Opinion
No. 190 C.D. 2013
09-11-2013
Dennis C. Bartley, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Dennis C. Bartley (Claimant) petitions for review of the December 28, 2012 order of the Unemployment Compensation Board of Review (Board) denying him unemployment compensation benefits, finding a fault overpayment subject to recoupment, and assessing seven penalty weeks. The Board concluded that Claimant is ineligible for benefits due to willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law). We affirm.
By notice filed March 12, 2013, Autumn Grove Care Center intervened in this matter; the Board has not filed a brief.
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).
Following his termination from employment as a maintenance worker at Autumn Grove Care Center (Employer), Claimant filed for unemployment benefits and received determinations from the Department of Labor and Industry Office of Unemployment Compensation Benefits that (i) he was ineligible for benefits under the Law; (ii) establishing a fault overpayment for knowing failure to report information at the time of filing; and (iii) assessing seven penalty weeks. (Record Item (R. Item) 7, Notice of Determination, Notice of Determination Overpayment of Benefit (Fault Overpayment), Notice of Penalty Weeks Determination.) Claimant appealed these determinations, and, following a hearing on October 3, 2012 at which Claimant, represented by counsel, and witnesses for Employer each testified, the Referee issued a decision and order on October 4, 2012, granting Claimant unemployment benefits, finding no overpayment, and imposing no penalty. (R. Item 13, Hearing Transcript (H.T.); R. Item 14, Referee's Decision and Order.) Employer appealed and on December 28, 2012, the Board issued a decision and order, in which it reversed the Referee. (R. Item 16, Board's Decision and Order.) In its decision, the Board made the following findings of fact:
The Referee determined that the record did not support the finding that Claimant refused a specific order of a supervisor, stating that "the supervisor never disciplined [Claimant] for failing to follow some rule or procedure and did not produce a written rule or procedure that [Claimant] violated" and "[Claimant] was never given a written warning about his conduct." (R. Item 14, Reasoning.)
1. The claimant was last employed as a full-time maintenance employee by Transitions Healthcare Autumn Grove Care Center
from September 2011 at a final rate of $14.61 per hour. His last day of work was June 20, 2012.
2. The claimant was upset that another individual was hired as a supervisor over him. The new supervisor began employment on May 1, 2012.
3. On May 1, 2012, the claimant told the administrative assistant that he was not going to cooperate with the new supervisor and that he was going to "forget" how to do stuff and not tell the supervisor how to do things.
4. When the administrative assistant reported this to the employer, the nursing home administrator and one of the owners met with the claimant on May 2 and told him that he was expected to follow the directions of the supervisor and to help the supervisor learn the employer's procedures. The administrator warned the claimant that if he did not cooperate, he would be terminated.
5. On May 2, 2012, the marketing/admissions employee asked the claimant to check the temperatures in the building because people were complaining. The claimant told her that he would not do it, and to tell the new guy to do it.
6. The claimant later told the marketing/admissions employee that he was not going to take orders from the new guy and was not going to come in on weekends if he was called.
7. On May 31, 2012, the maintenance supervisor instructed the claimant to board up a broken window. The claimant refused.
8. The maintenance supervisor asked the claimant to perform tasks in a certain order. The claimant refused and performed them in the order that he wanted. This occurred approximately twice a week.
9. The employer gave the claimant several verbal warnings regarding his behavior and his attitude toward his supervisor.
10. On June 20, 2012, the claimant asked the Human Resources (HR) director how much time he had to take off because his supervisor
was stupid and he had to get away from him. He also said he was not going to do what the supervisor asked of him. The HR director presented the claimant with two written warnings for insubordination, but the claimant refused to sign them.(R. Item 16, Board's Decision and Order, Findings of Fact ¶¶1-14.) In the discussion section of its decision, the Board stated that it "resolves the conflicts in the testimony in favor of [Employer] and finds the testimony of [Employer]'s witnesses to be credible." (R. Item 16, Board's Decision and Order, Discussion.) The Board further stated:
11. The employer terminated the claimant's employment for refusing to follow the directives of his supervisor.
12. The claimant reported to the Department that he was unemployed due to lack of work.
13. For claim weeks ending June 30 through July 28, 2012, the claimant received $1,735 in unemployment compensation (UC) benefits.
14. The claimant intentionally withheld the fact that he had been terminated in order to obtain benefits.
Here, [Employer] terminated [Claimant]'s employment for refusing to follow the directives of his supervisor....[Employer] specifically warned [Claimant] that he must cooperate with and listen to the new supervisor, or else he would be terminated. [Employer]'s witness credibly testified that [Claimant] refused to follow the directions of his supervisor....[Employer] issued [Claimant] several verbal warnings, but [Claimant]'s insubordinate behavior continued. Contrary to the Referee's decision, neither a written policy nor a written warning is required. An employer can deal with its employees on a verbal basis and expect that its directives will be carried out.(Id.) Claimant petitioned this Court for review of the Board's orders denying Claimant's unemployment benefits.
Our review is limited to determining whether an error of law was committed, whether constitutional rights were violated, and whether necessary findings of facts are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123 n.5, 703 A.2d 452, 456 n.5 (1997). --------
Claimant argues that there is not substantial evidence in the record to support the Board's conclusion that he committed willful misconduct by refusing to follow the directives of his supervisor and that the Board capriciously disregarded evidence in the record.
The term willful misconduct has been defined as: (1) the wanton and willful disregard of the employer's interests, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from its employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). Where an employer has alleged that a claimant committed willful misconduct, the employer must demonstrate the existence of the rule, the reasonableness of the rule, and the fact of its violation. Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011). If an employer satisfies its burden, the burden then shifts to the claimant to demonstrate that there was good cause for violation of the work rule. Id. If a claimant is unable to meet this burden, the claimant will be disqualified from receiving unemployment compensation benefits under Section 402(e) of the Law. 43 P.S. § 802(e).
Claimant's argument is based entirely upon his testimony during the referee's hearing and an exhibit submitted at the hearing consisting of a typed statement detailing Claimant's account of what transpired with Employer, signed by Claimant, and dated July 22, 2012. (R. Item 13, H.T. & Exhibit 13.) The Board specifically rejected Claimant's testimony as not credible. The Board specifically credited the testimony of Employer's witnesses. It is axiomatic that the Board is the ultimate finder of fact, empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985). This Court cannot conclude that the record lacks substantial evidence of willful misconduct because Claimant does not agree with the Board's credibility determinations and instead believes his testimony should have been credited. See M.A. Bruder & Sons, Inc. v. Unemployment Compensation Board of Review, 603 A.2d 271, 274-275 (Pa. Cmwlth. 1992). This Court does not have the authority to overturn the Board's factual findings unless they are unsupported by the record taken as a whole; here, the testimony of Employer's witnesses constitutes substantial evidence of insubordination amounting to willful misconduct, which Claimant failed to rebut. Peak; Mathis v. Unemployment Compensation Board of Review, 64 A.3d 293, 299 (Pa. Cmwlth. 2013); Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 608 (Pa. Cmwlth. 2011).
Although Claimant contends that the Board capriciously disregarded evidence presented at the hearing before the referee, Claimant fails to offer support for this argument. Instead, Claimant focusses on Employer's failure to enter into the record a written policy specifying that failure to follow a supervisor's instructions is a basis for termination due to willful misconduct. However, in Brady v. Unemployment Compensation Board of Review, 727 A.2d 1199 (Pa. Cmwlth. 1999), we held "that refusing a reasonable order because it is not reduced to writing is not good cause for willful misconduct. An employer has the right to deal with its employees on a non-written basis and the right to expect that reasonable oral requests be carried out by employees." 727 A.2d at 1201; Graham v. Unemployment Compensation Board of Review, 840 A.2d 1054, 1057 (Pa. Cmwlth. 2004) ("It is not necessary that an employer's reasonable order or directive be written in order for the Court to determine that an employee's violation thereof constitutes willful misconduct."). The Board did not capriciously disregard the fact that Employer did not submit written evidence of its directives, because Employer was not required to do so in order to prove the existence of the directives issued to Claimant. Instead, Employer presented credible testimony of verbal instructions given to Claimant that he refused to comply with. Employer satisfied its burden, Claimant did not, and the Board did not err in concluding that substantial evidence demonstrated that Claimant was terminated from employment due to willful misconduct.
The Board is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 11th day of September, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge