Opinion
No. 1276 C.D. 2012
06-24-2013
Cal Ed Federal Credit Union, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Cal Ed Federal Credit Union (Employer) petitions for review of the June 15, 2012, order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of a referee granting unemployment compensation (UC) benefits to Cassandra J. Johnson (Claimant). The UCBR concluded that Claimant did not engage in willful misconduct under section 402(e) of the Unemployment Compensation Law (Law). We affirm.
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 "[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 Employer as a full-time bookkeeper for approximately four years. (Findings of Fact, No. 1.) Employer, through its acting chief executive officer (CEO), met with Claimant in November 2011 and informed Claimant that the head teller was taking a medical leave of absence at some point for an uncertain period of time. (Findings of Fact, No. 3.) Employer's acting CEO indicated that Claimant would be required to work at least part of the day as a teller. (Findings of Fact, No. 4.) Claimant expressed concern for her safety and her ability to keep up with her bookkeeping duties. (Findings of Fact, No. 5.) The acting CEO insisted that Claimant could perform the bank teller duties as well. (Findings of Fact, No. 6.)
Because the UCBR adopted the referee's findings of fact and conclusions of law, references to the findings of fact can be found in the referee's February 24, 2012, Decision/Order.
As the bookkeeper, Claimant worked with a bank examiner who, on an annual basis, reviewed and audited Employer's financial activities. (Findings of Fact, No. 7.) Claimant discussed with the bank examiner concerns she had with some of Employer's financial activities. (Findings of Fact, No. 8.) The acting CEO told Claimant not to speak with the auditor and that she would handle any issues with the auditor. (Findings of Fact, No. 9.)
During her time with Employer, Claimant always worked as a bookkeeper and had never been required to work as a teller. (Findings of Fact, No. 11.) On November 21, 2011, Employer informed Claimant that she would be discharged if she failed to train and perform teller duties. (Findings of Fact, No. 10.) Employer discharged Claimant because of her unwillingness to work in a teller position in addition to performing her regular duties as a bookkeeper. (Findings of Fact, No. 2.) Claimant maintained that she was discharged just days after speaking with the bank auditor about Employer's accounts. (Referee's Decision/Order at 2.)
After her discharge, Claimant applied for UC benefits with the local service center, which denied her request pursuant to section 402(e) of the Law. Claimant appealed this determination to a referee. After a hearing, the referee issued a decision granting Claimant UC benefits. Employer appealed to the UCBR, which affirmed the referee's decision while adopting and incorporating the referee's findings of fact and conclusions of law. The UCBR concluded that Employer did not meet its burden of proving that Claimant engaged in willful misconduct. Employer petitioned this court for review.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact are unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Although the Law does not define willful misconduct, the courts have defined the term 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 his 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 Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). An employer has the burden of proving that a claimant is guilty of willful misconduct. Id.
On appeal, Employer argues that its request that Claimant take on bank teller duties was reasonable. This court has stated that "during the course of employment, an employer may modify or change the tasks that an employee originally was hired to perform. Where this change is reasonable, an employee's refusal to abide by the employer's decision may constitute disqualifying willful misconduct." Hershey v. Unemployment Compensation Board of Review, 605 A.2d 447, 449 (Pa. Cmwlth. 1992).
In this case, the UCBR essentially concluded that Employer did not meet its burden of proving that its request that Claimant assume teller duties was reasonable. The UCBR stated that "[E]mployer has failed to establish that there were such circumstances that the [C]laimant would be required to work as a bank [t]eller daily during the [h]ead [t]eller's leave of absence." (Referee's Decision/Order at 2.) As found by the UCBR, Claimant worked full-time as a bookkeeper and occupied the position for four years. The UCBR reasoned that there were three other tellers who could have assumed additional teller duties during the head teller's leave of absence and that, given the number of customers, the three tellers could handle the increased workload. Employer did not establish that Claimant "was the only person who would need to cover as a [t]eller during [the head teller's] leave of absence." (Id.)
Even if Employer's request were reasonable, Claimant established good cause for her refusal. See Hershey, 605 A.2d at 449 (stating that where an employer's request is reasonable, a claimant can refuse to comply and still remain eligible for UC benefits if she establishes good cause for her refusal). Here, the UCBR found that Claimant expressed concern for her safety as a teller and her ability to keep up with her full-time bookkeeping duties. Claimant testified that a teller at the bank had been robbed and that she did not feel safe working with cash. (N.T., 2/22/12, at 33.) --------
Because other tellers were available to fill in during the head teller's absence and because Claimant already worked full-time as a bookkeeper, the UCBR properly concluded that Employer failed to meet its burden of proving that Claimant's refusal to train and work part of the day as a teller constituted willful misconduct.
Accordingly, we affirm the decision of the UCBR.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge President Judge Pellegrini concurs in result only.
ORDER
AND NOW, this 24th day of June, 2013, we hereby affirm the June 15, 2012, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge