M. Wei v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ming Wei, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 236 C.D. 2008 Submitted: May 30, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: July 25, 2008 Ming Wei (Claimant) petitions for review from an order of the Unemployment Compensation Board of Review (Board) which affirmed the decision of a referee denying Claimant s petition for benefits, determining that Claimant s discharge from the Pennsylvania Department of Health (Employer) was due to Claimant s willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law).1 We affirm the Board. 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: (e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is employment as defined in this act ¦. Claimant was discharged from his employment on September 4, 2007 and he thereafter applied for benefits. Claimant s application was denied by the job center. Claimant appealed and a hearing was held before a referee. The referee found that Claimant, an epidemiologist, had worked for Employer for six and one-half years. Claimant s supervisor assigned a portion of a very large project that required consolidating and unifying data from laboratory reports which gathered HIV/AIDS cases in 2005. The supervisor reduced some of Claimant s other assignments by transferring those assignments to other employees. It was emphasized to Claimant that the project needed to be done quickly and that the entire project, which had been divided into three parts, need to be completed. Claimant repeatedly stated that the project was too large for one employee. Claimant requested permission to take a training class. Employer denied the training request because it was not related to the project completion. Claimant also informed Employer that the data was difficult to transfer, there was a great amount of data to input and that he did not like the format he was to use to input the data. Employer continued to provide instructions to Claimant to work toward completion of the project. Although requested to do so by his supervisor, Claimant did not provide weekly reports, nor did Claimant provide feedback or any information that indicated that he was working on the assigned project. Thereafter, Claimant requested a leave of absence, and Employer approved Claimant s request under the Family and Medical Leave Act (FMLA) because of a severe health problem. Employer also referred Claimant to the State Employees Assistance Program. Employer requested Claimant to provide additional documentation on the health problem if it continued after the leave 2 approved under the FMLA. Claimant did not provide any additional documentation or request an extension of the leave. Due to Claimant s continued failure to respond to his supervisor s request for progress reports on the project, Employer, under its progressive disciplinary policy, scheduled a pre-disciplinary conference on May 16, 2007. Employer subsequently provided Claimant with a written warning for unsatisfactory work performance. Employer instructed Claimant to complete the project within six weeks or risk further disciplinary action. On July 2, 2007, another pre-disciplinary conference was held because of Claimant s failure to respond to his supervisor s instructions to report on the project. Claimant did not provide an adequate response to Employer for his lack of progress on the project. On July 10, 2007, Employer notified Claimant that he was suspended from July 23 to July 27, as a result of his continued failure to complete the project and because of his conduct at the July 2, 2007 pre-disciplinary hearing. Claimant, thereafter, returned to work and informed his supervisor that he had completed 424,598 records of the approximate 600,000 records. The supervisor requested to review the progress in Claimant s office; however, Clamant failed to produce any evidence of his progress to his supervisor. On August 24, 2007, a pre-disciplinary conference was held with respect to Claimant s progress on the project. On September 4, 2007, Employer discharged Claimant for failing to complete the assigned project. Based on the above findings, the referee determined that Employer had given Claimant a large project to complete and in doing so, Employer reassigned some of Claimant s other work to different individuals. Employer 3 emphasized that the project was a priority and that it needed to be completed quickly. Claimant was aware of the importance of the project. The referee found that despite having been subjected to several disciplinary actions in which Claimant had received a written warning and suspension, Claimant failed to show progress on his assignment, even though Claimant was aware that his job was in jeopardy if he failed to do so. Likewise, the referee found that Claimant failed to provide any reasonable justification for failing to provide his supervisor with evidence of his progress. As a result, the referee determined that Employer discharged Claimant for poor work performance after failing to complete the assignment. Claimant, thereafter, appealed to the Board, which adopted the decision of the referee and affirmed the denial of benefits to Claimant. This timely appeal follows.2 We will address Claimant s arguments but not in the order presented. Claimant argues that the Board s findings of fact do not demonstrate that Claimant s conduct rose to the level of willful misconduct. Instead, Claimant argues that he established good cause for not completing the assignment and also that he completed a substantial portion of the project, so that his termination was unwarranted. Under Section 402(e) of the Law, 43 P.S. § 802 (e), if a claimant is terminated or temporarily suspended for engaging in willful misconduct, the claimant is not eligible for benefits. Willful misconduct, though not explicitly defined by statute, has been defined as an act of wanton or willful disregard of the 2 Our review is limited to a determination of whether constitutional rights were violated, whether an error of law was committed and whether necessary findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841 (Pa. Cmwlth. 1987). 4 employer s interests, a deliberate violation of the employer s rules, a disregard of the standards of behavior which the employer has a right to expect of an employee, or negligence indicating an intentional disregard of the employer s interests or of the employee s duties and obligations to the employer. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297, 299 (Pa. Cmwlth. 1991). The employer has the burden of proof to establish willful misconduct of the employee. Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436, 438 (Pa. Cmwlth. 2000). As indicated by this Court, before the actions of an employe can constitute willful misconduct, the employe must display a serious disregard of his responsibilities to his employer, in a manner that is in some real sense detrimental to his employer s interests. Ungard v. Unemployment Compensation Board of Review, 442 A.2d 16, 19 (Pa. Cmwlth. 1982)(citing O Keefe v. Unemployment Compensation Board of Review, 333 A.2d 815, 818 (Pa. Cmwlth. 1975)). However, [m]ere incompetence, inexperience or inability of an employee, while it may justify a discharge will not constitute willful misconduct so as to render an employee ineligible for unemployment compensation. Sacks v. Unemployment Compensation Board of Review, 459 A.2d 461, 463 (Pa. Cmwlth. 1983). In McCrea v. Unemployment Compensation Board of Review, 487 A.2d 69 (Pa. Cmwlth. 1985), the claimant had received prior warnings as well as a suspension from her employer because her sub-par job performance was unsatisfactory and despite the warnings, the claimant again failed to complete a work assignment. As a result, this Court affirmed the Board s determination that the claimant had engaged in willful misconduct. In doing so, this Court indicated that willful misconduct is established when action or inaction by Claimant 5 amounts to a conscious disregard of the employer s interests or constitutes behavior contrary to which an employer has a right to expect from an employee. McCrea, 487 A.2d at 71. Poor work performances reflect an unwillingness to work to the best of one s ability and evidence a disregard for the standard of conduct her Employer had the right to expect. Id. In the instant matter, Claimant does not assert that he was mentally incapable of completing the assignment. Rather, Claimant first argues that he could not have finished the project within the time frame provided.3 Specifically, Claimant repeatedly asserts that in order to complete the project, 7,000 working hours were required, but he was only given 200 working hours to complete the assignment.4 The Board, as the determiner of credibility, found Employer s testimony that Claimant was given additional time to complete the project credible. Further, the Board determined that Employer had distributed several of Claimant s other assignments to other employees, in order to allow Claimant to focus on completing the project. Although Claimant was aware of the importance of completing the assignment and that failure to do so would jeopardize his position with Employer, the Board found that Claimant failed to provide his supervisor with 3 Claimant also repeatedly emphasized that the format in which he was to input the data was not final and therefore, his failure to enter the data was justified since the data could not be properly tested. The Board, however, found that Claimant was only responsible for his portion of the assignment, which did not include testing the data. Likewise, the Board found that Employer was aware that the current format was not final but that Claimant s assignment had to first be completed so that Employer could begin testing the data. 4 Despite this allegation, Claimant nevertheless indicates that he processed over 400,000 records within 200 working hours. Reproduced Record (R.R.) at 19. Based on Claimant s own allegations, Claimant was able to complete two-thirds of the assignment within 200 working hours. Nevertheless, Claimant repeatedly indicates that 7,000 working hours are required to complete the assignment. 6 evidence requested of his progress regarding the assignment. While Claimant complains that he had completed 424,598 of the 600,000 cases, the Board found that Claimant was unable to verify such progress or produce any such evidence or indication that he had done such work when confronted by his supervisor. Claimant argued that he was unable to provide his supervisor with a print out report of the records because of the size of the print out, as well as the confidentiality of the information. The Board, however, determined that the supervisor was authorized to view all confidential information assigned to the claimant and contained in the data set and new report form. Board s Decision, at 3. Incompetence, inability or poor work performance, such as the mere failure to complete an assignment in the case sub judice, may not, by itself, ordinarily amount to willful misconduct. The referee and the Board considered the complaints of Claimant about the size and the conditions of the assignment but credited the Employer s testimony that there were accommodations made for Claimant, such as, giving him additional time and reducing his assignment by distributing several of his assignments to other employees. In addition to his failure to perform satisfactorily, however, Claimant deliberately chose not to follow the orders of his Employer by not producing the print outs which would evidence the progress being made on a known important project. His reason for not doing so, because the print out would be too large and confidential, was considered by the referee and the Board and found not to be justification for arbitrarily rejecting the instructions of his supervisor. Such evidence, even though contested by the Claimant, is substantial evidence supporting the facts found and constitutes willful misconduct as found by the referee and the Board. 7 Claimant also asks our court to determine whether his constitutional rights were violated.5 Specifically, Claimant alleges that the referee showed bias in disallowing the admission of certain evidence on his behalf that would have demonstrated the heavy workload required to achieve project completion.6 As indicated by this Court, [a] referee is not free to disregard rules of evidence and if evidence is not relevant the referee may exclude it. Creason v. Unemployment Compensation Board of Review, 554 A.2d 177, 179 (Pa. Cmwlth. 1989). Likewise, [a]gencies shall not be bound by technical rules of evidence at agency hearings and all relevant evidence of reasonable probative value may be received. Unemployment Compensation Board of Review v. Ceja, 493 Pa. 588, 595, 427 A.2d 631, 634 (1981). Here, Claimant and Employer testified that the project was a large amount of work. Moreover, both the Board and the referee found that the project was a large amount of work. Therefore, further demonstration that the project was a large amount of work was unnecessary and would have been repetitive. There was no reasonable probative value in admitting the documents and the referee did not deny Claimant a full and fair opportunity to present evidence on his own behalf. 5 Employer alleges that Claimant has waived all the arguments presented in his brief because Claimant failed to preserve them in his petition for review. Although the issues presented in the petition for review are not identical to those presented in his brief, we conclude that they are fairly comprised therein. Pa. R.A.P. 1513(d) provides that [a]n appellate jurisdiction petition for review shall contain ¦a general statement of the objections to the order or other determination ¦. The statement of objections will be deemed to include every subsidiary question fairly comprised therein. 6 The first document, entitled Core HIV/AIDS Surveillance Work Flow Diagram, was created by Employer in October 2004. The second document was entitled HARS Electronic Laboratory Reporting Charter. 8 Next, Claimant argues that the Board erred in crediting the testimony of Employer s witnesses. We reject Claimant s argument. Although the weight to be given the evidence and the credibility to be afforded the witnesses are within the province of the Board as finder of fact ¦such a body is not free to ignore the overwhelming evidence in favor of a contrary result not supported by the evidence. Borello v. Unemployment Compensation Board of Review, 490 Pa. 607, 618-19, 417 A.2d 205, 211 (1980). Likewise, this Court may not reweigh evidence in reviewing factual findings of the Board. Fitzpatrick v. Unemployment Compensation Board of Review, 616 A.2d 110, 111 (Pa. Cmwlth. 1992). In the present case, there was conflicting testimony among Employer and Claimant. Claimant argues that the Board erred, as Employer s testimony was often self-contradicted. As previously indicated, however, the Board is empowered to determine the credibility of witnesses, which is precisely what the Board did in the instant matter. The Board did not err in crediting Employer s, and not Claimant s, testimony. Additionally, Claimant argues that Employer denied him the training that he needed to complete the assignment. The Board, however, credited the testimony of Employer s witnesses that the training was not necessary or applicable to the work assigned by the [E]mployer. F.F. No. 8. In this case, like McCrea, the record discloses that Claimant s recent work performance had not been satisfactory but that he did have the ability to perform the job. Further, despite being warned and suspended, Claimant s work did not improve. As a result, Employer discharged Claimant on September 4, 2007 for failing to complete the assigned work. We agree with the Board s conclusion 9 that Employer sustained its burden of proving that Claimant was discharged for willful misconduct. Finally, we note that Claimant filed with this Court a motion for rebutting distorted facts, in which Claimant contends that Employer should be disciplined pursuant to Section 8.4 (c) of the Rules of Professional Conduct, which states in part that [i]t is professional misconduct for a lawyer to ¦engage in conduct involving dishonesty, fraud, deceit or misrepresentation ¦. Specifically, Claimant maintains that Employer s witnesses were not truthful in their testimony. However, the Board is the determiner of credibility. Borello, 490 Pa. at 618-19, 417 A.2d at 211. As the Board found the testimony of Employer s witnesses credible, we deny Claimant s motion. Accordingly, we affirm the decision of the Board and deny Claimant s motion. _______________________________ JIM FLAHERTY, Senior Judge 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ming Wei, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 236 C.D. 2008 ORDER AND NOW, this 25th day of July, 2008, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed. Ming Wei s motion for rebutting distorted facts is denied. _______________________________ JIM FLAHERTY, Senior Judge

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