Monday, January 30, 2012

UC - issue-switching

Saleem v. UCBR - Cmwlth. Court - January 27, 2012

The UCBR erred in finding claimant ineligible for benefits, because the reason given for Claimant's discharge was not the reason cited by the Referee and Board in finding him ineligible for benefits. The reason given for the employer appeal from the initial grant of benefits by the UCSC was that the claimant was an independent contractor. At the hearing and on appeal to the Board, the referee and Board reversed, finding that the claimant, a clinician, had committed willful misconduct by mishandling a situation involving a student at a school for troubled students.

"In order to deny benefits to a discharged employee, the employer’s stated reasons for the discharge must be the actual cause of the claimant’s unemployment." Charles v. UCBR, 764 A.2d 708, 711 n.4 (Pa. Cmwlth. 2000) (emphasis added) (citing Century Apartments, Inc. v. UCBR, 373 A.2d 1191, 1192 (Pa. Cmwlth. 1977)). "Not only must the employer prove the claimant committed some act which constitutes „willful misconduct,‟ the employer must also prove that the act in question was the actual reason for the claimant's discharge." Panaro v. UCBR, 413 A.2d 772, 774 (Pa. Cmwlth. 1980) (emphasis added). The Board "may not in its findings rely on reasons for discharge that were not considered relevant by the employer." Tundel v. UCBR, 404 A.2d 434, 435 (Pa. Cmwlth. 1979). The Board contends that, because Employer could have discharged Claimant for violating Employer‟s policies, it, essentially, could disregard the reason given by Employer for discharging Claimant and find Claimant ineligible on a different basis. However, this is contrary to Charles, Panaro, Tundel, and Century Apartments.

After-discovered evidence cases are not on point - In the few cases where the court has permitted an employer to assert reasons other than those given for an employee‟s separation to contest eligibility for benefits, those reasons were based, inter alia, on after-discovered evidence of criminal conduct that, in and of itself, would have supported the discharge. In Preservation Pennsylvania v. UCBR, 673 A.2d 1044 (Pa. Cmwlth. 1996), the Court stated that there is a narrow exception to the rule "that the burden is on an employer to prove an employee‟s willful misconduct and that it was the actual reason for the employee‟s termination from employment." Id. at 1047-48. The court held in Preservation Pennsylvania, that the claimant, who was otherwise eligible for benefits based on the stated reason for her separation from employment, was ineligible because she embezzled funds from her employer, which was not discovered until after she had been separated from her employment due to the employer‟s budgetary problems. Id. at 1048. It stated that "the Board is not deprived of authority to permit evidence of the after-discovered criminal conduct [and t]he Board may thereafter reconsider the employee‟s entitlement to benefits in light of the after-discovered criminal conduct and terminate benefits if the employer sustains its burden of proof." Id. Similarly, in PrimePay, LLC v. UCBR, 962 A.2d 684, 688 (Pa. Cmwlth. 2008), it held that an employer can meet its burden to disqualify an employee from receiving benefits if it proves, by after-discovered evidence, that the employee‟s willful misconduct was concealed and, had the employer been aware of the conduct, the employer would have discharged the employee.

Here, unlike Preservation Pennsylvania and PrimePay, LLC, there was no after-discovered evidence of willful misconduct and there was no concealment of the alleged willful misconduct, i.e., how Claimant handled the incident with Student. The Board‟s finding of willful misconduct, through Claimant‟s violation of Employer‟s procedures, is not based on information discovered after Claimant‟s discharge. Rather, this conduct was contemporaneous to his filing of criminal charges against Student, which was the reason Employer fired Claimant.