MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Philadelphia Housing Development Corporation (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the Referee's decision to grant unemployment compensation benefits to Samuel E. Morris (Claimant) because Employer failed to meet its burden of proving that Claimant committed willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law). For the reasons that follow, we affirm the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides, in relevant part:
An employe 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 employed as a Weatherization Specialist by Employer from November 1, 2009, through December 21, 2011, and was a member of AFSCME Local 1971 (Union). On November 18, 2011, Claimant took an unauthorized breakfast break, inappropriately appeared with another inspector to perform audits, and recorded inaccurate entries in his work log in violation of Employer's policies. While those actions could have resulted in Claimant's termination from employment, the Union negotiated an agreement with Employer on Claimant's behalf to accept a 20-day suspension rather than a termination. Claimant did not participate in the negotiations and was not aware of the discipline assigned to him until his supervisor called him on November 23, 2011, to inform him of the suspension.
On November 29, 2011, Claimant received a letter detailing the agreement. Claimant was instructed to sign and return the agreement to Employer or else face termination. Disagreeing with the factual allegations in the letter, Claimant altered the agreement and returned it to Employer with a suggestion that he meet with Employer to discuss the alleged discrepancies. Employer then terminated Claimant because it considered Claimant's alteration of the agreement and request for a meeting to be a refusal to sign the agreement.
Contrary to the Board's Finding of Fact No. 6, the letter itself did not instruct Claimant to sign and return the agreement by a designated time or face termination. However, Claimant did testify that "I was told I had to sign the letter or I would face termination." (September 18, 2012 Hearing Transcript at 23).
Claimant's response letter, dated December 5, 2011, stated:
I have received your letter concerning the events of November 18, 2011. I have read it and find fault with your reports concerning the facts from our meeting as well as the course of action you have chosen to take.
I was instructed that this letter must be signed by 3pm on December 5, 2011. Attached is an altered copy of the letter which I am willing to and have signed. You will notice I have not changed the wording in any way, merely made a few minor modifications to the document which I present as a final version.
A meeting concerning discrepancies I have found contained within this letter as well as the decisions made concerning disciplinary action and possible termination would be helpful in resolving our differences.
(Employer's Exhibit No. 3, Certified Record at 9).
Claimant applied for unemployment compensation benefits with the UC Service Center, which granted benefits, and Employer appealed. Before the Referee, Dana Mitchell, Director of Employer's Weatherization Systems Program, testified regarding the purpose and rationale of Employer's policies and detailed Claimant's violations of those policies. Employer's counsel also explained that Employer was not permitted to communicate directly with Claimant regarding the agreement or the consequences of not signing the agreement, but rather could only communicate with the Union in that regard.
Claimant admitted to the violations of Employer's policies but explained that he chose not to sign the November 29, 2011 letter from Employer because, typically, Employer would require an employee to sign such a letter prior to the commencement of disciplinary action; because certain dates in the letter were incorrect; and because the content of the letter would be damaging to his reputation, particularly the allegations that he intentionally misrepresented pertinent material facts and that he was "stealing time" from Employer. He also testified that his actions were commonplace and that he was not timely informed of his suspension in violation of the collective bargaining agreement between Employer and Union.
The Referee granted benefits, explaining that although Claimant disagreed with some of the wording in Employer's November 29, 2011 disciplinary letter, he did not inform Employer that he would refuse to sign it, but merely requested a meeting to discuss what he considered to be discrepancies in the letter. Employer then appealed to the Board, which affirmed, explaining:
In the present case, the claimant was terminated not only because of his actions on November 18, 2011, but also because he did not sign and return the agreement as instructed by the employer. While it was reasonable for the employer to instruct the claimant to execute the suspension agreement by a certain deadline, it was also reasonable for the claimant to refrain from signing and returning that agreement where he credibly testified that he believed some aspects of that agreement were factually incorrect. It was also reasonable for the claimant to alter the agreement to notify the employer of the sections he believed were incorrect and for him to request a meeting to discuss the agreement before signing it.
(Board's March 12, 2013 Decision at 3). This appeal followed.
Our review of the Board's decision is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 222 n.8 (Pa. Cmwlth. 2012).
On appeal, Employer argues that the Board erred in concluding that Claimant was not ineligible for benefits under Section 402(e) of the Law because Claimant was terminated for willful misconduct, and the Board's findings with respect to the reasonableness of his actions relating to the agreement are not supported by substantial evidence. Specifically, Employer contends that Claimant's actions relating to the agreement were not reasonable because Claimant was responsible for communicating any concerns he had with the proposed terms of the agreement to the Union, yet the record is devoid of any evidence demonstrating that any such communications occurred.
Willful misconduct has been defined as:
(1) wanton or willful disregard for an employer's interests; (2) deliberate violation of an employer's rules; (3) a disregard for the standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.
Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012). The employer bears the burden of proving that the claimant's actions rose to the level of willful misconduct. Id. If the employer satisfies its burden, the burden shifts to the employee to show that he or she had good cause for his or her conduct. Id. A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances. Id. Whether an employee's actions constitute willful misconduct is a question of law subject to de novo review and must be determined based on a consideration of all of the circumstances. Id.
We agree with the Referee and Board that, given the totality of the circumstances here, Claimant's conduct did not rise to the level of willful misconduct. Employer's November 29, 2011 letter alleged that Claimant engaged in "knowing, deliberate and flagrant noncompliance" with Employer's policies, and characterized Claimant's actions as "an egregious misappropriation and fraudulent misuse of federal funds." (Employer's Exhibit No. 1, Certified Record at 9). Claimant provided extensive testimony, which the Board credited, explaining why he disagreed with those allegations and chose not to sign the agreement as it was originally drafted. Although, as the Referee noted, the more appropriate action for Claimant to take would have been to inform the Union of his concerns regarding Employer's letter, it was nonetheless reasonable for Claimant to take the actions that he did given the severity of the allegations in Employer's letter and the fact that the letter would remain permanently in Claimant's personnel file.
In an unemployment compensation case, the Board is the ultimate factfinder and is empowered to make credibility determinations. In making those determinations, the Board may accept or reject the testimony of any witness in whole or in part. McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266, 1269-70 (Pa. Cmwlth. 2003). --------
Accordingly, because there is substantial evidence of record supporting the Board's finding that Claimant acted reasonably in altering the agreement and requesting a meeting with Employer to discuss his concerns, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 1 day of October, 2013, the order of the Unemployment Compensation Board of Review, dated March 12, 2013, at No. B-549090, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge