OPINION BY PRESIDENT JUDGE LEAVITT.
Sean J. Bertram (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his claim for benefits under Section 402(e) of the Unemployment Compensation Law (Law), 43 P.S. § 802(e).
In its Unemployment Compensation (UC) Questionnaire, Employer stated that it dismissed Claimant because of "unsatisfactory work performance," which it described as "average only 5 cars a month last year," and added that it had "proof of lack of sales." C.R. Item No. 2, at 1. Employer also stated that Claimant had a "lack of respect for managers and other employees" and "refused to follow processes and procedures." Id. Employer's UC Questionnaire did not mention "insubordination" or assert that Claimant had ever engaged in name-calling. In a subsequent oral interview, Employer stated, for the first time, that Claimant called the general sales manager a liar. The UC Service Center found that Claimant was insubordinate because he called the general sales manager a liar.
C.R. Item No. 5, at 4. The Referee conducted a hearing on April 27, 2017.
At the hearing, Employer presented the testimony of John Katsaros, the General Sales Manager, who stated he began working for Employer on January 4, 2017. Katsaros testified that he fired Claimant on January 23, 2017, for repeated acts of insubordination during the month of January.
Katsaros cited the example of January 20, 2017, when one of Claimant's customers arrived to pick up his vehicle but Claimant was not there to help him. Katsaros also complained that Claimant did not comply with the policies requiring a salesperson to accompany a customer on a test drive and enter every customer's personal information into an online database. Claimant did not submit a business plan for increasing his sales performance as requested by Katsaros. Finally, Claimant did not always introduce his customers to Katsaros as directed by Katsaros.
When Claimant reported to work on Monday, January 23, 2017, Katsaros called Claimant into his office. According to Katsaros, Claimant raised his voice and called Katsaros a "liar." Notes of Testimony, 4/27/2017, at 11 (N.T. ____). Katsaros stated that because his door was open, other employees and a customer in the vicinity of his office could overhear this exchange.
On cross-examination, Katsaros acknowledged that he announced the dismissal of two employees during a sales meeting on January 20, 2017. However, he did not acknowledge that he also announced Claimant's dismissal at that meeting.
Claimant testified and disputed each of Katsaros' claims of insubordination. Claimant stated that he was scheduled to be off work on January 20, 2017, and the customer who showed up did not have an appointment. The matter was handled by another employee after speaking by phone with
Claimant testified that his co-worker, Keri Malone, was present at a meeting of the sales team on Friday, January 20, 2017, at which Katsaros announced his plan to fire Claimant. Malone relayed this information to Claimant over the weekend. When Claimant arrived at the dealership on Monday morning, his files were gone from his office, which "meant that [he] was out of the picture" and that he "was going to be terminated."
Keri Malone testified on Claimant's behalf. She stated that Claimant was a helpful and hardworking colleague, followed Employer's rules and rarely took days off. Malone acknowledged that Katsaros had asked the sales personnel to introduce customers to him; however, Katsaros was often in meetings or could not be found. Malone was present at the dealership on January 20, 2017, when Claimant's customer arrived to pick up his vehicle. The customer did not have an appointment and was not upset that Claimant was not present. Malone testified that later that day, at a meeting of the sales team, Katsaros announced the dismissal of two sales employees and Claimant. Malone testified that Katsaros fired Claimant and other salespeople because of declining sales at the company.
The Referee made the following findings of fact:
Referee Decision, 5/1/2017, at 1-2.
The Referee concluded that Claimant committed disqualifying willful misconduct
The Board adopted the Referee's findings and conclusions and affirmed his decision without any discussion. Claimant petitioned for this Court's review.
On appeal,
We begin with a review of what constitutes capricious disregard of evidence. We have explained that it "occurs where the fact finder willfully and deliberately disregards competent and relevant evidence that one of ordinary intelligence could not possibly have avoided in reaching a result." Wise v. Unemployment Compensation Board of Review, 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015). More specifically, a capricious disregard of evidence occurs "where the factfinder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored overwhelming evidence without comment." Id. at 1263. It is the responsibility of the factfinder to resolve the conflicts in the testimony and explain why it has accepted, or rejected, each piece of relevant evidence. Id. The Pennsylvania Supreme Court has explained that review for capricious disregard of competent evidence is an "appropriate component of appellate consideration in every case in which such question is properly brought before the court." Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478, 487 (2002).
With the above-cited principles in mind, we consider whether the Board capriciously disregarded competent and relevant evidence in this case and whether the Board erred by adopting the Referee's decision in toto without comment. It appears that the Referee's factual findings are based upon Katsaros' testimony, but this testimony was contradicted by other testimony and by documentary evidence.
To begin, Katsaros' testimony contained inconsistencies on when he decided to fire Claimant. At the hearing, he acknowledged that he announced the dismissal of two people during the sales meeting on Friday, January 20, 2017, but he did not agree that he also announced Claimant's termination. Katsaros was not consistent on this point, as was demonstrated in his responses to the Referee:
N.T. 9 (emphasis added). The Referee continued with this line of questioning:
Id. at 10 (emphasis added).
By contrast, Malone's testimony was clear that Katsaros announced Claimant's dismissal at the sales meeting on January 20, 2017. Malone testified that she relayed this information to Claimant before he returned to work on Monday, January 23, 2017. Nevertheless, the Referee made no comment about Malone's highly relevant testimony, and the Board affirmed the Referee's decision without explanation.
The Board argues that the Referee's silence on Malone's testimony is explained, and excused, by "implicit" credibility determinations. Board Brief at 9. The Board argues that this Court must infer from silence that the Referee "implicitly" rejected Malone's testimony and implicitly accepted Katsaros' testimony on the circumstances of Claimant's discharge. In support, it points to a paragraph in the Referee's decision that reads as follows:
Referee Decision at 2. We reject the Board's argument.
First, the above-quoted boilerplate paragraph in the Referee's determination is not dispositive of whether the Referee capriciously disregarded record evidence. This paragraph is generic, not specific to any of the evidence in this record. Simply, it is not a substitute for express credibility determinations, and it does not discharge the Board's responsibility to consider and weigh the relevant evidence in a case.
Second, it is not the responsibility of the reviewing court to divine the reason for the factfinder's silence. Here, the highly relevant testimony of a disinterested third party did not elicit a single comment from the factfinder. As we have held, capricious disregard of evidence occurs where the factfinder "has completely ignored overwhelming evidence without comment." Wise, 111 A.3d at 1263.
Third, implicit credibility determinations do not resolve the conflicts between the
We conclude that the Board has capriciously disregarded relevant evidence. It is as if Claimant did not have a de novo hearing. The Referee simply repeated, with virtually no discussion, the findings of the UC Service Center. The Referee did not address Claimant's contention that he was not fired for his conduct on January 23, 2017, but on January 20, 2017, because of poor sales at the dealership.
The Referee did not resolve conflicts between the testimony of the three witnesses with express credibility determinations. The Referee ignored, without comment, Malone's testimony as well as the uncontradicted testimony that Claimant's files were gone from his office when he appeared at work on Monday, January 23, 2017. The Referee made no comment on Claimant's business plan or on Employer's UC Questionnaire, which stated that Claimant was dismissed for selling only five cars a month.
Where "there is strong critical evidence that contradicts contrary evidence, the adjudicator must provide an explanation as to how it made its determination." Bentley v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 179 A.3d 1196, 1200 (Pa. Cmwlth. 2018). The relevant and critical evidence disregarded by the Referee includes Claimant's business plan; the removal of Claimant's files from his office before he reported to work on January 23, 2017; Malone's testimony; and the statements in Employer's UC Questionnaire. The Board must resolve the conflicts in the record evidence in order for meaningful appellate review to take place.
For these reasons, the Board's adjudication is vacated, and this matter is remanded to the Board to issue a new adjudication in accordance with our instructions herein.
AND NOW, this 22
Jurisdiction relinquished.
DISSENTING OPINION BY JUDGE WOJCIK.
Respectfully, I dissent. The Majority concludes that the Unemployment Compensation Board of Review (Board) capriciously disregarded critical evidence, namely, Keri Malone's testimony, then holds that the "Board must resolve the conflicts that emerged from the testimonial and documentary evidence ... and explain why it accepts or rejects each piece of relevant evidence." Majority op. at 84-85. Respectfully, I disagree with both propositions, as neither is consistent with the controlling statute or precedent.
While I agree that, generally, more detailed findings and discussion by the referee or the Board would be helpful, the findings made below are adequate to conduct meaningful appellate review, and there is nothing of record that would justify
Here, our analysis is informed by the unemployment compensation (UC) regulations, which, in pertinent part, provide:
34 Pa. Code § 101.88. The regulations impose identical requirements for decisions by the Board. 34 Pa. Code § 101.109.
Nothing in the unemployment regulations requires a referee or the Board to render a "reasoned" decision that explicitly resolves all conflicting evidence. Thus, our role on appeal is to apply the regulations and applicable precedent to the decision of the referee and Board. The referee's decision explains that his findings of fact are based on the testimony that he credited, and specifically, the unrebutted testimony that Claimant called Employer's General Sales Manager, John Katsaros, a liar multiple times. Referee's decision p.2.
Although the General Assembly amended the Workers' Compensation Act in 1993,
Neither Bentley v. Bureau of Professional and Occupational Affairs, State
In Wise, we stated that "[d]isturbing an agency's adjudication for a capricious disregard of evidence is appropriate only where the factfinder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored overwhelming evidence without comment." 111 A.3d at 1262 (emphasis added) (citing Hinkle v. City of Philadelphia, 881 A.2d 22, 27 (Pa. Cmwlth. 2005)).
In contrast to Bentley, in this case the Board did not cherry-pick from the referee's eight findings of fact; it adopted the referee's decision in its entirety. The referee's decision explains that the findings are based on the testimony credited by the referee, and specifically, on the unrebutted testimony that Claimant called Katsaros a liar multiple times. Referee's decision p.2. Moreover, Malone's testimony does not "directly contradict[] Katsaros' account." Majority op. at 83, 84. To the contrary, Malone was not present during the meeting at which, the Board found, Claimant called Katsaros a liar. Because Malone offered no relevant testimony on the critical issue of what transpired during that meeting,
We have repeatedly stated that it is irrelevant whether the record contains evidence to support findings other than those made by the fact-finder; the critical inquiry is whether there is evidence to support the findings actually made. Sipps v. Unemployment Compensation Board of Review, 181 A.2d 479, 484 (Pa. Cmwlth. 2018); Kelly v. Unemployment Compensation Board of Review, 172 A.3d 718, 725 (Pa. Cmwlth. 2017); Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Further, we have consistently observed that, while the Board must make crucial findings on the essential issues, "[the Board] is not required to address specifically each bit of evidence offered." Panella v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 351 C.D. 2013, filed August 29, 2013), slip op. at 4, 2013 WL 4664861 (citation and quotation omitted).
Claimant also asserts that the referee ignored substantial evidence that Katsaros intended to terminate Claimant's employment. Whether Katsaros ultimately would have done so is of no moment, where the evidence credited by the Board supports the finding that Claimant was discharged for willful misconduct.
In sum, the record does not demonstrate that the Board capriciously disregarded competent evidence, and I believe the Majority's holding would rewrite the Unemployment Compensation Law to require a reasoned decision, usurping the legislative authority of the General Assembly. Accordingly, I would affirm the decision below.