Opinion
No. 135 C.D. 2012 No. 494 C.D. 2012
11-26-2012
Yaritsa Vargas, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
In these consolidated appeals, Yaritsa Vargas (Claimant), pro se, petitions for review of: (1) the January 12, 2012 Order of the Unemployment Compensation Board of Review (Board) affirming an Unemployment Compensation Referee's (Referee) Decision and Order denying her claim for unemployment compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law); and (2) the March 2, 2012 Order of the Board denying's Claimant's request for reconsideration of the January 12, 2012 Order. Claimant argues that she is eligible for UC benefits because she had good cause for her admittedly willful misconduct. Because the record supports the Board's denial of Claimant's claim for UC benefits and the Board did not abuse its discretion by denying Claimant's request for reconsideration, we must affirm both Orders.
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, "[a]n employe shall be ineligible for compensation for any week . . . [i]n which [her] unemployment is due to [her] discharge . . . from work for willful misconduct connected with [her] work . . . ." Id.
This Court granted St. Luke's Physician Group's (Employer) application for relief seeking to intervene in Claimant's appeal of the Board's January 12, 2012 Order docketed at No. 135 C.D. 2012. Employer, as Intervenor, has filed a brief in opposition to Claimant's appeal.
Claimant was employed by St. Luke's Physician Group (Employer) as a medical assistant until her discharge on August 25, 2011. Claimant immediately filed an internet claim for UC benefits wherein she stated that she was discharged for breach of trust. Claimant explained that she was dishonest, and made a bad choice out of desperation, by submitting medical certification forms to her electricity provider, upon which she forged signatures of Employer's physician, nurse practitioner and manager, in order to prevent her electricity from being shut off for non-payment of the electric bill. Claimant stated that her daughter had asthma, which required the use of an electric powered nebulizer machine. The Allentown UC Service Center (Service Center) determined that Claimant's act of dishonesty constituted willful misconduct and that she had not shown good cause for her actions. Thus, the Service Center issued a determination finding Claimant ineligible for UC benefits pursuant to Section 402(e) of the Law. (Internet Initial Claims, R. Item at 2; Claimant Separation Information, R. Item 3; Notice of Determination, R. Item 5.)
Claimant appealed the Service Center's determination and a hearing ensued before the Referee. Employer's human resources director appeared and testified on Employer's behalf. Employer also entered into the record, without objection by Claimant, additional evidence consisting of three "Medical Certification Request" forms submitted by Claimant to her electricity provider. Two of the forms contained the purported signature of one of Employer's physicians and one form contained the purported signature of Employer's office manager. Claimant appeared, pro se, and testified on her own behalf. The Referee made the following findings of fact:
1. [C]laimant was last employed by [Employer] for approximately two years as a medical assistant at a final hourly rate around $14 and her last day of work was August 25, 2011.(Referee's Findings of Fact (FOF) at ¶¶ 1-7.) The Referee pointed out that Claimant readily admitted that she wrongly falsified the medical certification forms that she submitted to her electricity provider. The Referee concluded that Claimant's actions amounted to willful misconduct in connection with her employment. The Referee did not accept Claimant's explanation "that she felt desperate because of her status as a single mother and need to care for her daughter with asthma" because Claimant "also admitted that she never asked [E]mployer for any assistance with this issue and explained only that her daughter[']s physician would not sign her paperwork." (Referee Decision at 2.) Therefore, the Referee affirmed the Service Center's determination and denied Claimant's claim for UC benefits pursuant to Section 402(e) of the Law.
2. [E]mployer learned that [] [C]laimant falsified medical certification forms in order to avoid the electricity being turned off at her home.
3. [C]laimant has a daughter with asthma that requires a nebulizer and was notified that her electric service could be shut off unless she provided certification from a doctor or nurse practitioner that there was a medical need for electricity.
4. [C]laimant falsified the signatures of a physician[,] nurse practitioner and manager of [Employer].
5. [C]laimant did not ask [] [E]mployer for assistance with this matter but instead completed three separate forms with false information which she submitted to PPL Electric Utilities.
6. [E]mployer confronted [] [C]laimant and she readily admitted her actions and that she knew her actions were wrong.
7. [C]laimant was suspended[,] then discharged by [] [E]mployer.
Claimant appealed to the Board, stating that the reason for her appeal was that she was still unemployed and "according to Unemployment I am eligible because I worked enough hours and accumulated what was needed to collect unemployment benefits." (Petition for Appeal, R. Item 11.) Upon review, the Board concluded that the Referee's Decision was proper under the Law and adopted the Referee's findings and conclusions. Accordingly, the Board affirmed the Referee's Decision by Order mailed January 12, 2012. Claimant filed a timely request for reconsideration in which she stated that she was wrongfully discharged based upon a first offense and that she was not suspended first, but outright discharged in violation of proper protocol. (Request for Reconsideration, R. Item 14.) The Board denied Claimant's request by Order mailed March 2, 2012. Claimant now petitions this Court for review of both Orders of the Board.
This Court's review of a Board's decision granting or denying a claim for UC benefits "is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006). This Court's review of a decision granting or denying a request for reconsideration is limited to determining whether the Board abused its discretion. Ensle v. Unemployment Compensation Board of Review, 740 A.2d 775, 779 (Pa. Cmwlth. 1999).
Here, Claimant does not dispute the conclusion, based on her own admission, that her actions constituted willful misconduct. The primary theme of Claimant's pro se brief is that the Board misunderstood and misconstrued that she had good cause for committing willful misconduct. In support of this contention Claimant advances several reasons, in addition to the reasons she testified to before the Referee, as to why she had good cause. However, the hearing before the Referee was where Claimant needed to have presented her evidence and state her reasons, but she did not present any evidence at the Referee's hearing to support these reasons for her actions. Claimant also did not preserve these additional reasons in her appeal to the Board or in her Petitions for Review filed with this Court seeking review of the Board's Orders. This Court is not permitted to accept new evidence contained in a party's brief in an appeal, nor are we permitted to review issues that were not first raised at the hearing or before the Board which have not been preserved. Therefore, we cannot consider the new information contained in Claimant's brief and must find that these issues have been waived. Accordingly, we will address the issue of whether Claimant met her burden of proving that she had good cause for her actions for the reasons Claimant testified to at the Referee's hearing.
"Our Supreme Court defines willful misconduct as behavior that evidences a willful disregard of the employer's interests, a deliberate violation of the employer's work rules, or a disregard of standards of behavior that the employer can rightfully expect from its employees." Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 341 (Pa. Cmwlth. 2008) (citing Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997)). Whether a claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297, 299 (Pa. Cmwlth. 1991). The employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510, 512 (Pa. Cmwlth. 1982).
Once the employer proves willful misconduct, "the burden of proof shifts to the claimant to prove that she had good cause for her actions." Owens v. Unemployment Compensation Board of Review, 748 A.2d 794, 798 (Pa. Cmwlth. 2000).
It is well settled that an appellate court cannot consider anything which is not part of the certified record in a case. Smith v. Smith, 637 A.2dd 622, 623-24 (Pa. Super. 1993); see also Fotta v. Workmen's Compensation Appeal Board (U.S. Steel/USX Corporation Maple Creek Mine), 534 Pa. 191, 196 n.2, 626 A.2d 1144, 1147 n.2 (1993).
See Rule 1551 of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1551 ("No question shall be heard or considered by the court which was not raised before the government unit."); Rule 1513(d) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1513(d) (requiring that an appellate petition for review contain, among other things, "a general statement of the objections to the order or other determination"). This Court repeatedly has held that failure to raise an issue in a petition for review constitutes waiver of that issue. See Maher v. Unemployment Compensation Board of Review, 983 A.2d 1264, 1267 (Pa. Cmwlth. 2009) (citing Patla v. Unemployment Compensation Board of Review, 962 A.2d 724, 726 (Pa. Cmwlth. 2008) and Deal v. Unemployment Compensation Board of Review, 878 A.2d 131, 132-33 (Pa. Cmwlth. 2005)).
Claimant's other reasons, set forth in her brief for the first time, and not properly preserved by raising them before the Referee or the Board, as to why she had good cause for forging the signatures on the medical certification forms are: (1) a hostile work place prevented Claimant from asking for help with the forms; (2) Employer refused to treat patients based upon race; (3) Employer discriminated against Claimant based upon her race and religion; (4) Employer violated the Health Insurance Portability and Accountability Act (HIPAA), Pub.L. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 18, 26, 29 and 42 U.S.C.), by firing patients and refusing to treat them; (5) Claimant is a victim of educational prejudice that stole her life; (6) Employer has abused its special tax status for pecuniary gain at the expense of the citizenry, which requires the revocation of Employer's "IRC 501(c)(3) tax status"; and (7) Employer invaded Claimant's privacy by obtaining copies of the forged forms from the electricity provider. Claimant also raises three procedural issues for the first time in her pro se brief; specifically, that: (1) she was denied legal representation; (2) she was denied copies of the exhibits to the Referee's hearing transcript; and (3) Employer's human relations director perjured himself by falsely testifying that Claimant was suspended when, in fact, she was never suspended, but outright discharged. Even if Claimant had preserved these three procedural issues, she would not have prevailed in this appeal.
First, we note that Claimant was questioned by the Referee at the beginning of the hearing as to whether she was aware of her right to be represented by counsel and to call and crossexamine witnesses. (Referee Hr'g Tr. at 1, R. Item 9.) Claimant responded in the affirmative and did not request a continuance in order to secure legal representation. (Referee Hr'g Tr. at 1, R. Item at 9.) Moreover, Claimant was given the opportunity to ask Employer's witness questions, but declined to do so. (Referee Hr'g Tr. at 6, R. Item at 9.) Therefore, Claimant cannot now claim that her due process rights were violated. Second, we do not agree with Claimant's assertion that she was denied her court record to defend herself when the Board allegedly did not include the exhibits presented at the Referee's hearing when it provided her with a copy of the transcript. If Claimant's contention is true that the Board's cover letter stated that the exhibits were included with the transcript, she could have contacted the Board and obtained the missing exhibits. Third, whether Employer's human resources director perjured himself by stating that Claimant was suspended and then discharged for her actions does not affect the outcome of this case. It was undisputed that Claimant was discharged and Claimant did not challenge Employer's disciplinary policies before the Referee or the Board.
Claimant testified that she admitted to Employer that she forged the signatures of two other employees on the medical certification forms she submitted to her electrical provider. (Referee Hr'g Tr. at 6, R. Item at 9.) When asked by the Referee why she forged the signatures, Claimant responded that she was "a single mother of a[n] eight-year-old, and I did become desperate because my sole - I'm her sole provider." (Referee Hr'g Tr. at 6, R. Item at 9.) Claimant admitted that she made the wrong choice, but reiterated that she was desperate to provide for her daughter. (Referee Hr'g Tr. at 6, R. Item at 9.) Claimant testified that she knew it was not Employer's fault and that she was not blaming Employer for her situation. (Referee Hr'g Tr. at 6, R. Item at 9.) Claimant also admitted that she never approached Employer for help in preventing her electricity from being shut off. (Referee Hr'g Tr. at 7, R. Item at 9.)
Claimant's testimony supports the Referee's determination, as affirmed by the Board, that Claimant's reasons for her conduct did not justify her actions. This Court has explained that "[g]ood cause is established 'where the action of the employee is justified or reasonable under the circumstances.'" Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 522 (Pa. Cmwlth. 1999) (quoting Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976)). Claimant admitted that she did not seek Employer's help to resolve the situation with her electricity before deciding to submit the forged medical certification forms to her electrical provider. While we empathize with Claimant regarding her situation in wanting to ensure that her daughter's medical needs were met, we cannot conclude that her actions were reasonable under the circumstances. Claimant's forging of Employer's physician's and other professional's signatures to secure the required medical certification clearly violated those standards of conduct which an employer has a right to expect from an employee. See Downey v. Unemployment Compensation Board of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006) (holding that "an employee's dishonesty or misrepresentation can exhibit a disregard of the employer's interests and disregard of standards of behavior that the employer can rightfully expect from its employees."). Claimant did not present any evidence at the hearing or explain why she could not have discussed her need for the medical certification in order to avoid the possible termination of electrical service with one of Employer's physicians or nurse practitioners, when her daughter's physician refused to sign it. Because there was no evidence or reason presented, Claimant did not meet her burden of proving that she had good cause for her actions.
Next, we turn to Claimant's appeal of the Board's March 2, 2012 Order denying her request for reconsideration. Claimant does not address this issue in her brief and, even if she had addressed this issue, we would conclude that the Board did not abuse its discretion by denying reconsideration.
Issues not included in a petitioner's statement of questions involved are waived. See Pennsylvania Rule of Appellate Procedure 2116, Pa. R.A.P. 2116 ("No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby."). --------
Claimant requested that the Board reconsider its January 12, 2012 Order because she was wrongfully discharged based upon a first offense and that she was not suspended first, but immediately discharged in violation of proper protocol. (Request for Reconsideration, R. Item 14.) However, these reasons go to the merits of the Board's January 12, 2012 Order and do not constitute good cause to grant reconsideration. See Ensle v. Unemployment Compensation Board of Review, 740 A.2d 775, 779 (Pa. Cmwlth. 1999) (holding that "[i]n determining whether 'good cause' exists, the Board must consider whether the party requesting reconsideration has presented new evidence or changed circumstances or whether it failed to consider relevant law.").
For the foregoing reasons set forth herein, we are constrained to affirm the Board's January 12, 2012 and March 2, 2012 Orders.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 26, 2012, the January 12, 2012 and the March 2, 2012 Orders of the Unemployment Compensation Board of Review entered in the above-captioned matter are hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge