Opinion
No. 7 C.D. 2014
06-04-2014
Steven Roque, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Stephen Roque (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) that affirmed the referee's denial of benefits under 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).
The facts, as initially found by the referee and confirmed by the Board, are as follows:
1. The claimant was last employed as a paratransit driver by Easton Coach from July 2006 at a final rate of pay of $11.25 an hour until his last day of work on August 16, 2013.
2. The employer's code of conduct calls for disciplinary action up to and including separation of employment for violation of safety or health policies.
3. The claimant had a history of disciplinary action leading up to a last chance agreement that was issued on March 4, 2013 which was the result of two instances of unsafe driving.Referee's Decision, October 21, 2013, (Decision), Findings of Fact Nos. 1-12 at 1-2; Reproduced Record (R.R.) at 3a-4a.
4. At the time of the last chance agreement, the employer warned the claimant that any further infractions of the rules of conduct or any conduct which the company believes to be inappropriate would result in termination of employment.
5. On August 16, 2013, at approximately 9:30 AM [sic], the operations manager was driving on Pine Street toward an intersection at Pine and Lehigh Street.
6. As the operations manager was approaching the intersection, the claimant was driving the employer's bus on Lehigh Street toward the intersection.
7. The claimant did not stop for the stop sign at on [sic] Pine and Lehigh Streets and made a right turn in front of the operations manager.
8. The operations manager followed the claimant for approximately a half mile, both driving at speeds exceeding the posted speed limit.
9. Shortly thereafter, the claimant was notified to return to base and was suspended pending an investigation into the incident.
10. On August 20, 2013, the claimant met with the operations manager who asked him about the incident.
11. The claimant denied failing to stop at the stop sign but did state 'so that was you in the red car.'
12. On August 20, 2013, the employer discharged the claimant for unsafe driving after a last chance agreement.
The referee determined:
The Referee recognizes a conflict in testimony between the claimant and employer witness. After a careful review of the evidence of record, the Referee resolves the conflict in favor of the employer. The referee finds the testimony of the operations manager to be credible with respect to the events leading up to the claimant's discharge from employment. In this case, the claimant had a history of disciplinary action concluding in a last chance agreement for unsafe driving practices. The claimant was aware that his job was in jeopardy if another violation occurred. The claimant has not justified his failure to comply with the employer's instruction regarding safe driving. Therefore, the claimant's actions do rise to the level of willful misconduct in connection with his work. Accordingly, benefits are denied under the provisions of Section 402(e) of the Law.Decision at 2; R.R. at 4a.
Claimant appealed to the Board which affirmed and incorporated the referee's findings and conclusions.
Claimant contends that the evidence that he committed a "rolling stop" instead of a complete stop at a stop sign, and exceeded the speed limit for a brief period, did not constitute willful misconduct.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 617 A.2d 695 (Pa. Cmwlth. 1994).
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an Employer's interest, deliberate violation of rules, disregard of standards of behavior which an Employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The Employer bears the burden of proving the existence of the work rule and its violation. Once the Employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383 (Pa. 1985).
Claimant does not contest that he committed either a "rolling stop" or exceeded the speed limit. However, he contends that those infractions were the product of his negligence and did not constitute willful misconduct. For support, Claimant cites Greenway v. Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 2157 C.D. 2012, Filed July 25, 2013). Claimant acknowledges that Greenway was an unpublished decision of this Court and, pursuant to Section 414 of this Court's Internal Operating Procedures, may be cited only for persuasive and not precedential value.
In Greenway, Teresa A. Greenway (Greenway) had been employed as a school bus driver by East Stroudsburg Area School District (District). The District had a policy that the bus drivers were required to report all accidents, including minor incidents, to the transportation dispatcher as soon as possible. The District also had a policy that if a driver received a citation which goes to court and the driver is found guilty, the driver would be terminated. Because of her conduct on September 24, 2009, Greenway, while driving her school bus, received a traffic citation for "vehicle turning left" in violation of Section 3322 of the Vehicle Code, 75 Pa.C.S. §3322. Greenway actually received the citation in the mail on October 8, 2009. She pleaded not guilty. Approximately two weeks after September 24, 2009, a woman contacted the District and asserted that she and Greenway were involved in an accident while Greenway was driving the school bus. Greenway did not notify the District of an accident and denied that she was involved in an accident. The District suspended Greenway and terminated her employment following her conviction under Section 3322 of the Vehicle Code, 75 Pa.C.S. §3322. Greenway, Slip Opinion at 1-3.
Section 3322 of the Vehicle Code, 75 Pa.C.S. §3322, provides that "[t]he driver of a vehicle intending to turn left within an intersection or into an alley, private road or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is so close as to constitute a hazard."
At the hearing before the referee, Greenway testified that she had not been involved in an accident on September 24, 2009, and did not commit any violation. The Board of Review did not credit her testimony in light of her conviction. The Board of Review determined that Greenway's conviction was conclusive proof of the wrongdoing for which she was charged. The Board of Review further determined that Greenway should have been aware that she was involved in some type of incident on September 24, 2009, and failed to report it promptly as required. Greenway, Slip Opinion at 3-5.
Before this Court, Greenway contended that the Board of Review erred when it concluded that she violated the District's policy that required employees to report all accidents because the rule only applied to accidents and did not apply to traffic citations. This Court agreed and determined that the District's policy only required a driver to report an accident. Greenway, Slip Opinion at 5-7.
More relevant to the present matter, this Court also determined that Greenway's conviction did not establish willful misconduct:
We also agree with Greenway's contention that her conviction does not establish the deliberate intentional action required for disqualifying willful misconduct. In doing so, we first reject the Board's assertion that 'Claimant knowingly violated the Employer's [District] conviction-related policy . . . by initiating a left-hand turn during which she failed to yield the right of way to a vehicle approaching from the opposite direction which was so close as to constitute a hazard.' . . . . The policy providing for termination upon conviction is not so much a work rule that sets forth duties or proscribes conduct but is more in the nature of a discipline policy. Moreover, it essentially provides for termination in cases which may amount to nothing more than negligent conduct. Thus, while Greenway's conviction may provide legitimate grounds for discharge, her termination under the policy does not necessarily establish that she engaged in willful misconduct.
. . . .
It is well-settled that mere negligence is insufficient to prove willful misconduct. . . . Rather, an employer must demonstrate that the employee's conduct was intentional
and deliberate. Grieb v. Unemployment Bd. of Review . . . 827 A.2d 422, 426 ([Pa.] 2003). In Grieb, our Supreme Court opined as follows:Greenway, Slip Opinion at 7-9.
[A]n employee's negligence constitutes willful misconduct only where:
It is of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or the employee's duties and obligations to the employer.
We have explained that an employer cannot demonstrate willful misconduct by merely showing that an employee committed a negligent act, but instead must present evidence indicating that the conduct was of an intentional and deliberate nature.
Id. . . . 827 A.2d at 425-426 (internal quotations and citations omitted).
Here, the record demonstrates only that Greenway was convicted of violating Section 3322 of the Vehicle Code. While Greenway's version of what occurred at the intersection was discredited by the Board, the record is devoid of any other evidence indicating the actions or conduct underlying the conviction. The conviction alone, however, does not demonstrate that Greenway deliberately and intentionally disregarded her employer's interests or acted with wrongful intent. Accordingly, without more, the record fails to demonstrate that she committed willful misconduct. Therefore, the order of the Board must be reversed. (Emphasis in Original).
Claimant asserts that his driving mistakes of speeding and failing to come to a complete stop at a stop sign amount to negligence and not willful misconduct.
In contrast, the Board argues that it properly concluded that Claimant's intentional violation of Easton Coach Company's (Employer) safety policy rose to the level of willful misconduct. The Board argues that where Claimant was on a last chance agreement from prior safe driving issues and failed to stop at a stop sign and drove over the speed limit, this Court's analysis should be controlled by Heitczman v. Unemployment Compensation Board of Review, 638 A.2d 461 (Pa. Cmwlth. 1994).
Employer and Claimant entered into the Last Chance Agreement (Agreement) after a drive camera on Claimant's vehicle showed that Claimant ran a red light on February 26, 2013, and "[a] drive cam event on October 15, 2012 clearly shows you rolling through an intersection, creating a near collision in the small street you were turning into." Last Chance Agreement, March 4, 2013, at 1. The Agreement also provided:
Poor driving habits lead to dangerous driving. This is a pattern of aggressive driving that must be corrected in order for you to continue as a member of our team. As a result, you have been suspended from your driving job for a period of three days, 2/28, 3/1, and 3/2/13. You must commit full [sic] to adopting a 'slower' and 'safer' driving style so that we can return you to your driving position.
Our expectations going forward are that you will perform all of your scheduled duties with 100% compliance to the Para Transit Division's safety policies regarding the Smith system safe driving principles and without violating any of the employee conduct and Work Expectations as stated in your Employee Handbook. The following are examples of the infractions of rules of conduct that will result in our final action:
• Any drive cam event which scores an 8 or higher.
• Any conduct which the Company believes to be inappropriate or disruptive to the normal operations of the company.
Any violation of the rules or standards of performance outlined above will result in your immediate separation from employment with Easton Coach Company.
In Heitczman, Michael G. Heitczman (Heitczman) was a truck driver for Central Air Freight Service (Central Air). Central Air had "a policy, of which . . . Heitczman was aware, that required its truck drivers . . . if they had to back up, to get out of their vehicles and walk completely around their trucks to ensure that their path of travel was clear to avoid accidents." Id. at 462. On November 25, 1992, Heitczman decided to move his truck in an attempt to get a clear signal on his radio. Heitczman backed up his truck without walking around the truck to determine if there was anything in his path. Heitczman hit a light standard on Palmer Park Mall and sustained damages to his truck and to the light standard. Heitczman was discharged and applied for unemployment compensation benefits. The Board of Review reversed the referee's grant of benefits and Heitczman appealed.
Before this Court, Heitczman argued that he did not intentionally back up his truck improperly and that at most his conduct was negligent. This Court rejected his argument and noted:
Claimant [Heitczman] relies on our Supreme Court's holding in Myers v. Unemployment Compensation Board of Review, . . . 625 A.2d 622 ([Pa.] 1993), to support his contention that mere negligence by an employee does not amount to willful misconduct. In Myers, a truck driver was discharged after being involved in three traffic accidents within a six-month period. Overturning this court's decision, our Supreme Court held that even though claimant was involved in three accidents, his conduct did not constitute willful misconduct making
him ineligible for benefits. Essentially, it found that claimant's unintentional conduct did not constitute willful misconduct, but merely established that he was not a good truck driver. This holding is in accord with the general rule in unemployment cases that inability to perform assigned tasks never constitutes willful misconduct that would cause benefits to be denied. Ungard v. Unemployment Compensation Board of Review, . . . 442 A.2d 16 ([Pa. Cmwlth.] 1992).Heitczman, 638 A.2d at 463-64.
However, Myers did not hold that an employee's failure to follow an affirmative obligation placed on him by a reasonable work rule does not establish willful misconduct. To the contrary, in Myers, our Supreme Court, in addressing whether the Claimant could be discharged for failing to report one of the accidents in violation of the work rule, made no mention that mere inadvertence would excuse such a failure . . . .
. . . [I]n this case, there is no question of mistake. Claimant [Heitczman] knew of the existence of the work rule, specifically failed to follow it by backing up his truck without making a 'walk around' and, as a result, hit the light standard that crashed onto the roof of his Employer's [Central Air's] truck. Such conduct is not the type of inadvertence, i.e. negligence, that Meyer . . . addressed, but is more akin to disobedience of a direct instruction. (emphasis added and citations omitted).
This Court agrees with the Board that Heitczman is more analogous to the present case. In Heitczman, Central Air had a policy that drivers had to get out of their vehicles and walk completely around the back of the truck to see that it was clear before backing up. Heitczman backed up without following that directive and hit a light standard which resulted in damages to the light standard and to Central Air's vehicle. This Court determined that Heitczman's failure to do so was akin to disobedience of a direct instruction from Central Air and not mere negligence.
Here, Claimant was instructed after violations of Employer's policy with respect to driving that he had to commit to a "slower" and "safer" driving style. The Agreement was similar to the direct instruction from Central Air. Claimant ignored the Agreement when he rolled through the stop sign and drove significantly above the speed limit. Claimant's failure to follow Employer's reasonable work request constituted willful misconduct. Jackim v. Unemployment Compensation Board of Review, 437 A.2d 775 (Pa. Cmwlth. 1981).
Although it involved the negligent driving of an employee, Greenway is not persuasive in comparison to Heitczman which involves an employee disregarding the directive of his employer as is the case here. Further, in Greenway, this Court determined that Greenway engaged in mere negligence and there was nothing to prove that her conduct constituted willful misconduct beyond her conviction. Here, the Board had the benefit of the testimony of Tracy Deater, operations manager for Employer, who observed Claimant's driving.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 4th day of June, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge
Agreement at 1.