A.J. DiBella v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Angela J. DiBella, :
:
Petitioner :
:
v. : No. 1069 C.D. 2016
: Submitted: December 23, 2016
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: March 24, 2017
Angela J. DiBella (Claimant) petitions for review of an order of the
Unemployment Compensation Board of Review (Board) affirming the
determination by a Referee that Claimant was ineligible for unemployment
compensation benefits under Section 402(e) of the Unemployment Compensation
Law1 (Law) because she was discharged from her employment with Aramark
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 an employee shall be ineligible for compensation for any
week in which his or her unemployment is due to willful misconduct connected to his or her
work. Id.
Sports, LLC (Employer) for willful misconduct. For the reasons that follow, we
affirm.
Claimant began working at Employer in February 1994 as a part-time
cashier and concession stand manager at the Wells Fargo Center during
professional basketball and hockey games; her last day of work was March 11,
2016 pending. (Record (R.) Item 16, Board’s Decision and Order, Finding of Fact
(F.F.) ¶1.) Following a suspension on March 11, 2016 pending investigation, on
March 15, 2016, Employer notified Claimant by letter that her employment had
been terminated based upon her violation of Employee Handbook rules regarding
theft and cash handling. (R. Item 6, Employer Separation Information at 35.) The
Unemployment Compensation Service Center issued a determination on April 1,
2016, finding that Claimant was discharged for alleged dishonesty and that her
actions constituted willful misconduct, therefore she was ineligible for benefits
under Section 402(e) of the Law. (R. Item 7, Notice of Determination.) Claimant
appealed and a hearing was held before a Referee on April 26, 2016. Claimant,
who was represented by counsel, testified at the hearing, as did Employer’s Human
Resources Manager. On April 28, 2016, the Referee issued a decision and order
concluding that Claimant’s violations of Employer’s cash handling policies, absent
any credible justification for the violations, constituted willful misconduct, and she
was therefore ineligible for benefits under Section 402(e) of the Law. (R. Item 12,
Referee’s Decision and Order.) Claimant appealed the Referee’s decision to the
Board.
On July 7, 2016, the Board issued an opinion and order affirming the
Referee’s decision and order. (R. Item 16, Board Opinion and Order.) In its
opinion, the Board made the following findings of fact:
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1. The claimant was last employed as a cashier/stand
manager by Aramark Sports, LLC, from February 1994,
with a last day worked of March 11, 2016. The
claimant’s final rate of pay was $17.44 per hour.
2. The claimant worked on a part-time basis, an average
of 25 hours per week and had average weekly earnings in
the amount of $436.
3. The employer has cash handling policies. Those
policies provide for discharge for failing to ring in a sale.
Mixing one’s own funds with the employer’s funds is
also prohibited as well as under ringing a sale to make up
for a previous over ring.
4. The claimant was employed since 1994 and was aware
of the employer’s policies.
5. On November 27, 2015, the claimant was issued a
written warning for violating the employer’s cash
handling policies by having an 8.7% discrepancy in the
amount of cash that she turned over to the employer at
the end of her shift.
6. On December 18, 2015, the claimant was issued a
written warning and suspension for violating the
employer’s cash handling policies by failing to properly
account for her pretzel sales.
7. On March 9, 2016, the employer set up video cameras
at Stand #207, where the claimant and other coworkers
worked.
8. The video camera revealed that on March 9, 2016, the
claimant violated the cash handling policies by making
up voids instead of reporting the voids to the supervisor
to handle.
9. The video camera also revealed that the claimant
violated the employer’s cash handling policies by
accepting cash from customers without putting the cash
in the register and by taking cash from her pocket and
putting the cash in the cash register.
3
10. The video camera also revealed that the claimant
violated the employer’s cash handling policies by making
sales to customers without registering the sales in the
cash register.
11. As a result, on March 15, 2016, the claimant was
discharged for theft and violation of the employer’s cash
handling policies.
(Id., F.F. ¶¶1-11.) In denying her benefits, the Board reasoned that Claimant had
received discipline on prior occasions for violating Employer’s cash handling
policy, and that she admitted to failing to ring items into her cash register in order
to “make up” for previous register voids on the date Employer had installed a
video camera at her work station. (Id., Discussion.) The Board further concluded
that Claimant’s stated reason for violating Employer’s policy (that there was a long
line of customers waiting and it was easier to correct a mistake herself than to
follow the policy of calling for a supervisor to correct said error) did not constitute
good cause for multiple violations, after multiple warnings. (Id.) Claimant
petitioned this Court for review of the Board’s opinion and order.2
On appeal, Claimant admits it is undisputed that she violated
Employer’s existing rules or policies, of which she was aware. However, she
contends that the Board’s findings are unsupported by substantial evidence and that
she was, in fact, following the accepted standard practices of Employer. Claimant
asserts that the Board “should have inferred an adverse inference against
[Employer] for failing to have a supervisor testify that [her] alleged actions were
2
Our scope of review of the Board’s decision is limited to determining whether errors of law
were committed, constitutional rights or agency procedures were violated, and necessary
findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704; Henderson v.
Unemployment Compensation Board of Review, 77 A.3d 699, 710 n.4 (Pa. Cmwlth. 2013).
4
not the standard practice for handling voids at cash registers.” (Claimant’s Brief at
18.) We do not agree.
Willful misconduct is defined by the courts as (i) an act of wanton or
willful disregard of the employer’s interest; (ii) a deliberate violation of the
employer’s rules; (iii) a disregard of standards of behavior which the employer has
a right to expect of an employee; or (iv) negligence indicating an intentional
disregard of the employer’s interest or of the employee’s duties and obligations to
the employer. Caterpillar, Inc. v. Unemployment Compensation Board of Review,
703 A.2d 452, 456 (Pa. 1997); Scott v. Unemployment Compensation Board of
Review, 36 A.3d 643, 647 (Pa. Cmwlth. 2012). The employer bears the burden of
proving that the claimant engaged in willful misconduct leading to the discharge.
Caterpillar, Inc., 703 A.2d at 456; Scott, 36 A.3d at 647. If the employer makes
that showing, the burden shifts to the claimant to show good cause for her conduct.
Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 719
(Pa. Cmwlth. 2013); ATM Corporation of America v. Unemployment
Compensation Board of Review, 892 A.2d 859, 865 (Pa. Cmwlth. 2006).
Here, Employer’s Human Resource Manager testified that Claimant
was discharged from her employment for violation of Employer’s progressive
discipline policy including cash mishandling, and that on different occasions,
Claimant had violated Employer policy by having cash shortages or excesses,
failing to ring in items, and mixing Employer money with her personal belongings.
(R. Item 11, Referee’s Hearing: Transcript of Testimony (H.T.) at 6.) The Human
Resource Manager testified that Claimant had been written up on November 23,
2015 for a cash overage, and again on December 17, 2015, for cash mishandling
and failure to count her merchandise properly, at which time she received a
5
suspension; an Employee Action/Disciplinary Notice Form documenting
Claimant’s December 2015 suspension indicates that Claimant had received prior
counseling regarding Employer rules, regulations and policy on five previous
occasions. (Id., H.T. at 11-13; Exhibit 4.) The Human Resource Manager
testified that she had reviewed a video recording from March 9, 2016 taken from a
surveillance camera installed in Claimant’s concessions stand, and stated that
Claimant could be seen taking money from customers but not ringing in products
and taking money out of her pocket and placing it into a cash register; she stated
that the third step of progressive discipline for cash mishandling is termination.
(Id., H.T. at 7-10, 13.)
The record contains Employer’s termination letter to Claimant, which
indicates that “[y]ou were observed via non audio video recording, taking cash
from your assigned register and from customers and placing it with your personal
belongings. You were also observed not ringing in food for which you collected
payment. These instances are being considered theft and/or cash mishandling,
which are terminable offenses listed in the [Collective Bargaining Agreement] and
Employee Handbook.”3 (R. Item 11, Employer Exhibit 5.)
3
Employer’s Wells Fargo Center Employee Handbook includes a section entitled “Cash
Handling Policies and Procedures” and directs, inter alia, that:
 Under no circumstances may a cashier/server under ring to correct a previous error. An
over ring slip must be prepared immediately if an over ring occurs, and must be signed by
a supervisor.
 Each cashier/server is responsible for his/her own drawer. Sharing a drawer between
cashiers/servers is not permitted.
 Any exchange of money between cashiers/servers is not permitted without a Supervisor’s
permission.
 Mixing or exchanging your personal money with company funds is not permitted.
 At the end of the cashiers/servers shift, the total cash returned is compared to the total
accumulated by the cash register. A shortage or overage indicates inefficiency on the
(Footnote continued on next page…)
6
We find no merit in Claimant’s assertion that she was merely
following accepted standard cash handling practices, and therefore had good cause
for her actions. Claimant produced no evidence, other than her own testimony, in
support of her argument that all of Employer’s supervisors accepted, and indeed
encouraged the cash handling practices of taking cash without ringing up an item
to correct a register over-ring, instead of calling the supervisor to void the
transaction. Claimant refused to explain why the video showed her taking money
out of her pocket and putting it in a cash register, asserting that she was not paying
that much attention to the video when she watched it. (H.T. at 39.) Regardless,
our case law holds that supervisory acquiescence does not excuse disqualifying
willful misconduct; the Pennsylvania Supreme Court held, in Temple University v.
Unemployment Compensation Board of Review, 772 A.2d 416, 419 (Pa. 2001),
that a mistaken belief that a claimant’s supervisor could authorize extra pay for
hours not worked did not constitute a valid justification for receipt of inflated
paychecks. Further, no case holds that an immediate supervisor is required to
testify for an employer in order to support a finding of willful misconduct that
disqualifies a claimant from the receipt of unemployment compensation benefits.
The testimony of Employer’s Human Resources Director regarding her personal
knowledge of Claimant’s history of warnings and suspensions, her review of the
(continued…)
cashiers/servers part that may necessitate the cashiers/servers be charged with a cash
handling violation. Cash overages or shortages, no matter what the amount, are
unacceptable. Three (3) violations within a one-year period may result in disciplinary
action, up to and including termination.
 You will be reprimanded for violations of the above rules. Copies of violation warnings
will be recorded in your personnel file. Excessive violations may result in termination.
(R. Item 11, Employer Exhibit 7.)
7
surveillance video during which Claimant was observed violating said cash
handling procedures, and the documentation of cash handling policies and
procedures of which Claimant acknowledged she was well aware, are clearly
sufficient to support the Board’s finding of willful misconduct.
Accordingly, the order of the Board is affirmed.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Angela J. DiBella, :
:
Petitioner :
:
v. : No. 1069 C.D. 2016
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 24th day of March, 2017, the Order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge