Opinion
No. 116 C.D. 2013
08-05-2013
Diakon Lutheran Social Ministries, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Diakon Lutheran Social Ministries (Employer) petitions for review of the order of the Unemployment Compensation Board of Review (Board) reversing the Referee's decision and determining that Joshua T. Lieb (Claimant) is not ineligible for unemployment compensation benefits 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 "[a]n employe 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...."
Claimant was employed as a full-time child specific recruiter for Employer, but was discharged for willful misconduct by violating Employer's Drug-Free Workplace Policy and Motor Vehicle Policy prohibiting him from being under the influence of alcohol in the workplace or while engaged in Employer's business away from its premises or while operating a vehicle owned or leased by Employer. Claimant submitted a claim for benefits and the UC Service Center determined that he was ineligible under Section 402(e) of the Law because he was aware of the Employer's Drug-Free Workplace Policy and did not show good cause for its violation. Claimant appealed to the Referee, alleging that he did not violate the policy because he was not under the influence of alcohol while engaged in Employer's business away from the workplace at a conference.
The burden of proving willful misconduct rests with the employer. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). Willful misconduct has been defined as: (1) wanton or willful disregard for an employer's interests; (2) deliberate violation of an employer's rules; (3) a disregard for the standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). When a claimant is terminated for a work-rule violation, the employer has the burden to establish the rule existed, the claimant knew of the rule, and the claimant violated the rule. Id. Whether an employee's conduct constitutes willful misconduct is a question of law subject to our review. Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 599, 827 A.2d 422, 426 (2003).
Before the Referee, Claimant testified that he flew to Orlando, Florida, on Tuesday, June 19, 2012, to attend a conference with his female supervisor. Claimant stated that the conference was not scheduled to start until Wednesday or Thursday and that his supervisor had made all of the travel arrangements. He testified that they arrived in the morning and that he consumed one beer around 2:00 or 3:00 while he was eating, and another beer around 3:00 or 4:00. He stated that he drove himself and his supervisor to dinner around 6:20 or 6:30, and that he drank two glasses of wine after they started eating around 7:00. He testified that they left dinner around 10:00 and returned to the hotel. He stated that there was an exchange of texts with his supervisor in which she invited him to her hotel room. He testified that he went to her room and, after she came to the door, she grabbed his arm and tried to pull him into her room. Claimant stated that he pulled his arm back, closed the door, went down to the front desk and had his room moved to another floor. He testified that he spoke with her supervisor, Lauren Conzamen (Conzamen), the following morning to report the incident and immediately flew home as instructed. He stated that on June 21 and 26, 2012, he met with Conzamen and with Jennifer Rautzhan (Rautzhan), Employer's Executive Director of Employee Relations, to explain what had occurred. Claimant testified that they expressed concern regarding his alcohol consumption and texts that he had exchanged with his female supervisor during company time and he was placed on investigatory suspension on June 26, 2012. He stated that a number of employees had consumed alcohol at a conference the prior year in Las Vegas. Claimant identified photographs of himself and his supervisor in which a beer bottle, a bottle of wine and a martini are visible, and a number of work e-mails between him and his supervisor containing inappropriate content. Claimant stated that he was discharged on July 9, 2012, for violating Employer's Drug-Free Workplace Policy and Motor Vehicle Policy.
Rautzhan testified that she was notified by Conzamen regarding Claimant's sexual harassment allegation and that she and Conzamen interviewed Claimant and his supervisor in which both admitted to drinking alcohol. She stated that no one from the company did any diagnostic test on Claimant regarding his blood alcohol content on June 19, 2012. She testified that after they completed the investigation, there were concerns about Claimant's policy violations regarding the drug-free workplace and the inappropriate e-mails between Claimant and his supervisor. Rautzhan stated that she felt that Claimant's termination was appropriate based on his alcohol consumption and the inappropriate communications. However, she conceded that while Claimant stated that he was fired for violations of the drug-free workplace and motor vehicle policies, she could not testify as to the reason for Claimant's separation from employment because she was not present when it occurred and it was her understanding that he was terminated due to a violation of company policies.
Bureau Exhibit #9, Employer's Drug-Free Workplace Policy, was admitted at the hearing and states, in pertinent part, that "[b]eing under the influence of alcohol in [Employer] workplaces or while engaged in [Employer]'s business away from the Agency's premises, including driving a motor vehicle on behalf of the Agency, is strictly prohibited." (Reproduced Record (R.R.) at 59a.) The policy also provides that "[s]uch conduct is also prohibited during nonworking time to the extent, in the opinion of [Employer], it impairs an employee's ability to perform on the job or threatens the reputation or integrity of the Agency." (Id.)
Employer Exhibit #3, also admitted at the hearing, states, in pertinent part:
To be authorized to operate a vehicle owned or leased by [Employer] ... you must agree to the following:(R.R. at 72a.) (emphasis in original).
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4 I will not operate the vehicle when I am fatigued, under the influence of alcohol and/or any controlled substance....
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I understand these driving guidelines and hereby agree to abide by such guidelines when operating the agency vehicle assigned to me. I understand that violation of these guidelines may result in revocation of my right to operate agency vehicles or to transport agency clients in my personal vehicle.
In addition, the policy states:
[I]f an employee otherwise engages in conduct which raises a reasonable suspicion that the employee is under the influence of alcohol ... the employee will be required to provide a urine and/or blood and/or Breathalyzer sample.(Id. at 60a.) Finally, the policy provides that "[a]n employee who refuses to be tested will be subject to immediate discharge for insubordination." (Id.)
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[A]n employee found to have a blood-alcohol concentration of .04% or more (or its equivalent as determined by a diagnostic test such as a Breathalyzer) will be considered "under the influence" for purposes of this policy and will be subject to disciplinary action, up to and including termination, pursuant to the Employee Discipline Policy.
It should be noted that Claimant was not discharged for willful misconduct related to his failure to submit to and/or pass a drug test based on his alcohol consumption under Section 402(e.1) of the Law, added by the Act of December 9, 2002, P.L. 1330, 43 P.S. §802(e.1) (relating to a claimant's ineligibility for benefits for any week in which his unemployment is due to discharge from work due to a failure to submit and/or pass a drug test). See Dillon v. Unemployment Compensation Board of Review, ___ A.3d ___ (Pa. Cmwlth., No. 786 C.D. 2012, filed June 18, 2013) (holding that the provisions of Section 402(e.1) apply to a claimant's failure to submit to and/or pass a test to measure the alcohol in his system).
On September 20, 2012, the Referee affirmed the UC Service Center's determination, finding that Employer presented evidence establishing its Drug-Free Workplace Policy; Claimant's acknowledgement of the policy; and Claimant's undisputed testimony that he consumed alcoholic beverages during work hours and operated a motor vehicle following the consumption of alcohol. The Referee rejected Claimant's purported good cause based on prior practice by other employees and Claimant appealed to the Board.
The Board reversed the Referee's decision stating, in pertinent part:
Here, the employer bore the burden of proving the existence of a reasonable policy, the claimant's awareness thereof, and his deliberate violation of it. The Board credits the claimant's testimony that he had two (2) beers in the afternoon on June 19, 2012, and then two (2) glasses of wine that evening with dinner. The undisputed evidence shows that this was not a day in which the claimant was required to be doing any work-related activity because the conference had not yet begun. The employer's policy specifically states that the definition of "under the influence" as it relates to the policy is that the employee's blood alcohol content must be .04% or higher. The employer did not perform any diagnostic tests nor did it present any evidence to suggest that the claimant's blood alcohol rose to that level. On this record, the Board is constrained to conclude that the employer has not met its burden pursuant to Section 402(e) of the Law proving a violation of its policy.(R.R. at 10a.) Employer then filed the instant appeal.,
Our review of the Board's decision is limited to determining whether there was a constitutional violation or an error of law, whether any practice or procedure of the Board was not followed, and whether the necessary findings of fact are supported by substantial evidence. Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169, 1171 n.1 (Pa. Cmwlth. 2007).
Claimant filed a Notice of Intervention in the appeal and the Board filed notice that it would not be filing an appellate brief.
Employer argues that the Board's finding that Employer's Drug-Free Workplace Policy required evidence of a blood alcohol content of .04% or higher is not supported by substantial evidence and that the Board erred in failing to address Claimant's violation of its Motor Vehicle Policy as an alternative basis for finding willful misconduct. However, assuming that Employer is correct in both respects, the certified record of this case demonstrates that Employer failed to sustain its burden of proving that Claimant is ineligible for benefits under Section 402(e) and the Board's order must be affirmed nonetheless.
Employer also argues that the Board erred in failing to address the inappropriate e-mails between Claimant and his female supervisor as an independent basis for finding willful misconduct. However, Claimant testified that his employment was terminated on July 9, 2012, because of the violation of Employer's Drug-Free Workplace Policy and Motor Vehicle Policy (R.R. at 29a), and Employer's witness, Rautzhan, could not testify as to the reason for his discharge because she was not present, and it was her "[u]nderstanding [that] it was due to violation of company policies." (Id. at 44a-45a.) Moreover, Employer did not argue that Claimant was discharged for the inappropriate e-mails either before the UC Service Center (see Service Center Exhibits 7-7a, 8), or at the hearing before the Referee. (See R.R. at 45a, 56a-57a.) In the absence of any evidence that this was the cause of Claimant's separation from employment, Employer cannot now assert a new and different basis for denying benefits for willful misconduct under Section 402(e). See, e.g., Panaro v. Unemployment Compensation Board of Review, 413 A.2d 772, 774 (Pa. Cmwlth. 1980) ("In 'willful misconduct' cases, the employer has the burden of proof. Not only must the employer prove the claimant committed some act which constitutes 'willful misconduct,' the employer must also prove that the act in question was the actual reason for the claimant's discharge....") (citations omitted).
This Court may affirm the Board's order where the correct basis for the decision is apparent on the record. Philadelphia Parking Authority, 1 A.3d at 969.
As noted above, both Employer's Drug-Free Workplace Policy and Motor Vehicle Policy prohibit Claimant from "being under the influence of alcohol," and neither prohibits the mere consumption of alcohol. (R.R. at 59a, 72a.) Thus, in order to sustain its burden of showing that Claimant had committed willful misconduct by "being under the influence of alcohol" as prohibited by the policies, Employer was required to present some evidence of impairment, and evidence of the mere consumption of alcohol, as in this case, is not sufficient. Keay v. Unemployment Compensation Board of Review, 551 A.2d 391, 393-94 (Pa. Cmwlth. 1988); Hammond v. Unemployment Compensation Board of Review, 465 A.2d 79, 80 (Pa. Cmwlth. 1983). Because Employer failed to present sufficient evidence to sustain its burden of proving that Claimant committed willful misconduct under Section 402(e) of the Law by violating its Drug-Free Workplace Policy and its Motor Vehicle Policy, the Board did not err in reversing the Referee's decision.
Cf. Lindsay v. Unemployment Compensation Board of Review, 789 A.2d 385 (Pa. Cmwlth. 2001) (holding that evidence of a claimant's odor of alcohol and glassy eyes is sufficient to support a finding that the claimant was under the influence of alcohol in violation of the employer's work policy); Klink v. Unemployment Compensation Board of Review, 289 A.2d 494, 495 (Pa. Cmwlth. 1972) (holding that evidence of a claimant's odor of alcohol while soliciting order from customers is sufficient to support a finding of willful misconduct). --------
Accordingly, the Board's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge Judge McCullough dissents.
Judge Brobson did not participate in the decision of this case. ORDER
AND NOW, this 5th day of August, 2013, the order of the Unemployment Compensation Board of Review, dated December 31, 2012, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge