K. Leeper v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kevin Leeper, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 2118 C.D. 2007 SUBMITTED: March 28, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: August 5, 2008 Claimant, Kevin Leeper, appeals the decision of the Unemployment Compensation Board of Review (Board) affirming the Referee s denial of unemployment benefits. We affirm. Claimant was employed by Employer, Cumberland Farms Inc., as a full-time assistant manager. On May 27, 2007, Claimant conducted a transaction on the cash register involving two sandwiches and three packs of cigarettes. The customer gave Claimant cash to pay for the merchandise and left the store with the merchandise. Claimant then voided the transaction despite the fact that the customer left the store with the merchandise. Claimant s cash register was neither over nor under by any significant amount at the end of his shift. On June 20, 2007, Employer s loss prevention unit reviewed video surveillance of the May 27 transaction and referred the transaction to the area sales manager, Claudia Morris, for further investigation. On June 23, 2007, Morris confronted Claimant regarding the transaction and asked him to explain his actions. Morris requested three times that Claimant view the surveillance video. Claimant was unable to remember the transaction and refused to view to surveillance video. Morris immediately terminated Claimant for violation of Employer s policies, in particular the over-ring policy.1 Shortly after his termination, Claimant attempted to contact Morris by cell phone to request an opportunity to view the surveillance video. Morris never returned Claimant s message. Claimant filed for unemployment compensation benefits and a notice of determination denying benefits was issued. Claimant appealed the notice of 1 Employer s policy concerning over-rings states: Over-rings must be handled in the following manner: Employees using Retalix registers should use the authorized Void Trans system for Transaction Voids . For over-rings, print a receipt off the register for attachment to over-ring report. A new sale for the correct amount should then be rung up. The Receipts Voids and over-rings must then be recorded on the Voided Transaction/Over-ring Report, using one (1) line per entry, including the following: ¢ staple over-ring/void receipt to the bottom of the Report in the order in which they are posted; ¢ indicate store#, date, customer#, specify type of merchandise over-rung; lottery, money order, cigarettes, beer, gas, tax, etc.; ¢ total the amount; ¢ indicate the reason for the over-ring/void; ¢ indicate if the sale was re-rung; ¢ include the employee s initials. Cumberland Farms Retail Employee Operating Handbook at p. 26 2 determination. An unemployment compensation referee held a hearing where Morris testified on behalf of Employer. Sarah Curcio and Claimant testified on his behalf. The referee affirmed the denial of benefits finding that Claimant committed willful misconduct when he failed to follow the proper over-ring procedure and related Employer policies. Claimant appealed to the Board which affirmed the referee s decision and adopted the referee s findings and conclusions. This appeal followed. Pursuant to Section 402(e) of the Unemployment Compensation Law (Law),2 43 P.S. § 802(e), an employee shall be ineligible for compensation for any week in which his unemployment is due to willful misconduct connected with his work. Willful misconduct has been judicially defined as that misconduct which must evidence the wanton and willful disregard of employer s interest, the deliberate violation of rules, the disregard of standards of behavior which an employer can rightfully expect from his employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional substantial disregard for the employer's interest, or the employee s duties and obligations. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008) citing Frumento v. Unemployment Comp. Bd. of Review, 466 Pa. 81, 351 A.2d 631 (1976). In order to prove willful misconduct by showing a violation of employer rules or policies, the employer must prove the existence of the rule or policy and that it was violated. Walsh, 943 A.2d at 368 (citations omitted). Willful misconduct is not found where a claimant can show good cause for his actions, i.e., that the actions which resulted in the discharge were justifiable and reasonable under the circumstances. Perez v. Unemployment Comp. 2 Act of December 5, 1936, Second Ex. Sess., P.L. 1937 (2897), as amended, 3 Bd. of Review, 736 A.2d 737 (Pa. Cmwlth. 1999). Claimant bears the burden of proving good cause for his actions. Id. Whether a claimant has engaged in willful misconduct is a question of law subject to plenary review by this Court based upon the facts found by the Board. Arbster v. Unemployment Comp. Bd. of Review, 690 A.2d 805, 809 (Pa. Cmwlth. 1997). Claimant asserts that the Board s determination that he engaged in willful misconduct is not supported by substantial evidence, but rather was improperly based upon inadmissible and uncorroborated hearsay evidence and errors of fact and law. Employer s witness, Morris, identified the rule governing over-rings in the Cumberland Farms Retail Employee Operating Handbook (Handbook). Morris also stated the Employer required that all purchases must be re-rung immediately.3 Morris also testified that she determined that Claimant had violated the over-ring rule by reviewing video surveillance of the questioned transaction. The surveillance video shows a customer purchasing two sandwiches and three packs of cigarettes. The video also shows the customer handing Claimant money, Claimant handing the customer change, and the customer leaving the store with two sandwiches and three packs of cigarettes.4 Morris also testified that she reviewed the electronic journal sheet from Claimant s register. The electronic journal sheet, which was admitted into evidence, shows that Claimant voided two sandwiches and three packs of cigarettes and did not immediately rering the items. In addition, Claimant did not complete the Voided 3 Although Morris did not point to a specific rule, which required that all purchases be rung immediately, a review of the Handbook reveals that the Employer does require this. The rule in relevant part states: Every cash sale is to be recorded, in full, immediately and individually on the cash register ¦at the time of the customer purchase. Handbook at p. 24 4 The referee admitted the handbook and the video surveillance CD into evidence. 4 Transactions/Over-ring Report which requires information regarding the type of merchandise over-rung, the reason for the over-ring/void and an indication whether the sale was re-rung. Morris testified that if the transaction was voided, the customer never should have left the store. Based on Morris s testimony, the Employer has clearly identified the rule violated and submitted substantial evidence into the record that Claimant violated that rule. Thus, a review of the record reveals that Employer met its burden. The burden then shifted to Claimant to prove that he had good cause for his actions. Claimant was unable to explain his actions and testified that he did not remember the transaction. Claimant testified that he refused to view the video because he was upset. Claimant argues that because his drawer was not over at the end of his shift that he must have re-rung the items at a later point during his shift. Claimant did not adduce any evidence supporting this claim. In addition, Claimant still violated Employer s policy by not completing the Voided Transactions/Overring Report and by not re-ringing the transaction immediately. Claimant also asserts that a single instance of willful misconduct may not lead to a denial of benefits. Although not every single act may necessarily constitute willful misconduct, a single act that is in open disregard of the employer s reasonable expectations may constitute willful misconduct. McCrea v. Unemployment Comp. Bd. of Review, 487 A.2d 69 (Pa. Cmwlth. 1985). In Williams v. Unemployment Comp. Bd. of Review, 449 A.2d 830 (Pa. Cmwlth. 1982), this court affirmed that a supermarket bagger who failed to staple a receipt to the bag, as required by the employer s policy, could be denied benefits based on willful misconduct. In Doyle v. Unemployment Comp. Bd. of Review, 426 A.2d 756 (Pa. Cmwlth. 1981), this court affirmed that at a cashier who violated 5 employer s policy by not ringing up a sale immediately and by failing to give the customer a receipt, allegedly due to illness, could be denied unemployment compensation based on willful misconduct. In this case, Claimant clearly disregarded Employer s over-ring policy and the rule requiring that cashiers ring up all cash transactions individually and immediately at the time of the customer s purchase. Claimant identified his signature on the document labeled Tearsheet, which states: I understand that failure to follow any of the Company s policies, rules, or procedures is grounds for disciplinary action up to and including immediate termination. See Exhibit E-2. Employer reasonably expected that Claimant would follow its procedures and Claimant failed to supply a reasonable excuse for not complying with Employer s rules. Accordingly, Claimant s argument is without merit. Claimant asserts that the Board s decision is based on inadmissible hearsay. Claimant contends that Morris testimony constituted hearsay because she did not witness the incident, but rather only viewed the video surveillance.5 The referee admitted into evidence a CD copy of the video surveillance only after ascertaining that: (1) Morris is the custodian of records for Employer; (2) the CD is a copy of a digital recording of the security video of May 29, 2007; (3) the CD copy is the only method by which Employer could introduce at the hearing documentary evidence of the transaction at issue; and (4) the CD is a true and accurate representation of what transpired on May 29, 2007. See Notes of Testimony at 30. 5 The referee admitted into evidence both Morris testimony and the surveillance footage over Claimant s objection. 6 The admission of a videotape requires that a witness who has made the videotape recording to testify as to the identity of the objects and person shown, the time and place of the making of the videotape and must verify the videotape to be a true and accurate representation of the scene depicted. Pierce v. Unemployment Comp. Bd. of Review, 641 A.2d 727, 728 (Pa. Cmwlth. 1994) citing Alford v. Bailey, 196 A.2d 393 (Pa. Super. 1963). For authentication, proof of every step in making a photographic representation is not required. For example, even the photographer need not be called if another witness can authenticate the content. Pierce, 641 a.2d at 729. Therefore, authentication of a moving picture by a witness who can confirm that the representation is accurate as to objects depicted, at the relevant time, is sufficient. Id. In this case, the referee properly authenticated the video surveillance prior to admitting the CD into evidence. Claimant s hearsay argument is meritless. Claimant also asserts that the Board abused its discretion when it denied his request for a remand hearing. Claimant demands a remand hearing in order to adduce evidence that he was terminated in retaliation for prior harassment complaints and to show that his managing supervisor was terminated for financial irregularities subsequent to Claimant s own termination.6 Pursuant to Section 504 of the Law, 43 P.S. § 824, the Board has discretion to decide whether to grant a request for remand. Skowronek v. Unemployment Comp. Bd. of Review, 921 A.2d 555, 558 (Pa. Cmwlth. 2007); Harrison v. Unemployment Comp. Bd. of Review, 457 A.2d 238 (Pa. Cmwlth. 1983). Generally, a rehearing is granted to allow a 6 Claimant also seeks to present evidence, a cell phone bill, demonstrating that almost immediately after his discussion with Morris on the day of his termination he sought to contact her in an attempt to view the surveillance video of the transaction. Since Claimant provided verbal testimony as to these actions at the hearing, such evidence is unnecessary and cumulative. 7 party the opportunity to adduce evidence not offered at the original hearing because it was not then available. Flores v. Unemployment Comp. Bd. of Review, 686 A.2d 66, 75 (Pa. Cmwlth. 1996) citing Brady v. Unemployment Comp. Bd. of Review, 539 A.2d 936 (Pa. Cmwlth. 1988). 34 Pa. Code § 101.104(c) provides, [T]he Board, in its discretion, may direct the taking of additional evidence, if in the opinion of the Board, the previously established record is not sufficiently complete and adequate to enable the Board to render an appropriate decision. The denial of an application for a remand will be reversed only for a clear abuse of discretion. Dep t of Auditor General v. Unemployment Comp. Bd. of Review, 484 A.2d 829 (Pa. Cmwlth. 1984). First, Claimant contends that the Board erred by not remanding this matter to allow him to adduce additional evidence not available at the time of the hearing. Claimant wishes to adduce evidence that his managing supervisor was terminated for financial irregularities subsequent to his own termination in order to show that he was not responsible for any financial irregularities on the day in question. Claimant asserts that the supervisor was responsible for auditing his shift on the day in question. This argument is without merit as Claimant was not terminated for theft, but rather for failing to follow Employer s policies. Any evidence relating to the supervisor s misdeeds is irrelevant as to whether or not Claimant complied with Employer s policies as required. The record is sufficiently complete and adequate such that this Court, has been able to determine that the Board s conclusions are supported by substantial evidence. Next Claimant contends that he should have been allowed to adduce testimony from a former co-worker that he was terminated in retaliation for prior harassment complaints. Claimant cites Hamilton v. Unemployment Comp. Bd. of 8 Review, 532 A.2d 535 (Pa. Cmwlth. 1987) in support of his contention that the referee erroneously excluded evidence and testimony regarding his prior harassment complaints. In Hamilton, the petitioner sought to introduce the testimony of a governmental witness to show that he was terminated for expressing his opinion that he was passed over for promotion as a result of racial bias rather than employer s stated reason, insubordination, which petitioner alleged never actually occurred. Id. at 537. This court remanded the matter to the Board finding that the Board should have taken testimony from a witness who could provide testimony directly contradictory to the employer s stated reason for terminating the petitioner. Id. Unlike Hamilton, testimony regarding Claimant s prior harassment complaints is not relevant. The employee who allegedly harassed Claimant was not involved in the incident that led to his termination. Indeed, it appears that Claimant s alleged harasser was in no way involved in the detection and investigation of the suspect transaction and ultimately Claimant s termination. An employee in Employer s loss prevention department first noticed the irregular transaction while viewing surveillance video and brought it to the attention of Morris, the area sales manager. Morris conducted the investigation into the suspect transaction, confronted Claimant and ultimately terminated Claimant. Morris also testified that she had terminated other employees for violating the same policy as Claimant. In addition, the witness whom Claimant wished to testify regarding this matter had not been employed by Employer for nearly four months prior to the incident at issue in this case. It is unlikely that a witness who had not been employed with Employer since prior to Claimant s transfer would be able to provide testimony that would directly contradict Employer s stated reason for 9 terminating Claimant.7 A referee has wide latitude in admission of evidence and may exclude evidence that is not relevant. Creason v. Unemployment Comp. Bd. of Review, 554 A.2d 177 (Pa. Cmwlth. 1989). The Board did not err in refusing to remand this matter. For all of the foregoing reasons, we affirm. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 7 Also, any additional testimony or evidence regarding the alleged harassment of Claimant will not show that Claimant had good cause to violate employer s policies. 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kevin Leeper, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 2118 C.D. 2007 ORDER AND NOW, this 5th day of August, 2008, the order of the Unemployment Compensation Board of Review in the above captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge

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