Opinion
No. 844 C.D. 2011
03-22-2012
Gerard S. Jankaitis, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
This case was reassigned to the authoring judge on February 14, 2012.
Gerard S. Jankaitis (Claimant), proceeding pro se, petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that affirmed the Unemployment Compensation Referee's (Referee) decision denying Claimant unemployment compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).
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, in relevant part, "[a]n employe shall be ineligible for compensation for any week . . . (e) [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." Id.
Claimant worked as a full-time asset protection team leader for Wegman's Retail Service Center (Employer) until his termination on December 15, 2010. Employer instituted a policy that specifically prohibited insubordination and disrespect toward fellow employees and management. Claimant was aware of Employer's policy, which provided that "employees are expected to refrain from activities that may be harmful to the company or fellow employees." (Board's Decision/Order, Findings of Fact (FOF) ¶ 2.) Claimant was also aware that a violation of Employer's policy would jeopardize his job. (FOF ¶¶ 1-4.)
In December 2010, Employer's Asset Protection Manager (Manager) created videos to show for enjoyment at the team's year-end meeting. Manager created the videos on the JibJab.com website by imposing the faces of team members onto "cartoon bodies singing and dancing in various holiday-themed scenes" such "as a rock band playing Christmas carols, as a mariachi band playing 'Feliz Navidad,' and at a disco." (FOF ¶¶ 6-7.) On December 14, 2010, Manager showed Claimant the videos he was planning to use at the meeting and, while they were looking at the JibJab website's video options, Claimant pointed out a video where the teams'' faces could be imposed on the bodies of male Chippendale dancers. "In the Chippendale[] video, the male dancers would take off their shirts and dance in a sexually provocative manner," and Manager told Claimant, "[o]h, no, no, no, we're not doing that one, you know here, I'm not even getting involved in that one." (FOF ¶¶ 5-11.)
On December 15, 2010, before showing the holiday-themed videos at the team meeting, Manager explained the videos, asked if anyone objected to showing the videos, and no one objected. (FOF ¶ 12.) Both "[b]efore and after the team meeting, [] [M]anager overheard [] [C]laimant and another employee discussing a JibJab Chippendale[] video that [] [C]laimant had apparently created." (FOF ¶ 13.) "After the team meeting, [] [M]anager and [Employer's] human resources representative[] interviewed [] [C]laimant" about what they had heard. (FOF ¶ 14.) Claimant admitted creating a JibJab video of Chippendale dancers by "imposing faces of [] [M]anager, two other employees, and himself onto the bodies of the male" dancers on a company computer on Employer's premises. (FOF ¶ 15.) Manager did not watch the actual video created by Claimant but watched a preview on the JibJab site of the Chippendale dancer video that "included a warning that it depicted bare-chested men dancing in a sexually provocative manner." (FOF ¶ 16.) "[M]anager suspended [] [C]laimant without pay pending the outcome of [E]mployer's investigation" of the matter. (FOF ¶ 17.) Manager discharged Claimant "for violating [] [E]mployer's policies prohibiting insubordination and disrespect toward management or fellow employees." (FOF ¶ 18.)
Claimant filed a claim for UC benefits which was denied by the local service center. Claimant appealed to the Referee, who held an evidentiary hearing at which Claimant, Manager, and the Human Resource Supervisor testified. The Referee affirmed the service center's decision denying UC benefits. Claimant appealed to the Board.
Claimant requested that the Board remand for another hearing so that Claimant could introduce the JibJab video into evidence and further question Employer's witnesses regarding the video. (Board Decision/Order at 3.) The Board denied Claimant's request because he "failed to explain why the video would have been unavailable at the initial hearing or why he did not ask further questions of [] [E]mployer's witnesses at that time." (Board Decision/Order at 3.)
Upon review, the Board resolved all conflicts in the testimony in favor of Employer, stating that Manager "credibly testified that even though he also used the JibJab.com website to create holiday videos depicting the management team, he indicated to [] [C]laimant that the [JibJab] Chippendale's video was inappropriate." (Board Decision/Order at 3.) In addition, despite Claimant's testimony that "he created the video on a company computer in a public area and did not intend to display the video to the management team," the Board concluded that Claimant "chose to create the video on [] [E]mployer's premises after the manager said he would not show that video in the workplace." (Board Decision/Order at 3-4.) Accordingly, the Board affirmed the decision of the Referee and found Claimant ineligible for UC benefits pursuant to Section 402(e) of the Law. (Board's Decision/Order at 4.) Claimant now petitions this Court for review.
In reviewing the Board's determination, "[o]ur scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether necessary findings of fact are supported by substantial evidence." Orrs v. Unemployment Compensation Board of Review, 910 A.2d 110, 112 n.5 (Pa. Cmwlth. 2006).
"Whether a claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review." Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010). Willful misconduct is defined as: (1) "a wanton and willful disregard of an employer's interests;" (2) a deliberate violation of the employer's rules; (3) a "disregard of the standards of behavior that an employer can rightfully expect from the employee;" or (4) negligence that "manifests culpability, wrongful intent, evil design, or an intentional and substantial disregard for the employer's interests or [the] employee's duties and obligations." Id. The burden of proving that an employee engaged in willful misconduct in the form of a rule violation is on the employer, which must establish the existence of a rule, its reasonableness, and its violation. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997). Once an employer has established that a claimant has violated a reasonable work rule or policy, the burden then shifts to the claimant to prove that he or she had good cause for violating the rule or policy in question. Frigm v. Unemployment Compensation Board of Review, 642 A.2d 629, 632 (Pa. Cmwlth. 1994).
It is beyond purview that "[t]he Board is the ultimate fact-finding body empowered to resolve conflicts in evidence and determine [the] credibility of witnesses" in unemployment compensation cases. Metropolitan Edison Company v. Unemployment Compensation Board of Review, 606 A.2d 955, 957 (Pa. Cmwlth. 1992). "In making those determinations, the Board may accept or reject the testimony of any witness in whole or in part." McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266, 1270 (Pa. Cmwlth. 2003). In addition, if the Board's findings are supported by substantial evidence, they are conclusive on appeal. Geesey v. Unemployment Compensation Board of Review, 381 A.2d 1343, 1344 (Pa. Cmwlth. 1978). Substantial evidence is defined as "such relevant evidence which a reasonable mind would accept as adequate to support a conclusion." Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999).
In support of this appeal, Claimant argues that Employer failed to prove willful misconduct. Claimant contends that he "did not willfully disregard [] [E]mployer's interest by creating a video clip that his manager showed him how to create." (Claimant's Br. at 8.) Claimant contends further that he did not commit a deliberate violation of Employer's rules because Manager permitted him to use the JibJab website at work. Finally, Claimant contends that since the Chippendale video was never deliberately or intentionally shown to any employee by Claimant, he: (1) did not disregard Employer's standards of behavior; (2) was not negligent; and (3) did not intentionally disregard Employer's interest.
Initially, we note that Claimant does not dispute that: (1) Employer established the existence and reasonableness of its rule prohibiting insubordination and disrespect of fellow employees or management; or (2) he was aware of Employer's rule. Additionally, it is not relevant whether Claimant intentionally or deliberately showed the video to fellow employees because Claimant was not terminated by Employer for showing the Chippendale JibJab video to others. Claimant was terminated for violating Employer's policy prohibiting insubordination and disrespect toward management or fellow employees by creating the video after Manager advised Claimant that he would not show such a video in the workplace. Therefore, the issue before this Court is whether Claimant's conduct in creating the JibJab Chippendale video was a violation of Employer's policy and, thus, rose to the level of willful misconduct.
Here, the record reveals that Manager testified that he was showing Claimant videos he had made on the JibJab.com website for the year-end management team meeting by imposing team members' faces onto rock bands singing carols when Claimant pointed out the Chippendale video option; however, Manager specifically told Claimant "[o]h, no, no, no, we're not doing that one . . . here, I'm not even getting involved in that one." (Referee's Hr'g Tr. at 7-8.) Despite Manager's opposition to the Chippendale video, Claimant admitted that, while on a break in Employer's operation center, he made the JibJab video by imposing fellow employees' heads onto Chippendale dancers. (Referee's Hr'g Tr. at 12-13.) Manager testified that Claimant showed the Chippendale video Claimant created to another employee at work, and Claimant acknowledged that another employee saw his JibJab video. (Referee's Hr'g Tr. at 6, 12-13.) Manager testified that, in preparation for his meeting with Claimant about this problem, he watched the preview version of the video on the JibJab website and noted that "it came with a warning that there were bare-chested men dancing in a sexually provocative manner." (Referee's Hr'g Tr. at 6.) Manager stated that he considered the video inappropriate because it depicted men with bare chests and because the dancers' "bottom portion[s] are gyrating their hips in a sexual and provocative manner." (Referee's Hr'g Tr. at 6, 9, 11.) Claimant also admitted that there was a warning that came up when the Chippendale video was started. (Referee's Hr'g Tr. at 13.)
Thus, Claimant ignored and deliberately chose not to heed Manager's directive that the Chippendale video depicting men dancing in a sexually provocative manner would not be shown in the workplace. Claimant admitted that he created the JibJab video by imposing fellow employees' heads onto the Chippendale dancers. Such conduct constitutes insubordination and disrespect for fellow employees or management. The fact that Claimant created the Chippendale video on a company computer or that Manager showed him how to create such videos does not excuse Claimant's conduct. Therefore, we conclude that the credible testimony supports the Board's findings, and its conclusions based thereon, that Claimant violated Employer's policy prohibiting insubordination or disrespect of fellow employees or management by creating the inappropriate Chippendale JibJab video and that Claimant's behavior rose to the level of willful misconduct.
Accordingly, we affirm the Order of the Board.
Claimant raises the following additional issues in the Statement of Questions Involved section of his brief: (1) the Board erred by denying Claimant's remand request so that Claimant could show the actual Chippendale video he had created; and (2) the Referee erred in allowing the testimony of Employer's two witnesses because they did not view the Chippendale video Claimant made. However, because Claimant does not develop these two issues in his brief and presents no argument in support, we will not address them. Balshy v. Pennsylvania State Police, 988 A.2d 813, 834 n.9 (Pa. Cmwlth. 2010) (citing Wicker v. Civil Service Commission, 460 A.2d 407, 408 (Pa. Cmwlth. 1983)) (stating that "[w]hen issues are not properly raised and developed in briefs and the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits."). However, even had these issues not been waived, Claimant would not prevail. As to the Board's refusal to remand to watch the actual video, Section 101.21(b) of the Board's regulations provides: "[T]he tribunal shall determine the order in which the evidence shall be presented in hearings. Within the discretion of the tribunal, the parties shall be permitted to present evidence and testimony which they believe is necessary to establish their rights." 34 Pa. Code § 101.21(b). The Board used its discretion to refuse a remand hearing when Claimant presented no compelling reason why he did not show the video at the hearing. As to whether Employer's witnesses should not have been permitted to testify, they offered firsthand testimony of events relevant to this case and, therefore, their testimony was properly considered by the Referee and the Board. Moreover, Manager viewed the template of the Chippendale video on the JibJab site, which is what Claimant used to impose the images of the employees' heads, as Claimant himself admitted. (Referee's Hr'g Tr. at 6, 12-13, 15.)
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, March 22, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully dissent. The Majority holds that Gerard S. Jankaitis (Claimant) committed willful misconduct pursuant to section 402(e) of the Unemployment Compensation Law (Law) when he created a Chippendale JibJab video in the workplace after John DeAngelo, Claimant's supervisor, allegedly advised Claimant not to create the video. However, I do not believe that Claimant's conduct rose to the level of willful misconduct.
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 for willful misconduct connected with his work. 43 P.S. §802(e).
The Majority further states that it is not relevant whether Claimant intentionally or deliberately showed the video to fellow employees because Claimant was not terminated by Employer for showing the Chippendale JibJab video to others. (Majority Op. at 6.) --------
In order to terminate Claimant for willful misconduct, Employer had the burden of proving that Claimant deliberately violated Employer's work rule. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010). Employer's work rule stated that employees are expected to refrain from activities that may be harmful to the company or fellow employees and specifically prohibited insubordination, including disrespect toward management or fellow employees. (UCBR's Findings of Fact, Nos. 2-3.)
Thus, the issue before this court is whether Claimant was deliberately insubordinate or disrespectful toward management or fellow employees in his creation of the Chippendale JibJab video.
I first consider whether Employer proved that Claimant was deliberately insubordinate. DeAngelo, while making his JibJab video for the team meeting, showed Claimant the JibJab website and how to make a JibJab video using employees' heads on JibJab's cartoon bodies. However, when Claimant pointed out the cartoon Chippendale video on the JibJab website, DeAngelo said, "oh, no, no, no, we're not doing that one, you know here, I'm not even getting involved in that one." (UCBR's Findings of Fact, No. 11.) In other words, DeAngelo stated his decision not to use a JibJab Chippendale cartoon video at the year-end meeting. DeAngelo did not prohibit Claimant from making this or any other video on JibJab. DeAngelo even admitted that Claimant was not disciplined for making a JibJab video, as that is permitted, but for the "inappropriateness of the video." (N.T., 3/1/11, at 7.) Thus, I cannot conclude that Claimant was insubordinate at all. However, even if it were possible to conclude that Claimant was insubordinate, Claimant was not deliberately insubordinate, as Employer's own witness testified that Claimant "struggled" to understand why the video was inappropriate. (Id. at 6.)
I next consider whether Employer proved that Claimant was deliberately disrespectful toward other employees. The UCBR made no finding to explain precisely how Claimant showed disrespect to anyone. Employer did not even present the JibJab Chippendale cartoon video as evidence, but the UCBR apparently found without ever seeing the video that Claimant was disrespectful of the employees whose heads Claimant placed on the cartoon dancers. However, Claimant simply used the same heads as DeAngelo, including Claimant's own head. Obviously, if Claimant used his own head on a cartoon body, he meant no disrespect of anyone else. Both DeAngelo and Claimant testified that they made the videos to boost morale and have a good time. (Id. at 8, 17.) Thus, Employer failed to prove that Claimant deliberately disrespected anyone.
Thus, because Claimant's actions were not deliberately insubordinate or disrespectful toward management or fellow employees, Employer failed to prove willful misconduct. Accordingly, I would reverse.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge