Opinion
No. 959 C.D. 2011
02-13-2012
Veronda H. Roundtree, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Veronda H. Roundtree (Claimant) appeals from a decision of the Unemployment Compensation Board of Review (Board) affirming the decision of the Referee denying her unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law) for willful misconduct because she admittedly provided false information to her Employer, Southeastern Pennsylvania Transportation Authority (SEPTA). Finding no fault with the Board's decision, we affirm.
Act of December 5, 1935, Second Ex. Sess., P.L. (1937), 2897, as amended, 43 P.S. §802. That section provides, in relevant part:
An employe shall be ineligible for compensation for any week -
(e) in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act.
Claimant was employed by SEPTA as a full-time bus driver from March 11, 2008, through November 16, 2010. On November 5, 2010, she was given a last-chance agreement with one-year probation effective that date which provided that she would be subject to discharge if she was involved in any incidents for which discipline was appropriate. The agreement was signed by Claimant and her union representative as well as James Schirg (Schirg), Employer's Deputy Director of Transportation.
On November 12, 2010, Claimant was driving her bus when it was stopped in Collingdale due to traffic. She exited the bus to determine the problem and allegedly got into a verbal altercation with a police officer regarding the traffic problem. That same day, Employer's transportation manager, Tyrone Clay (Clay), received a phone call from "Control" stating that the Police Chief of Collingdale had called indicating that there had been a problem between a police officer and Claimant. Two days after speaking to the Chief of Police, Claimant was asked by Clay if she spoke to a police officer in Collingdale on her route on the day in question and she denied doing so. As a result of providing false information about the incident with the police officer and leaving her bus unattended, Claimant was terminated from employment.
Claimant applied for unemployment compensation benefits with the UC Service Center stating on the Claimant Questionnaire that the reason she was discharged was because: "I talked to a police officer. He was rude and he did not give me any information. I asked for his badge number. He called SEPTA and complained about me." (Original Record at 8.) Employer also filled out an Employer Questionnaire indicating that Claimant was terminated due to conduct towards a police officer. Additionally, Employer had a rule prohibiting employees from providing false information and Claimant had provided false information. Further, it required its bus drivers to remain on the bus during an incident unless they were directed otherwise. If a bus operator had to leave his or her bus unattended, Employer had a detailed procedure that the bus driver was required to follow. Claimant had violated Employer's policy regarding those policies. Employer attached reports and included an interview report which also identified additional violations of Employer's rules involving bus operations, a police report and three Employer reports regarding the police incident. The Department of Labor and Industry, Office of UC Benefits, denied Claimant benefits under Section 402(e) of the Law for willful misconduct. Claimant appealed.
Before a Referee, Clay testified that he received a phone call from the Chief of Police of Collingdale regarding an incident that Claimant had with a police officer who was helping with an evacuation drill at a school with about 800 kids. He stated that traffic was stopped on MacDade Boulevard for about 10 minutes and, according to the Chief of Police, Claimant got off her bus and confronted one of the police officers. She was arguing that he should let traffic through. The police officer became irate and called Employer's Control Center. Clay stated that later that day, the Chief of Police called back to say that someone called the police station - they believed it was Claimant - and was cussing at the secretary and asking why the buses couldn't get through. Clay stated that he would definitely investigate the matter. He eventually talked to Claimant on her bus and asked her about the incident which she denied. She said nothing happened. Clay asked if Claimant remembered speaking to a police officer at all and she said "No." (February 3, 2011 Hearing Transcript at 7.) Clay also asked her if she remembered the police stopping traffic on MacDade while kids were crossing the street and she said "Oh, yes. I remember that." (February 3, 2011 Hearing Transcript at 7.) Clay stated that he talked to her for about 30 minutes asking her if she ever talked to a police officer and she never admitted to that, but made up a story about talking to a motorist and stated that maybe the police officer overhead that and did not like what he heard. Finally, Clay stated that Marlaina Fulton (Fulton), the dispatcher, called him about three hours later and told him that Claimant was there and wanted to talk to him because she wanted to change her story because everything she had told him earlier was a lie and she had talked to a police officer. "She said she knew she was on her last chance and she was scared. And I just more or less said well, oh well. There's nothing I can do. I already completed my report and turned it in. I'm done." (February 3, 2011 Hearing Transcript at 8.) Fulton then testified that what Clay stated was exactly what happened. They both offered into evidence the incident reports that they filled out.
Schirg, Employer's Deputy Director of Transportation, testified regarding the other violations with which Claimant was charged. He stated that she had violated Employer's rule regarding knowledge of rules and special instructions (ASR 3); personal conduct (ASR 7); insubordination in provoking confrontation (ASR 9, ¶16); supplying false information (ASR 9, ¶19); conduct toward the public projecting a positive image of Employer (ASR 10); staying in Employer's vehicle until Employer gives further direction (ASR 10, ¶C6); failing to fill out an incident report (ASR 10, ¶C8); and failing to secure the vehicle (BDR 154). Schirg stated that Claimant had been given a copy of the suburban operations manual and signed for a copy of the manual. She was required to have knowledge of the rules and abide by the rules.
The Record does not define "ASR."
BDR 154 requires that to secure the vehicle properly, an operator must do the following:
When necessary for the operator/employee to leave the bus/trackless trolley unattended while on the street, in a terminal or a loop, or storing the bus/trackless trolley at a district, the following actions must be taken
AT ALL LOCATIONS :
a. Place the transmission selector in "neutral" position.
b. Set the parking brake.
c. Turn Master Switch "OFF".
d. Turn anti-theft key switch to "park" position and remove the anti-theft key.
e. Remove transfers and any other Authority property.
f. Chock wheels, curbside, in the declining direction, (if chock is not available, turn wheel toward curb).
Claimant, appearing pro se, testified that when she came upon the stopped traffic, her passengers were antsy and she had always been told to keep the passengers informed. So she thought she was doing her job by getting off of the bus and asking the police office what was going on. She stated that she had to get off the bus to let Control know why traffic wasn't moving and to let the passengers know what was going on. When she asked the police offer why traffic wasn't moving, he didn't say anything and just looked at her. She asked him several times and finally he just yelled at her "no." That's when she asked for his badge number and he gave her 26. She thought he was lying because usually badge numbers had at least three numbers. "I didn't see it as a SEPTA situation. He yelled at me. He didn't - you know, I didn't have no incident, no problems. So, I kept on with my trip." (February 3, 2011 Hearing Transcript at 14.) She said the reason she didn't tell Clay what happened was because he asked if she had an altercation with the police officer, and she said no. She said "he was asking me on and on. And I'm like oh gosh, I'm on my last chance which I was. And I was like no. And I thought about it. I said, no. I didn't do nothing wrong." (February 3, 2011 Hearing Transcript at 15.) She admitted that she was scared because it was her last chance but she still believed she didn't do anything wrong. Claimant denied asking the police officer to stop traffic and also denied calling the police department. However, she admitted that she looked at Employer's rules even though she did not have them all under her belt yet. She also admitted that she left her bus running and did not chock the bus as required by BDR 154. She stated that she took her key and closed the door.
The Referee found that Claimant was on a last-chance agreement with Employer when she encountered the traffic stop. Claimant spoke with a police officer but the details of the conversation were in dispute. Claimant's supervisor questioned her regarding the conversation with the police officer, but Claimant denied speaking to the police officer and later recanted and admitted she had spoken to the police officer but denied any conflict. The Referee determined that Employer had not substantiated most of the allegations with competent, non-hearsay evidence, including not following proper procedure in leaving the bus unattended. However, the Referee concluded that Employer established that Claimant lied about having an interaction with the police officer based on Claimant's own reversal of her statement:
The Referee believes the employer can reasonably expect the claimant to be forthcoming, or at least truthful. The Referee considers the claimant's misrepresentation of the facts about her conversation with the officer as only negligibly significant given that she had attempted to contact her supervisor and correct the information shortly after telling the supervisor that she did not talk to the officer. In this case, however, the Referee considers the Claimant's status as on a last chance agreement to be relevant. Since she was on a last chance agreement, the claimant was on heightened notice to strictly toe the company line which the claimant failed to do. The Referee finds that this policy violation constitutes willful misconduct, and the claimant is ineligible for benefits.(Referee's February 22, 2011 decision at 2.)
On appeal to the Board, Claimant, now represented by Counsel, raised the following arguments:
• she was disputing the findings of fact in their entirety because they were not made in the proper context;(Original Record, February 18, 2011 letter from Claimant to Department of Labor.)
• the alleged incident for which she was terminated did not rise to the level of willful misconduct;
• her alleged failure to accurately respond to her supervisor's accusation that she had an altercation did not constitute willful misconduct or harm Employer's interest;
• her interaction with the police officer was done with the intent to further Employer's interest by trying to expeditiously make her bus route as fast as possible;
• she did not have an altercation with the police officer;
• her omission to recall her conversation with the police officer did not emanate from deliberate deceit but rather from her belief that there was no altercation;
• there is no evidence of what the last chance agreement entails with regard to what constitutes a further disciplinary incident; and
• Employer's last chance agreement is not necessarily synonymous with the legal criteria for willful misconduct.
The Board made different findings from those of the Referee. It found that the last-chance agreement provided that Claimant would be subject to discharge if she was involved in any incidents for which discipline was appropriate. Further, Employer had a rule prohibiting employees from providing false information to Employer. It also had a procedure that bus drivers were required to follow when leaving their buses unattended. It also found that Claimant exited her bus to determine why traffic had stopped on November 12, 2010; that Claimant had some conversation with the police officer at the intersection; that Employer had received a telephone call from the Chief of Police regarding Claimant's behavior; that Claimant's supervisor questioned Claimant regarding the conversation with the police officer but she denied speaking to him; and that Claimant later recanted and admitted that she had spoken with the police officer but denied any conflict. Claimant was discharged for violating multiple Employer rules, including providing false information to her supervisor. The Board noted that although Claimant was discharged for violating multiple Employer polices and Employer had not provide firsthand evidence that she violated any rules during her conversation with the police officer, Claimant admitted that she left the bus without following the proper procedures and admitted that she gave her supervisor a false report. Further, her supervisor testified that he gave Claimant multiple opportunities during his interview with her to tell him the truth about the incident. For both incidences, Claimant did not have good cause for her actions at the time and, based on both of her violations of Employer's rules, benefits were denied due to willful misconduct. This appeal by Claimant followed.
Our scope of review of the Board's decision is limited to determining whether an error of law was committed, constitutional rights were violated or findings of fact were supported by substantial evidence. Frazier v. Unemployment Compensation Board of Review, 833 A.2d 1181 (Pa. Cmwlth. 2003).
Claimant raises five issues on appeal before this Court:
• Whether Claimant committed willful misconduct by allegedly providing inaccurate information to her supervisor about an alleged conversation she had with a police officer during her bus route when she tried to find out why the route was blocked for the purpose of keeping her passengers satisfied and informed, and when she misunderstood initially what was being asked of her and her inadvertent failure to disclose her conversation did not result in any demonstrated harm to Employer.(Claimant's brief at 2.) Because only the first issue has been preserved for appeal, as the next three were not raised before the Board or referenced in the petition for review before this Court, see Pa. R.A.P. 1551(a) and 1513(d), and the last issue was not referenced in the petition for review before this Court, see Pa. R.A.P. 1513(d), we will only address that issue.
• Whether Claimant's alleged misstatement to her supervisor was de minimus conduct which did not rise to the level of willful misconduct when the supervisor's questioning was ambiguous and Claimant did not perceive that the questioning involved anything that involved the business interests of Employer and was not an altercation or incident which required reporting to Employer but rather was a casual interaction with a police officer.
• Whether Claimant committed willful misconduct when she allegedly did not follow proper procedures regarding the operation of her bus when such alleged failure was inadvertent and did not harm Employer's interest indicate an intentional or deliberate act.
• Whether the Referee repeatedly erred by admitting unduly prejudicial hearsay testimony by Employer.
• Whether there was a lack of substantial evidence to support the decision of the Board.
Claimant contends that providing "inaccurate information" to her supervisor about her conversation with a police officer is not willful misconduct because she "misunderstood initially what was being asked of her" and "her inadvertent failure to disclose her conversation did not result in any demonstrated harm to Employer."
In denying Claimant benefits, the Board implicitly found Employer's witnesses credible and did not find Claimant credible when she stated that she misunderstood what was asked of her by her supervisor. When Claimant's supervisor testified that he spoke with Claimant for approximately 30 minutes asking her over and over whether she spoke with a police officer and asked the police officer to let traffic go through, she denied having any conversation with the police officer. Whether or not she had an altercation, bad words or any words, she could have explained to her supervisor what transpired. But she chose to say that she did not speak to the police officer, which was false.
The Board is the ultimate fact finder and determiner of credibility in unemployment compensation cases. McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266 (Pa. Cmwlth. 2003).
Claimant did understand what was being asked of her because she did not want to disclose whatever was said due to her last-chance agreement as indicated by the dispatcher's testimony which was also found credible and Claimant later recanted. That type of conduct is a willful disregard of Employer's interests as well as a disregard of the standard of behavior which Employer could expect from Claimant. Melomed v. Unemployment Compensation Board of Review, 972 A.2d 593 (Pa. Cmwlth. 2009) (a knowing falsehood or misrepresentation to employer concerning employee's work constitutes willful disregard of employer's interest and departure from standards of behavior employer can rightfully expect of employee and is willful misconduct under the statute). It also is irrelevant whether in Claimant's mind there was "any demonstrated harm to Employer." It was only important to Employer whether any harm was demonstrated. The fact is that Employer had a policy in place that Claimant disobeyed and that she had a last-chance agreement with which she failed to comply.
Notably, Claimant's supervisor testified about his conversation with the Chief of Police indicating that the Chief of Police stated that they had always had a good relationship with Employer. So Claimant had the potential of inflicting harm between the two organizations. --------
Ignoring that the Board also found that she violated Employer's work rule when she admittedly left the bus unattended, which alone would constitute willful misconduct and she did not challenge on appeal, there was substantial evidence that Claimant lied to Employer. Because Claimant's behavior constituted willful misconduct, the Board properly denied her unemployment compensation benefits.
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 13th day of February, 2012, the order of the Unemployment Compensation Board of Review, dated April 28, 2011, at No. B-516836, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Willful misconduct has been defined as (1) the wanton and willful disregard of the employer's interest; (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. Sheetz, Inc. v. Unemployment Compensation Board of Review, 578 A.2d 621 (Pa. Cmwlth. 1990).