J.S. Kirchner v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John S. Kirchner, :
Petitioner :
:
v. : No. 919 C.D. 2020
:
Unemployment Compensation : Submitted: May 27, 2022
Board of Review :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: May 17, 2023
John S. Kirchner (Claimant) petitions for review, pro se, of the August 21,
2020 order of the Unemployment Compensation (UC) Board of Review (Board), which
affirmed the Referee’s decision that Claimant was ineligible for unemployment
benefits under Section 402(e) of the UC Law (Law), 43 P.S. § 802(e), relating to willful
misconduct.1 Upon review, we affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
Claimant worked for the 911 Emergency Call Center for Lehigh County
(Employer), full-time, as a Communications Center Shift Supervisor from January 16,
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e),
which states, in relevant part, that “[a]n employe shall be ineligible for compensation for any week .
. . [i]n which his unemployment is due to his discharge or temporary suspension from work for willful
misconduct. . . .”
1984 until January 21, 2020. (Finding of Fact (F.F.) No. 1.) On January 21, 2020,
Claimant was discharged for violating Employer’s zero-tolerance policy (Alcohol
Policy), which prohibits employees from possessing, dispensing, and consuming
alcohol while at work. (F.F. No. 8.)
On January 23, 2020, Claimant applied for UC benefits and submitted a
benefits questionnaire. Claimant was asked several questions on the benefits
questionnaire regarding his discharge and his knowledge of Employer’s Alcohol
Policy. Claimant was questioned and answered as follows:
Q: Were you discharged or suspended as a result of a rule
violation?
A: Y
Q: Were you aware of this rule violation?
A: Y
Q: Was this rule uniformly enforced?
A: No
Q: If no, please explain.
A: I WAS NOT OFFERED THE OPTION OF
RESIGNATION AS 7 OTHER EMPLOYEES WERE
Q: Did violation of the rule require a discharge of suspension?
A: Y
Q: What was the rule that you were accused of violation?
A: USE, POSSESSION, SALE OR DISTRIBUTION OF
ALCOHOL BEVERAGES DURING WORK HOURS
(Certified Record (C.R.) at 10) (emphasis in original.) On February 7, 2020, the local
service center determined that Claimant was ineligible for benefits under Section
402(e) of the Law, and Claimant appealed.
A Referee conducted a hearing on March 12, 2020. Employer admitted
Claimant’s initial claims form and Employer’s disciplinary procedures and policies.
(Notes of Testimony (N.T.) at 2.) Marc Redding, Employer’s human resources
2
director, testified that on January 10, 2020, he received an anonymous letter that eleven
employees consumed alcohol on the premises during work hours on New Year’s Eve.
(N.T. at 3.) Mr. Redding testified that 3 of the 11 employees, including Claimant, were
supervisors who were dismissed because they were “held to a higher standard because
no one objected to the actions they took that night.” (N.T. at 4.) During Employer’s
investigation, Claimant admitted to consuming “more than one shot” of alcohol. (N.T.
at 4.)
Additionally, Mr. Redding testified that Employer’s Alcohol Policy
prohibits employees from possessing, dispensing, and consuming alcohol while
working. (N.T. at 4-5.) The Alcohol Policy is a “second group offense” which is
subject to immediate dismissal. (N.T. at 5.) Mr. Redding testified that “[Claimant]
was aware of the policies when he was hired; however, the policies were updated in
2008.” Id. When the policies were updated in 2008, Claimant signed an
acknowledgment form that he received a new policies and procedures manual and
signed that he knew or should have been aware of the policy. Id. Employer introduced
into evidence a copy of the signed policies and procedures manual acknowledgment
form dated December 30, 2008, on which Claimant “assume[d] responsibility for
reading, understanding, and following the policies and procedures contained herein.”
(C.R. at 120.) Moreover, Mr. Redding testified that all policies are available on the
intranet employee account and that employees could access the policies there or request
copies. (N.T. at 7.) Mr. Redding stated that Employer considered the safety-sensitivity
of his position as a shift supervisor, which requires him to be “clear in thought while
working there by answering distress calls,” and did not consider the amount he drank.
(N.T. at 51.)
In an effort to establish that Employer tolerated infractions, Claimant
testified that there were two other incidents of the Alcohol Policy not being enforced.
Specifically, Claimant stated there were wrapped alcohol bottles under the Christmas
3
tree for a secret Santa gift exchange and an alcoholic mixed drink in the refrigerator in
the break room. (N.T. at 17-21.) Claimant stated that, to his knowledge, no employees
were disciplined for these violations. (N.T. at 22.) Additionally, Claimant recalled one
other instance where the Alcohol Policy was not enforced in the fall of 2019, in which
an employee was gifted a wrapped bottle of liquor. (N.T. at 23.) Claimant stated that
he had access to the intranet but had not accessed Employer’s policies. (N.T. at 26.)
Claimant testified that even though he was a supervisor, he was unaware of Employer’s
Alcohol Policy. Id. In complete contradiction to that testimony, he answered on cross-
examination that on the benefits questionnaire, he was aware of the Alcohol Policy at
the time he applied for UC benefits. Id. During the hearing, Claimant questioned and
testified as follows:
[Q:] Okay. So I believe this was Service Center Exhibit #7,
the Internet Claim. Question #12 that you answered, were
you aware of the policy? And I believe you stated yes. Isn’t
that correct?
[A:] That’s what I replied there. Yes, I did, but that was not
what I was thinking of at the time.
[Q:] Okay. So you were aware of the policy, and you said
yes.
[A:] At - - that’s what I clicked on, yes.
Id.
The Referee affirmed the service center’s determination that Claimant was
ineligible for UC benefits. The Referee found Mr. Redding’s testimony credible that
Employer has a policy that prohibits employees from possessing, distributing, or using
alcohol while at work. (Referee’s decision at 2.) The Referee rejected Claimant’s
4
testimony that he was unaware of Employer’s Alcohol Policy and concluded that
because Claimant was a 36-year employee and a supervisor, he was or should have
been aware of Employer’s rules/policies and how to access them. Id. The Referee
further determined that “[C]laimant, as a supervisor, bore responsibility to help
[Employer] enforce this policy” and his “participation in violating that policy and not
reporting prior violations he witnessed is conduct below the standard an employer can
reasonably expect from its employees.” Id.
Claimant appealed to the Board and by a decision and order dated August
21, 2020, the Board affirmed the Referee’s decision and adopted the Referee’s finding
of fact and legal conclusions. (Board’s decision at 1.) In addition, the Board
specifically relied on Claimant’s admission in the benefits questionnaire that he knew
of the Alcohol Policy and that he consumed alcohol during his work shift. Id. The
Board stated that it could not conclude, based on the evidence provided by Claimant,
that Employer was aware of employees consuming alcohol while on duty or that
Employer condoned consumption of alcohol on the job. Id. The Board also credited
Employer’s testimony that the Alcohol Policy was consistently enforced. Id.
II. ISSUES
On appeal,2 Claimant asserts the Board erred as a matter of law in denying
his claim for UC benefits under Section 402(e) of the Law.3 From what this Court can
surmise from Claimant’s brief, Claimant is arguing that his actions did not constitute
2
Our scope of 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. Miller v. Unemployment Compensation Board of Review, 83 A.3d 484, 486 n.2
(Pa. Cmwlth. 2014).
3
The issues as set forth in Claimant’s brief, are as follows: whether the Board erred in
concluding that he violated Employer’s Alcohol Policy during work hours and whether the Board
erred in concluding that he is ineligible for benefits under the provisions of Section 402(e).
(Claimant’s Br. at 6.)
5
willful misconduct because he was unaware of the Alcohol Policy and that Employer
inconsistently enforced it, thus rendering it a nullity.
III. DISCUSSION
A. Willful Misconduct
In his first issue, Claimant argues that Employer failed to meet its burden
of proving willful misconduct. Specifically, Claimant contends that he was not aware
of Employer’s policies thus, could not have committed willful misconduct. Initially,
we recognize:
Section 402(e) of the Law provides that an employee is
ineligible for unemployment compensation benefits when his
unemployment is due to discharge from work for willful
misconduct connected to his work. The employer bears the
burden of proving willful misconduct in an unemployment
compensation case. Willful misconduct has been defined as
(1) an act of wanton or willful disregard of the employer’s
interest; (2) a deliberate violation of the employer’s rules; (3)
a disregard of standards of behavior which the employer has
a right to expect of an employee; or (4) negligence indicating
an intentional disregard of the employer’s interest or a
disregard of the employee’s duties and obligations to the
employer.
Department of Transportation v. Unemployment Compensation Board of Review, 755
A.2d 744, 747–48 n. 4 (Pa. Cmwlth. 2000) (citation omitted). Where an employer
asserts a violation of its rule or policy as willful misconduct, the employer has the
burden to show that the claimant was aware of the work rule and the claimant violated
the rule. Roberts v. Unemployment Compensation Board of Review, 977 A.2d 12, 16
(Pa. Cmwlth. 2009); Melomed v. Unemployment Compensation Board of Review, 972
A.2d 593, 594 (Pa. Cmwlth. 2009); Williams v. Unemployment Compensation Board
of Review, 926 A.2d 568 (Pa. Cmwlth. 2007). “The employer must present evidence
that the claimant intentionally or deliberately violated the rule.” Tongel v.
6
Unemployment Compensation Board of Review, 501 A.2d 716, 717 (Pa. Cmwlth.
1985). A claimant cannot be found to have willfully or intentionally violated a rule of
which he was unaware. Id. Our courts have repeatedly held that consuming intoxicants
at any volume justifies a finding of willful misconduct where the employee is aware of
a rule prohibiting such conduct. See Robinson v. Unemployment Compensation Board
of Review, 414 A.2d 143 (Pa. Cmwlth. 1980); Walz v. Unemployment Compensation
Board of Review, 402 A.2d 1146 (Pa. Cmwlth. 1979); Chambers v. Unemployment
Compensation Board of Review, 318 A.2d 422 (Pa. Cmwlth. 1974).
In addition, it is well-settled that the Board is the ultimate finder of fact in
unemployment compensation proceedings, and is, therefore, entitled to make its own
determinations as to witness credibility and evidentiary weight. Peak v. Unemployment
Compensation Board of Review, 501 A.2d 1383 (Pa. 1985); Chamoun v.
Unemployment Compensation Board of Review, 542 A.2d 207 (Pa. Cmwlth. 1988).
Thus, in the face of conflicting evidence, the Board exercises its discretion to resolve
conflicts, and its credibility determinations “are not subject to re-evaluation on judicial
review.” Peak, 501 A.2d at 1388. Findings of fact are conclusive upon review
provided that the record, taken as a whole, contains substantial evidence to support the
findings. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa.
1977). This Court must examine the evidence in the light most favorable to the party
that prevailed before the Board and give that party the benefit of all inferences that can
be logically and reasonably drawn from the testimony. Id.Here, there is no dispute regarding the reasonableness of Employer’s
Alcohol Policy. We also conclude that there is substantial evidence of record
supporting the finding that Claimant was aware of the Alcohol Policy. Employer’s
human resources director, Mr. Redding, testified credibly that in 2008, Claimant was
made aware of all Employer policy updates and that he was given a copy of the policies
7
and signed an acknowledgment form that he had received the policies. The Alcohol
Policy states that consuming alcohol during work warrants discharge.
Moreover, Claimant admitted that he was aware of the Alcohol Policy.
Specifically, in Claimant’s benefits questionnaire he was asked: “[w]ere you
discharged or suspended as a result of a rule violation?” to which Claimant answered
“Y.” (C.R. at 10.) Claimant was then asked a follow-up question, “[w]ere you aware
of this rule violation?” to which he responded “Y.” Id. The Board found, based on
this evidence, that Claimant was aware of Employer’s Alcohol Policy. The Board
deemed Claimant’s testimony that he was unaware of the Alcohol Policy not credible.
Credibility determinations are exclusively within the province of the Board as fact
finder in unemployment compensation cases. Peak; Chamoun. We do not disturb the
Board’s credibility determination. Employer met its burden of proving that Claimant
was aware of Employer’s Alcohol Policy, which warrants discharge.
Additionally, during Employer’s investigation, Claimant admitted he
drank alcohol with other employees at the 911 Call Center. Because Claimant was a
supervisor, he was responsible for enforcing all of Employer’s policies. It almost goes
without saying that consuming any amount of alcohol while working as a supervisor at
the 911 Call Center is inimical to Employer’s interests. It is elementary that all
employees at the 911 Call Center, regardless of their hierarchical role, must be clear of
thought and free of the influence of any amount of intoxicants, even absent such a
policy like Employer’s Alcohol Policy. Based on this substantial evidence, the Board
concluded that Claimant committed willful misconduct, and, therefore, was ineligible
for UC benefits under Section 402(e) of the Law. 43 P.S. § 802(e).
Accordingly, we conclude that there is substantial record evidence to
support the conclusion that Claimant committed willful misconduct.
8
B. Inconsistent Enforcement
Notwithstanding his admitted alcohol consumption, Claimant argues that
Employer inconsistently enforced its Alcohol Policy because there were other
undisciplined violations.
Where, as here, an employer proves a rule violation, the burden shifts to
the claimant to prove he had good cause for his willful misconduct. Walsh v.
Unemployment Compensation Board of Review, 943 A.2d 363, 369 (Pa. Cmwlth.
2008). A claimant may show good cause by demonstrating the uneven or inconsistent
enforcement of a policy. “Inconsistent enforcement of a work rule defeats the existence
of the work rule.” Allen v. Unemployment Compensation Board of Review, 189 A.3d
1128, 1136 (Pa. Cmwlth. 2018) (internal citations omitted). “Inconsistent enforcement
occurs where an employer enforces a rule so inconsistently that it no longer appears to
be a rule that employees must follow.” Gordon Terminal Service Co. v. Unemployment
Compensation Board of Review, 211 A.3d 898, 900 (Pa. Cmwlth. 2019).
To defend his willful misconduct, Claimant argues Employer
inconsistently enforced its Alcohol Policy and testified to several incidents where
alcohol has been present at the workplace without discipline. The Board rejected
Claimant’s argument that Employer inconsistently enforced its Alcohol Policy and
explained:
Claimant admitted he was aware of [E]mployer’s work rule
and that [C]laimant consumed alcohol while on duty in
violation of that work rule. On appeal, [C]laimant argues that
the Referee erred by not accepting [C]laimant’s witnesses’
testimony regarding [C]laimant’s knowledge of the work
rule and [E]mployer’s uniformed enforcement of the work
rule. However, [C]laimant admitted that the 911 [Call]
[C]enter had only conducted a secret Santa gift exchange for
one prior year and, at the previous year’s secret Santa,
[C]laimant and his coworkers did not consume alcohol.
Therefore, based on [C]laimant’s evidence, the Board
9
cannot conclude that [E]mployer was aware of employees
consuming alcohol while on duty or that [E]mployer
condoned consumption of alcohol on the job. The Board
finds [E]mployer’s testimony credible that the work rule
was consistently enforced and accepts its version of
events.
(Board decision at 1) (emphasis added).
The Board determined that Claimant’s testimony did not credibly show
that Employer inconsistently enforced its policy. The Board is empowered to resolve
conflicts in the evidence. Serrano v. Unemployment Compensation Board of Review,
149 A.3d 435, 439 (Pa. Cmwlth. 2016). “Questions of credibility and the resolution of
evidentiary conflicts are within the sound discretion of the Board and are not subject
to reevaluation on judicial review.” Id. (quoting Peak, 501 A.2d at 1388). Because
Claimant failed to establish that he had good cause to violate Employer’s work rule,
the Board correctly concluded that Claimant engaged in willful misconduct.
IV. CONCLUSION
Based on the foregoing reasons, we affirm the Board’s decision.
________________________________
PATRICIA A. McCULLOUGH, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John S. Kirchner, :
Petitioner :
:
v. : No. 919 C.D. 2020
:
Unemployment Compensation :
Board of Review :
Respondent :
ORDER
AND NOW, this 17th day of May, 2023, the August 21, 2020 Order of
the Unemployment Compensation Board of Review is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge