Opinion
No. 986 C.D. 2013
11-21-2013
Joshua M. Spickler, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Joshua M. Spickler (Claimant) petitions this Court for review of the Unemployment Compensation Board of Review's (UCBR) May 13, 2013 order affirming the Referee's decision denying Claimant unemployment compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law). The issue before the Court is whether the Referee erred in relying solely on unsupported hearsay testimony in order to find Claimant ineligible for benefits.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant was last employed as a chicken catcher by B&B Catching Services, Inc. (Employer) beginning February 2008 and ending January 15, 2013. Claimant was initially a crew chief for Employer. In May 2012, Employer informed its employees, including Claimant, by letter that their bonuses would decrease because Employer's income had decreased and its expenses had increased. From that point on, Employer felt Claimant's attitude changed significantly, requiring Employer to demote Claimant from his crew chief position. Employer began receiving complaints from other employees that Claimant's negative attitude was impacting the rest of the crew. Specifically, Claimant refused to drive the company truck and give directions to the incoming crew chiefs. In addition, Claimant refused to put gas in the company truck and cut up his company gas card, thereby requiring other employees to use their own personal credit cards when filling the truck and seek reimbursement from Employer. Employer's owners told Claimant that, unless his attitude changed, they would have to rethink his employment. Claimant subsequently went on medical leave and returned to work a few days before January 15, 2013. On January 15, 2013, Claimant was assigned to work from Employer's truck while other crew members were required to catch chickens. Claimant was not feeling well and decided he would catch chickens instead of work the truck. Claimant did not ask his supervisor's permission to switch his job duties on this date. On January 15, 2013, Employer discharged Claimant for his continued poor attitude and its negative effect on other employees.
Claimant subsequently applied for UC benefits. On February 19, 2013, the Scranton UC Service Center (UC Service Center) denied Claimant benefits under Section 402(e) of the Law. Claimant appealed, and on March 27, 2013, a Referee held a hearing and affirmed the UC Service Center's determination. Claimant appealed to the UCBR. The UCBR affirmed the Referee's decision. Claimant appealed to this Court.
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005).
Claimant argues that the UCBR relied solely on hearsay evidence to determine that he had a poor attitude, and that it adversely affected his co-workers and subordinates. Specifically, Claimant contends that Employer did not produce testimony from anyone who witnessed his allegedly poor attitude or who was allegedly affected by it. Claimant further asserts that Employer provided him no warnings prior to his employment termination, and because he was demoted, he was, in effect, punished for the same alleged conduct twice.
Initially, we recognize:
Section 402(e) of the Law provides that an employee is ineligible for unemployment compensation benefits when his unemployment is due to discharge from work for willful misconduct connected to his work. The employer bears the burden of proving willful misconduct in an unemployment compensation case. Willful misconduct has been defined as (1) an act of wanton or willful disregard of the employer's interest; (2) a deliberate violation of the employer's rules; (3) a disregard of standards of behavior which the employer has a right to expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or a disregard of the employee's duties and obligations to the employer.Dep't of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747-48 n.4 (Pa. Cmwlth. 2000) (citation omitted; emphasis added). The UCBR concluded that "[C]laimant's attitude affected his coworkers and was adverse to . . . [E]mployer's interests." UCBR Op. at 3.
It is well settled that "an unobjected to hearsay statement will be given its probative effect and may support a finding of fact if corroborated by any competent evidence in the record." Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1164 (Pa. Cmwlth. 2012) (emphasis added).
Here, Employer's secretary and co-owner Rebecca Spickler (Ms. Spickler) testified, in relevant part:
There was [sic] ongoing problems with attitude and it all stemmed from money. We had informed [Claimant] in May of 2012 that the bonus money that he had been receiving would not be as significant. He was still getting a bonus, which we still considered a significant amount just
not as much as he had previously. And that was simply due to the fact that you know each year we were in business, income went down, expenses went up and it just wasn't fair. As soon as he was informed of that, the attitude immediately changed and it was very apparent to others on the crew as well that he was very dissatisfied with us.Original Record (O.R.), Item No. 8 at 9 (emphasis added). When the Referee asked Ms. Spickler to give some examples, she related:
For one, there was no communication. Every day I get orders and I have to call each crew member because I don't know until that day where they' re going, how many loads it is, what time they're leaving. They know they're working but they don't know the details. Never answered the telephone. And that is when he was still Crew Supervisor. So I had no feedback at all what was going on with the crew. If there was any issue with the employees. That's the daily functions of the crew. As time went on and things progressively got worse, there were many cases where - there are so many examples. He would say things to the other crew members such as you know we were just trying to negatively impact them. We were taking money from their checks just to do things to better ourselves. There was times when he told other employees that we were trying to get rid of them. There - he had been a Supervisor for a long time. He had a company credit card. He didn't want to drive anymore because he claimed he wasn't getting paid enough to do that. So then we had other drivers such as [crew chief Samuel Allen Strause (Mr. Strause)], who would drive. And there were times when the driver wasn't sure how to get to the farm and there was no assistance given on you know how to get there.O.R., Item No. 8 at 10 (emphasis added). There was no objection to the above quoted testimony.
In addition, co-owner Benjamin Spickler (Mr. Spickler) testified regarding an incident on the truck, wherein, the crew supervisor told Claimant and Mr. Strause that Mr. Strause would be catching chickens and Claimant would be on the truck. Contrary to the supervisor's specific direction, Claimant said he was going to catch the chickens and Mr. Strause had to stay on the truck. See O.R. at 13-14. Mr. Spickler further related that "[he] was getting a lot of feedback that you know this isn't working. . . . A lot of employees were not happy." O.R., Item No. 8 at 15 (emphasis added). Claimant did not object to any of this testimony.
The above testimony was corroborated by Mr. Strause who witnessed Claimant's behavior. When asked by the Referee if he heard Ms. Spickler's and Mr. Spickler's testimony, Mr. Strause testified that he had, and when questioned by the Referee: "Is there anything in that you disagree with in what the testimony was [sic] that they gave that you were aware of?" Mr. Strause responded: "No, sir." O.R., Item No. 8 at 16. The Referee continued inquiring: "Were you present during any of these problems with [Claimant]" to which Mr. Strause retorted: "Yes, I was." Id. (emphasis added). Moreover, Mr. Strause explained the incident on the truck:
And it wasn't the first time something like that had happened. And it was just a continuous pattern of trying to put three guys on the truck. Made it easier for those guys but harder for the guys in the house. And it didn't matter if we had worked all morning and into the night or we just had to work at night or whatever the circumstances may be; it was just - there was no reason for it. And we kept having to go through it again and again.O.R., Item No. 8 at 16. Mr. Strause expounded that Claimant did not give him or the other employees directions to the farms and did not let them use the company credit card to purchase gas for the work van. See O.R., Item No. 8 at 17-18. Mr. Strause was asked by the Referee: "The employer seems to say everything was fine before May. Does that seem right?" To which Mr. Strause responded: "Basically yes." O.R., Item No. 8 at 17. The Referee followed up: "and after [M]ay things changed?" To which he answered: "Yes, sir." Id. Finally, the Referee inquired of Mr. Strause: "[Mr. Spickler] seems to say that some individuals were coming to him and telling him about these incidents. Were you one of those people?" To which he responded: "Yes, I was one of those people." O.R., Item No. 8 at 18. The Referee followed up with: "Is anything he said, these allegations that said well here's some employees. [sic] They told me about this. Any of the things that he said [sic] are any of those things incorrect about what you told him?" To which he replied: "No." Id. Clearly, Mr. Strause witnessed Claimant's allegedly poor attitude and was negatively affected by it.
Consequently, even if the testimony of Mr. Spickler and Ms. Spickler was hearsay, their testimony was sufficiently corroborated by Mr. Strause's testimony regarding Claimant's attitude and the effect it had on him. Mr. Strause's testimony sufficiently corroborated Mr. Spickler's and Ms. Spickler's testimony to entitle it to probative value. Yost. Accordingly, the UCBR's determination that Claimant's negative attitude affected his coworkers and was adverse to Employer's interests was supported by substantial evidence.
"Substantial evidence is defined as evidence that a reasonable mind might accept as sufficient to support the conclusion reached. Where substantial evidence supports the [UCBR's] findings, they are conclusive on appeal." Frimet v. Unemployment Comp. Bd. of Review, ___ A.3d ___, ___ n.7 (Pa. Cmwlth. No. 246 C.D. 2013, filed October 4, 2013) (citation omitted). --------
Claimant next asserts that he was not given any warnings prior to his employment termination and that his demotion was a second punishment for the same conduct. We disagree. Claimant received two written warnings. A July 26, 2012 letter concerning his failure to work a mandatory Saturday, and a November 28, 2012 letter concerning his refusal to perform a job as instructed. See O.R., Item No. 3, Exs. B, C. In addition, the following exchange occurred at the Referee hearing:
R[eferee] And between the two of you [Mr. Spickler and Ms. Spickler], you're having discussions from May until January with [Claimant] about this, is that right when you're sending the letters?
E1 [Mr. Spickler] I had - yes and I had multiple phone conversations with him about his attitude and that if things did not change that you know we were going to have to make some decisions.O.R., Item No.8 at 15. Moreover, Ms. Spickler testified that Claimant was demoted when he returned from medical leave. Claimant then worked three days before his discharge which decision was made because "nothing had changed", and on January 15, 2013, Claimant refused to work the truck as directed and caused two less experienced employees to work the truck. See O.R., Item No. 8 at 12; Item No. 3. Thus, the record evidence reveals that Claimant was warned prior to his employment termination, and his continued behavior about which he had been warned persisted after his demotion and ultimately resulted in his discharge. Accordingly, Claimant's argument is without merit.
For all of the above reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 21st day of November, 2013, the Unemployment Compensation Board of Review's May 13, 2013 order is affirmed.
/s/_________
ANNE E. COVEY, Judge