              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David B. Wagner,                              :
                                              : No. 1046 C.D. 2015
                             Petitioner       : Submitted: January 22, 2016
                                              :
                     v.                       :
                                              :
Unemployment Compensation                     :
Board of Review,                              :
                                              :
                             Respondent       :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                                         FILED: February 24, 2016


              David B. Wagner (Claimant) petitions for review of the May 28, 2015,
order of the Unemployment Compensation Board of Review (UCBR) affirming the
decision of a referee to deny Claimant unemployment compensation (UC) benefits. The
UCBR determined that Claimant was ineligible for benefits because he was discharged
from work for 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 “[a]n employe shall be ineligible for compensation for any
week . . . [i]n which his unemployment is due to his discharge . . . from work for willful misconduct
connected with his work.” 43 P.S. §802(e).
              Claimant worked for Sears Roebuck (Employer) as a sales representative
from November 2012 to February 4, 2015.                (UCBR’s Findings of Fact, No. 1.)
Claimant was paid based on commission.              (Id.)   Employer has a policy requiring
employees to record all hours worked on a time and attendance device. (Id., No. 2.)
Employees clock in at the beginning of their shifts and clock out at the end. (Id.)
Employer provides its policies to employees upon hiring and posts the policies on its
internal website. (Id., No. 3.)


              On January 26, 2015, Claimant clocked in after his lunch break at 4:08
p.m. (Id., No. 4.) Rachel Kress, the assistant store manager and Claimant’s supervisor,
was returning from her lunch break and observed Claimant leave the building at
approximately 4:30 p.m. (Id., No. 5.) Kress checked the time sheet, which showed that
Claimant did not punch out. (Id., No. 6.) Claimant did not return to complete his shift.2
(Id.) Claimant next worked on January 28, 2015, (N.T., 4/7/15, at 3; R. Item No. 3, Ex.
6), at which time he changed his time sheet to indicate that he clocked out at 8:55 p.m.
on January 26, 2015. (UCBR’s Findings of Fact, No. 7.)


              Kress confronted Claimant, who admitted that he had left work early on
January 26, 2015, and later altered his time sheet.             (Id., No. 8.)     Claimant was
discharged on February 4, 2015, for leaving work without permission and altering his
time sheet to reflect hours that he did not work. (Id., No. 10.)




       2
          Kress testified that Claimant was scheduled to work until 9:00 p.m. on January 26, 2015.
(N.T., 4/7/15, at 5.)


                                                2
              Claimant filed a claim for UC benefits, which the local service center
granted. Employer appealed to the referee, who held a hearing on April 7, 2015. The
referee concluded that:        (1) Employer has a policy providing for an employee’s
discharge for failing to accurately record time worked; (2) Claimant was aware of
Employer’s policy; and (3) Claimant failed to establish good cause for violating the
policy. The referee discredited Claimant’s testimony that he forgot to clock out on
January 26, 2015, and that he forgot that he left work early that night when he later
adjusted his time sheet to indicate that he worked almost his entire shift. Thus, the
referee concluded that Claimant engaged in willful misconduct under the Law and
reversed the local service center’s award of UC benefits. Claimant appealed to the
UCBR, which affirmed. Claimant now petitions this court for review of that decision.3


              First, Claimant argues that his altering of his time sheet was not willful
misconduct because, as an unsalaried employee paid by commission, Claimant did not
receive unearned pay by altering his time sheet. We disagree.


              This court has defined willful misconduct as:


              (1) a wanton and willful disregard of the employer’s interests;
              (2) a deliberate violation of the employer’s rules; (3) a
              disregard of the standards of behavior that an employer
              rightfully can expect from its employees; or (4) negligence
              that manifests culpability, wrongful intent, or evil design, or
              an intentional and substantial disregard of the employer’s
              interests or the employee’s duties and obligations.


       3
         Our review is limited to determining whether constitutional rights were violated, whether an
error of law was committed, or whether the necessary findings of fact are supported by substantial
evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.


                                                 3
Lewis v. Unemployment Compensation Board of Review, 42 A.3d 375, 377 (Pa.
Cmwlth. 2012). Where an employer discharges an employee for violating a work
policy, the employer bears the burden of proving the existence of the policy, the
reasonableness of the policy, and that the employee was aware of and violated the
policy. Oyetayo v. Unemployment Compensation Board of Review, 110 A.3d 1117,
1121 (Pa. Cmwlth. 2015). The burden then shifts to the employee to show good cause
for his or her conduct, i.e., that his or her conduct was justifiable and reasonable under
the circumstances. Walsh v. Unemployment Compensation Board of Review, 943 A.2d
363, 369 (Pa. Cmwlth. 2008). The employer is not required to show that it suffered a
detriment or that the employee intended to defraud the employer.                Rossi v.
Unemployment Compensation Board of Review, 676 A.2d 194, 198 (Pa. 1996).


             Here, the UCBR credited Kress’s testimony that Employer had a policy
requiring employees to clock out at the end of their shifts and accurately record time
worked and that Employer informed Claimant of the policy when it hired him. The
UCBR also credited Kress’s testimony that Claimant violated this policy by failing to
clock out before he left work at 4:30 p.m. without permission and altering his time sheet
to indicate that he left work at 8:55 p.m. Finally, the UCBR credited Kress’s testimony
that Claimant admitted these actions when Kress confronted him, thus establishing the
deliberate nature of Claimant’s violation. Contrary to Claimant’s argument, the fact that
his conduct did not result in his receiving unearned pay at the expense of Employer does
not preclude a finding of willful misconduct. Therefore, based on Kress’s credible
testimony, the UCBR properly concluded that Claimant’s violation of Employer’s time-
punch policy constituted willful misconduct.




                                            4
             Next, Claimant argues that his altering of his time sheet was not willful
misconduct because (1) Employer did not discharge other employees for similar
conduct, and (2) Kress testified that Employer might not immediately discharge an
employee for similar conduct where the employee had worked for Employer for many
years. We disagree.


             Initially, we note that disparate treatment is not an argument against a
finding of willful misconduct; rather, it “is an affirmative defense by which a claimant
who has engaged in willful misconduct may still receive benefits.” Geisinger Health
Plan v. Unemployment Compensation Board of Review, 964 A.2d 970, 974 (Pa.
Cmwlth. 2009) (en banc). To establish this defense, the claimant must show that:

             (1) the employer discharged claimant, but did not discharge
             other employees who engaged in similar conduct; (2) the
             claimant was similarly situated to the other employees who
             were not discharged; and (3) the employer discharged the
             claimant based upon an improper criterion.

Id.


             Here, the UCBR did not find that Employer failed to discharge other
employees for the same conduct as Claimant. Additionally, Claimant did not show that
the policy was enforced unequally. When Kress was asked on cross-examination if
Employer enforced its time-punch policy differently for employees who had worked for
Employer for more than 20 years, she replied, “I don’t know for sure. That’s the only
exception . . . in a hypothetical. I don’t know that.” (N.T., 4/7/15, at 15-16.) Kress did
not confirm that Employer would enforce the time-punch policy differently in that



                                            5
hypothetical scenario, nor did she testify to any specific instance of such enforcement.
Therefore, Claimant failed to establish disparate treatment.


             Next, Claimant argues that Employer did not meet its burden of showing
that Claimant was aware of the time punch policy. We disagree. Here, Employer
entered the policy into evidence. (Id. at 3; R. Item No. 3, Ex. 2L.) The UCBR credited
Kress’s testimony that employees receive a copy of the policy at the time of hire and
that the policy is posted on Employer’s internal website. Therefore, Claimant should
have been aware of the policy.


             Finally, Claimant argues that he had good cause for leaving work early and
altering his time sheet because he was ill and altering time sheets is an accepted practice
in Employer’s workplace. We disagree. The UCBR is the sole arbiter of witness
credibility and evidentiary weight. Guthrie v. Unemployment Compensation Board of
Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). Here, Kress testified that altering time
sheets is neither routine nor permitted. (N.T., 4/7/15, at 15.) The UCBR determined
that Claimant “failed to offer any credible account that would establish good cause.”
(UCBR’s Decision at 3.) Therefore, based on the credible evidence, Claimant failed to
establish good cause for his actions.


             Accordingly, we affirm.



                                          ___________________________________
                                          ROCHELLE S. FRIEDMAN, Senior Judge



                                            6
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David B. Wagner,                      :
                                      : No. 1046 C.D. 2015
                        Petitioner    :
                                      :
                   v.                 :
                                      :
Unemployment Compensation             :
Board of Review,                      :
                                      :
                        Respondent    :




                                     ORDER


           AND NOW, this 24th day of February, 2016, we hereby affirm the May 28,
2015, order of the Unemployment Compensation Board of Review.



                                      ___________________________________
                                      ROCHELLE S. FRIEDMAN, Senior Judge
