H. Salhi v. UCBR ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hassan Salhi, :
:
Petitioner :
:
v. : No. 1742 C.D. 2015
: Submitted: January 29, 2016
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: May 6, 2016
Hassan Salhi (Claimant) petitions for review of an order of the
Unemployment Compensation Board of Review (Board) finding Claimant
ineligible for unemployment compensation benefits because he was discharged
from his employment as a billing coordinator with Crossroads Hospice of
Philadelphia (Employer) for deliberate failure to perform his duties, which
amounted to willful misconduct under section 402(e) of the Unemployment
Compensation Law (Law).1 We affirm.
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 in which his or her unemployment is due to discharge for willful misconduct connected to
his or her work. 43 P.S. § 802(e).
Claimant applied for unemployment benefits following his discharge
from employment with Employer and the Department of Labor and Industry issued
a May 8, 2015 determination finding him ineligible for benefits. (Record Item (R.
Item) 5, Notice of Determination.) Claimant appealed, and a hearing was held
before the referee on June 8, 2015, at which Claimant and two Employer
witnesses, the Clinical Director and the Assistant Clinical Director, testified. (R.
Item 9, Referee Hearing: Transcript of Testimony (H.T.).) Following the hearing,
the referee issued a June 11, 2015 decision and order finding Claimant ineligible
for unemployment benefits under Section 402(e) of the Law. (R. Item 10, Referee
Decision/Order.) Claimant appealed to the Board and the Board issued its August
17, 2015 order affirming the referee’s decision. (R. Item 12, Board’s Decision and
Order.) The Board made the following findings of fact:
1. [Claimant] was last employed as a billing coordinator
by Crossroads Hospice of Philadelphia from July 4,
2012, and his last day of work was April 20, 2015.
2. [Claimant] was responsible for patient bills, the day-
to-day census, continuous care documentation, and
accounts payable and receivable.
3. On September 12, 2014, [Claimant] received a written
warning for not providing the census correctly in order to
secure accurate and timely billing.
4. On December 8, 2014, [Claimant] was placed on a
thirty-day performance improvement plan for issues with
billing tasks and incorrectly entering patient information
effecting [sic] Medicare billing.
5. On January 8, 2015, [Claimant] was removed from the
performance plan because his performance improved.
6. On April 17, 2015, the clinical director received a call
from a vendor who had not received payment, so the
2
clinical director entered [Claimant’s] office to look for
the bill.
7. In [Claimant’s] office, the clinical director found at
least fifty unopened envelopes containing bills and a
check for $4,900 dated February 2, 2015, that had not
been issued.
8. The clinical director questioned [Claimant] about the
status of his office and [Claimant] stated he was being set
up.
9. On April 20, 2015, [Claimant] was discharged for
failure to perform his duties.
(R. Item 12, Board’s Decision and Order, Findings of Fact (F.F.) ¶¶1-9.)
Claimant appealed the Board’s decision and order to this Court.2
Claimant argues, in essence, that the Board’s findings, in particular its findings that
at least fifty unpaid bills and an unissued check in the amount of $4,900 were
found in Claimant’s office, are not supported by substantial evidence. Claimant
argues that Employer’s evidence is inadmissible hearsay and is inconsistent, and
that Employer failed to show that Claimant engaged in willful misconduct.
Whether a claimant’s conduct rises to the level of willful misconduct
is a question of law that is subject to plenary review by this Court. Orend v.
Unemployment Compensation Board of Review, 821 A.2d 659, 661 (Pa. Cmwlth.
2003). The term willful misconduct is not defined within Section 402(e) of the
Law, but has been interpreted by the courts to include: 1) wanton or willful
disregard of the employer’s interests; 2) deliberate violation of the employer’s
2
Our scope of review is limited to determining whether necessary findings of fact are supported
by substantial evidence, whether an error of law was committed and whether constitutional rights
were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Smithley v.
Unemployment Compensation Board of Review, 8 A.3d 1027, 1029 n.5 (Pa. Cmwlth. 2010).
3
rules or directives; 3) disregard of the standards of behavior which an employer
can rightfully expect from an employee; and 4) negligence demonstrating an
intentional disregard of the employer’s interest or the employee’s duties and
obligations. Scott v. Unemployment Compensation Board of Review, 36 A.3d 643,
647 (Pa. Cmwlth. 2012). Mere incompetence, inexperience, or inability to perform
a job generally will not result in willful misconduct; failure to work up to proven
ability despite warnings of poor work performance, however, can constitute willful
misconduct. Id. at 647-648.
The employer bears the burden of proving that the claimant was
discharged for willful misconduct. Greer v. Unemployment Compensation Board
of Review, 4 A.3d 733, 736 (Pa. Cmwlth. 2010). Employer established that
Claimant had received prior warnings, had been placed on a thirty-day
performance improvement plan in December 2014, and had been removed from
such plan one month later because his performance had improved. (R. Item 12,
Board’s Decision and Order, F.F. ¶¶3-5.) Employer also established that at least
fifty unopened bills and an unissued $4,900 check were found in Claimant’s office.
(Id., F.F. ¶ 7.) Employer’s Clinical Director testified that she entered Claimant’s
office together with Claimant’s direct supervisor, and they found the unopened
bills and check; she stated that she spent the ensuing weekend going through the
bills and searching for any other checks due to the sensitive timing of insurance
company billing, and then sent all of the materials to the corporate office per its
instruction by express mail on Monday. (Id., H.T. at 11, 23.) The Board
concluded that “the [Clinical Director] credibly testified that on April 17, 2015,
[Claimant’s] office contained at least fifty unopened envelopes containing bills and
a check for $4,900 dated February 2, 2015, that had not been issued.” (R. Item 12,
4
Board’s Decision and Order, Discussion.) Further, the Board discredited
Claimant’s testimony that he did not have multiple unpaid bills or any check in his
office and that he was “set up.” (Id.) The Board stated “[Claimant] failed to
provide any credible evidence to support his testimony that he was set up.
[Claimant] demonstrated that he was able to perform his duties after January 8,
2015, but deliberately failed to perform his duties by not paying bills or issuing
checks. [Claimant’s] actions in failing to perform his duties fell beneath the
standards expected of him by [Employer] and amounted to willful misconduct.”
(R. Item 12, Board’s Decision and Order, Discussion.) The Board is the ultimate
fact finder and arbiter of credibility. Peak v. Unemployment Compensation Board
of Review, 501 A.2d 1383, 1387 (Pa. 1985).
Claimant argues that the Clinical Director presented emails
exchanged between Claimant’s direct supervisor and individuals at Employer’s
corporate office, none of whom was present at the hearing, and these emails were
inadmissible hearsay.3 While hearsay, introduction of these emails does not
constitute grounds for reversal of the Board’s decision. These emails were
admitted without objection from Claimant’s then-counsel. (R. Item 9, H.T. at 12.)
Therefore, while insufficient by themselves to support a finding, the Board could
consider them as corroboration of the Clinical Director’s testimony. Walker v.
Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth.
1976). Moreover, there is nothing in the Board’s decision that shows any
consideration or reliance on these emails; rather, the Board based its findings on
3
The emails indicated that Employer was preparing to terminate Claimant’s employment and
also that in the course of searching for some item in Claimant’s office, Claimant’s direct
supervisor had discovered “piles” of bills, presumed to be unpaid, and a check dated the previous
month, presumably not forwarded in a timely fashion. (R. Item 9, H.T., Employer Exhibit 1.)
5
the Clinical Director’s testimony. The information provided by the emails was
thus superfluous, and there is clearly substantial evidence, in the form of the
Clinical Director’s testimony found credible by the Board, that required no
corroboration to establish Claimant’s misconduct.
Accordingly, we discern no error in the Board’s determination that
Employer sustained its burden of proving that it discharged Claimant from his
employment as a result of actions that constitute willful misconduct. The Board’s
order is affirmed.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hassan Salhi, :
:
Petitioner :
:
v. : No. 1742 C.D. 2015
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 6th day of May, 2016, the Order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge