Cmwlth. 1980)). Claimant further asserts that “[a]n employer’s tolerance of the
employee’s conduct need not be explicit.” Id. (quoting Betres Grp., Inc. v.
Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1607 C.D. 2016, filed Feb.
26, 2018), slip op. at 6-7).5 Claimant relies on Penn Photomounts, a case in which
4
This Court’s review is limited to a determination of whether substantial evidence
supported necessary findings of fact, whether errors of law were committed or whether
constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014).
This Court’s unreported memorandum opinions may be cited for persuasive value.
5
Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code § 69.414(a).
3
this Court held that a claimant could not have been found to have committed willful
misconduct for violating employer’s formal policy for reporting absences, where the
employer had tolerated a less formal reporting procedure. Id.
Claimant contends that, here, record evidence supports that Employer
did not strictly enforce its policy, as it had tolerated the decision of Michael Murphy
(Murphy), the field consultant at the store and also Claimant’s coach,6 to allow a
homeless man to work at the store for several weeks and did not terminate Murphy
for his actions. Claimant’s Brief at 22; T.T. at 7, R.R. at 8a. Claimant asserts that
because Murphy was a field consultant for the store, effectively Claimant’s
supervisor and mentor, and also a “higher-level individual representative of
[Employer] as a whole, then if Murphy was aware of the situation with the homeless
man, Employer was also aware.” Claimant’s Brief at 24. Claimant contends that
the fact that Murphy took no action gave Claimant the impression “that there was
some history of nonemployees informally working within the store,” similar to Penn
Photomounts. Id. at 24. Claimant points out that no individual at the store was
disciplined or reprimanded in connection with the homeless man working at the
store. Id. at 25. Claimant therefore maintains that he had good cause for the alleged
misconduct, as he was following Employer’s “less formal procedure,” and because
Employer enforced its policy under an “ill-defined standard.” Id. at 23 & 25.
In the alternative, Claimant asserts that his girlfriend was not working,
but merely “killing time” in the store as she waited for him to drive her home. Id. at
19. Claimant contends that “[e]ven assuming for the sake of argument that [his]
girlfriend did reset shelves, the amount and degree to which she did so could be
6
Employer testified that a field consultant is similar to a district manager. T.T. at 7, R.R.
at 8a.
4
indicative of whether she was ‘working’” at the store, reasoning that there is a
“difference between an individual (who works in a separate retail store)
absentmindedly turning a few products so that their labels present a tidy appearance
out of sheer boredom versus an individual taking direction from a supervisor to
complete a specified task in straightening up a stretch of shelving.” Id. at 18-19.
Further, Claimant asserts that a reasonable person would view the situation involving
the homeless man as being “of significantly greater concern and gravity” than the
situation involving his girlfriend. Id. at 25.
The Board contends that it properly concluded that Employer
terminated Claimant for willful misconduct. Board’s Brief at 16. The Board
emphasizes that the district manager7 allowed the homeless man to spend some time
at the store and to help take out trash for just a few weeks in order to ease the
transition to a corporate store, as the store had operated as a franchise for 12 to 15
years. Id. at 15 (citing T.T. at 19-20 & 22, R.R. at 20a-21a & 23a). The Board
maintains that, contrary to Claimant’s assertion, it did not tolerate prior work
violations, but rather addressed the situation involving the homeless man after
becoming aware of it, such that it was not a fixed or accepted practice. Id. at 12 &
15 (citing Seton Co. v. Unemployment Comp. Bd. of Review, 663 A.2d 296, 299 (Pa.
Cmwlth. 1995)). Further, the Board points out that footage from three videotapes
proves that Claimant’s girlfriend “was actively engaged at Employer’s worksite, not
absentmindedly straightening a few products.” Id. at 13 n.2.
Section 402(e) of the Law provides that an employee shall be ineligible
for compensation for any week in which unemployment is due to discharge from
7
The Board is presumably referring to Murphy, the field consultant and Claimant’s
“mentor.” See T.T. at 7, R.R. at 8a.
5
work for willful misconduct connected with his work. 43 P.S. § 802(e). Whether
an employee’s actions constitute willful misconduct is a question of law subject to
review by this Court. Reading Area Water Auth. v. Unemployment Comp. Bd. of
Review, 137 A.3d 658, 661 (Pa. Cmwlth. 2016). For purposes of determining a
discharged employee’s eligibility for unemployment compensation, the employer
bears the burden of proving that the employee engaged in willful misconduct
connected with his work. Adams v. Unemployment Comp. Bd. of Review, 56 A.3d
76, 78-79 (Pa. Cmwlth. 2012). This Court has defined willful misconduct 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.
Waverly Heights, Ltd. v. Unemployment Comp. Bd. of Review, 173 A.3d 1224, 1228
(Pa. Cmwlth. 2017) (quoting Johns v. Unemployment Comp. Bd. of Review, 87 A.3d
1006, 1009 (Pa. Cmwlth. 2014)).
“The violation of a work rule may be considered willful misconduct[.]”
Glenn v. Unemployment Comp. Bd. of Review, 928 A.2d 1169, 1172 (Pa. Cmwlth.
2007). “[W]hen an employer claims violation of a work rule, the employer bears the
burden of proving the existence of the rule, its reasonableness and violation.” Id.
“Once the employer meets its burden, it shifts to the claimant to prove good cause
for his or her action.” Id. “Good cause is established ‘where the action of the
employee is justified or reasonable under the circumstances.’” Guthrie v.
Unemployment Comp. Bd. of Review, 738 A.2d 518, 522 (Pa. Cmwlth. 1999)
(quoting Frumento v. Unemployment Comp. Bd. of Review, 351 A.2d 631, 634 (Pa.
6
1976)). A claimant may establish good cause for a work rule violation by
demonstrating that the rule “was not enforced uniformly and that a violation thereof
was not an act which was contrary to a reasonable standard of behavior which an
employer could expect of an employee.” City of Beaver Falls v. Unemployment
Comp. Bd. of Review, 441 A.2d 510, 512 (Pa. Cmwlth. 1982). A claimant may argue
that the conduct in question was in line with a “past practice” accepted by the
employer. See Seton Co., 663 A.2d at 299. “For an action to be considered
acceptable as [a] past practice in the employment situation, it must be a practice
which is unequivocal, clearly enunciated and acted upon, readily ascertainable over
a reasonable period of time as fixed and established practice accepted by both
employer and employees.” Seton Co., 663 A.2d at 299 (citing Sch. Dist. of Phila. v.
Phila. Fed’n of Teachers, Local 3, 651 A.2d 1152 (Pa. Cmwlth. 1994)). Further, “to
be found to have condoned an employee’s conduct, there generally must be some
evidence in the record that the employer directly communicated to the employee that
it condoned or permitted the conduct or that the employer took some action that led
the employee to believe that the employer condoned such conduct.” Betres, slip op.
at 6-7 (citing Letterkenney Army Depot v. Unemployment Comp. Bd. of Review, 648
A.2d 358, 361 (Pa. Cmwlth. 1994)).
Penn Photomounts involved a claimant who was discharged for
excessive unexcused absences and failure to comply with her employer’s policy for
reporting absences. Penn Photomounts, 417 A.2d at 1312. The employer’s formal
policy required employees to report absences to the office by 9:00 a.m. on their first
day out. Id. at 1313. The claimant did not report her absences directly to the main
office, but instead utilized the informal practice of notifying co-workers who then
relayed her message to the office. Id. The claimant was aware of her employer’s
7
formal policy, but testified that her employer accepted the informal method of
reporting absences. Id. The claimant’s co-workers had also utilized the less formal
reporting procedure, and the claimant had notified supervisors of her co-workers’
absences on occasion. Id. A former employee testified that she had adhered to the
less formal practice over the course of her employment without being reprimanded
or informed that such a practice could lead to termination. Id. Further, the
employer’s witness testified that it tolerated the less formal reporting procedure for
short-term absences, but that it was not an “accepted procedure.” Id. Nevertheless,
the employer’s witness testified “that company regulations were implemented and
enforced in an informal and loose manner unless they were abused by employees,”
in which case “the regulations were enforced firmly.” Id. at 1314. The Board
awarded the claimant benefits and we affirmed, reasoning that although the
employer had the right to discharge the claimant for excessive absenteeism, the
claimant did not commit willful misconduct by following a less formal reporting
procedure that was tolerated by her employer and was “in effect and commonly
understood in the company.” Id. at 1314-15.
We find that Penn Photomounts is distinguishable and, therefore, does
not support Claimant’s assertion that he had good cause for the alleged misconduct.
In Penn Photomounts, the claimant’s employer conceded that it tolerated “informal
and loose” implementation of its reporting policy for short-term absences. See Penn
Photomounts, 417 A.2d at 1314. By contrast, here, the Board determined that
Employer’s witness credibly testified that Employer was unaware of the practice of
permitting the homeless man to work in the store in exchange for food until the store
was taken back from a franchisee, at which point it was corrected. C.R., Board’s
Decision & Order at 3; see also T.T. at 21-22, R.R. at 22a-23a. “[T]he Board is the
8
ultimate fact-finding body empowered to resolve conflicts in evidence, to determine
the credibility of witnesses, and to determine the weight to be accorded evidence.”
Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1164 (Pa. Cmwlth.
2012). “Questions of credibility and the resolution of evidentiary conflicts are
within the discretion of the [Board] and are not subject to re-evaluation on judicial
review.” Bell v. Unemployment Comp. Bd. of Review, 921 A.2d 23, 26 n.4 (Pa.
Cmwlth. 2007). “[T]he Board . . . may reject even uncontradicted testimony if it is
deemed not credible or worthy of belief.” Stockdill v. Unemployment Comp. Bd. of
Review, 368 A.2d 1341, 1343 (Pa. Cmwlth. 1977).
It is not possible for an employer to tolerate or condone policy
violations of which it is unaware. See Seton Co., 663 A.2d at 299 (finding claimant
failed to establish that his work policy violation was in line with a past practice
accepted by employer where “[t]here [was] no testimony whatsoever in the record
that management knew of or accepted the practice”); see also Holtslander v.
Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1655 C.D. 2014, filed Apr.
28, 2015), slip op. at 10 (holding claimant failed to establish employer accepted a
purported past practice, where there was no indication that employer sanctioned the
practice or “was even aware of it”).
Further, Claimant’s argument that Murphy’s alleged condonation of the
homeless man working at the store led Claimant to believe that Employer sanctioned
the practice lacks merit. Employer’s market manager testified that the homeless man
“started showing up as the store got corporate” (the store was transitioning from a
franchise to a corporate store), that the franchisee’s employees who stayed on “didn’t
know any better” and that Murphy dealt with the situation when he became aware
of it. T.T. at 21, R.R. at 22a. Although Employer’s market manager acknowledged
9
that Murphy permitted the homeless man to “hang out for a little bit,” he specified
that this was only “until [Employer] kind of figure[d] out how . . . to handle [the
situation] so the customers, the community, weren’t offended that we’re throwing
this guy out of the store,” and that it “was a transition phase.” T.T. at 22, R.R. at
23a. Employer’s human resource business partner also testified that “appropriate
action was taken with Michael Murphy” when Employer became aware of the
practice. T.T. at 1 & 13, R.R. at 2a & 14a.
Assuming, arguendo, that Murphy in fact condoned a violation of
Employer’s policy, we note that “[t]he mere fact that a practice occurred in the past
is not sufficient to show a ‘past practice’ in the legal sense”—an “[e]mployer’s
acceptance of the practice is also necessary.” Holtslander, slip op. at 9-11 (emphasis
added) (holding that claimant failed to demonstrate that a barter system among
employees constituted a “past practice” accepted by employer, where he failed to
“establish [e]mployer’s knowledge or consent to . . . deviations from [its] policy”
that happened “maybe a couple a [sic] times”); see also Temple Univ. of the Com.
Sys. of Higher Educ. v. Unemployment Comp. Bd. of Review, 772 A.2d 416, 419 (Pa.
2001) (holding that claimant’s mistaken belief that his supervisor had the authority
to authorize the conduct failed to provide good cause for engaging in such conduct).
As noted above, “[f]or an action to be considered acceptable as [a] past practice in
the employment situation, it must be a practice which is unequivocal, clearly
enunciated and acted upon, readily ascertainable over a reasonable period of time as
fixed and established practice accepted by both employer and employees.” Seton
Co., 663 A.2d at 299. Claimant fails to establish any of these factors. We therefore
agree with the Board that Claimant lacked good cause for violating Employer’s
policy.
10
Regarding Claimant’s argument in the alternative that his girlfriend was
not working in the store but merely “killing time” until he could drive her home, we
note that the Board did not credit Claimant’s testimony in this regard. See
Claimant’s Brief 19; see also C.R., Board’s Opinion & Order at 3. Again, as noted,
the Board’s credibility determinations are not subject to re-evaluation on judicial
review. Bell, 921 A.2d at 26 n.4; see also discussion supra 9. We, therefore, decline
to review this credibility determination of the Board.
Claimant additionally contends that the Board’s findings of fact
numbers 6 through 10, regarding reports of Claimant’s girlfriend working in the
store and the subsequent investigation into such, lack substantial evidentiary support,
because they are based on hearsay. Claimant’s Brief at 16-20. Claimant asserts that
Employer’s “witnesses”8 did not view the videotape footage in question, but rather
testified that his girlfriend was working at the store on the basis of a third-party’s
description of the alleged activities. Id. at 17. Claimant maintains that Employer’s
“witnesses” were the only source of information regarding how Employer’s asset
protection team reviewed videotape footage of the store. Id. at 16-17. Claimant
therefore asserts that Employer’s testimony that the videotape footage evidenced that
his girlfriend was working at the store constitutes hearsay. Id. Claimant also
contends that Employer failed to present the videotape footage during the hearing.
Id. at 17. Further, Claimant specifically asserts that the Board’s finding of fact
number 7—that Employer conducted an investigation confirming that Claimant
permitted a non-employee to work at the store—lacks substantial evidentiary
support, as it is undermined by the fact that the investigation of Claimant was led at
8
We note that although three witnesses testified for Employer, only Employer’s market
manager testified regarding the videotape footage. See T.T. at 5-6, 10, 15, 20 & 27; R.R. at 6a-7a,
11a, 16a, 21a & 28a.
11
least in part by Murphy, who had previously “condoned egregious violations of the
same policy in the past.” Id. at 17-18 (citing T.T. at 6-7, R.R. at 7a-8a).
The Board counters that substantial evidence supports the challenged
findings of fact. Board’s Brief at 7. The Board further asserts that the testimony of
Employer’s market manager regarding what he viewed on the videotapes is not
hearsay, because such testimony is permissible in an unemployment compensation
proceeding and a videotape need not be introduced into evidence where the opposing
party had the opportunity to cross-examine the witness. Id. at 7-8 (citing Yost). The
Board points out that Claimant’s assertion that Employer’s market manager did not
review videotape footage is misleading, as he in fact testified that he viewed
videotapes showing Claimant’s girlfriend working in various parts of the store and
only denied that he viewed the videotape where the homeless person went into the
back of the store. Id. at 8. Thus, the Board asserts that the testimony of Employer’s
market manager was not hearsay, because it was based on personal knowledge of
what he viewed on the videotapes. Id. at 8.
We agree with the Board that the testimony of Employer’s market
manager regarding the videotapes does not constitute hearsay. Hearsay is a
statement, other than one made by the declarant while testifying at the current trial
or hearing, offered into evidence to prove the truth of the matter asserted. Pa.R.E.
801(c). Here, Employer’s market manager testified regarding what he personally
observed when he viewed three videotapes, specifically showing Claimant’s
girlfriend in various parts of the store, at one point stocking shelves. See T.T. at 15,
20 & 27, R.R. at 16a, 21a & 28a. Claimant had the opportunity to cross-examine
Employer’s market manager regarding what he observed on the videotapes.9 See
9
The referee noted at the hearing that Claimant could have subpoenaed the videotapes if
he wanted them at the hearing. T.T. at 23, R.R. at 24a.
12
Yost, 42 A.3d at 1164. Thus, the testimony of Employer’s market manager does not
constitute hearsay. See id. at 1163-64 (holding that testimony did not constitute
hearsay even though employer’s witness “was not present when the altercation took
place,” where he “testified as to what he observed on the video” and “[c]laimant had
the opportunity to cross-examine [employer’s witness] concerning his
observations”); Rich v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 776
C.D. 2013, filed Jan. 15, 2014), slip op. at 6-7 (holding that the testimony of
employer’s witness did not constitute hearsay, even though he was not present when
the incident took place, where he related his personal observations of the conduct
depicted on the surveillance videotape and claimant had the opportunity to cross-
examine him concerning his observations).
Further, we find meritless Claimant’s contention that the Board’s
finding of fact number 7—that Employer in fact conducted an investigation
confirming that Claimant permitted a non-employee to work at the store—is not
supported by substantial evidence, because Murphy’s involvement somehow
undermined Employer’s investigation. Claimant provides no support for this bald
assertion and, in essence, asks us to accord less weight to the evidence supporting
the Board’s finding. We reiterate that “the Board is the ultimate fact-finding body
empowered . . . to determine the weight to be accorded evidence.” Yost, 42 A.3d at
1164. Further, we must examine the evidence in the light most favorable to
Employer, as the prevailing party, and to give Employer the benefit of all inferences
that can be logically and reasonably drawn from the testimony. See Wise v.
Unemployment Comp. Bd. of Review, 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015).
The Board’s findings of fact are conclusive on appeal so long as the
record, taken as a whole, contains substantial evidence to support those findings.
13
Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977).
Ample record evidence supports that Employer conducted an investigation which
confirmed that Claimant’s girlfriend was working in the store. See T.T. at 7, R.R. at
8a (testimony of Employer’s human resource business partner that Claimant’s
immediate supervisor, Employer’s asset protection partner and Murphy were a part
of the “on-site investigation”); T.T. at 15, R.R. at 16a (testimony of Employer’s
market manager that he viewed videotape footage of Claimant’s girlfriend in the
store and discussed this footage with a member of the asset protection team).
Claimant’s own testimony reveals that he and his girlfriend “were resetting shelves”
while “talking about ideas and potentially [sic] things that [they] could do better in
the store.” T.T. at 26, R.R. at 27a. We therefore agree with the Board that its
findings do not lack substantial evidentiary support. Thus, the Board did not err in
concluding that Employer discharged Claimant for willful misconduct in connection
with his work and is, therefore, ineligible for benefits under Section 402(e) of the
Law, 43 P.S. § 802(e).
Accordingly, we affirm.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Denis Pchelkin, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1523 C.D. 2018
Respondent :
ORDER
AND NOW, this 13th day of December, 2019, the October 25, 2018
order of the Unemployment Compensation Board of Review is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge