Opinion
No. 232 C.D. 2012
08-08-2012
Richard E. Hoffman, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Petitioner, Richard E. Hoffman, petitions for review of the order of the Unemployment Compensation Board of Review (Board), which affirmed the decision of the referee to deny benefits pursuant to Section 402(e) of the Unemployment Compensation Law (the Law), determining that Petitioner was discharged for willful misconduct. 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 in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. 43 P.S. § 802(e).
Petitioner was last employed by J.R. & L. Industries (Employer) as a customer service representative and washer/detailer at a Hertz rental car franchise, from August 28, 1971 until his discharge on August 20, 2011. Petitioner was responsible for cleaning and detailing the exterior and interior of vehicles, vehicle rentals and other customer service activities, as well as driving cars and trucks for pick-up and delivery of the vehicles themselves and parts, etc. His final salary was $7.75 per hour. Petitioner was discharged for failing to properly clean the interiors of the vehicles.
Petitioner filed for unemployment compensation benefits, which were granted by the Unemployment Compensation Service Center. Employer appealed and a hearing was held before a referee at which both Petitioner and Jolene Wesner, Employer's manager, testified. Wesner stated that each employee was given a cleaning checklist and that each item on the checklist was to be completed when cleaning a vehicle. Wesner testified that Petitioner's employment was terminated because he failed to complete all the items on the cleaning checklist, specifically dashboards and cup holders, and that as a result of Petitioner's conduct, customers had lodged complaints. Wesner further testified that although Petitioner was always willing to work and otherwise a good worker, his performance had deteriorated over time and that she had repeatedly warned him about completing the checklist and had issued a final written warning to him. On the date of his discharge, after receiving another customer complaint, Wesner asked Petitioner whether he had cleaned the cup holders and the dashboard and he said no. At that point, she testified that she offered him another position at the company's farm, where he had been assigned occasional duties in the past, "mainly driving [a] truck, just shuttling stuff around as he had done in the past." Notes of Testimony 9-10. Petitioner refused the offer of alternative duties. Although, in answer to a leading question, Petitioner testified that he was working to the best of his ability, he offered no explanation as to why he was unable or had failed to clean the items on the checklist. Instead, he denied being asked whether he had failed to clean a dashboard and cup holders and testified that he had requested dates, car numbers, customer names and telephone numbers "so that I could defend myself" from the accusation of not cleaning cars. N.T. at 17-18. The referee reversed the grant of benefits, concluding that Petitioner's failure to completely clean the vehicles was clearly not a standard of behavior and conduct which Employer had a right to expect and that, therefore, Petitioner had engaged in willful misconduct and was ineligible to receive benefits.
The Board did not make any findings concerning this offer of alternative duties, and indeed did not mention it at all, but the Board fully credited all of Wesner's testimony that it discussed. Moreover, Petitioner similarly testified that the offer was made and that he rejected it, although he did not explain his reasons for doing so. At all events, the Board did not consider whether this was a voluntary quit, and in the absence of factual findings we will not address it as an alternative ground for affirmance. --------
Petitioner appealed to the Board, arguing that he did not engage in willful misconduct and was performing his job to the best of his abilities. The Board affirmed the referee's decision determining that Petitioner had not established good cause for his failure to follow Employer's orders and that his conduct rose to the level of willful misconduct. The Board found that prior to July 8, 2011, Employer had become dissatisfied with Petitioner's work performance with regard to the cleaning of the interior of the vehicles. Petitioner was given a checklist of all items he was required to complete when cleaning and detailing vehicles and on July 8, 2011, he received a final written warning regarding his failure to complete all the items on the checklist. The Board also found that, following receipt of a customer complaint regarding the cleanliness of a vehicle, which Petitioner had cleaned, Employer asked him whether he had cleaned the cup holders and dashboard of the vehicle as required by the checklist and Petitioner admitted that he did not. The Board credited Employer's testimony that Petitioner previously had been asked to clean the dashboard and cup holders, had been given the checklist, and had received multiple verbal warnings and a final written warning. The Board rejected Petitioner's argument that he was working to the best of his ability and did not intentionally disregard the employer's interests finding that he had been consistently warned that he was not meeting Employer's standard.
Petitioner again argues that he was working to the best of his ability and that his poor work performance did not constitute willful misconduct. Willful misconduct is not defined by the Law, but this Court has held that (1) the wanton or willful disregard of an employer's interests; (2) the deliberate violation of an employer's rules/orders; (3) the disregard of the standards of behavior which an employer can rightfully expect from an employee; and (4) negligence demonstrating an intentional and substantial disregard of the employer's interest or the employee's duties and obligations, may constitute willful misconduct. Scott v. Unemployment Comp. Bd. of Review, 36 A.3d 643, 647 (Pa. Cmwlth. 2012). To establish willful misconduct, the employer must demonstrate that the employee's conduct was of an intentional and deliberate nature. Myer v. Unemployment Comp. Bd. of Review, 533 Pa. 373, 625 A.2d 622 (1993). Therefore, "[m]ere incompetence, inexperience or inability of an employee can justify a discharge, but will not constitute willful misconduct so as to render an employee ineligible for benefits." Cullison v. Unemployment Comp. Bd. of Review, 444 A.2d 1330, 1332 (Pa. Cmwlth. 1982). However, a claimant's work performance below the level of his ability over a period of time may be considered a conscious or careless disregard of the employer's interests and may rise to the level of willful misconduct. Younes v. Unemployment Comp. Bd. of Review, 467 A.2d 1227 (Pa. Cmwlth. 1983).
Petitioner relies upon Colonial Taxi and Paratransit Service, Inc. v. Unemployment Compensation Board of Review, 521 A.2d 536 (Pa. Cmwlth. 1987), to support his argument that an employee who is working to the best of his ability and acts negligently has not engaged in willful misconduct. In Colonial Taxi, the employee was involved in three car accidents within five months. The accidents involved the employee crashing after slipping on ice, bumping another car while parking, and rolling back into another car when the employee's foot slipped off the brake. The employer had a rule which provided that an employee involved in two chargeable accidents may be terminated. The employer discharged the employee on this basis. The referee and the Board determined that the record did not support a finding that the employee's conduct constituted willful misconduct. The Commonwealth Court affirmed holding that employer had failed to establish a pattern of misconduct supporting a finding that the employee's conduct demonstrated an intentional or substantial disregard of the employer's interest. Id. at 538-39.
Colonial Taxi is distinguishable. In this case, the Board simply did not credit Petitioner's testimony that he was working to the best of his ability. Petitioner was repeatedly warned that his work performance was not satisfactory over a period of time and was given specific instructions on how to perform his work. Nevertheless, Petitioner failed to improve his work performance and his quality of work never returned to its previous satisfactory level. Petitioner repeatedly did not clean Employer's vehicles as specified on the checklist. Unlike the employee's behavior in Colonial Taxi, Petitioner's behavior evidences a pattern of disregard of his employment duties and Employer's interests, without an explanation as to why Petitioner was unable to perform as required.
Accordingly, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 8th day of August, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge