IN THE COMMONWEALTH COURT OF PENNSYLVANIA Shannon B. Panella, : Petitioner : : v. : No. 351 C.D. 2013 : Submitted: July 12, 2013 Unemployment Compensation : Board of Review, : Respondent : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: August 29, 2013 Shannon B. Panella (Claimant), pro se, petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for unemployment compensation benefits. In doing so, the Board affirmed the decision of the Referee that Claimant was not eligible for benefits under Section 402(e) of the Unemployment Compensation Law 1 (Law), 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. 802(e). It provides, in relevant part, as follows: An employe shall be ineligible for compensation for any week (e) 43 P.S. 802(e). *** In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work
because she committed willful misconduct by using her cell phone while at her work station in violation of her employer s known policy. Claimant contends that she is eligible for benefits because she did not violate this work rule. We affirm. Claimant was employed by Verizon (Employer) as a full-time directory assistance operator beginning in August 1999. In the interest of increasing efficiency, Employer has adopted a policy prohibiting employees from using cell phones while they are working. The policy requires employees to stow their cell phones out of sight, preferably in a closed purse or pocket and to have the cell phones turned off or set to vibrate. Certified Record Item No. 3 at 34. (C.R. ). 2 Employer has a six-step progressive discipline policy for rule violations: counseling; verbal warning; written warning; one-day suspension; three-day suspension and, finally, termination of employment. Between August 2, 2011, and January 20, 2012, Claimant violated the cell phone policy five times and received counseling; a verbal warning; a written warning; a one-day suspension and a three-day suspension. Employer ultimately fired Claimant for the stated reason that she had again violated the cell phone policy on July 16, 2012. 2 The policy specifically states, in relevant part, as follows: One of the ways we can help make sure that our customer has our undivided attention is by reducing distractions at the workstation. As some of you may have noticed, cell phone usage on our floor has increased in recent months. In our environment, this is not acceptable. Cell phone use decreases our efficiencies (we are distracted and ask our customers to repeat) and increases customer irritation thus reducing customer loyalty. Cell phones are to be stowed out of sight, preferably in a closed purse or pocket, and they must be turned off or on vibrate. If you get a call that you must take, you have the option of logging off and taking the call off the floor. C.R. Item No. 3 at 34 (emphasis added). 2
Claimant applied for unemployment benefits. The Erie UC Service Center denied the claim, and Claimant appealed. 3 A Referee held a hearing where both Claimant and Employer appeared and presented evidence. Amy Roach, a manager, testified for Employer. Because Claimant had a history of violating Employer s strict cell phone policy and did not seem to take it seriously, Employer reviewed the policy with Claimant on multiple occasions, including in June 2012. Claimant was advised that another cell phone violation would result in discharge. Claimant acknowledged this fact and told Roach that she was going to leave her cell phone in her purse, shut off, to assure compliance with the policy. Roach fired Claimant after learning that Claimant committed another policy violation on July 16, 2012. Resource manager, Sharon Regal, who witnessed Claimant s cell phone violation on July 16, 2012, also testified. She explained that while walking through the workplace, she stopped at a spot where she could see Claimant but Claimant could not see her. Regal watched Claimant handling a directory assistance call while her cell phone was in her lap with its screen lit up. Claimant tucked the cell phone under her shirt as she continued to respond to the directory assistance call. When Claimant finished the call, she took the cell phone back out from under her shirt and looked up over her computer, scanning the room to see if anyone was watching her. When she spotted Regal, Claimant told her that she had just returned from her break and had not been using her cell phone. 3 The UC Service Center originally found Claimant eligible for benefits but one week later issued the denial. The UC Service Center also determined that Claimant received a non-fault overpayment in the amount of $1,017. This issue is not before us on appeal. 3
Claimant testified in support of her claim. She acknowledged that Employer s policy required her to have her cell phone turned off and out of sight while working. Claimant also knew that she was one disciplinary step away from being terminated in July 2012. However, Claimant disputed Regal s account of what occurred on July 16 th. Claimant testified that she had her cell phone in her pants pocket when she returned from her break at approximately 3:30 p.m. Claimant logged into her work station and began processing directory assistance calls. After a few calls, the cell phone was causing discomfort, so she reached into her pocket, pulled out the cell phone and placed it in her purse. Claimant denied using the cell phone. To support her contention that she was not using her cell phone shortly after returning from her break at 3:30 p.m., Claimant submitted her cell phone text messaging records from Verizon Wireless for July 16 th. The records show that at 3:01 p.m., Claimant s phone sent or received a text message. The next record showed Claimant s phone sending or receiving three text messages at 3:54, 3:56 and 3:57 p.m. Claimant testified that she believed Regal was targeting her because of an incident earlier that year. In January 2012, Regal reported Claimant for using her cell phone, which put Claimant on the fifth step of discipline, i.e., the three-day suspension. The union filed a grievance over the suspension. According to Claimant, Regal admitted to the union representative that she would not be able to say under oath that she actually saw Claimant using her cell phone. However, at a subsequent meeting, Regal insisted that she did see Claimant using her cell phone. The union and Employer settled the grievance by agreeing that if Claimant did not commit any more cell phone violations for six months, that is, until July 20, 2012, 4
Employer would reduce the discipline to a one-day suspension and pay Claimant for the other two days. Claimant opined that Employer made this deal because Regal was not credible. C.R. Item No. 12; Notes of Testimony at 11. In support, Claimant submitted into evidence the union representative s handwritten notes from a meeting concerning the grievance. The union representative wrote in his notes that Regal stated she could not testify before a judge that she saw Claimant with a cell phone on January 20, 2012. The Referee credited the testimony of Employer s witnesses and found that Claimant had violated the cell phone policy at work on July 16, 2012. The Referee also found that Claimant had knowingly risked termination by not having her cell phone put away while she worked. Accordingly, Employer did, in fact, fire her for violating the cell phone policy. The Referee concluded that Claimant was ineligible for unemployment compensation benefits under Section 402(e) of the Law because her knowing violation of Employer s cell phone policy constituted willful misconduct. Claimant appealed. The Board adopted the Referee s findings and conclusions and affirmed the determination that Claimant was not eligible for benefits under Section 402(e). Claimant petitioned for this Court s review. 4 On appeal, Claimant argues that the Board erred in denying her claim due to willful misconduct because she did not violate Employer s work rule on 4 In unemployment compensation appeals, our review is limited to determining whether the Board s adjudication is in violation of constitutional rights, whether errors of law were committed, or whether findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987). Whether a claimant s action constitutes willful misconduct is a question of law fully reviewable by this Court. Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008). 5
July 16 th. Claimant asserts that the Board arrived at a contrary finding only by relying on Regal s false account of what occurred on that date and by ignoring Claimant s evidence that refuted Regal s testimony and impeached her credibility. We begin with a review of the law on willful misconduct. An employee who engages in willful misconduct is ineligible for unemployment compensation benefits under Section 402(e) of the Law. The employer has the burden of proving willful misconduct on the part of a discharged employee. Pettyjohn v. Unemployment Compensation Board of Review, 863 A.2d 162, 164 (Pa. Cmwlth. 2004). Willful misconduct includes a deliberate violation of the employer s rules. Rebel v. Unemployment Compensation Board of Review, 555 Pa. 114, 117, 723 A.2d 156, 158 (1998). The employer must prove that a work rule exists and that the claimant deliberately violated the rule. Eshbach v. Unemployment Compensation Board of Review, 855 A.2d 943, 947 (Pa. Cmwlth. 2004). Claimant acknowledges that Employer has a work rule prohibiting cell phones from being used or even visible at an employee s work station. She asserts that she did not violate that rule on July 16 th because she merely transferred her cell phone from her pocket into her purse in one continuous motion shortly after she returned from her break. Claimant argues that the Board should not have relied on Regal s false account of what occurred, particularly because Claimant s records proved that Claimant was not using her cell phone. She also notes that Regal had previously made false accusations against Claimant in January 2012. Essentially, Claimant contends that the finding that she had her cell phone out while working is not supported by substantial evidence. 6
The Board responds that its findings are supported by substantial evidence and, therefore, cannot be overturned. Claimant is simply arguing that the Board should have credited her testimony and evidence over Employer s witness testimony, which decisions are beyond appellate review. We agree. It is well-settled that the Board is the ultimate fact finder with exclusive power to resolve conflicts in the evidence and to decide witness credibility and the weight to be accorded the evidence. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). It is irrelevant whether the record contains evidence to support findings other than those made by the fact finder; the critical inquiry is whether there is substantial evidence to support the findings actually made. Id. If so, the Board s findings are conclusive and cannot be disturbed on appeal. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mrs. Smith s Frozen Foods Company v. Workmen s Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988). Claimant and Regal each testified to the events of July 16, 2012, and their accounts differed. Claimant argues that the Board should have believed her account that she moved her cell phone from her pocket to her purse in one motion. However, it was solely within the Board s province to choose to believe Regal s account. Regal s credited testimony that Claimant had her cell phone in her lap with the screen illuminated while handling a directory assistance call is substantial evidence that Claimant violated Employer s strict cell phone policy. It is of no moment that the Board did not specifically discuss Claimant s exhibits. The Board must make crucial findings on the essential issues but is not required to address specifically each bit of evidence offered. Pistella 7
v. Workmen s Compensation Appeal Board (Samson Buick Body Shop), 633 A.2d 230, 234 (Pa. Cmwlth. 1993). Further, Claimant ascribes too much significance to her evidence. Claimant s cell phone records corroborate her contention that she was not texting immediately after returning from her break at 3:30 p.m., but it is irrelevant. Employer s cell phone policy prohibits not only texting but having the cell phone readily available. The policy requires the cell phone to be stowed out of sight and turned off. Claimant was not fired for texting; rather, she was fired for having the cell phone out and switched on while working. Likewise, the handwritten note from the grievance meeting is not relevant. Although Claimant claims that she won her grievance over her fifth cell phone violation in January 2012 because Regal was not credible, there was no determination to that effect and Claimant remained on the fifth step of discipline. In short, because Regal s testimony supports the finding that Claimant was using her cell phone while working on July 16, 2012, that finding is binding and cannot be disturbed on appeal. Claimant s knowing violation of Employer s cell phone policy amounts to willful misconduct rendering her ineligible for benefits. 5 Accordingly, the order of the Board is affirmed. MARY HANNAH LEAVITT, Judge 5 Once an employer establishes a knowing violation of a work rule, the claimant can show that there was good cause for the violation. Department of Corrections, 943 A.2d at 1015. Claimant never alleged that she had good cause for her actions, only that her actions as related by Regal did not occur. 8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Shannon B. Panella, : Petitioner : : v. : No. 351 C.D. 2013 : Unemployment Compensation : Board of Review, : Respondent : AND NOW, this 29 th O R D E R day of August, 2013, the order of the Unemployment Compensation Board of Review dated January 25, 2013, in the above captioned matter is hereby AFFIRMED. MARY HANNAH LEAVITT, Judge